SOCIAL CLUBHOUSE v. FORD MOTOR COMPANY, No. 2:2003cv04558 - Document 402 (D.N.J. 2012)

Court Description: OPINION. Signed by Judge Esther Salas on 2/6/2012. (nr, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 NOT FOR PUBLICATION 15 375) filed by Plaintiffs, various owners of Ford s E-350 vans. Also before the Court is Ford s 16 motion to amend (Doc. No. 393) its Answer to include an affirmative defense asserting that any 17 implied warranties were limited by the terms of the express warranties issued with its vehicles. 18 The Court has considered the parties submissions and decided the matter without oral argument 19 pursuant to Federal Rule of Civil Procedure 78. For the following reasons, the Court will grant 20 21 22 23 24 Ford s motion to amend and deny class certification. 25 this District for consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. In re Ford 26 Motor Co. E-350 Van Prods. Liab. Litig. (No. II), 374 F. Supp. 2d 1353 (J.P.M.L. 2005). 27 Following the MDL transfer, Plaintiffs filed a Consolidated Amended Class Action Complaint 28 ( Complaint ). In the Complaint, Plaintiffs alleged that their Ford E-350 15-passenger vans 29 were defectively designed due to a high center of gravity that leads to an unusually high rollover 30 rate and, consequently, an increased risk of death or injury. No Plaintiffs or members of the UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ____________________________________ ) Hon. Esther Salas IN RE FORD MOTOR CO. E-350 ) Civil Action No. 03-4558 VAN PRODUCTS LIABILITY ) MDL No. 1687 LITIGATION (NO. II) ) ____________________________________) OPINION SALAS, District Judge: This matter comes before the Court on the renewed class certification motion (Doc. No. Background On June 16, 2005, the Judicial Panel on Multidistrict Litigation transferred five actions to 1 31 proposed class have actually suffered a rollover; indeed, the proposed class specifically excluded 32 those who claim damages for personal injury as a result of purchasing or leasing a Ford E-350 33 van. (Compl. ¶ 63). Plaintiffs claim economic harm because the alleged defect purportedly 34 makes the E-350 vans unsuitable and unfit for transporting 15 passengers. The Complaint 35 purported to bring claims on behalf of Plaintiffs and a putative nationwide class that includes: 36 all persons and entities who purchased or otherwise lawfully acquired E350 15-passenger vans 37 (a/k/a E350 Super Club Wagons, Econoline 15-passenger vans, or E350 Super Duty Extended 38 Length passenger vans) manufactured by Defendant Ford Motor Company . . . model years 1991- 39 2005, and who reside in the fifty states and/or the District of Columbia. (Compl. ¶ 1). 40 The Complaint initially asserted claims on behalf of various named Plaintiffs from five 41 states: Alabama, Arkansas, California, Illinois, and New Jersey. Ford moved to dismiss the 42 entire Complaint. In an Opinion and Order dated September 2, 2008 (amended September 3, 43 2008), the Hon. Harold A. Ackerman, Senior District Judge, granted in part and denied in part 44 Ford s motion. In re Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), No. 03-4558, MDL 45 No. 1687, 2008 WL 4126264, at *29 (D.N.J. Sept. 2, 2008) ( MTD Opinion ). Judge Ackerman 46 applied the law of the Plaintiffs home states to their respective claims, except where no material 47 difference existed between the various states laws, and he dismissed the following claims: 1) the 48 Alabama, Arkansas, and Illinois Plaintiffs express warranty claims; 2) the Alabama, Arkansas, 49 and Illinois Plaintiffs implied warranty claims; 3) the Alabama and Arkansas Plaintiffs 50 respective state consumer fraud statutory claims; and 4) one of the three state consumer fraud 51 statutory claims advanced by the California Plaintiff. Id. at *3, 29-30. After Judge Ackerman 52 resolved Ford s motion to dismiss, the parties in November 2008 agreed to the joinder of newly 2 53 named Plaintiffs from many new jurisdictions. (Doc. No. 150). Subsequently, this matter was 54 reassigned to the Hon. Garrett E. Brown, Jr., Chief District Judge, in August 2009. Following 55 extensive discovery, Ford filed twenty-one separate motions for summary judgment seeking 56 judgment against all named Plaintiffs on all claims. Chief Judge Brown resolved these motions 57 with three separate decisions, applying the law of the forum state to respective Plaintiffs claims. 58 First, Chief Judge Brown granted two of Ford s motions and dismissed two named Plaintiffs by 59 Opinion and Order of November 18, 2009. In re Ford Motor Co. E-350 Van Prods. Liab. Litig. 60 (No. II), No. 03-4558, 2009 WL 4117359, at *1-2 (D.N.J. Nov. 18, 2009). Subsequently, Chief 61 Judge Brown resolved the majority of the remaining motions with a second, omnibus Opinion 62 and Order filed July 9, 2010. See In re Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), 63 No. 03-4558, 2010 WL 2813788, at *80 (D.N.J. July 9, 2010) ( July 9 Opinion ) (summarizing 64 the rulings as to each motion and party). The July 9 Opinion permitted supplemental discovery 65 and ordered six Plaintiffs from four jurisdictions to present evidence that they had conferred a 66 benefit to Ford, in order to sustain their unjust enrichment and state consumer fraud act claims. 67 Id. at *17-18, 33, 43-44, 56. These Plaintiffs responded to the orders to show cause, and Chief 68 Judge Brown issued a third opinion that granted in part and denied in part Ford s summary 69 judgment motions as to these claims. See In re Ford Motor Co. E-350 Van Prods. Liab. Litig. 70 (No. II), No. 03-4558, 2011 WL 601279, at *11 (D.N.J. Feb. 16, 2011) ( February 16 Opinion ). 71 As a result of these three summary judgment opinions, the following claims remain. 72 73 3 74 75 76 77 State Plaintiff CA Express Warranty Implied Warranty % Social Clubhouse % Bethany Baptist 80 81 82 83 84 % Faith Tabernacle 79 Unjust Enrichment % First United Macedonia 78 Consumer Fraud Statute % NJ % % % (2001 van) Hickman Temple % Mt. Airy PA % Bethel GA % % Allen Temple Diaz % Mestre % 85 86 FL 87 MI Conant Avenue % 88 NY Bishop Anderson % 89 TX % % (nondisclosure theory) St. Luke s 90 91 The omnibus July 9 Opinion denied Plaintiffs initial motion for class certification, but 92 granted Plaintiffs leave to re-file in light of the court s summary judgment rulings. Following 93 Chief Judge Brown s third and final summary judgment ruling, Plaintiffs renewed their motion 94 for class certification. This matter was reassigned to the undersigned by Order of June 15, 2011. 95 Plaintiffs Proposed Classes 96 97 98 The renewed motion for class certification proposes the following claim-based classes ( claim classes ): 4 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 All persons or entities residing in the States of Georgia, Michigan, New Jersey, New York and Pennsylvania, who purchased or otherwise acquired and currently own a Ford E-350 van, new or used, model years 1991-2005, and assert BREACH OF IMPLIED WARRANTY claims under their respective state laws and all persons or entities residing in the State of Georgia who purchased the subject vehicles and assert a BREACH OF EXPRESS WARRANTY claim. (Pls. Br. at 11). In response to Ford s opposition argument, Plaintiffs have limited their 118 proposed unjust enrichment class to purchasers of new Ford E-350 vans prior to April 2004. 119 (Pls. Reply Br. at 35 & n.22) (emphasis added). As an alternative to these three classes, 120 121 122 123 124 125 126 Plaintiffs seek certification of eight, state-based classes ( state classes ) consisting of: 127 and adequacy requirements of Federal Rule of Civil Procedure 23(a), and that common questions 128 of law and fact predominate over individual considerations, rendering class litigation a superior 129 method of adjudication for purposes of Federal Rule 23(b)(3). Alternatively, Plaintiffs seek class 130 certification pursuant to Federal Rule 23(b)(2), arguing that the core of the relief sought by 131 Plaintiffs in this case is equitable in nature. (Pls. Br. at 61). To assist the Court s review of 132 their proposed classes, Plaintiffs submit a proposed trial plan. Ford objects to all of Plaintiffs All persons or entities residing in the States of Florida, New York and Texas, who purchased or otherwise acquired and currently own a Ford E350 van, new or used, model years 1991-2005, and assert VIOLATION OF CONSUMER PROTECTION ACTS in their respective states. All persons or entities residing in the States of California, Georgia and Pennsylvania, who purchased or otherwise acquired and currently own a Ford E-350 van, new or used, model years 1991-2005 and assert UNJUST ENRICHMENT under their respective state laws. All persons or entities residing in the State of [state] who purchased or otherwise acquired and currently own a Ford E-350 van, new or used, model years 1991-2005. (Id.). Plaintiffs contend these proposed classes satisfy the numerosity, commonality, typicality, 5 133 proposed classes. 134 The main thrust of Plaintiffs certification argument is that Chief Judge Brown s 135 summary judgment rulings have pared down the initial proposed classes into manageable groups, 136 and that the new proposed classes satisfy the predominance requirement of Federal Rule 137 23(b)(3). For the remaining implied warranty claims, which derive from each state s version of 138 UCC § 2-314, Plaintiffs contend that they can present common proof of a design defect, the 139 existence of an implied warranty, causation, and a common injury measured by the difference in 140 value between the product as warranted and the product as received per UCC § 2-714. Although 141 Plaintiffs suggested measuring their common injury by the cost of retrofit in their initial motion 142 for class certification (see Doc. No. 254 at 47 n.15), Plaintiffs now set forth a uniform retrofit 143 cost of $2,100 as their common proof of injury. With regard to the remaining consumer fraud 144 claims, Plaintiffs assert that they can present common proof of Ford s alleged misrepresentations, 145 deception, ascertainable loss, and causation. Conversely, Plaintiffs argue that they do not need to 146 make individual showings of reliance in order to establish their consumer fraud claims. Finally, 147 with regard to the remaining unjust enrichment claims, Plaintiffs state that they can present 148 common proof of unjust benefit to Ford, stemming from the fact that Ford did not disclose the E- 149 350 van s defect (inability to carry fifteen passengers). 150 Ford contests Plaintiffs assertion that they can establish their remaining claims with 151 common proof under the applicable law of the remaining jurisdictions. Ford argues that many of 152 the elements necessary to establish Plaintiffs claims such as deception and causation will 153 require individualized inquiries into the circumstances of each class member s claims. In 154 addition to these individualized inquiries on the elements of Plaintiffs claims, Ford argues that 6 155 its statute of limitations defenses will require additional individual inquiries to determine 156 whether specific class members claims are time-barred. The prevalence of individualized 157 158 159 160 161 inquiries, Ford argues, defeats the predominance requirement of Federal Rule 23(b)(3). 162 argument predicated on the factual contention that the express warranty issued with every new E- 163 350 van limited the duration of any implied warranty. Plaintiffs argued that this line of implied 164 warranty defense was foreclosed, because Ford failed to raise it as an affirmative defense in its 165 Answer to the Complaint, or in any of the summary judgment motions. (Pls. Reply Br. at 13). 166 In response, Ford moved to amend its Answer to include this affirmative defense, which 167 Plaintiffs oppose on the ground of waiver. 168 169 Motion to Amend During the briefing of the renewed class certification motion, Plaintiffs objected to Ford s Ford now seeks to include the following durational limitation implied warranty affirmative defense to its Answer: 170 171 172 173 174 175 176 177 178 179 All of the vehicles in the purported classes were sold to their initial purchaser with an express warranty provided by Ford that validly limited the duration of the implied warranty of merchantability to the period of the express warranty, i.e., 3 years or 36,000 miles, whichever comes first. Accordingly, the claims of Plaintiffs or some members of the purported classes are barred because they never suffered a legally cognizable injury, damages, and/or loss within 3 years or 36,000 miles of the initial purchase of the vehicle. (Doc. No. 393, Ex. A). Ford contends that this amendment is warranted, because the substance 180 of the proposed affirmative defense appeared in Ford s Answer as a response to an allegation in 181 Plaintiffs Class Action Complaint. Furthermore, Ford points out that it invoked this defense in 182 its original motion to dismiss before Judge Ackerman, and again in its opposition to Plaintiffs 7 183 renewed class certification motion. In light of these uses of the defense, Ford contends that it 184 would not prejudice Plaintiffs to allow Ford to redesignate the defense as an affirmative defense. 185 Plaintiffs respond that allowing the affirmative defense nearly three years after Ford s 186 Answer, and well after the close of discovery and summary judgment motions, would be 187 prejudicial. Plaintiffs contend that Ford abandoned this durational limitation implied warranty 188 defense after Judge Ackerman decided the motion to dismiss in September 2008, and that Ford 189 has not shown grounds for excusing its undue delay in seeking the amendment. As a result, 190 Plaintiffs state that they did not explore the factual issues pertinent to this durational limitation 191 defense in discovery. Plaintiffs also argue that Ford s proposed amendment would be futile. In 192 this regard, Plaintiffs note that Judge Ackerman rejected Ford s durational limitation argument at 193 the motion to dismiss stage, and claim that Ford s disclaimers are not sufficiently conspicuous to 194 be enforceable under UCC § 2-316(2). 195 The Federal Rules of Civil Procedure allow for flexibility when it comes to a party s 196 pleadings, placing greater emphasis on substance than technical form. Federal Rule of Civil 197 Procedure 15(a)(2) provides that leave to amend a party s pleadings should be freely give[n] . . . 198 when justice so requires. Federal Rule 8(e) instructs that [p]leadings must be construed so as 199 to do justice. Similarly, [i]f a party mistakenly designates a defense a counterclaim, or a 200 counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were 201 correctly designated, and may impose terms for doing so. Fed. R. Civ. P. 8(c)(2). The decision 202 regarding whether or not to grant leave to amend rests with the district court s sound discretion. 203 [A]ffirmative defenses can be raised by motion, at any time (even after trial), if plaintiffs suffer 204 no prejudice. Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 506 (3d Cir. 2006). A district 8 205 court may deny leave to amend a complaint if a plaintiff s delay in seeking amendment is undue, 206 motivated by bad faith, or prejudicial to the opposing party, but delay alone is an insufficient 207 ground for denying leave to amend. Cureton v. Nat l Collegiate Athletic Ass n, 252 F.3d 267, 208 272-73 (3d Cir. 2001). The Court will allow Ford s proposed amendment, because Plaintiffs 209 assertion of undue delay and prejudice is overstated, and Plaintiffs attack on the merits of the 210 warranty disclaimers is premature. 211 Plaintiffs cannot claim unfair surprise at this defense, because Plaintiffs opened the door 212 on the issue of the enforceability of Ford s implied warranty disclaimers in their Complaint. In 213 fact, Paragraph 85 of the Complaint aptly anticipated Ford s durational limitation defense and 214 preemptively countered that defense by stating that any such disclaimers were unconscionable 215 and unenforceable. That paragraph states: 216 217 218 219 220 221 Any express limitation or negation of Ford s implied warranties that the E350 vans were fit to accommodate and safely transport 15 passengers, when such was not the case, would be unreasonable and unconscionable and, accordingly, is unenforceable pursuant to UCC § 2-316. (Consolidated Am. Class Action Compl. ¶ 85). It is undisputed that Ford initially opposed this 222 contention in the motion to dismiss before Judge Ackerman (Ford s MTD Br. at 31), and then 223 subsequently denied this contention in its Answer. (Answer ¶ 85). In ruling on the motion to 224 dismiss, Judge Ackerman addressed both Ford s durational limitation defense and Plaintiffs 225 anticipatory response that such disclaimers were unconscionable, concluding that it would be 226 inappropriate to rule on disclaimers and unconscionability at the motion to dismiss stage. MTD 227 Opinion, 2008 WL 4126264, at *20 (D.N.J. Sept. 2, 2008). This Court agrees that Ford s 228 durational limitation defense should have been affirmatively stated as an affirmative defense, 9 229 see Fed. R. Civ. P. 8(c), but Plaintiffs cannot claim unfair surprise. Nor can Plaintiff claim 230 undue delay. It appears that neither party addressed the warranty disclaimer or unconscionability 231 in the summary judgment motions. However, when Plaintiffs objected to Ford s assertion of this 232 defense in its opposition to the renewed class certification, Ford promptly sought leave to amend 233 six days later. (See Doc. Nos. 392-93).1 234 To the extent that Plaintiffs assert that Ford s implied warranty disclaimers are 235 inconspicuous and therefore unenforceable, Plaintiffs have not sufficiently addressed the 236 particulars of the various warranty disclaimers issued by Ford for different model years. 237 Typically, the futility of a motion to amend is determined by reference to the motion to dismiss 238 standard of Federal Rule of Civil Procedure 12(b)(6). See, e.g., In re Burlington Coat Factory 239 Sec. Litig., 114 F.3d 1410, 1434-35 (3d Cir. 1997). Thus, this Court must consider whether the 240 proposed amendment contain[s] sufficient factual matter, accepted as true, to state a claim to 1 The Court is puzzled by Plaintiffs suggestion that they did not investigate Ford s awareness of the alleged defect and each Plaintiff s relative bargaining power and ability to detect the defect (see Pls. Opp n to Mot. to Amend at 2-3), because those factual issues are constituent parts of Plaintiffs claim that Ford failed to disclose the E-350 van s latent defect, and that this omission deceived Plaintiffs. Indeed, as Plaintiffs recognize in their renewed class certification brief, the seller s awareness of the underlying defect and misrepresentation is a necessary element for many consumer fraud statutes. (Pls. Renewed Class Cert. Br. at 32) ( To prove unlawful conduct in this case, Plaintiffs must prove that [defendant] knew or should have known that the E-350 van, as designed, could not safely transport 15 passengers, and that Ford either affirmatively misrepresented or omitted that fact when marketing the vehicle. ) (citation omitted).; see also Gennari v. Weichert Co. Realtors, 148 N.J. 582, 605 (1997) (explaining that non-disclosure liability under the consumer fraud statute required a showing that the defendant acted with knowledge ); Kowalsky v. Hewlett-Packard Co., 771 F. Supp. 2d 1156, 1162 (N.D. Cal. 2011) (dismissing California UCL claim, because plaintiff failed to show that the defendant had knowledge of the defect, and thus defendant s representations could not have been deceptive). Likewise, the purchaser s ability to detect the van s alleged defect factors into the deception and causation elements of Plaintiffs consumer fraud and implied warranty claims, as well as Ford s statute of limitations defenses. 10 241 relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell 242 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires that 243 the plaintiff plead[] factual content that allows the court to draw the reasonable inference that 244 the defendant is liable for the misconduct alleged and demands more than a sheer possibility 245 that a defendant has acted unlawfully. Id. at 1949 (citing Twombly, 550 U.S. at 556). Plaintiffs 246 do not contest that Ford s durational limitation defense sets forth a plausible basis for denying 247 relief on some of Plaintiffs claims, but instead generally argue that Ford s disclaimers are 248 unenforceable as a matter of law. Such an argument, addressed to specific disclaimers issued 249 with particular model-year E-350 vans (as opposed to a generic attack on all of Ford s warranty 250 disclaimers), is properly raised in a motion for summary judgment. It does not, however, show 251 futility. 252 Plaintiffs identified the same durational limitation defense now proposed by Ford and 253 preemptively countered the same in paragraph 85 of their Complaint. Because Plaintiffs have not 254 shown unfair surprise, undue delay, prejudice, or futility, the Court will permit Ford to 255 256 257 258 259 redesignate its durational limitation defense as an affirmative defense. 260 certification must satisfy both the conjunctive requirements of subpart (a) and one of 261 the requirements of subpart (b). Fed. R. Civ. P. 23; In re Schering Plough Corp. ERISA Litig., 262 589 F.3d 585, 596 (3d Cir. 2009). The Supreme Court succinctly described the Rule 263 23(a) requirements applicable to all class actions in Amchem Products, Inc. v. Windsor: (1) 264 numerosity (a class [so large] that joinder of all members is impracticable ); (2) commonality Class Certification Federal Rule of Civil Procedure 23 governs class certification. The party seeking class 11 265 ( questions of law or fact common to the class ); (3) typicality (named parties claims or defenses 266 are typical . . . of the class ); and (4) adequacy of representation (representatives will fairly and 267 adequately protect the interests of the class ). 521 U.S. 591, 613 (1997). Under subpart (b), 268 Plaintiffs primarily seek certification pursuant to subpart (b)(3), which requires a finding that 269 questions of law or fact common to class members predominate over any questions affecting 270 only individual members, and that a class action is superior to other available methods for fairly 271 and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). Alternatively, Plaintiffs 272 seek certification pursuant to subpart (b)(2), which is appropriate when the party opposing the 273 class has acted or refused to act on grounds that apply generally to the class, so that final 274 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a 275 whole. Fed. R. Civ. P. 23(b)(2). 276 The Third Circuit provided detailed guidance on litigation class certification analysis in 277 In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2009). The Hydrogen 278 Peroxide court recognized that federal law vests district courts with broad discretion to control 279 proceedings and frame issues for consideration under Rule 23, but noted that proper discretion 280 does not soften the rule: a class may not be certified without a finding that each Rule 23 281 requirement is met. 552 F.3d at 310. A federal court may only certify an action for class 282 litigation if it concludes, after a rigorous analysis, that the party seeking class certification has 283 satisfied all of the prerequisites of Rule 23. Behrend v. Comcast Corp., 655 F.3d 182, 190 (3d 284 Cir. 2011) ( The district court must conduct a rigorous analysis' of the evidence and arguments 285 in making the class certification decision. ); Hydrogen Peroxide, 552 F.3d at 309 (citing Gen. 286 Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Amchem, 521 U.S. at 615; Beck v. Maximus, 12 287 Inc., 457 F.3d 291, 297 (3d Cir. 2006)). A class certification decision requires a thorough 288 examination of the factual and legal allegations. Id. (quoting Newton v. Merrill Lynch, Pierce, 289 Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001)). In this regard, the requirements set 290 out in Rule 23 are not mere pleading rules ; [t]he court may delve beyond the pleadings to 291 determine whether the requirements for class certification are satisfied. Id. at 316 (internal 292 quotation marks and citations omitted). The class certification decision calls for findings by the 293 court, not merely a threshold showing by a party, that each requirement of Rule 23 is met, and 294 the court must resolve all factual or legal disputes relevant to class certification, even if they 295 overlap with the merits including disputes touching on elements of the cause of action. Id. at 296 307; see also Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 197 (3d Cir. 2009) (explaining 297 that rigorous analysis under Hydrogen Peroxide requires the district court to determine what 298 elements plaintiffs would have to prove under [their] theory to reach a finding of liability and 299 relief, and then assess whether this proof can be made within the parameters of Rule 23 ). 300 Factual determinations necessary to make Rule 23 findings must be made by a preponderance of 301 the evidence. Hydrogen Peroxide, 552 F.3d at 320.2 2 More recently, the Third Circuit set forth a detailed analysis for class settlement certification, following and explaining its holding in Hydrogen Peroxide. See Sullivan v. DB Invs., Inc., No. 08-2784, 2011 U.S. App. LEXIS 25185, at *68-69 (3d Cir. Dec. 20, 2011) ( We explained in Hydrogen Peroxide that an examination of the elements of plaintiffs claim is sometimes necessary, not in order to determine whether each class member states a valid claim, but instead to determine whether the requirements of Rule 23 namely, that the elements of the claim can be proved through evidence common to the class rather than individual to its members are met. ) (quoting Hydrogen Peroxide, 552 F.3d at 311-12). Aware of the scope and importance of the Third Circuit s decision in Sullivan, and in light of the fact that the parties briefs were submitted before the Third Circuit filed its decision in Sullivan, this Court held a telephone status conference with the parties on January 4, 2012 to ask whether they wanted to supplement their briefing. The parties declined. Counsel for Plaintiffs stated that Sullivan raises no new issues with respect to Plaintiffs papers and supports Plaintiffs current arguments. 13 302 Plaintiffs challenge the Hydrogen Peroxide standard on two fronts. Plaintiffs first argue 303 that Hydrogen Peroxide left intact . . . the rule in the Third Circuit that Rule 23 should receive a 304 liberal construction. (Pls. Br. at 12). Next, Plaintiffs contend that Ford s reading of Hydrogen 305 Peroxide is contrary to the Supreme Court s recognition that class certification analysis does not 306 involve an inquiry into whether individual plaintiffs will prevail on the merits (Pls. Reply Br. 307 at 6 (citing Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177-78 (1974)). Both contentions lack 308 merit, because the Third Circuit rejected both of Plaintiffs contentions in Hydrogen Peroxide, 309 552 F.3d at 316-17 & n.18, 321-22; see also Merlo v. Federal Express Corp., No. 07-4311, 2010 310 WL 2326577, at *3-4 (D.N.J. May 7, 2010) (assessing and rejecting similar arguments under 311 Hydrogen Peroxide). 312 With regard to Plaintiffs argument that this Court should apply a liberal construction that 313 favors class certification in close cases, the Hydrogen Peroxide court explained that this rule, 314 stemming from cases such as Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985) and Kahan 315 v. Rosenstiel, 424 F.2d 161, 169 (3d Cir. 1970), predated the 2003 amendments to Rule 23 that 316 reject[ed] tentative decisions on certification and encourage[d] development of a 317 record sufficient for informed analysis. Hydrogen Peroxide, 552 F.3d at 321 (citing Fed. R. 318 Civ. P. 23 advisory committee s note, 2003 Amendments ( A court that is not satisfied that the 319 requirements of Rule 23 have been met should refuse certification until they have been met. )). 320 As a result of these amendments, the Third Circuit has instructed that courts should not suppress Counsel for Defendants agreed that Sullivan raises no new issues and that the decision is distinguishable because it relates to settlement certification and not litigation class certification. The Court agrees, and therefore decides this motion on the papers before it, citing Sullivan where appropriate. 14 321 doubt as to whether a Rule 23 requirement is met no matter the area of substantive law. Id.; 322 see also In re Schering Plough Corp. ERISA Litig., 589 F.3d at 600 n.14. Plaintiffs cite the 2009 323 case In re Constar Int l Inc. Sec. Litig., 585 F.3d 774 (3d Cir. 2009) to suggest that Hydrogen 324 Peroxide left intact the prior liberal construction rule (Pls. Br. at 12), but Plaintiffs 325 misrepresent what Constar held. Far from an endorsement of the liberal construction rule 326 expressly repudiated by Hydrogen Peroxide, Constar considered whether the special master s 327 and district court s passing references to the liberal construction rule in their decisions that 328 predated Hydrogen Peroxide rendered the class certification analysis invalid after the Court of 329 Appeals decided Hydrogen Peroxide. The Constar court found the error harmless, because the 330 district court did not actually apply the liberal construction rule and the substance of the district 331 court s analysis complied with the standard pronounced in Hydrogen Peroxide. 585 F.3d at 781- 332 82 (explaining that references to the liberal construction rule were not conclusions, but rather 333 a preface to further analysis ). 334 As for Plaintiffs suggestion that the Supreme Court s decision in Eisen forbids merits 335 inquiries at the class certification stage, Hydrogen Peroxide explained that this reading of Eisen 336 is at odds with prior and subsequent Supreme Court decisions that recognized that the class 337 determination generally involves considerations that are enmeshed in the factual and legal issues 338 comprising the plaintiff s cause of action. Hydrogen Peroxide, 552 F.3d at 317 (quoting 339 Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978)) (internal quotation marks omitted); 340 see also Falcon, 457 U.S. at 160-61 (explaining that actual, not presumed, conformance with 341 Rule 23(a) remains . . . indispensable, and instructing courts to conduct a rigorous Rule 23 342 analysis); Behrend, 655 F.3d at 199 ( [A] district court may inquire into the merits only insofar 15 343 as it is necessary to determine whether a class certification requirement is met. ). Previously, 344 our Circuit explained in Newton that the circumstances of Eisen support a narrow reading of its 345 holding, because the preliminary merits inquiry encountered by the Eisen Court involved a 346 district court s decision to shift costs (notification of class members) to the defendant that was 347 based on that court s determination that the plaintiff was likely to succeed on the merits of his 348 claim. Newton, 259 F.3d at 166. Accordingly, our Circuit has determined that Eisen is best 349 understood to preclude only a merits inquiry that is not necessary to determine a Rule 23 350 requirement. Hydrogen Peroxide, 552 F.3d at 317 (citing Newton, 259 F.3d at 166-69). The 351 Hydrogen Peroxide court bolstered this portion of its ruling by noting that the Courts of Appeals 352 for the First, Second, Fourth, Fifth, and Seventh Circuits have similarly construed Eisen not to 353 preclude consideration of the merits to the extent necessary to make Rule 23 findings. 552 F.3d 354 at 317 n.17 (citing In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 24 (1st 355 Cir. 2008); In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006); Gariety v. 356 Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004); Oscar Private Equity Invs. v. 357 Allegiance Telecom, Inc., 487 F.3d 261, 268 (5th Cir. 2007); Szabo v. Bridgeport Machs., Inc., 358 249 F.3d 672, 677 (7th Cir. 2001)). Recently, the Third Circuit echoed its Hydrogen Peroxide 359 decision. See Sullivan v. DB Invs., Inc., 2011 U.S. App. LEXIS 25185, at *68 (3d Cir. Dec. 20, 360 2011) ( [A] district court may inquire into the merits of the claims presented in order to 361 determine whether the requirements of Rule 23 are met, but not in order to determine whether the 362 individual elements of each claim are satisfied. ). 363 364 This Court sees nothing about Hydrogen Peroxide that contradicts specific Supreme Court guidance. In fact, the Supreme Court s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. 16 365 Ct. 2541 (2011) is consistent with the Hydrogen Peroxide rule. See Behrend, 655 F.3d at 190 n.6 366 ( The Supreme Court confirmed [the Third Circuit s] interpretation of the Rule 23 inquiry in 367 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). ). Wal-Mart begins 368 with a reminder that [t]he class action is an exception to the usual rule that litigation is 369 conducted by and on behalf of the individual named parties only. Id. at 2550 (quoting Califano 370 v. Yamasaki, 442 U.S. 682, 700-701 (1979)). Wal-Mart further recognized that rigorous 371 analysis under Rule 23 [f]requently . . . will entail some overlap with the merits of the 372 plaintiff s underlying claim. That cannot be helped. Id. at 2551. The Wal-Mart Court also 373 addressed the limited scope of Eisen s prohibition on merits inquiries, explaining that the 374 preliminary merits inquiry conducted by the trial judge in that case had no bearing on the class 375 certification analysis. Id. at 2552 n.6. To the extent the [Eisen] statement goes beyond the 376 permissibility of a merits inquiry for any other pretrial purpose, the Wal-Mart Court stated, it is 377 the purest dictum and is contradicted by our other cases. Id.; see also Sullivan, 2011 U.S. App. 378 LEXIS 25185, at *49 ( [T]he focus is on whether the defendant s conduct was common as to all 379 of the class members, not on whether each plaintiff has a colorable claim. ) (quoting Wal-Mart, 380 131 S. Ct. at 2551). 381 Here, in order to conduct rigorous analysis, this Court must necessarily consider the 382 substantive elements of Plaintiffs causes of action in order to determine the relevant Rule 23 383 issue: whether common issues, susceptible to common proof, predominate over individualized 384 issues. Unlike a summary judgment decision, this limited merits inquiry, as explained by 385 Sullivan, Behrend, and Hydrogen Peroxide, does not entail consideration of whether plaintiffs, 386 collectively or individually, actually have meritorious claims. But this Court must resolve legal 17 387 disputes regarding the substantive elements of Plaintiffs claims in order to make a qualitative 388 assessment of whether or not Plaintiffs can prove their claims with common evidence. 389 With the above considerations in mind, the Court turns to Ford s challenges to Plaintiffs 390 proposed classes. Ford addresses its objections to Plaintiffs showings under subparts (b)(2) and 391 (b)(3). First, Ford objects that Plaintiffs proposed classes fail to exclude named class members 392 whose claims were previously dismissed on the merits by Chief Judge Brown s summary 393 judgment opinions. Second, Ford contests Plaintiffs proposed classes for each jurisdiction on a 394 claim-by-claim basis, arguing that individualized fact issues defeat predominance under Rule 395 23(b)(3) with regard to each proposed class. Third, Ford argues that Plaintiffs cannot avail 396 themselves of Rule 23(b)(2), because Plaintiffs primarily seek monetary relief, and because the 397 same individual issues that defeat predominance under Rule 23(b)(3) preclude certification under 398 Rule 23(b)(2). The Court considers each argument in turn. 399 I. 400 CLASS DEFINITIONS & PREVIOUSLY DISMISSED CLAIMS Ford points out that Plaintiffs proposed classes fail to exclude the following named 401 Plaintiffs and claims, which were dismissed by Chief Judge Brown s summary judgment 402 opinions: (1) all claims by New York Plaintiff Barrett; (2) the misrepresentation-based consumer 403 fraud claim of Texas Plaintiff St. Luke s; (3) the unjust enrichment claims of Pennsylvania 404 Plaintiffs Hickman Temple and Mt. Airy; and (4) the consumer fraud claim of Florida Plaintiff 405 Blandon. Based on Chief Judge Brown s summary judgment opinions, the Court agrees that 406 these claims must be excluded from Plaintiffs proposed classes. 407 408 With regard to New York Plaintiff Barrett, Chief Judge Brown granted summary judgment in favor of Ford on all claims, concluding that Barrett had not presented evidence of 18 409 actual injury as required by Frank v. DaimlerChrysler Corp., 741 N.Y.S.2d 9 (App. Div. 2002). 410 July 9 Opinion, 2010 WL 2813788, at *71-72, 75. Because Barrett has no remaining claims in 411 this case, he must necessarily be excluded from Plaintiffs proposed classes. The Court will 412 therefore consider Plaintiffs proposed New York classes as if they had excluded Barrett. 413 Turning to the Texas consumer fraud claim under the Texas Deceptive Trade 414 Practices-Consumer Protection Act (DTPA), Tex. Bus. & Com. Code § 2.313 et seq., Chief 415 Judge Brown granted summary judgment in favor of Ford on Texas Plaintiff St. Luke s claim 416 that Ford s description of the E-350 van as a 15-passenger van misrepresented the van s ability 417 to safely carry 15 passengers. July 9 Opinion, 2010 WL 2813788, at *54. Chief Judge Brown 418 left intact, however, St. Luke s omission-based theory of a DTPA violation under § 17.46(b)(24). 419 Id. at *55. Plaintiffs proposed classes do not distinguish between class members having a 420 misrepresentation-based consumer fraud claim and an omission-based consumer fraud claim. 421 Yet, the July 9 Opinion differentiated between the underlying factual predicates for these claims, 422 and why omission was the only viable theory under the DTPA. With regard to Plaintiffs claim 423 that Ford implicitly represented that the E-350 van could safely carry 15 passengers by 424 describing, or packaging the E-350 van as a 15-passenger van, Chief Judge Brown concluded 425 that this representation was too vague under Texas law to be actionable under DTPA 426 §§ 17.46(b)(5), (b)(7), and (b)(9). Id. at *54 ( An imprecise or vague representation amounts to 427 mere opinion or puffing. Here, under the particular undisputed facts of this case, Ford s 428 description of the E-350 van as a 15-passenger van did not include any representation of safety, 429 and does not rise to the level required for a violation of [DTPA] § 17.46(b)(5). ) (citation 430 omitted). Not only did this ruling eliminate the only named Texas Plaintiff s DTPA 19 431 misrepresentation claim, but it categorically rejected the contention that any Texas Plaintiff could 432 bring such a claim. Conversely, as Plaintiffs recognize in their reply brief (Pls. Reply Br. at 27 433 n.18, 29) (citing Compl. ¶ 31), the surviving omission claim under DTPA § 17.46(b)(24) was 434 predicated on allegations that Ford failed to disclose to consumers that, due to stability issues, the 435 E-350 van should only be driven by trained experienced drivers. See July 9 Opinion, 2010 WL 436 2813788, at *55. Plaintiffs recognize that they cannot proceed with a DTPA misrepresentation 437 claim in light of the July 9 Opinion. (See Pls. Reply Br. at 27-29). Thus, to the extent that 438 Plaintiffs seek certification of a DTPA claim on behalf of Texas class members, the Court will 439 assess Rule 23(b)(3) predominance for Plaintiffs proposed class through the lens of the 440 § 17.46(b)(24) omission claim permitted by the July 9 Opinion.3 441 As for the Pennsylvania unjust enrichment claim, Plaintiffs do not dispute that the July 9 442 and February 16 Opinions disposed of the unjust enrichment claims of Pennsylvania Plaintiffs 443 Mt. Airy and Hickman Temple. Chief Judge Brown rejected these claims for different reasons. 444 Mt. Airy s claim failed because the record established that this Plaintiff purchased its E-350 van 445 in 2005, after Plaintiffs conceded that the artificial market for the van eroded. Meanwhile, 446 Hickman Temple s claim failed because Plaintiffs did not show that Hickman Temple s purchase 447 of a used vehicle conferred a benefit upon Ford. See July 9 Opinion, 2010 WL 2813788, at *44 448 (Mt. Airy); February 16 Opinion, 2011 WL 601279, at *6 (Hickman Temple). In their reply 449 brief, Plaintiffs seek to bypass these problems by modifying their unjust enrichment class to 450 apply only to purchasers of new Ford E-350 vans prior to April 2004. (Pls. Reply Br. at 35 & 3 As noted in this Court s extensive discussion of rigorous analysis under Rule 23, the Court limits its merits analysis to whether Plaintiffs can satisfy the requirements of Rule 23 for the relevant claim, and does not presently consider whether Plaintiffs have meritorious claims. 20 451 n.22) (emphasis added). Accordingly, the Court will conduct Rule 23 analysis on Plaintiffs 452 modified unjust enrichment class, as proposed in the reply brief. 453 Finally, Plaintiffs do not deny that Florida Plaintiff Blandon s consumer fraud claim was 454 terminated in the July 9 Opinion. See July 9 Opinion, 2010 WL 2813788, at *49. Chief Judge 455 Brown reasoned that Blandon could not show actual deception, because the undisputed record 456 established that Blandon assertedly knew that the vehicles were unsafe but nonetheless 457 purchased two vehicles. Id. Because Blandon has no remaining claims in this case, she must 458 necessarily be excluded from Plaintiffs proposed classes. The Court will therefore consider 459 Plaintiffs proposed Florida class as if they had excluded Blandon. 460 II. 461 CERTIFICATION UNDER RULE 23(b)(3) As noted above, class certification under Rule 23(b)(3) requires a finding that common 462 issues of law and fact predominate over issues affecting individual members, and that class 463 litigation is superior to other methods of adjudication. In other words, subpart (b)(3) breaks 464 down into a predominance requirement and a superiority requirement, both of which must be met 465 in order for the district court to grant class certification. 466 The predominance requirement of subpart (b)(3) tests whether proposed classes are 467 sufficiently cohesive to warrant adjudication by representation, and is a far more 468 demanding requirement than the commonality requirement of subpart (a). Hydrogen Peroxide, 469 552 F.3d at 311 (quoting Amchem, 521 U.S. at 623-24). Predominance requir[es] more than a 470 common claim, and [i]ssues common to the class must predominate over individual issues[.] 471 Id. (citation omitted). Because the nature of the evidence that will suffice to resolve a question 472 determines whether the question is common or individual, a district court must formulate some 21 473 prediction as to how specific issues will play out in order to determine whether common or 474 individual issues predominate in a given case[.] Id. (internal quotation marks and citations 475 omitted). Notably, [i]f proof of the essential elements of the cause of action requires individual 476 treatment, then class certification is unsuitable. Id. at 311 (quoting Newton, 259 F.3d at 172). 477 Meanwhile, the superiority requirement of subpart (b)(3) is guided by the following 478 pertinent considerations: (A) the class members interests in individually controlling the 479 prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning 480 the controversy already begun by or against class members; (C) the desirability or undesirability 481 of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties 482 in managing a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). 483 Ford argues that Plaintiffs have not met the predominance requirement for any of their 484 proposed classes, because each suffers from a multitude of individualized issues. Ford also 485 argues that the various jurisdictions statutes of limitations, as well as plaintiff-specific equitable 486 tolling doctrines that Plaintiffs will invoke to counter such defenses, support denying class 487 certification of all proposed classes. The Court addresses Ford s specific predominance 488 objections by jurisdiction and claim. Consistent with Judge Ackerman s undisputed choice-of- 489 law determination, the Court will consider the law of the forum jurisdiction in evaluating 490 whether Plaintiffs respective claims satisfy Rule 23(b)(3) s predominance requirement. The 491 Court addresses Ford s statute of limitations affirmative defenses separately in Part II.H, infra.4 492 4 The Court notes that Plaintiffs sorted their arguments by claim and not by jurisdiction. The Court has endeavored to match Plaintiffs opposition arguments to Ford s jurisdictionspecific objections. 22 493 A. New York 494 After Chief Judge Brown s omnibus July 9 Opinion, Plaintiff Anderson is the sole 495 remaining representative of the proposed New York classes, and only his implied warranty and 496 consumer fraud claims remain. July 9 Opinion, 2010 WL 2813788, at *75. Ford objects to 497 Plaintiffs proposed New York classes on the grounds that Plaintiffs cannot prove their New 498 York consumer fraud and implied warranty claims with common proof. The Court agrees on 499 both counts. 1. Consumer Fraud, N.Y. Gen. Bus. Law § 3495 500 501 To successfully assert a section 349(h) claim, a plaintiff must allege that a defendant has 502 engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff 503 suffered injury as a result of the allegedly deceptive act or practice. City of New York v. 504 Smokes-Spirits.Com, Inc., 911 N.E.2d 834, 838 (N.Y. 2009) (citation omitted). Ford argues that 505 Plaintiffs cannot show predominance because Plaintiffs do not have common classwide proof for 506 any of these elements. 507 First, Ford argues that Plaintiffs have no common proof of a uniform misrepresentation. 508 Ford notes that different class members would present different proofs based on their individual 509 experiences: some class members claim to have seen representations that the E-350 was a 15- 510 passenger van in sales brochures, others may have bought a model year van that included the 511 description 15-passenger in the name of the vehicle, and some may have seen no representation 5 The Court notes that Plaintiffs Complaint asserted a claim under GBL § 350, but Plaintiffs renewed class certification briefs and trial plan all appear to abandon that claim. Plaintiffs present no distinct arguments to support their claims under § 350, and the Court therefore concludes that Plaintiffs have not shown predominance for any remaining § 350 claim. 23 512 that the van would carry 15 passengers. (Ford s Resp. Br. at 16) (citing Pls. Br. at 33). Second, 513 Ford argues that this individualized proof of the alleged representation will necessarily require 514 individualized determinations concerning whether certain class members were actually deceived. 515 Third, Ford argues that Plaintiffs disregard Chief Judge Brown s ruling that New York law 516 requires actual injury in the form of limitation on use or out-of-pocket expenses. (Ford s Resp. 517 Br. at 24). Under this standard, Ford contends that Plaintiffs cannot rely on a generalized 518 assertion of diminution in value, and, thus, the presiding court would need to conduct 519 individualized inquiries to determine if a particular class member incurred actual losses in the 520 form of out-of-pocket expenses or loss of use, and whether these losses were proximately caused 521 by the alleged defect in the van or other, unrelated causes. (Id.). Finally, with regard to 522 causation, Ford states that, while New York law does not require a showing of reliance, it does 523 require a showing of actual deception. Toward this end, Ford notes that Chief Judge Brown 524 granted summary judgment against Pentecostal Temple s Illinois consumer fraud claim for lack 525 of actual deception and proximate causation, because the undisputed record revealed 526 that Pentecostal Temple never received or observed any misrepresentations from Ford. (Ford s 527 Resp. Br. at 26) (citing July 9 Opinion, 2010 WL 2813788, at *23). 528 Plaintiffs respond that they do have common proof to address each of these requirements. 529 Plaintiffs contend that they have common proof of misrepresentations, by virtue of the fact that 530 Ford marketed the E-350 van as a 15 passenger van and outfitting the van with 15 seats. 531 Plaintiffs assert that an objective standard applies to the alleged misrepresentations, and deduce 532 that evidence in the form of the vehicle s name, number of seats and so forth can be submitted 533 to the jury for a determination whether reasonable consumers would understand it to mean safe 24 534 transportation. (Pls. Reply Br. at 27). Plaintiffs further argue that deception is measured by an 535 objective standard, because New York law does not require a showing of reliance. Citing Florida 536 case law, Plaintiffs state that causation may be established with proof that Ford s conduct was 537 likely to deceive a consumer acting reasonably in the same circumstances. (Pls. Br. at 36; 538 Pls. Reply Br. at 26) (citations omitted). Finally, Plaintiffs contend that they have presented 539 common evidence of injury in the form of an inherent design defect that manifests on every 540 vehicle an inability to safely carry 15 passengers. (Pls. Br. at 36; see also Pls. Reply Br. at 541 33). Plaintiffs point to two decisions of the New York Court of Appeals that they claim enable 542 them to present common proof of deception and causation under GBL § 349. First, Plaintiffs 543 argue that Oswego Fund v. Marine Midland Bank set an objective reasonable consumer 544 standard for determining whether or not an alleged representation was deceptive. See 647 N.E.2d 545 741 (N.Y. 1995). Second, Plaintiffs invoke Stutman v. Chemical Bank for the proposition that 546 they can show common proof of causation simply by showing that the alleged misrepresentations 547 were material. See 731 N.E.2d 608 (N.Y. 2000). With regard to injury, Plaintiffs cite 548 Ackerman v. Coca-Cola Co., No. 09-0395, 2010 WL 2925955 (E.D.N.Y. July 21, 2010) and In 549 re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768 550 (3d Cir. 1995), for the proposition that they can claim a common, benefit-of-the-bargain, or 551 diminution in value, injury. 552 The Court agrees that Plaintiffs have not met the predominance requirement for its New 553 York consumer fraud claims under GBL § 349, because resolution of Plaintiffs and putative class 554 members claims will require numerous individualized inquiries into the material 555 misrepresentation, deception and causation, and actual injury. 25 a. Misrepresentation 556 557 As is evident by Chief Judge Brown s summary judgment opinions, different Plaintiffs 558 were exposed to different representations at different times. Some received sales brochures from 559 Ford describing the van as a 15-passenger van (First United), others saw that description as 560 part of the vehicle packaging, such as the window sticker (First United), some were simply told 561 that the E-350 was a 15-passenger van by a salesperson (Charles St. AME, Greater All Nation), 562 some were assured that the E-350 was the best vehicle going (Charles St. AME), and it appears 563 that some did not see or hear any representation regarding the van s passenger capacity or relative 564 safety (Pentecostal Temple). See July 9 Opinion, 2010 WL 2813788, at *4-5, 19-20, 75. The 565 Court further notes that Ford s safety disclaimers in the E-350 owner s guides evolved over time. 566 Whereas the 2000-2002 model-year owner s guides alerted consumers that they should take 567 extra precautions because [l]oaded vehicles, with a higher center of gravity, may handle 568 differently, the 2003-2005 model-year owner s guides stated that [t]he risk of a rollover crash 569 increases as the number of people and load in the vehicle increase, and specifically advised that 570 [t]he van should be operated by an experienced driver. (See Doc. No. 292, Smith Decl. Ex. 571 12). Moreover, Plaintiffs recognize in their Complaint that Ford issued a safety advisory in 572 September 2002 instructing consumers to use trained drivers for the E-350 van. (Compl. ¶ 31). 573 Given these variations among the named Plaintiffs and the evolving disclosures by Ford, the 574 Court may easily deduce that putative class members would rely on different theories of 575 misrepresentation. 576 Plaintiffs only apparent response to these variations is that all consumers received an 577 implicit representation that the vans could safely carry 15 passengers by virtue of the fact that 26 578 each van was equipped with 15 seats. (See Pls. Reply Br. at 27) ( In a nutshell, that is Plaintiffs 579 claim under the New York, Texas and Florida consumer protection statutes. ). This answer is 580 not satisfactory, because Plaintiffs have not shown that the mere presence of seats conveys a 581 common message about passenger capacity or relative safety.6 Preliminarily, the Court does not 582 understand Plaintiffs to assert that all E-350 vans in the proposed class had 15 individual seats, 583 but rather some combination of front seats and rearward benches that can accommodate 15 584 passengers. (See Pls. Br. at 7). Absent other representations and presuming a two-front seat, 585 four-rearward bench layout (see Carr Report, Doc. No. 290, at 3/36), reasonable consumers could 586 draw differing inferential conclusions regarding passenger capacity and relative safety vis-a-vis 587 other multi-passenger vehicles.7 Such conclusions may reflect different consumers individual 588 vehicle needs, which may be guided by such factors as the number and size of expected 589 passengers, as well as cargo needs.8 6 Notably, Plaintiffs do not submit any evidence that individual Plaintiffs understood the number and layout of the E-350 s seats to constitute a representation that the van could safely carry 15 passengers. 7 Plaintiffs base much of their defect argument on the notion that the E-350 van was not safe to carry 15 passengers, but Plaintiffs do not attempt to delineate the contours of the safety threshold they assert. Surely an extended passenger van, like a large SUV or truck, cannot be expected to have the same handling characteristics as a sedan or sports car. Yet with the present motion, Plaintiffs do not present qualitative evidence comparing the handling, safety restraint, and crash characteristics of the E-350 to other extended passenger vans, or other large, multipassenger vehicles. 8 This Court does not presently address the merits of Plaintiffs allegations of deceptive representations, but this Court recognizes that Chief Judge Brown has already ruled that some of these alleged misrepresentations were mere puffery or otherwise too vague to be actionable. See, e.g., July 9 Opinion, 2010 WL 2813788, at *40-41 (granting summary judgment against Hickman Temple s express warranty claim, because salesperson s statement that the van was the vehicle that you want to do the job because it was safe and it would deliver was puffery), 54 (granting summary judgment against St. Luke s misrepresentation theory of consumer fraud 27 590 This Court finds instructive the Appellate Division s ruling in Solomon v. Bell Atlantic 591 Corp., which denied class certification because, inter alia, the plaintiff consumers had not 592 demonstrated that all class members had seen the allegedly deceptive advertisements. 777 593 N.Y.S.2d 50, 55 (App. Div. 2004). Similar to this case, in Solomon the record show[ed] that the 594 individual plaintiffs did not all see the same advertisements; some saw no advertisements at all 595 before deciding to [purchase the product]. Id. Also similar to this case, the content of the 596 seller s advertisements in Solomon varied widely and not all the advertisements contained the 597 alleged misrepresentations. Id. The Solomon court explained that [class certification] under 598 GBL §§ 349 and 350 may be appropriate where the plaintiffs allege that all members of the 599 class were exposed to the same misrepresentations, but emphasized that class certification is 600 not appropriate where the plaintiffs do not point to any specific advertisement or public 601 pronouncement by the [defendants] which was undoubtedly seen by all class members. Id. 602 (citations and internal quotation marks omitted). 603 This Court recognizes that a federal court in New York has suggested that a class of 604 consumers did not have to show common misrepresentations when the alleged deceptive act was 605 an omission. See Oscar v. BMW of N. Am., LLC, No. 09-11, 274 F.R.D. 498, 512-13 (S.D.N.Y. 606 June 7, 2011) (denying class certification for consumer claiming that car manufacturer failed to violation under the DTPA, because 15-passenger van description, without more, was too vague to be actionable under the DTPA), 73 (granting summary judgment against Barrett s express warranty claim, because 15-passenger van description, without more, was puffery), 79 (granting summary judgment against Charles St. AME s express warranty claim, because Ford s description of the E-350 as a 15-passenger van does not constitute an express warranty of safety in transporting 15-passengers, and best vehicle going statement was puffery). These rulings not only revealed that different consumers were exposed to different representations about the E350 van, but that the nature of the alleged misrepresentation is material to whether or not the consumer has a valid claim. 28 607 disclose defects and disadvantages of run-flat tires). The import of this observation is difficult to 608 discern, because the Oscar court devoted little attention to the alleged omissions, and proceeded 609 to deny class certification for a number of other reasons. See id. It remains unclear whether New 610 York courts will adopt this lesser standard for claims based on omissions. Regardless, the record 611 in this case reveals that there was not a common omission. As noted above, Ford s owner s 612 guides for certain model years gave different advisories regarding the vehicle s handling 613 characteristics. Further, Plaintiffs individual purchase experiences reflect that there was not a 614 uniform omission. Plaintiff Barrett, for instance, expressly told the salesman that these vehicles 615 should not be driven by an inexperienced driver, and stated that a friend of his had a roll over 616 with a Ford van. July 9 Opinion, 2010 WL 2813788, at *69 (citing Barrett Dep. at 106:16-23). 617 Such a consumer cannot claim that Ford failed to disclose material information about the van s 618 handling. Thus, resolution of Plaintiffs claims will require numerous individualized inquiries 619 into the alleged misrepresentation, whether it be an affirmative representation or omission. Cf. 620 Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 747 (7th Cir. 2008) (decertifying class of 621 consumers claiming that distributor misrepresented the design of a clothes dryer, because 622 resolution of the claims would require individual inquiries regarding what each class member 623 understands to be the meaning of a label or advertisement that identifies a clothes dryer as 624 containing a stainless steel drum ); Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 75 625 (S.D.N.Y. 2006) (Report and Recommendation adopted by court) (denying certification of a class 626 of consumers claiming that an internet service provider misrepresented the speed of the internet 627 service, because resolution would require an examination of each subscriber s understanding of 628 the [provider s] a la carte pricing system and whether that understanding was reasonable ). 29 629 Plaintiffs proposed class makes no attempt to limit the class to persons who saw or heard 630 a common misrepresentation, and the record reveals that various named Plaintiffs were exposed 631 to different representations, if at all, about the E-350 van s seating capacity and overall safety. 632 Distinguishing between the different representations made to putative class members would 633 require individualized inquiries not suitable for class litigation. Accordingly, this element 634 supports denying class certification. 635 b. Deception & Causation 636 The parties agree that, while New York s consumer fraud law does not require a showing 637 of reliance, it does require a showing of deception and causation. See, e.g., Oswego, 647 N.E.2d 638 at 745 ( [W]hile the statute does not require proof of justifiable reliance, a plaintiff seeking 639 compensatory damages must show that the defendant engaged in a material deceptive act or 640 practice that caused actual, although not necessarily pecuniary, harm. ). Plaintiffs argue that 641 they can show common proof of deception and causation, because Oswego adopted an objective 642 reasonable consumer standard for determining consumer deception under GBL § 349. Yet, the 643 issue of deception is less clear than Plaintiffs would have this Court believe. True, the Oswego 644 court stated that it was adopting an objective definition of deceptive acts and practices, id. at 645 745, but in applying that standard, the court considered whether a reasonable consumer in 646 plaintiffs circumstances might have been misled, id. (emphasis added) (finding record 647 inconclusive). Elsewhere, the court reasoned that the [defendant] Bank s liability under the 648 statute will depend, in part, on whether plaintiffs possessed or could reasonably have obtained 649 the relevant information they now claim the Bank failed to provide. Id. These statements 650 suggest that, while a reasonable consumer standard applies, some consideration of the plaintiff s 30 651 circumstances would inhere in that analysis. Subsequent New York decisions have characterized 652 Oswego s reasonable consumer standard in this manner. E.g., Solomon v. Bell Atl. Corp., 777 653 N.Y.S.2d at 54 ( Deceptive or misleading representations or omissions are defined objectively as 654 those likely to mislead a reasonable consumer acting reasonably under the circumstances, i.e., 655 the plaintiff s circumstances. ). Regardless of whether Oswego sets a purely objective standard 656 or not, individualized circumstances will necessarily seep into the deception analysis in this case, 657 because there is no uniform misrepresentation. 658 Assuming arguendo that Plaintiffs could present common proof of a misrepresentation 659 and deception, Plaintiffs do not have common proof of causation. For purposes of causation, 660 [t]he plaintiff . . . must show that the defendant s material deceptive act caused the injury. 661 Stutman, 731 N.E.2d at 612 (citation omitted). Courts in New York have recognized that a 662 consumer cannot show causation when he or she was not exposed to the alleged 663 misrepresentation. E.g., Gale v. Int l Bus. Machs. Corp., 781 N.Y.S.2d 45, 47 (App. Div. 2004) 664 (rejecting GBL §§ 349 and 350 claims for lack of causation where the consumer did not claim to 665 have seen the alleged misrepresentations); see also Newman, 238 F.R.D. at 75 (denying class 666 certification of GBL §§ 349 and 350 claims, noting numerous issues of causation, including 667 whether each class member saw the alleged misrepresentations). As noted above, Chief Judge 668 Brown s summary judgment decisions revealed that named Plaintiffs approached their E-350 669 purchases with differing amounts of information: some purchased their vans with knowledge of 670 the van s unique handling problems from personal experience (Barrett, Blandon), and some 671 discerned no representations about the van s passenger capacity or safety at the time of purchase 31 672 (Pentecostal Temple). See July 9 Opinion, 2010 WL 2813788, at *19-20, 45, 68-69.9 It cannot 673 be denied that these Plaintiffs injuries were caused by any representation or omission by Ford, 674 and, accordingly, these Plaintiffs claims have been dismissed. For remaining Plaintiffs and 675 putative class members, the presiding court would need to conduct individualized inquiries to 676 determine if their claims similarly lacked causation, and Plaintiffs offer no common proof to 677 overcome this hurdle. See, e.g., In re Currency Conversion Fee Antitrust Litig., 230 F.R.D. 303, 678 310-11 (S.D.N.Y. 2004) (denying certification of class of consumers claiming that credit card 679 provider misrepresented and/or failed to disclose its policy for charging currency conversion fees 680 on international transactions, because each plaintiff had to show causation, and [s]uch a 681 showing entails individual inquiries, including an examination of each cardholder s 682 understanding [of the credit terms] ); Newman, 238 F.R.D. at 75 (same, noting numerous issues 683 of causation, including whether each class member saw the alleged misrepresentations, was 684 influenced by the same, and the availability of alternative information). 685 The Court further notes that the numerous public reports, articles, and broadcasts 686 concerning the handling problems of the E-350 van identified by Plaintiffs Complaint support 687 this Court s conclusion that Plaintiffs do not have common proof of causation. In their 688 Complaint, Plaintiffs note, inter alia, that the National Highway Traffic Safety Administration 9 Most telling was New York Plaintiff Barrett, who negotiated down the price of his used 1997 E-350 van after telling the sales agent that the van should not be driven by an inexperienced driver, and that he knew of a prior instance where an E-350 van had experienced a rollover. July 9 Opinion, 2010 WL 2813788, at *69 (citing Barrett Dep. at 48:11-49:13, 106:16-23). Barrett further testified that if he had heard the news reports regarding the Ford E-350 van s tendency to rollover before he purchased the used 2001 van in October 2006, he still would have bought the van because he and his customers like Ford vehicles and he trusted his driving abilities. Id. (citing Barrett Dep. at 26:10-19; 35:2-14). 32 689 released a study concerning the rollover propensity of 15-passenger vans (including the E-350 690 van) in April 2001, that Ford issued a safety advisory in September 2002 instructing consumers 691 to use trained drivers for the E-350 van, and that CBS aired a news segment about the dangers of 692 the E-350 van in an episode of Sixty Minutes II in September 2002. (Compl. ¶¶ 28, 31, 38, 693 61(e)). Considering that Plaintiffs primary theory of damages at the class certification stage is a 694 common benefit-of-the-bargain injury, it stands to reason that the consumers who saw these 695 reports and understood the E-350 van to have significant handling problems will have a difficult 696 time proving causation, and in doing so, they would not rely on common proof. This observation 697 is not mere speculation; the record reflects that a number of Plaintiffs reported seeing different 698 news releases at different times. See, e.g., July 9 Opinion, 2010 WL 2813788, at *5 (First 699 United), 34 (Allen Temple). Moreover, Plaintiffs concede in their reply brief that the various 700 government reports and news articles about the E-350 van may have disclosed (on a classwide 701 basis no less) rollover issues associated with [Extended Passenger Vans.] (Pls. Reply Br. at 702 31).10 Plaintiffs proposed class makes no effort to exclude persons having knowledge of the 703 van s handling problems at the time of purchase. Given the vastly different experiences of 704 named Plaintiffs, it would take individualized causation inquiries to determine which putative 705 class members saw such news reports prior to their purchase of an E-350 and understood the van 10 Plaintiffs argue that these reports did not advise consumers of the specific, inherent design defect that manifests in handling and stability issues in all E-350s when loaded with 10 or more passengers. (Pls. Reply Br. at 31). Yet, even if the news reports did not identify the exact design defect that caused the E-350 s handling problems, consumers may have had sufficient knowledge of the handling defect at the time of purchase to defeat causation. See July 9 Opinion, 2010 WL 2813788, at *49 (rejecting Florida Plaintiff Blandon s argument that she did not know that the handling problems stemmed from a factory defect, because [t]his attempt to create a dispute of material fact does not negate the undisputed fact that Blandon assertedly knew that the vehicles were unsafe but nonetheless purchased two vehicles ). 33 706 707 to have handling problems. Plaintiffs cannot bypass the causation ramp under the auspices of Stutman. Stutman 708 involved homeowners claim that their lender charged an improper attorney fee when they 709 attempted to refinance their homeowners loan, despite the loan s guarantee that they would not 710 be assessed a prepayment charge. 731 N.E.2d at 612. The Appellate Division dismissed the 711 claim, concluding that the homeowners had not shown justifiable reliance: that is, that the note s 712 failure to disclose the $275 attorney s fee had any effect on plaintiffs decision to borrow from 713 defendant in the first place. Id. (internal quotation marks omitted). The Court of Appeals 714 affirmed on other grounds, but rejected the Appellate Division s analysis of justifiable reliance. 715 Id. In doing so, the court distinguished between causation, which is required by GBL § 349, and 716 reliance, which is not. The court concluded that the homeowners did not need to allege that they 717 would not have borrowed from the lender if they had known the truth about the fee; rather, the 718 causation requirement had been met, because plaintiffs allege that because of defendant s 719 deceptive act, they were forced to pay a $275 fee that they had been led to believe was not 720 required. Id. at 612. As this Court reads Stutman s causation analysis, Plaintiffs in this case 721 need not show that they would not have purchased the E-350 van if they had known of the 722 handling problems, but only that they incurred a loss as a result of the deceptive act. If Plaintiffs 723 have no knowledge of the allegedly deceptive act (the alleged misrepresentation), or if Plaintiffs 724 have actual knowledge of the handling defect prior to the purchase (and, for instance, 725 simultaneously negotiate a lower price), Stutman is inapposite, and these Plaintiffs have not 726 shown causation. Identifying which putative class members purchased under similar 727 circumstances will require individualized inquiries that are impracticable in class litigation. 34 c. Injury 728 729 Chief Judge Brown ruled in the July 9 Opinion that the actual injury requirement 730 recognized in Frank v. Daimler Chrysler Corp. applied to Plaintiffs GBL § 349 claim. July 9 731 Opinion, 2010 WL 2813788, at *70-72. Under Frank, a party does not meet the injury 732 requirement of GBL § 349 unless the allegedly defective product fails and causes personal injury 733 or property damage, or the person incurs repair costs or diminished value as a result of the defect. 734 741 N.Y.S.2d at 17 (affirming dismissal of § 349 claim where the plaintiffs have not been 735 involved in any accidents and have not suffered any personal injuries or property damage, and 736 plaintiffs d[id] not allege that any seat has failed, been retrofitted or repaired, nor have plaintiffs 737 attempted to sell, or sold an automobile at a financial loss because of the alleged defect ). In 738 their opposition to summary judgment, Plaintiffs did not argue that they had a common 739 diminution in value injury under New York law that would be measured by the cost of a retrofit. 740 (See Doc. No. 247 at 36-37). Instead, Plaintiffs asserted that they had presented some evidence 741 of out-of-pocket repair costs (for Bishop Anderson), and that they would otherwise rely on 742 expert testimony to determine if, and how much, prices of the new and used vans reflected their 743 publicized problems. (Id. at 37). Applying the Frank standard to the individual New York 744 Plaintiffs respective proofs, Chief Judge Brown concluded that Bishop Anderson had shown 745 sufficient proofs of actual injury under Frank to create a genuine dispute of fact, but that Barrett 746 had not, because he 1) did not allege any out-of-pocket repair or rental costs; 2) fills his vehicle 747 to capacity when he has sufficient passengers; and 3) stated that he has no plans to sell his van. 748 Id. at *71. Chief Judge Brown therefore granted summary judgment against Barrett on all of his 749 claims. 35 750 Nevertheless, Plaintiffs now argue that they can present common proof of a uniform 751 retrofit injury, because they have expert testimony reflecting that the handling defects are 752 inherent in the E-350 design. In other words, Plaintiffs contend that they can use the uniform 753 cost of a retrofit ($2,100) as a proxy for the inflated value named Plaintiffs and putative class 754 members paid as a result of Ford s packaging of the E-350 as a 15-passenger van. Plaintiffs 755 argument runs flat, because Plaintiffs have not sought reconsideration of Chief Judge Brown s 756 Frank rulings, which are now law of the case, and because the record reveals that Plaintiffs do 757 not have common proof of actual injuries. 758 Plaintiffs make no attempt to show that Chief Judge Brown s Frank rulings were 759 erroneous applications of New York law, or that they have common proof of actual injury under 760 Frank. Instead, Plaintiffs just disregard Frank in their opening brief, and it appears that Plaintiffs 761 want this Court to disregard Frank as well.11 This Court cannot do so; the law of the case 762 doctrine prevents this Court from arbitrarily choosing which prior decisions in this case remain in 763 effect. Similar to a motion for reconsideration, courts will only depart from the law of the case 764 when (1) new evidence is available; (2) a supervening new law has been announced; or (3) the 765 earlier decision was clearly erroneous and would create manifest injustice. In re City of Phila. 766 Litig., 158 F.3d 711, 718 (3d Cir. 1998) (citation omitted); see also Falor v. G & S Billboard, 767 No. 04-2373, 2008 WL 5190860, at *2 (D.N.J. Dec. 10, 2008) (characterizing law of the case 768 issues as the opposite side of the motion for reconsideration coin ). Plaintiffs have not 11 Plaintiffs strategy of disregarding Frank appears to have changed by the reply brief, where Plaintiffs appear to suggest that Chief Judge Brown concluded that Frank did not apply to Plaintiffs claims. (See Pls. Reply Br. at 33) ( As discussed herein, and as this Court previously found in adjudicating Ford s summary judgment motions, [citations omitted], [sic] does not control here. ). But, as noted above, Chief Judge Brown reached the exact opposite conclusion. 36 769 presented grounds for departing from the law of the case, and thus this Court must apply Frank. 770 This Court is persuaded that, under Frank, the presiding court would need to conduct the sort of 771 detailed analysis employed by Chief Judge Brown to resolve the claims of Barrett and Bishop 772 Anderson for each of the thousands of putative class members. Such individualized inquiries are 773 impracticable in class litigation. 774 However, even if this Court had reason to consider the Frank issue de novo, Plaintiffs do 775 not present persuasive reasons to disregard Frank. Plaintiffs attempt to distinguish Frank by 776 claiming that Frank was a product risk-of-failure case. Not so in the present case, claim 777 Plaintiffs, because the product defect in this case the van s design geometry and resultant 778 handling issues when filled with ten or more passengers was inherent in every E-350 van in the 779 proposed classes. Citing the Declaration of Mark Arndt, president of Transportation Safety 780 Technologies, Inc., Plaintiffs argue that [t]his malfunction is one that . . . would, as a matter of 781 physics, necessarily occur in all E-350 s when driven at speed loaded with 15 passengers. (Pls. 782 Br. at 16-17) (emphasis omitted). Plaintiffs argument in this regard is not persuasive. 783 First, this Court is not persuaded by Plaintiff s argument that this case fundamentally 784 differs from a risk-of-failure case. The summary judgment record revealed that some Plaintiffs 785 did not experience any handling problems and/or continued to fill their vans to capacity 786 whenever suitable to their transportation needs. See July 9 Opinion, 2010 WL 2813788, at *4 787 (Greater All Nation: some handling problems, fills van to capacity of 12, based on seat size), 46 788 (Mestre: some handling problems with one van, filled both vans to capacity during ownership), 789 51 (St. Luke s: no handling problems, voluntarily limited capacity to 12), 56 (St. James: no 790 handling problems, voluntarily limited capacity to 12), 62 (Conant Avenue: some minor handling 37 791 problems, filled to capacity from 2000-2008, voluntarily limited capacity to 12 after reading 792 government safety report in 2008), 69 (Barrett: no handling problems, continues to fill to 793 capacity). Plaintiffs only claim to injury for consumers that did not experience handling 794 problems and/or continued to fill their vans to capacity is a speculative diminution in value, 795 arising from the fact that the vans have an inherent design defect that manifests with handling 796 problems on all vehicles. Plaintiffs approximate this diminution in value with the cost of a dual- 797 wheel retrofit. Yet, the portions of the Arndt Declaration cited by Plaintiffs do not support the 798 contention that handling defects manifest in every E-350 van under normal driving conditions.12 799 In light of the summary judgment record, where some Plaintiffs reported handling problems 800 under full load and others did not, and some have voluntarily limited capacity and others have 801 not, it appears that Plaintiffs are now asserting a common injury of a design defect that has 802 increased the likelihood of the van losing stability under normal driving conditions, and that this 803 likelihood has caused a reputational injury to the vehicle in terms of diminished resale value. Yet 804 there are two flaws with this reputational injury, beyond the fact that Plaintiffs did not rely on 805 this injury in opposing Ford s motion for summary judgment: (1) it does not apply to Plaintiffs, 12 The portions of the Arndt Declaration cited by Plaintiffs assert the following facts: (i) the putative class vans had a rear weight bias; (ii) dynamic testing of the vans in 1992 revealed some oversteer tendencies on the applicable model tires; (iii) that oversteer conditions are dangerous to normal drivers; and (iv) that a Ford engineer issued a report in 1995 stating that Ford vans had a reputation for handling complaints, and that Ford should make suspension and steering changes to better address consumer needs and better compete against a competitor s new extended passenger van. (See Arndt Decl. ¶¶ 13-17). While the Arndt Declaration provides an assessment of the E-350 s general handling characteristics and a Ford engineer s recommendation that these handling characteristics be addressed, it does not support the contention that unsafe handling defects manifest in every loaded vehicle under normal driving conditions, or compare the E-350 van s handling characteristics with other large vehicles, including competitors 15-passenger vans. 38 806 like Barrett, who have no intention of selling their van; and (2) it is unclear that a dual-wheel 807 retrofit, that would add two additional wheels to the vans rear axles and affect the vehicle s 808 overall dimensions and handling, will adequately address this reputational injury. 809 Viewed in light of the summary judgment record, Plaintiffs asserted common injury is 810 not wholly dissimilar from the risk-of-failure claim at issue in Frank. Frank involved 811 consumers claims that vehicle seat backrests and their reclining mechanism were inherently 812 defective, such that the seats were subject to a dangerous collapse in the event of a substantial 813 rear-end collision. Frank, 741 N.Y.S.2d at 11. The court rejected this latent defect theory of 814 injury, reasoning inter alia: 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 it would be manifestly unfair to require a manufacturer to become, in essence, an indemnifier for a loss that may never occur. Plaintiffs argument, basically, is that as an accident becomes foreseeably possible, upon the occurrence of certain contingencies, due to a design aspect of a product, the manufacturer must retrofit the product or otherwise make the consumer whole. However, under such a schematic, as soon as it can be demonstrated, or alleged, that a better design exists, a suit can be brought to force the manufacturer to upgrade the product or pay an amount to every purchaser equal to the alteration cost. Such no injury or peace of mind actions would undoubtedly have a profound effect on the marketplace, as they would increase the cost of manufacturing, and therefore the price of everyday goods to compensate those consumers who claim to have a better design, or a fear certain products might fail. Id. at 16-17. In reaching its decision, Frank cited with approval a number of appellate decisions 830 that rejected consumer claims for inherent automobile part defects where the consumer did not 831 claim manifestation of the defect. Id. at 15 (citing Carlson v. Gen. Motors Corp., 883 F.2d 287 832 (4th Cir. 1989) (claims of inherently defective diesel engines); Briehl v. Gen. Motors Corp., 172 833 F.3d 623 (8th Cir. 1999) (claims of inherently defective anti-lock brake systems)). Chief Judge 834 Brown properly recognized that Frank stopped short of requiring manifestation of the defect; yet, 39 835 in the absence of such manifestation, Frank still required the plaintiff to present evidence of an 836 actual injury, in the form of out-of-pocket repair costs or sale at a loss. July 9 Opinion, 2010 WL 837 2813788, at *71 (distinguishing Frank from Arkansas case law). Here, some Plaintiffs did not 838 report detectable handling difficulties13 or repair costs, and it appears that no Plaintiffs claim to 839 have sold an E-350 van at a loss as a result of the van s handling reputation. Cf. id. at *57 840 (applying Briehl, 172 F.3d at 626-29, and granting summary judgment against St. James s claims 841 because St. James has not sold its vehicles, has no specific plan to do so, and has not identified 842 any reduced resale value ). The speculative nature of the asserted common injury is revealed 843 by the fact that Plaintiffs do not offer any evidence of how the E-350 s handling compares to its 844 contemporary competitors or industry standards for extended passenger vans. Indeed, Plaintiffs 845 summary judgment brief stated that it would rely on expert testimony to determine if, and how 846 much, prices of the new and used vans reflected their publicized problems. (Doc. No. 247 at 847 37) (emphasis added). Under these circumstances, the Court fails to see how Plaintiffs can assert 848 a common, actual injury under Frank, without resorting to the sort of speculation that Frank was 849 concerned about. Ultimately, this Court does not decide the merits of Plaintiffs proofs of injury. 13 This Court does not suggest that the slightest handling discomfort that can be experienced in any vehicle i.e., light steering feel, light/strong pedal feel, turning radius, torque steer is sufficient to state an actual injury. At the same time, the Court does not suggest that a consumer had to actually experience a rollover before he or she experiences an actual injury. Further, the Court does not presently weigh consumers varying claims of handling problems. Rather, this Court relies on the summary judgment record, wherein some Plaintiffs reported detectable handling problems that gave them concern about the van s actual stability under their normal driving circumstances, and others did not. However, the Court suspects that the actual injury and causation analyses would require individualized inquiries into each consumer s driving experience. See, e.g., Wolin v. Jaguar Land Rover N. Am., 617 F.3d 1168, 1174 (9th Cir. 2010) (remanding issue of certification under Land Rover s Tire Warranty, suggesting that individualized inquiries would be necessary to determine whether tire wear was caused by a vehicle defect or individual driving conditions). 40 850 See Sullivan, 2011 U.S. App. LEXIS 25185, at *66 ( The question is not what valid claims can 851 plaintiffs assert; rather, it is simply whether common issues of fact or law predominate. ); . For 852 present purposes, the Court finds that Plaintiffs newfound assertion of a common injury under 853 Frank lacks merit. In the absence of a common injury susceptible to common proof, class 854 treatment would be inappropriate. 855 Second, the Court notes that Chief Judge Brown bolstered his Frank analysis with the 856 benefit-of-the-bargain analysis provided by a decision from the Southern District of New York 857 that rejected unjust enrichment claims where the product had not malfunctioned. July 9 Opinion, 858 2010 WL 2813788, at *72 (quoting In re Canon Cameras, 237 F.R.D. 357, 359-60 (S.D.N.Y. 859 2006)). The Canon Cameras court reasoned that [a] plaintiff who purchases a digital camera 860 that never malfunctions over its ordinary period of use cannot be said to have received less than 861 what he bargained for when he made the purchase. 237 F.R.D. at 360. Chief Judge Brown 862 likened this reasoning to the actual injury requirement of Frank, and concluded that New York 863 Plaintiff Barrett could not show he was deprived of the benefit-of-the-bargain, because he had 864 not shown that his van malfunctioned, or that he had suffered actual injury. July 9 Opinion, 2010 865 WL 2813788, at *72.14 Plaintiffs primary damages theory is a benefit-of-the-bargain theory, 866 predicated on UCC § 2-714, but Plaintiffs do not address this adverse ruling, and Plaintiffs do 867 not suggest that GBL § 349 has a lower benefit-of-the-bargain threshold than an unjust 868 enrichment claim. Further, Plaintiffs offer no explanation for how class members like 14 Chief Judge Brown similarly granted summary judgment against Plaintiff St. James benefit-of-the-bargain theory of injury under Missouri law, reasoning: St. James has elected to limit its use of its vehicles by limiting capacity, but the defect has not manifested itself and therefore they have received the benefit of their bargain. July 9 Opinion, 2010 WL 2813788, at *58. 41 869 Barrett who negotiated a lower price on his van after expressing concerns about the van s 870 handling characteristics, continues to fill his van to capacity, and has no intention of selling his 871 van have been deprived of the benefit of their bargain. Or how class members like Blandon, 872 who had personal knowledge of the van s handling problems prior to purchase, were deprived of 873 the benefit of their bargain. Against this authority, the Court fails to see how Plaintiffs can show 874 that they suffered the same benefit-of-the-bargain injury with common proof when some 875 Plaintiffs (and certainly some putative class members) did not experience a handling defect. 876 Third, this Court notes that Plaintiffs proposed classes do not reflect the fact that the 877 bubble market on E-350 vans ended, by their own account, in April 2004. See July 9 Opinion, 878 2010 WL 2813788, at *44 ( [A]ll Plaintiffs admitted in their Responses and Objections to Ford s 879 Second Set of Written Interrogatories that [t]he artificial demand for the E-350 15 passenger 880 vans, as referred to in the Complaint, is believed to have eroded fully by April, 2004, when the 881 [National Highway Traffic Safety Administration] reissued a safety warning concerning 882 15-passenger vans. ). Further, as previously noted, Plaintiffs proposed classes do not take into 883 account the numerous public reports about the E-350 s handling problems that they concede were 884 issued between 2000 and 2004. (See Compl. ¶¶ 25-47, 61(e)) (identifying numerous public 885 reports and broadcasts that were released between 2000 and 2004). Plaintiffs have modified their 886 proposed unjust enrichment class to exclude vans purchased after April 2004, consistent with 887 their position on the van s bubble market, but Plaintiffs have not modified their other classes in 888 the same way, and Plaintiffs proposed classes still do not account for the consumers who viewed 889 the news releases prior to purchase. To the extent that Plaintiffs assert that class members who 890 purchased their vans after the first of these public reports (circa 2000) have a common benefit-of42 891 the-bargain injury with the rest of the class, regardless of whether these class members viewed 892 reports regarding the van s handling problems, Plaintiffs argument is foreclosed by their 893 concession that some of these class members did not pay a premium for the van because of 894 market knowledge. Ford would be entitled to examine which class members had knowledge of 895 the E-350 s handling characteristics at the time of purchase, and the extent of such knowledge, 896 whether the knowledge was derived from personal use or public reports.15 Thus, the presiding 897 court would need to conduct individual inquiries into putative class members respective 898 consumer experiences. 899 Ackerman, 2010 WL 2925955, and General Motors Corp. Pick-Up Truck Fuel Tank, 55 900 F.3d 768, cited by Plaintiffs, do not compel a different conclusion. With regard to Ackerman, 901 that court held on a motion to dismiss that [i]njury is adequately alleged under GBL §§ 349 or 902 350 by a claim that a plaintiff paid a premium for a product based on defendants inaccurate 903 representations. 2010 WL 2925955, at *23. The plaintiffs in Ackerman alleged that they paid a 904 premium for a beverage marketed as a fortified beverage, a dietary supplement in liquid form. 905 Id. Here, Plaintiffs state they have common proof of an inherent design defect that prevented the 906 E-350 van from being the 15-passenger van they were promised. But as noted above, different 907 Plaintiffs were exposed to different representations, if at all, regarding the van s capabilities, and 908 not all Plaintiffs experienced the alleged handling problems in their use of the van. Further, 909 Plaintiffs concede that post-April 2004 purchasers did not pay a premium on the van. Ackerman 15 This Court s consideration of the news reports issued between 2000 and 2004 should not be construed as a ruling that every consumer who was aware of such an article had actual knowledge of E-350 s handling problems. Rather, this Court merely recognizes that a consumer who had seen such a report may have had actual knowledge of the E-350 s handling defects at the time of purchase, depending on, inter alia, the information contained in the article. 43 910 did not address the issue of GBL § 349 injury in the context of a motion for class certification 911 and cannot be read to support Plaintiffs contention that they have common proof of a uniform 912 injury by virtue of their claim of an inherent design defect. The Court further notes that 913 Ackerman does not cite Frank or any case recognizing New York s actual injury requirement, 914 and that Ackerman was decided shortly after Chief Judge Brown s omnibus summary judgment 915 decision of July 9, 2010. To the extent that Ackerman departs from the actual injury requirement, 916 this Court remains bound by Chief Judge Brown s Frank rulings. 917 As for In re General Motors, that court suggested that [t]he cost of a retrofit . . . may 918 constitute an alternative measure of the damages arising from [a] breach of warranty. 55 F.3d at 919 816. At first blush, this case appears to provide strong support for Plaintiffs argument in this 920 case, because that case involved similar consumer claims of an inherent vehicle design defect 921 (certain GM trucks contained dangerously defective fuel tanks) that affected the resale value of 922 those trucks. However, the court s decision arose in the context of assessing the adequacy of a 923 class settlement. Thus, In re General Motors did not address whether the cost of a retrofit 924 constituted sufficient injury under a particular state s law (New York GBL § 349 or otherwise) to 925 state a claim, and, in fact, the court recognized that other jurisdictions have rejected warranty 926 claims asserting diminution in value for damages. See id. This Court therefore does not read In 927 re General Motors discussion of using the cost of a retrofit as an alternative measure of damages 928 to displace New York s substantive requirement of actual injury. Indeed, a Maryland decision 929 cited favorably by Plaintiffs, Lloyd v. General Motors Corp., recognized that New York law 930 differed from more lenient jurisdictions by requiring an actual injury showing. 916 A.2d 257, 931 292-93 (Md. 2007) (citing Frank and Weaver v. Chrysler Corp., 172 F.R.D. 96 (S.D.N.Y. 1997) 44 932 as examples of cases from other jurisdictions that have found, in automobile product defects 933 cases, that an allegation of economic loss is not sufficient to articulate an injury ). 934 This Court s conclusion reflects the fact that New York law requires a showing of actual 935 injury, in the form of personal or property damage incurred by the defect, out-of-pocket repair 936 costs, or sale at a loss. The undisputed record in this case reveals that some Plaintiffs 937 experienced handling issues under normal driving conditions with more than 10 passengers 938 and/or incurred repair costs, and others did not. Under New York law, sorting through those that 939 had an actual injury and those that did not would require individualized inquiries. 940 2. Implied Warranty 941 In New York, an implied warranty claim requires proof of the following elements: (1) 942 that the product was defectively designed or manufactured; (2) that the defect existed when the 943 manufacturer delivered it to the purchaser or user; and (3) that the defect is the proximate cause 944 of the accident. Plemmons v. Steelcase Inc., No. 04-4023, 2007 WL 950137, at *3 (S.D.N.Y. 945 Mar. 29, 2007) (internal quotation marks and citations omitted). The implied warranty has been 946 breached when the product is not fit for the ordinary purposes for which such goods are used. 947 See N.Y. U.C.C. § 2-314(2)(c); Plemmons, 2007 WL 950137, at *3. Ford argues that Plaintiffs 948 do not have common proof of the existence of an implied warranty, or common proof of any of 949 the above elements. 950 First, Ford contends that all E-350 vans were sold with an express warranty that limited 951 the duration of the implied warranty of merchantability to the period of the express warranty, 952 three years or 36,000 miles, whichever comes first. Because of this durational limitation 953 disclaimer, Ford contends that class members will have to present individualized proofs 45 954 concerning whether the implied warranty existed at the time of purchase, in the case of used E- 955 350 vans, or expired prior to the point when a given class member suffered an actual injury. 956 (Ford Resp. Br. at 28-29). Next, Ford submits that Plaintiffs do not have classwide proof of a 957 design defect, which Ford claims must be determined by reference to a risk-utility balancing test. 958 (Id. at 30). Third, Ford contends that Chief Judge Brown s Frank rulings demonstrate that 959 Plaintiffs do not have common proof of actual injury, for the same reason that Plaintiffs did not 960 have common proof of actual injury under GBL § 349. (Id. at 32-33). Finally, Ford argues that 961 Plaintiffs do not have common proof of causation. (Id. at 35-36). 962 Plaintiffs respond that their implied warranties arose by operation of law, that any 963 disclaimer by Ford is too inconspicuous to be enforceable, and that, in any event, Ford s 964 disclaimers would be subject to common proof. (Pls. Reply Br. at 12-14). Speaking to defect, 965 Plaintiffs note that the New York Court of Appeals, responding to a certified question by the 966 Second Circuit, expressly rejected the risk-utility analysis advocated by Ford in Denny v. Ford 967 Motor Company, 662 N.E.2d 730 (N.Y. 1995). Instead, Plaintiffs argue that Denny adopted an 968 objective standard measured by the expectations for the performance of the product when used 969 in the customary, usual and reasonably foreseeable manners. Id. at 736. Under this objective 970 standard, Plaintiffs maintain that they have common proof addressing whether the E-350 van can 971 safely transport 15 passengers when used in the customary, usual, and reasonably foreseeable 972 manner. (Pls. Reply Br. at 11-12). Last, Plaintiffs respond that issues of causation16 support 16 Plaintiffs also appear to assert that Ford should have raised a causation argument as an affirmative defense to Plaintiffs implied warranty claims or in its prior motions. (Pls. Reply Br. at 19). Yet this argument is perplexing, considering that causation is an essential element of Plaintiffs implied warranty claims. See, e.g., N.Y. U.C.C. §§ 2-314 Cmt. 13, 2-316(3)(b); Androme Leather Co., Inc. v. Consol. Color Co., 569 N.Y.S.2d 514, 515 (App. Div. 1991) (citing 46 973 class certification, because class treatment would prevent the necessity for hundreds of trials 974 featuring the same expert witnesses, and because Ford has not shown that any class members 975 knew of the defect at the time of purchase. (Id. at 19-20). 976 The Court agrees with Plaintiffs that Denny rejected the risk-utility standard sought by 977 Ford, 662 N.E.2d at 736, and it appears that Plaintiffs may be able to satisfy the defect 978 requirement with common proof. The Court further declines to decide the degree to which 979 Ford s implied warranty disclaimers apply to Plaintiffs claims.17 Yet, the Court agrees with 980 Ford that individual issues of actual injury and causation predominate, and thus defeat class 981 certification. 982 Chief Judge Brown s July 9 Opinion recognized that Frank s actual injury analysis 983 applied to implied warranty claims. 2010 WL 2813788, at *70. This Court rejects Plaintiffs 984 attempt to distinguish Frank for the reasons stated above. Plaintiffs cannot invoke more lenient 985 injury requirements from other jurisdictions to save their New York claims. In light of Frank s 986 actual injury requirement personal or property damage, out-of-pocket repair costs, or sale at a 1 White and Summers, Uniform Commercial Code § 9-1, at 436 (3d ed.)). Plaintiffs do not suggest that Ford has ever admitted causation. (See Compl. ¶¶ 84-86; Answer ¶¶ 84-86). Indeed, Ford advanced causation-based arguments in support of its motions for summary judgment as to a number of Plaintiffs other claims. 17 Although the parties offer generalized arguments about the enforceability of Ford s disclaimers, the parties do not engage in a detailed analysis of the language and context of the specific disclaimers, which varied depending on the model year. In fact, Ford submitted 15 different warranty booklets for the relevant model years (see Taylor Decl. Exs. A-O), and even a cursory review reveals that different warranty periods applied for different warranties in different years, and that such warranties appeared with varying degrees of prominence from year to year. Although the Court suspects that individual issues will arise if any of Ford s disclaimers are enforceable, the Court is not prepared to make such a merits judgment on the basis of the parties limited briefing, and need not do so to rule on the class certification motion. 47 987 loss Plaintiffs general assertion of an inherent defect cannot overcome the disparate 988 experiences of actual Plaintiffs, wherein some experienced handling difficulties and/or repair 989 costs, others did not, and none claim to have sold their vehicles at a loss due to the defect. The 990 presiding court would need to unearth the viable claims via individual inquiries.18 991 Moreover, numerous causation issues preclude certification of the New York implied 992 warranty claim. Like other jurisdictions, New York requires a plaintiff to show that the defect 993 proximately caused the injury in order to state a claim for warranty liability. See, e.g., Androme 994 Leather Co., Inc. v. Consol. Color Co., 569 N.Y.S.2d 514, 515 (App. Div. 1991) (explaining that 18 By letter of July 14, 2011, Plaintiffs presented supplemental authority for their implied warranty claims: the Eighth Circuit s recent decision in In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604 (8th Cir. 2011). Plaintiffs argue, inter alia, that Zurn Pex Plumbing found that class members had sufficient actual injury, despite the fact that their plumbing had not leaked, because the plumbing contained the defect at the point of installation. (See Doc. No. 398). Indeed, a split panel in Zurn Pex Plumbing affirmed the district court s certification of a class of homeowners asserting that the defendants brass plumbing fittings were defective because they were susceptible to stress corrosion cracking ( SCC ). Id. 608-09. This class included a group of plaintiffs whose plumbing had not leaked, which the court referred to as dry plaintiffs. Id. at 616. Zurn Pex Plumbing is distinguishable, however, because the plaintiffs in that case had presented expert testimony that the plumbing defect begins to develop as soon as the fittings were exposed to water and, thus, is already manifest in all systems. Id. at 617. The plaintiffs further alleged that SCC afflicts all of the fittings upon use, regardless of water conditions or installation practices, id., and the plaintiffs expert had further opined that 99% of homes would experience a plumbing leak in one of the fittings within the product s 25year warranty, id. at 609-10. Similarly, Plaintiffs in this case argue that their defect manifests in all vehicles under normal driving conditions, but the expert opinion they cite and the summary judgment record does not support this contention. Indeed, some Plaintiffs have filled the van to capacity for many years and reported no discernable handling problems. See supra Part II.A.1.c ( Injury ). Whereas the dry plaintiffs in Zurn Pex Plumbing presented evidence that the fittings were practically certain to fail within the warranty period, the Plaintiffs in this case have presented evidence that the E-350 is likely to experience dangerous handling conditions under normal driving conditions. In this case, as in Frank, it would be manifestly unfair to require a manufacturer to become . . . an indemnifier for a loss that may never occur. 741 N.Y.S. 2d at 16. 48 995 a plaintiff must prove cause in fact and proximate causation on the part of a specific defendant ) 996 (quoting 1 White and Summers, Uniform Commercial Code § 9-1, at 436 [3d ed.]); Complaint of 997 Am. Export Lines, Inc., 620 F. Supp. 490, 518 (S.D.N.Y. 1985). The varied experiences of 998 named Plaintiffs reveal that some had actual knowledge of the van s handling problems, if not 999 the exact design defect that caused those handling characteristics. For instance, Florida Plaintiff 1000 Blandon, prior to purchasing her used 2000 E-350 van in 2006, had lost control while driving 1001 another E-350 van and had participated in numerous discussions with co-workers regarding the 1002 van s handling characteristics and relative safety. July 9 Opinion, 2010 WL 2813788, at *49-50 1003 (granting summary judgment against Blandon s claims, because of Blandon s actual knowledge 1004 of the alleged defect). Similarly, New York Plaintiff Barrett told his E-350 salesman that a friend 1005 of his had experienced a rollover, and that the van should not be driven by inexperienced drivers. 1006 Id. at *69. Class members with similar knowledge of the handling problems whether from 1007 personal experience or from viewing the numerous public reports identified in Plaintiffs 1008 Complaint would not be able to prove causation under New York law and, more importantly 1009 for purposes of this class certification decision, would not share common proof of causation. 1010 The proof would consist of their unique, individual consumer experiences. 1011 This Court finds instructive the Second Circuit s decision in Sobiech v. International 1012 Staple & Machine Co., which held, under New York law, that the plaintiff could not maintain 1013 action for breach of implied warranty because he knew of a product s (vegetable packaging 1014 machine) defects from personally using the product on a trial basis prior to purchase. 867 F.2d 1015 778, 782-83 (2d Cir. 1989). In doing so, the Sobiech court relied on N.Y. U.C.C. § 2-316(3)(b), 1016 which states that there are no implied warranties with regard to defects which an examination 49 1017 ought in the circumstances to have [been] revealed when the buyer has an opportunity to inspect 1018 the goods prior to purchase. See also N.Y. U.C.C. §§ 2-314 Cmt. 13 ( In an action based on 1019 breach of warranty, it is of course necessary to show not only the existence of the warranty but 1020 the fact that the warranty was broken and that the breach of the warranty was the proximate cause 1021 of the loss sustained. ); 2-316 Cmt. 8 ( Of course if the buyer discovers the defect and uses the 1022 goods anyway, or if he unreasonably fails to examine the goods before he uses them, resulting 1023 injuries may be found to result from his own action rather than proximately from a breach of 1024 warranty. . . . The particular buyer s skill and the normal method of examining goods in the 1025 circumstances determine what defects are excluded by the examination. A failure to notice 1026 defects which are obvious cannot excuse the buyer. ). These principles apply with equal force 1027 here, where some Plaintiffs knew of the handling issues from personal experience (Barrett, 1028 Blandon), and others no doubt knew of the handling issues from the numerous public reports, 1029 articles, and broadcast announcements about the E-350 van s rollover propensity that Plaintiffs 1030 identified in the Complaint. (See Compl. ¶¶ 25-47) (identifying numerous public reports and 1031 broadcasts that were released between 2000 and 2004). Plaintiffs argue that Ford has not made a 1032 showing that any class members had actual knowledge of the defect prior to purchase (Pls. 1033 Reply Br. at 20 n.13), but Plaintiffs assessment is wholly contradicted by the summary judgment 1034 record.19 19 Daffin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006), cited by Plaintiffs, does not support certification of Plaintiffs implied warranty classes. In Daffin, the court approved certification of the express warranty claims of consumers asserting damages stemming from a defective throttle body assembly that caused the accelerator to stick. Id. at 550. Ford had argued that consumers who did not experience a sticky accelerator or sought repair of the problem cannot prove an express warranty claim under [Ford s] repair or replace warranty. Id. at 553. The Daffin court rejected this argument, explaining that [t]he question that forms the basis 50 1035 In light of this record, the Court concludes that it is likely that a fair number of the 1036 putative class members had actual knowledge of the E-350 s handling difficulties at the time of 1037 purchase, whether from personal experience or from public announcements. These class 1038 members would not be able to show causation to support their implied warranty claims.20 1039 Sorting out those who knew of the defect from personal use from those who learned from public 1040 reports, as well as from those having no knowledge, will require numerous individual inquiries. 1041 Because of the individual variations in proof for both actual injury and causation, the Court will for Ford s argument is one of contract interpretation: whether Ford s express warranty promises to cover the alleged defect in the throttle body assembly even if no sticking occurs during the warranty period. Id. Depending on how the district court interpreted the warranty provision on remand, the Court of Appeals recognized that the district court may consider at that point whether to modify or decertify the class. Id. at 554. With regard to predominance, the Daffin court found that the following common issues predominated: (1) whether the throttle body assembly is defective, (2) whether the defect reduces the value of the car, and (3) whether Ford s express repair or replace warranty covers the latent defect at issue in this case. Id. The court further reasoned that Daffin was not a case . . . in which different class members were exposed to different products such that the uncommon issue of causation predominated over the lesser shared issues. Id. Here, by contrast, Plaintiffs do not assert an express warranty claim on the basis of any written warranty issued by Ford to replace defective parts. Rather, Plaintiffs have based their sole express warranty claim (Georgia, see infra Part II.G) and their several implied warranty claims on Ford s core description and/or packaging of the E-350 van as a 15-passenger van. Thus, Plaintiffs warranty claims do not present a common issue of contract interpretation. Rather, Plaintiffs warranty claims rest on the various representations of Ford representatives to individual class members. Moreover, this case presents additional issues requiring individual treatment that were not present in Daffin: actual injury (New York law), causation, and statutes of limitations. 20 Plaintiffs argue that Ford s causation argument improperly asks this Court to consider the merits of Plaintiffs claims. Yet, this Court presently makes no determination regarding whether an individual Plaintiff or class member failed to show causation in fact and proximate causation, with regard to specific consumer transactions. This Court s ruling only recognizes the disparate consumer experiences detailed in Chief Judge Brown s summary judgment opinions, which lead this Court to conclude that Plaintiffs implied warranty claims are not susceptible to common proof. 51 1042 deny certification of the New York implied warranty claim. 1043 B. Texas 1044 The sole remaining Texas claim is St. Luke s omission claim under DTPA 1045 § 17.46(b)(24). See July 9 Opinion, 2010 WL 2813788, at *55. Ford objects that Plaintiffs 1046 cannot prove their Texas consumer fraud claims with common proof, because there is no 1047 classwide evidence of the elements of the DTPA claim: (1) a uniform omission; (2) deception; 1048 (3) actual injury; and (4) causation. The parties generally rely on the same consumer fraud 1049 arguments that this Court addressed in the New York section, supra Part II.A.1. The Court 1050 agrees with Ford that common issues of law and fact do not predominate. 1051 Texas Plaintiffs omission claim is predicated on allegations that Ford failed to disclose 1052 to consumers that, due to stability issues, the E-350 van should only be driven by trained 1053 experienced drivers. (See Compl. ¶ 31; Pls. Reply Br. at 27 n.18, 29). As detailed above, the 1054 undisputed record in this case reveals that the safety instructions in E-350 owner s manuals 1055 changed throughout the proposed class period. For instance, whereas the owner s guides for 1056 model-year 2000-2002 E-350 vans included general notices about the vehicle s handling 1057 capabilities and urged [e]xtra precautions, such as slower speeds and increased stopping 1058 distance, . . . when driving a heavily loaded vehicle, the owner s guides for model-year 2003- 1059 2005 E-350 vans added a Vehicle Stability and Handling section, which stated that [t]he risk 1060 of a rollover crash increases as the number of people and load in the vehicle increase, and 1061 advised that [t]he van should be operated by an experienced driver. (See Doc. No. 292, Smith 1062 Decl. Ex. 12). Naturally, then, Plaintiffs cannot assert a uniform alleged omission, because 1063 differing amounts of information were disclosed at different times. 52 1064 The Court is less sanguine about Ford s deception argument, which primarily relies on 1065 case law from other jurisdictions. (See Ford s Br. at 42-43). As noted in the discussion of New 1066 York law, it is unclear whether New York applies a purely objective or quasi-subjective standard 1067 for determining deception. In the absence of clear guidance from Texas cases or statutes, the 1068 Court will not weigh this factor against Plaintiffs. 1069 The Court is also hesitant to accept Ford s argument that Texas Plaintiffs cannot show 1070 actual injury with common proof under the Texas Supreme Court s ruling in DaimlerChrysler 1071 Corp. v. Inman, 252 S.W.3d 299 (Tex. 2008). St. Luke s and, presumably, Texas class members 1072 seek damages based on diminution in value of the van. St. Luke s also asserts loss of use. Chief 1073 Judge Brown distinguished the deficient pleadings in Inman from St. Luke s pleadings in this 1074 case, explaining [a]s the Supreme Court of Texas noted, the Inman plaintiffs did not contend 1075 that the allegedly defective buckles made their vehicles worth less than they paid for them. 1076 July 9 Opinion, 2010 WL 2813788, at *52 (quoting Inman, 252 S.W.3d at 302). Here, all 1077 Plaintiffs, including St. Luke s and putative class members, assert that the defective design of the 1078 E-350 van made their vehicles worth less than they paid for them. (See, e.g., Pls. Br. at 35-36) 1079 (stating that Plaintiffs paid for more than they received, in an amount of $2,100). Ford asks for 1080 this Court to recognize that the Texas Supreme Court has adopted an actual injury requirement 1081 similar to the one articulated in Frank (New York). Yet, Chief Judge Brown s ruling did not 1082 make this connection, and Ford does not identify Texas authority to support this point. Under 1083 these circumstances, the Court will presume that Texas Plaintiffs can present common proof of 1084 an injury, sufficient to have standing under Inman. 1085 However, the Court agrees with Ford that Plaintiffs cannot present classwide proof of 53 1086 reliance or causation. As Chief Judge Brown recognized in the July 9 Opinion, [r]eliance is an 1087 essential element of a DTPA claim . . . . 2010 WL 2813788, at *53 (citing Tex. Bus. & Com. 1088 Code § 17.50(a)(1)(B); Morgan Bldgs. & Spas, Inc. v. Humane Soc y of S.E. Texas, 249 S.W.3d 1089 480, 490 (Tex. App. 2008)). Applied to St. Luke s claim, to satisfy the reliance element for an 1090 omission, a plaintiff must show that defendant had intent to induce a transaction through failure 1091 to disclose, and that plaintiff would not have entered into the transaction if the information had 1092 been disclosed. July 9 Opinion, 2010 WL 2813788, at *55. Ford correctly points out that Texas 1093 courts have acknowledged that claims requiring a showing of reliance including the 1094 DTPA involve many individualized inquiries that usually cannot be resolved through class 1095 litigation. Texas courts have reached this conclusion in the aftermath of the Texas Supreme 1096 Court s decertification decision in Henry Schein, Inc. v. Stromboe, which recognized that class 1097 members are held to the same standards of proof of reliance and for that matter all the other 1098 elements of their claims that they would be required to meet if each sued individually. 102 1099 S.W.3d 675, 693 (Tex. 2002) (decertifying a class of contract, warranty, and DTPA claims for, 1100 inter alia, failure to present classwide proof of reliance). In other words, Schein held that [t]he 1101 burden on plaintiffs to prove reliance in order to recover on any of these theories is in no way 1102 altered by the assertion of claims on behalf of a class. Id. After Schein, multiple appellate 1103 courts in Texas rejected class certification of consumer fraud claims, explaining that [p]roof of 1104 reliance or lack of reliance necessarily requires an individualized determination because, under 1105 all the same facts and circumstances, one person may have relied on the misrepresentation in 1106 reaching a decision while another did not rely on it in reaching the same decision. Texas South 1107 Rentals, Inc. v. Gomez, 267 S.W.3d 228, 237 (Tex. App. 2008) (quoting Fid. & Guar. Life Ins. 54 1108 Co. v. Pina, 165 S.W.3d 416, 423 (Tex. App. 2005); Grant Thornton, L.L.P. v. Suntrust Bank, 1109 133 S.W.3d 342, 355 (Tex. App. 2004)). As of 2008, no Texas appellate court since Schein had 1110 found evidence of classwide reliance. Gomez, 267 S.W.3d at 237 (noting that the courts of 1111 appeals had questioned whether given the individualized nature of reliance, any class action 1112 could ever be certifiable under Schein ). Ford concedes, however, that the Texas Supreme Court 1113 did find classwide proof of reliance last year in Southwestern Bell Telephone Company v. 1114 Marketing On Hold Inc., 308 S.W.3d 909 (Tex. 2010). Southwestern Bell recognized that 1115 Texas courts have been reluctant to certify a class when proof of reliance is required as an 1116 element of a claim since Schein, and restated that class certification is improper [w]hen 1117 evidence existed that individual class members experiences reasonably could have varied . . . . 1118 Sw. Bell, 308 S.W.3d at 921-22. Nevertheless, the Southwestern Bell court concluded that the 1119 phone service consumers before it had common proof of reliance, because the consumers had no 1120 choice but to rely on the phone company s representations by paying the allegedly improper 1121 municipal fees on their phone bills. Id. at 922. The court reasoned that the phone company 1122 would have discontinued phone service if a consumer objected to the fee. Id. at 922-23. 1123 In their reply, Plaintiffs make no attempt to place their proposed class within the limited 1124 contours of Schein and Southwestern Bell, nor do Plaintiffs assert that they have common 1125 evidence of reliance. Rather, Plaintiffs contend that Chief Judge Brown s July 9 Opinion held 1126 that there is no reliance requirement under the relevant . . . Texas consumer protection laws. 1127 (Pls. Reply Br. at 26). Plaintiffs argument in this regard is disingenuous, because it flatly 1128 contradicts both Texas law and Chief Judge Brown s decision. As noted above, reliance is an 1129 essential element of a DTPA claim. July 9 Opinion, 2010 WL 2813788, at *53 (citing Tex. Bus. 55 1130 & Com. Code § 17.50(a)(1)(B); Morgan Bldgs., 249 S.W.3d at 490). Further, Chief Judge 1131 Brown explained how Plaintiffs could satisfy the reliance requirement for their omission claim: 1132 to satisfy the reliance element for an omission, a plaintiff must show that defendant had intent to 1133 induce a transaction through failure to disclose, and that plaintiff would not have entered into the 1134 transaction if the information had been disclosed. July 9 Opinion, 2010 WL 2813788, at *55 1135 (emphasis added). In other words, Plaintiffs must have common proof that class members would 1136 not have purchased the E-350 van if Ford had fully disclosed the E-350 van s handling problems 1137 to consumers. Not only do Plaintiffs not attempt to make this showing, but Ford correctly notes 1138 that the record indicates that some named Plaintiffs would have bought their E-350 vans despite 1139 the handling problems. (See, e.g., Barrett 56.1 Statement, Doc. No. 206, Ex. 2, ¶¶ 22-29) 1140 (explaining that he would have bought the E-350 van despite the handling issues); (Blandon 56.1 1141 Statement, Doc. No. 190, Ex. 2, ¶¶ 3-6) (explaining that she purchased an E-350 van, despite 1142 knowing of its handling problems). No doubt, unidentified members of the proposed Texas class 1143 would have similar variations that would be material to whether or not they could state a DTPA 1144 claim. Plaintiffs have no answer for how these individual variations can be resolved without 1145 individual inquiries. 1146 Plaintiffs have not shown common proof of omission or reliance, and, therefore, common 1147 issues of fact and law do not predominate over individual issues. Consequently, the Court will 1148 deny certification of Plaintiffs proposed Texas class. 1149 C. Pennsylvania 1150 The only remaining Pennsylvania claims are the implied warranty claims of Bethel, 1151 Hickman Temple, and Mt. Airy, as well Bethel s unjust enrichment claim on its 2001 van. See 56 1152 July 9 Opinion, 2010 WL 2813788, at *44; February 16 Opinion, 2011 WL 601279, at *6. Ford 1153 objects to Plaintiffs proposed Pennsylvania classes on the grounds that Plaintiffs cannot prove 1154 their implied warranty and unjust enrichment claims with common proof. The Court agrees on 1155 both counts. 1156 1157 1. Implied Warranty Ford advances essentially the same objections to the proposed Pennsylvania implied 1158 warranty class that it presented in opposition to the proposed New York implied warranty class, 1159 and Plaintiffs offer essentially the same responses. Accordingly, one would presuppose that the 1160 same class certification analysis the Court conducted with regard to the New York implied 1161 warranty class would be applicable to the other jurisdictions implied warranty classes. 1162 However, as Chief Judge Brown recognized in the omnibus July 9 Opinion, 2010 WL 2813788, 1163 at *41-42, Pennsylvania courts have not yet adopted actual injury requirements akin to Frank. 1164 The question remains whether Plaintiffs implied warranty classes survive in jurisdictions 1165 with less stringent injury requirements than New York. This Court concludes that the 1166 Pennsylvania implied warranty class still suffers from individual issues of causation that render 1167 class treatment impracticable. 1168 Like other states, Pennsylvania imposes an implied warranty of merchantability on all 1169 contracts for the sale of goods if the seller is a merchant. 13 Pa. Cons. Stat. § 2314(a). The UCC 1170 as codified in Pennsylvania states that, in order to be merchantable, the goods must pass 1171 without objection in the trade under the contract description and be fit for the ordinary 1172 purposes for which such goods are used. Id. § 2314(b). The Pennsylvania Supreme Court has 1173 held that [t]he concept of merchantability does not require that the goods be the best quality or 57 1174 the best obtainable but it does require that they have an inherent soundness which makes them 1175 suitable for the purpose for which they are designed, that they be free from significant defects, 1176 that they perform in the way that goods of that kind should perform, and that they be of 1177 reasonable quality within expected variations and for the ordinary purpose for which they are 1178 used. Gall v. Allegheny Cty., Health Dep t, 555 A.2d 786, 789-90 (Pa. 1989) (internal citations 1179 omitted). Like other jurisdictions, Pennsylvania s UCC requires a showing of causation that can 1180 be overcome by knowledge of the defect at the time of purchase. When the buyer before 1181 entering into the contract has examined the goods or the sample or model as fully as he desired or 1182 has refused to examine the goods there is no implied warranty with regard to defects which an 1183 examination ought in the circumstances to have revealed to him. 13 Pa. Cons. Stat. 1184 § 2316(c)(2); see also id. Cmt. 8 ( The particular buyer s skill and the normal method of 1185 examining goods in the circumstances determine what defects are excluded by the examination. 1186 A failure to notice defects which are obvious cannot excuse the buyer. ); id. § 2314 Cmt. 13 1187 ( Action by the buyer following an examination of the goods which ought to have indicated the 1188 defect complained of can be shown as matter bearing on whether the breach itself was the cause 1189 of the injury. ); Nufeeds, Inc. v. Westmin Corp., No. 04-1071, 2006 WL 1000021, at *18 (M.D. 1190 Pa. Apr. 17, 2006). Consequently, this Court s causation reasoning with regard to the New York 1191 implied warranty class applies equally to the Pennsylvania implied warranty class. Resolution of 1192 these claims will require individualized inquiries into each consumer experience, so as to identify 1193 and exclude those consumers who purchased E-350 vans with actual knowledge of its handling 1194 problems, whether from personal use or from a variety of reports that were published between 1195 2000 and 2004. 58 2. Unjust Enrichment 1196 1197 To assert a claim of unjust enrichment under Pennsylvania law, a plaintiff must show 1198 that: (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by 1199 defendant; and (3) acceptance and retention of such benefits under such circumstances that it 1200 would be inequitable for defendant to retain the benefit without payment of value. Williams 1201 Twp. Bd. of Supervisors v. Williams Twp. Emergency Co., 986 A.2d 914, 923-24 (Pa. Commw. 1202 Ct. 2009) (citations omitted). Pennsylvania law views unjust enrichment as an equitable remedy 1203 based on the law of restitution. See, e.g., Mitchell v. Moore, 729 A.2d 1200, 1203-04 1204 (Pa. Super. Ct. 1999); Powers v. Lycoming Engines, 328 F. App x 121, 125 (3d Cir. 2009) 1205 (collecting Pennsylvania cases). 1206 Ford argues that Plaintiffs do not have common proof of a benefit conferred upon Ford, 1207 that the benefit exceeded the value of the vehicle, or that retention of the benefit by Ford would 1208 be unjust. Plaintiffs respond by limiting their proposed unjust enrichment class to consumer 1209 purchases of new vehicles during the time period prior to April 2004, so as to limit the class to 1210 consumers who conveyed a benefit upon Ford, and argue that they have common proof of Ford s 1211 misconduct, in the form of evidence that Ford disregarded and failed to disclose to consumers an 1212 engineering recommendation that Ford should redesign their 15-passenger vans to improve van 1213 stability and handling. (Pls. Reply Br. at 37). 1214 While it appears that the modifications to Plaintiffs proposed unjust enrichment classes 1215 address the first objection raised by Ford (common benefit), the Court agrees with Ford that 1216 Plaintiffs cannot satisfy the remaining elements of their unjust enrichment claims with common 1217 proof. 59 1218 As this Court has explained with regard to other proposed classes, the summary judgment 1219 record in this case established that different named Plaintiffs had different consumer experiences 1220 vis-a-vis their E-350 van. Some were not exposed to any representations about the van s 1221 capacity or relative safety, some experienced no discernable handling problems with their vans, 1222 some continue to fill their van to capacity, and some incurred no injury whatsoever. At the same 1223 time, the E-350 owners manuals issued by Ford progressively alerted consumers to the van s 1224 unique handling characteristics and the need to drive with caution. This Court finds illustrative 1225 Chief Judge Brown s rulings with regard to the unjust enrichment claims of Illinois Plaintiff 1226 Pentecostal Temple, New York Plaintiff Barrett, and Florida Plaintiff Blandon. 1227 1228 Addressing the former, Chief Judge Brown granted summary judgment against Pentecostal Temple s unjust enrichment claim, reasoning as follows: 1229 1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 1241 1242 It is undisputed, based on Pastor Edwards s deposition testimony, that no one at Pentecostal Temple received any representations from Ford, saw any Ford marketing materials, or even observed that the E-350 purported to be a 15-passenger van. Pentecostal Temple sold its first E-350 van for reasons unrelated to the handling issues giving rise to this litigation, and it purchased the 1998 van based on the desire for something that would take more than four or five members at a time and that would have ease of access for seniors and young people. (Edwards Dep. at 56:16-17; 57:1-19). While other Plaintiffs in this action might have acquired their E-350 vans based on Ford s representations or labeling of the vehicles as 15-passenger vans, the undisputed record shows that Pentecostal Temple did not. July 9 Opinion, 2010 WL 2813788, at *25. Chief Judge Brown explained that Pentecostal 1243 Temple s unjust enrichment claim fails for the same substantive flaw that dooms its [consumer 1244 fraud act] claim: it cannot show deception or other wrongful conduct directed at Pentecostal 1245 Temple. Id. at *24. Similarly, Chief Judge Brown granted summary judgment against New 60 1246 York Plaintiff Barrett s unjust enrichment claim, because the undisputed record revealed that 1247 Barrett: (i) knew of the handling defects prior to purchase and told his salesman of the same 1248 (simultaneously negotiating a lower price that Barrett deemed fair); (ii) did not experience 1249 handling problems and continued to fill his van to capacity; (iii) still would have bought the van 1250 if he had all the knowledge that he had at the time of his deposition; and (iv) had no intention of 1251 selling the van. Id. at *71-72 (citing the benefit-of-the-bargain principles of Canon Cameras and 1252 the actual injury requirement of Frank). As this Court observed, supra, it cannot be denied that 1253 such a class member has been deprived of the benefit of his or her bargain. Chief Judge Brown 1254 further granted summary judgment against Florida Plaintiff Blandon s unjust enrichment claim 1255 because she purchased her van in 2008 from a private individual after the point in time (April 1256 2004) that Plaintiffs concede that the bubble market for E-350 vans had ended. Id. at *50. 1257 Beyond the April 2004 end-point conceded by Plaintiffs, it is undisputed that a number of public 1258 reports concerning the E-350 s handling problems were published and/or broadcast between 1259 2000 and 2004. Such reports would necessarily factor into consideration of the equities for the 1260 unjust enrichment claims of those consumers that viewed the reports. 1261 Where individual consumers bargained with varying degrees of knowledge regarding the 1262 alleged defect, were exposed to varying representations, if at all, about the van s capacity and 1263 relative safety, and filled their vans at varying capacities with varying handling problems, if any, 1264 Plaintiffs cannot overcome these individual consumer experiences with the claim that they have 1265 common proof that Ford failed to disclose information about the vehicle s handling. The 1266 presiding court would need to conduct separate inquiries into the equities of each class member s 1267 consumer experience to resolve these claims. See, e.g., Vega v. T-Mobile USA, Inc., 564 F.3d 61 1268 1256, 1274 (11th Cir. 2009) (explaining that unjust enrichment claims require the reviewing 1269 court to examine the particular circumstances of an individual case and assure itself that, 1270 without a remedy, inequity would result or persist, and therefore courts . . . have found unjust 1271 enrichment claims inappropriate for class action treatment ). Common issues of law and fact 1272 thus do not predominate over individualized inquiries, and this Court will deny class certification 1273 of the Pennsylvania unjust enrichment classes. 1274 D. Florida 1275 The only remaining Florida claims are the Florida Deceptive and Unfair Trade Practices 1276 Act (FDUPTA) claims of Diaz and Mestre. See July 9 Opinion, 2010 WL 2813788, at *51. Ford 1277 argues that Plaintiffs ignore the central issue of consumer knowledge, which led to the 1278 dismissal of Florida Plaintiff Blandon s FDUPTA claim. Ford also argues that the proposed 1279 Florida class fails for the same reasons that the New York and Texas consumer fraud claims fail, 1280 because the law of the three jurisdictions are relatively similar. (Ford Resp. Br. at 61). Plaintiffs 1281 respond with the essentially the same arguments that they advanced in support of their New York 1282 and Texas consumer fraud claims, and emphasize that they do not need to show reliance under 1283 Florida law. (Pls. Reply Br. at 25-35). Although the Court agrees with Plaintiffs that the 1284 prevailing Florida authority holds that Plaintiffs do not need to show reliance, the Court agrees 1285 with Ford that individualized issues of deception and causation predominate and defeat 1286 Plaintiffs motion for class certification. 1287 [U]nder FDUTPA, a litigant must demonstrate three elements: (1) a deceptive act or 1288 unfair practice; (2) causation; and (3) actual damages. Pop s Pancakes, Inc. v. NuCO2, Inc., 1289 251 F.R.D. 677, 685 (S.D. Fla. 2008) (citing Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d 62 1290 Dist. Ct. App. 2006)). Plaintiffs cite Fitzpatrick v. General Mills, 263 F.R.D. 687, 695 (S.D. Fla. 1291 2010) and Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. 1st Dist. Ct. App. 2000), two cases 1292 that approved certification of FDUTPA classes, for the proposition that FDUTPA does not 1293 require a showing of reliance. The Eleventh Circuit has since vacated the class definition 1294 certified in Fitzpatrick, but in doing so approved of the district court s predominance analysis, 1295 which relied on Davis. Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279, 1282-83 (11th Cir. 2011). 1296 However, the appellate court s decision in Davis has since been criticized by multiple appellate 1297 decisions and a federal district court for its failure to account for FDUTPA s causation 1298 requirement. Pop s Pancakes, 251 F.R.D. at 687; Black Diamond Props., Inc. v. Haines, 940 1299 So. 2d 1176, 1179 n.1 (Fla. 5th Dist. Ct. App. 2006); Philip Morris USA, Inc. v. Hines, 883 1300 So.2d 292, 294 (Fla. 4th Dist. Ct. App. 2003). Pop s Pancakes further cited Egwuatu v. South 1301 Lubes, Inc., 976 So. 2d 50, 53 (Fla. 1st Dist. Ct. App. 2008), as evidence that the appellate court 1302 that issued Davis had limited its holding. Pop s Pancakes, 251 F.R.D. at 687. The Eleventh 1303 Circuit in Fitzgerald did not address these developments in Florida law,21 and it appears that the 1304 FDUTPA issue of causation was not raised on appeal. 1305 This Court finds persuasive the deception and causation analysis in Pop s Pancakes and 1306 Black Diamond. Both courts denied class certification of the plaintiffs respective FDUTPA 1307 claims, because resolution of the claims would require individualized deceptive act and causation 1308 inquiries. In Pop s Pancakes, for instance, the plaintiffs, lessees of beverage equipment, alleged 1309 that the defendant lessor had included an illicit administrative fee in its property tax invoices. 21 Similarly, Wolin v. Jaguar Land Rover North America, 617 F.3d 1168 (9th Cir. 2010), which Plaintiffs correctly note approved an FDUTPA class, does not appear to contain any discussion of how Florida courts have interpreted the state s consumer fraud law. 63 1310 The court ruled that the proposed FDUTPA class fail[ed] to account for those customers who 1311 fall within the class description, who either were told, prior to receiving the property tax invoice, 1312 that the invoice included an administrative fee, or, those customers who read the back of the 1313 invoice and understood, based upon that reading, that the property tax fee on the front of the 1314 invoice included an administrative fee. 251 F.R.D. at 685. Although the plaintiffs in that case 1315 characterized the invoice as a uniform misrepresentation, the court disagreed, stating Plaintiffs 1316 fail to acknowledge that whether the invoice was deceptive depends, in part, on the knowledge 1317 and/or understanding of each NUCO customer. Id. at 686. Meanwhile, in Black Diamond, 1318 plaintiffs, homeowners in a residential golf community and members of the golf course, alleged 1319 that the community developer misrepresented the ownership interest attendant to their golf 1320 memberships. 940 So. 2d at 1178. The district court of appeals rejected the homeowners 1321 FDUPTA class, explaining that the class claims: 1322 1323 1324 1325 1326 1327 1328 1329 1330 1331 1332 alleg[ed] that oral and written misrepresentations took place in 500 separate oral contract transactions spanning many years and involving numerous sales personnel. To prove these allegations, it will be necessary that each plaintiff testify. Additionally, it will be necessary for each plaintiff to offer proof that he or she was damaged as a result of the purported misrepresentations. Finally, given the varied circumstances and span of time over which the transactions occurred, defenses applicable to some plaintiffs will not be applicable to others. Id. at 1178-79. Chief Judge Brown found this reasoning persuasive; he cited Pop s Pancakes with 1333 approval in granting summary judgment against Florida Plaintiff Blandon s FDUTPA claim. 1334 July 9 Opinion, 2010 WL 2813788, at *49 (reasoning under FDUTPA, per Pop s Pancakes, a 1335 defendant s deceptive practice must cause a plaintiff s injury, and if a plaintiff knew of the safety 64 1336 issues that Ford s allegedly deceptive sales practices attempted to conceal, her injuries could not 1337 have been caused by those practices ). Plaintiffs have not sought reconsideration of this ruling, 1338 and it is now law of the case. This Court agrees that the deception and causation analysis of 1339 Pop s Pancakes and Black Diamond controls for the circumstances presented in this case. In 1340 light of the varied consumer experiences of Plaintiffs in this case in terms of exposure to 1341 representations of capacity and safety, pre-existing knowledge of the alleged defect from 1342 personal use and/or public reports, and manifestation of handling problems at different 1343 occupancy levels, see generally discussion of New York GBL § 349 class, supra Part 1344 II.A.1 resolution of Plaintiffs FDUTPA claims will require individualized deception and 1345 causation inquiries. Accordingly, common issues do not predominate, and this Court will deny 1346 certification of the Florida class. 1347 E. Michigan & New Jersey 1348 The only remaining Michigan and New Jersey claims are for breach of the implied 1349 warranty of merchantability. July 9 Opinion, 2010 WL 2813788, at *33, 67; February 16 1350 Opinion, 2011 WL 601279, at *10. Ford and Plaintiffs present essentially the same class 1351 certification arguments as to these proposed classes as they did with regard to the proposed New 1352 York and Pennsylvania implied warranty classes. Plaintiffs further rely on In re Mercedes-Benz 1353 Tele Aid Contract Litigation, 257 F.R.D. 46 (D.N.J. 2009), which certified a class of vehicle 1354 owners who brought consumer fraud and unjust enrichment claims against the manufacturer for 1355 failing to tell them that the Tele Aid emergency response systems they purchased with their 1356 vehicles and paid for with subscription fees would become obsolete. 1357 This Court detects no material differences between Michigan s and New Jersey s implied 65 1358 warranty law and Pennsylvania s implied warranty law that would compel a different conclusion, 1359 and therefore the Court discusses them together. Like Pennsylvania, Michigan and New Jersey 1360 require a showing of causation that can be overcome by proof that the consumer had actual 1361 knowledge of the defect at the time of purchase. See, e.g., Mich. Comp. Laws §§ 440.2314 1362 Cmt.13, 440.2316(3)(b) & Cmt. 8; Jodway v. Kennametal, Inc., 525 N.W.2d 883, 890 (Mich. Ct. 1363 App. 1994) ( A purchaser who has extensive knowledge of a product s inherently dangerous 1364 propensities should not be allowed to claim that an implied warranty of merchantability exists as 1365 a guaranty against such characteristics. ); N.J. Stat. Ann. §§ 12A:2-314 Cmt. 13, 12A:2- 1366 316(3)(b) & Cmt. 8; Henry Heide, Inc. v. WRH Prods. Co., 766 F.2d 105, 110 (3d Cir. 1985) 1367 (applying New Jersey law and stating that if a buyer undertakes a reasonable examination of the 1368 goods, he is precluded from asserting a claim for breach of implied warranty against anyone who 1369 was responsible for a defect that the buyer ought, in the circumstances, to have noticed ). 1370 Accordingly, the Court s causation analysis of the New York and Pennsylvania implied warranty 1371 classes applies equally here. See Parts II.A.2 and II.C.1, supra. In light of the summary 1372 judgment record, individual issues of causation predominate, and this Court will deny 1373 certification of these classes. 1374 In re Mercedes-Benz, cited by Plaintiffs, does not suggest otherwise, because the 1375 plaintiffs in that case voluntarily dismissed their implied warranty claims prior to class 1376 certification. 257 F.R.D. at 50 n.5. Nor is that case persuasive, because, unlike the present case, 1377 the consumer fraud and unjust enrichment allegations in that case were not undercut by differing 1378 accounts of misrepresentation, record evidence that some consumers knew of the alleged defect 1379 at the time of purchase (both from personal knowledge and from public reports), and there was 66 1380 no doubt that the defect the obsolescence of the analog network utilized by the vehicles 1381 emergency response systems manifested in all class vehicles. See id. at 73 ( Each member of 1382 the proposed class demonstrated his or her intention to utilize the system by continuing to 1383 subscribe until being informed that analog service would be discontinued at the end of 2007, and 1384 some Plaintiffs went so far as to purchase a digital upgrade in order to assure that they could 1385 continue to use Tele Aid. Thus, each class member got something less than he or she was 1386 promised: a vehicle that was meant to last up to 20 years, but contained a Tele Aid system that 1387 would become useless at the end of 2007. ). 1388 F. California 1389 The only remaining California claim is First United s unjust enrichment claim. July 9 1390 Opinion, 2010 WL 2813788, at *19; February 16 Opinion, 2011 WL 601279, at *6-8. Ford and 1391 Plaintiffs generally present the same class certification arguments as to the proposed California 1392 class as they did with regard to the proposed Pennsylvania class. This Court detects no 1393 distinguishing features of California s law of unjust enrichment that would compel a different 1394 conclusion. See, e.g., Ghirardo v. Antonioli, 924 P.2d 996, 1003 (Cal. 1996) ( Under the law of 1395 restitution, an individual may be required to make restitution if he is unjustly enriched at the 1396 expense of another. A person is enriched if he receives a benefit at another s expense. The term 1397 benefit denotes any form of advantage. Thus, a benefit is conferred not only when one adds to 1398 the property of another, but also when one saves the other from expense or loss. ) (citing 1399 Restatement of Restitution § 1); February 16 Opinion, 2011 WL 601279, at *5 (recognizing 1400 similarities between law of unjust enrichment in Pennsylvania and California). Accordingly, the 1401 Court will deny certification of Plaintiffs proposed California unjust enrichment class for the 67 1402 same reasons that the Court rejected Plaintiffs proposed Pennsylvania unjust enrichment class. 1403 See Part II.C.2, supra.22 1404 G. Georgia 1405 Georgia Plaintiff Allen Temple seeks certification of its remaining express warranty, 1406 implied warranty, and unjust enrichment claims. See July 9 Opinion, 2010 WL 2813788, at *38. 1407 Allen Temple is the only Plaintiff that still has an active express warranty claim after the 1408 summary judgment rulings. The parties present essentially the same arguments in support of the 1409 implied warranty and unjust enrichment claims. In addition, the parties dispute whether 1410 purchasers of used vans can be included in a warranty class under Georgia law.23 With regard to 1411 the express warranty class, Ford argues that Chief Judge Brown s summary judgment rulings as 22 Two Ninth Circuit decisions cited by Plaintiffs, Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir. 2005) and Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998), do not support certification of Plaintiffs California unjust enrichment class. Chamberlan denied interlocutory review of the district court s certification of a class under the California Consumers Legal Remedies Act. 402 F.3d at 962. The common issues in that case were: (1) whether the design of the plastic intake manifold was defective; (2) whether Ford was aware of alleged design defects; (3) whether Ford had a duty to disclose its knowledge; (4) whether it failed to do so; (5) whether the facts that Ford allegedly failed to disclose were material; and (6) whether the alleged failure to disclose violated the CLRA. Id. Chamberlan did not involve an unjust enrichment class under California law, and its analysis of common issues under California s consumer fraud statute is not applicable to the remaining consumer fraud claims (Florida, New York, Texas) in this MDL action. Likewise, Hanlon, which approved a class settlement of product defect claims against a minivan manufacturer, did not address certification of an unjust enrichment claim under California law, and the court s scant predominance analysis did not address any material factual variations among consumers that would require individualized treatment of class members claims. Thus, Hanlon provides minimal support for Plaintiffs position in this case, where the summary judgment record revealed numerous, material differences from Plaintiffs respective consumer experiences. 23 Plaintiffs reply brief modified the proposed unjust enrichment classes to extend only to purchasers of new E-350 vans, but Plaintiffs have not sought to modify their implied warranty classes in the same vein. 68 1412 to other named Plaintiffs reveal that different consumers were exposed to different 1413 representations about the E-350 s seating capacity and relative safety. Consequently, Ford 1414 reasons that the presiding court would have to undertake individualized inquiries of putative 1415 class members respective consumer experiences to see if any affirmative representations by Ford 1416 became the basis of the bargain. (Ford Resp. Br. at 65). Plaintiffs do not appear to address 1417 Ford s express warranty argument in their reply brief, but in their class certification brief 1418 Plaintiffs generally argued that [w]hether Ford s marketing of the E-350 as a 15-passenger 1419 vehicle, its 15 Passenger name, and 15 installed [sic] seats, constitutes a description and 1420 warranty of safe 15-passenger travel turns wholly on how Ford sold the vans, not on any 1421 particulars in respect of consumers. (Pls. Br. at 43). The Court agrees with Ford on all counts. 1422 This Court detects no material differences between Georgia s implied warranty law and 1423 Pennsylvania s implied warranty law that would compel a different conclusion. Like 1424 Pennsylvania, Georgia s implied warranty law requires a showing of causation that can be 1425 overcome by proof that the consumer had actual knowledge of the defect at the time of purchase. 1426 See, e.g., Ga. Code Ann. §§ 11-2-314 Cmt. 13, 11-2-316(3)(b) & Cmt. 8; W.M. Hobbs, Ltd. v. 1427 Accusystems of Ga., Inc., 339 S.E.2d 646, 647 (Ga. Ct. App. 1986) (rejecting implied warranty 1428 claim where consumer had the opportunity to use the copier machine on a trial basis prior to 1429 purchase). Accordingly, the Court s causation analysis of the New York and Pennsylvania 1430 implied warranty classes applies equally here. See Parts II.A.2 and II.C.1, supra. Likewise, the 1431 Court discerns no material difference between Georgia s law of unjust enrichment and that of 1432 Pennsylvania. See, e.g., Tuvim v. United Jewish Cmtys., Inc., 680 S.E. 2d 827, 829-30 (Ga. 1433 2009) ( Unjust enrichment applies when as a matter of fact there is no legal contract, but when 69 1434 the party sought to be charged has been conferred a benefit by the party contending an unjust 1435 enrichment which the benefitted party equitably ought to return or compensate for. ) (citation 1436 omitted). Accordingly, the Court will deny certification of Plaintiffs proposed Georgia unjust 1437 enrichment class for the same reasons that the Court rejected Plaintiffs proposed Pennsylvania 1438 unjust enrichment class. See Part II.C.2, supra. 1439 With regard to the proposed express warranty class, the Court agrees with Ford that 1440 common issues do not predominate. Like other jurisdictions, Georgia law recognizes express 1441 warranties in the following circumstances: 1442 1443 1444 1445 1446 1447 1448 1449 1450 1451 Ga. Code Ann. § 11-2-313(1). It is not necessary to the creation of an express warranty that the 1452 seller use formal words such as warrant or guarantee or that he have a specific intention to 1453 make a warranty, but an affirmation merely of the value of the goods or a statement purporting to 1454 be merely the seller s opinion or commendation of the goods does not create a warranty. 1455 Id. § 11-2-313(2). 1456 1457 1458 1459 1460 1461 1462 1463 (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. The decisive test, in determining whether language used is a mere expression of opinion or a warranty, is whether it purported to state a fact upon which it may fairly be presumed the seller expected the buyer to rely, and upon which a buyer would ordinarily rely. If the language used is of that character, the fact of reliance on the part of the buyer and the presumption of intent on the part of the seller which the law would raise in such a case would operate to create a warranty. 70 1464 Smith v. Frazer, 86 S.E. 225, 226 (Ga. 1915) (quoting 30 Am. & Eng. Enc. Law at 142). Chief 1465 Judge Brown s omnibus July 9 Opinion rejected other Plaintiffs contention that Ford s core 1466 description of the E-350 as a 15-passenger van created an express warranty of safety under the 1467 respective jurisdictions UCC provisions. E.g., July 9 Opinion, 2010 WL 2813788, at *9 1468 (California Plaintiffs), 31 (New Jersey Plaintiffs), 41 (Pennsylvania Plaintiffs), 73 (Bishop 1469 Anderson), 79 (Massachusetts Plaintiff).24 Plaintiffs have not sought reconsideration of these 1470 rulings, and Plaintiffs do not suggest that Georgia law would require a different conclusion. The 1471 summary judgment record in this case further revealed that different consumers were exposed to 1472 different representations, if at all, at the time of purchase. See Part II.A.1.a ( Misrepresentation ) 1473 & n.7, supra. Individual inquiries will be necessary to determine whether Ford representatives 1474 made affirmative representations about the E-350 s relative safety as a 15-passenger van to 1475 specific consumers. Consumers who were not exposed to such representations cannot assert that 1476 such representations were a basis for their bargains. See, e.g., Am. Coach Lines of Orlando, Inc. 1477 v. N. Am. Bus Indus., Inc., No. 09-999, 2011 WL 653524, at *18 (M.D. Fla. Feb. 14, 2011) 1478 (applying Florida and Georgia law, and concluding that statements made after delivery of the 1479 product could not have been the basis of the bargain). Plaintiffs have not shown that they can 1480 establish their express warranty claim with common proof. Therefore, the Court concludes that 1481 common issues of fact do not predominate, and the Court will deny certification of Georgia 24 Unlike it did with regard to Plaintiffs other express warranty claims, Ford did not seek summary judgment against Allen Temple s express warranty claim on the ground that Ford s alleged representations were too vague to be actionable as an express warranty. Consequently, Chief Judge Brown did not have occasion to rule on whether Allen Temple had presented colorable evidence that Ford made specific representations about the E-350 van that were actionable as express warranties under Georgia law. July 9 Opinion, 2010 WL 2813788, at *35. 71 1482 Plaintiff s express warranty class. 1483 In addition to these reasons, the Court agrees with Ford that Plaintiffs proposed warranty 1484 class fails to account for Georgia s treatment of purchasers of used goods. Plaintiffs cite Georgia 1485 Timberlands, Inc. v. S. Airways, Co., 188 S.E.2d 108 (Ga. Ct. App. 1972) for the proposition that 1486 an implied warranty of merchantability inheres when the used goods are sold by merchants who 1487 deal in the subject goods. (Pls. Reply Br. at 21). Yet, Plaintiffs fail to explain how this rule 1488 would apply to consumers that bought used E-350 vans from third-parties, such as private 1489 individuals or independent car dealerships. The Court is aware of no Georgia authority that 1490 would permit express or implied warranty claims to lie against the manufacturer where the 1491 consumer purchased used goods (even a vehicle) from an unrelated third party. See Gen. Motors 1492 Corp. v. Halco Instruments, Inc., 185 S.E. 2d 619, 622 (Ga. Ct. App. 1971) (collecting cases for 1493 the proposition that there is no implied warranty of merchantability against the manufacturer 1494 [w]hen goods are sold by an original purchaser to a third party as used or second-hand goods ); 1495 Stewart v. Gainesville Glass Co., 212 S.E. 2d 377, 377 (Ga. 1975) (stating that, with few 1496 exceptions, express warranty claims require privity); Jones v. Cranman s Sporting Goods, 1497 237 S.E. 2d 402, 405 (Ga. Ct. App. 1977) (recognizing that privity exists (W)here an 1498 automobile manufacturer, through its authorized dealer issues to a purchaser of one of its 1499 automobiles from such dealer ); see also Cole v. Gen. Motors Corp., 484 F.3d 717, 730 (5th Cir. 1500 2007) (citing Georgia as a jurisdiction that does not allow implied warranty claims for used 1501 goods against a remote manufacturer). Plaintiffs proposed warranty class does not exclude 1502 consumers who purchased their used vans from third parties, and thus are over-inclusive. 1503 72 1504 H. Statute of Limitations Defenses 1505 In addition to the jurisdiction- and claim-specific objections discussed above, Ford 1506 contends that the individual issues surrounding its statute-of-limitations affirmative defenses, as 1507 well as any tolling doctrine advanced by Plaintiffs to counter these defenses, weighs against a 1508 finding of predominance. Although the above predominance determinations stand on their own, 1509 the Court agrees that the individualized inquiries attendant to Ford s statute-of-limitations 1510 defenses as to each jurisdiction-based sub-class support the denial of class certification.25 1511 Before the Court can assess the effect of Ford s statute-of-limitations defenses on the 1512 predominance inquiry as to each jurisdiction-based sub-class, the Court must determine whether 1513 such inquiry is even relevant to the predominance inquiry. The Third Circuit in Barnes v. 1514 American Tobacco Co. squarely held that affirmative defenses, including statute-of-limitations 1515 defenses, are properly considered in determining predominance and cohesion for purposes of 1516 class certification under subsections (b)(2) and (b)(3). 161 F.3d 127, 147-49 (3d Cir. 1998) 1517 (affirming denial of class certification for putative class of smokers). Indeed, the Barnes court 1518 cited the individual issues arising under those defenses as part of its reasoning for denying class 25 Additionally, the Court notes that the individualized inquiries necessary to evaluate Ford s statute-of-limitations defenses in light of the variations in state law across multijurisdiction claim-based classes would pose significant administrative difficulty in the trial context. Sullivan, 2011 U.S. App. LEXIS 25185, at *62 n.28 ( We are aware that there may still be circumstances, as we and other Courts of Appeals have noted, where [i]n a multi-state class action, variations in state law may swamp any common issues and defeat predominance. ) (citations omitted). In its recent decision, the Third Circuit noted that litigation class certification as opposed to settlement class certification, which was at issue in Sullivan potentially implicates intractable management problems and insuperable obstacles that could render class litigation unmanageable. Id. at *59-60 (citations omitted). In this case, the Court need not decide whether variations in state law would make class litigation unmanageable, because the Court is persuaded that predominance has been defeated for the independent reasons explained above. 73 1519 certification. Id. at 143 ( We believe that addiction, causation, the defenses of comparative and 1520 contributory negligence, the need for medical monitoring and the statute of limitations present 1521 too many individual issues to permit certification. ), 146-47 (discussing individual issues related 1522 to comparative and/or contributory negligence), 149 (citing individual issues attendant to the 1523 statute of limitations defense as grounds for denying class certification). However, four years 1524 later in In re Linerboard Antitrust Litigation, the court affirmed certification of an antitrust class 1525 against manufacturers of linerboard, despite the manufacturers contention that their statute of 1526 limitations defenses and consumers fraudulent concealment tolling theories presented individual 1527 issues that defeated predominance. 305 F.3d 145, 160-64 (3d Cir. 2002). In doing so, the 1528 Linerboard court cited with approval case law and a treatise that suggested that such individual 1529 issues did not defeat class certification, but could be dealt with at a subsequent damages stage. 1530 Id. at 163. Quoting the treatise, the Linerboard court explained: 1531 1532 1533 1534 1535 1536 1537 Id. (quoting Newberg & Conti, Newberg on Class Actions § 4.26 (3d ed.)). Speaking to the 1538 federal antitrust claims before it, the Linerboard court recognized that individual issues 1539 pertaining to fraudulent concealment would arise, but reasoned that common issues of 1540 concealment predominate here because the inquiry necessarily focuses on defendants conduct, 1541 that is, what defendants did rather than what plaintiffs did. Id. (citation omitted). The court 1542 further reasoned: 1543 Challenges based on the statute of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfaction because those issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant s liability. Key questions will not revolve around whether [the consumers] knew that 74 1544 1545 1546 1547 1548 1549 1550 1551 the prices paid were higher than they should have been or whether [they] knew of the alleged conspiracy among Appellants. Instead, the critical inquiry will be whether defendants successfully concealed the existence of the alleged conspiracy, which proof will be common among the class members in each class. Id. (citation omitted). While at first blush Linerboard appears inconsistent with Barnes, Plaintiffs acknowledge 1552 (Pls. Reply Br. at 23) that Linerboard endorsed the First Circuit s reasoning in Waste Mgmt. 1553 Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000): 1554 1555 1556 1557 1558 1559 1560 1561 1562 1563 1564 1565 1566 Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 23(b)(3), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). Predominance under Rule 23(b)(3) cannot be reduced to a mechanical, single-issue test. Linerboard, 305 F.3d at 162-63 (internal citations from Waste Management Holdings omitted). 1567 Thus, Linerboard cannot be read to prohibit consideration of the individualized issues arising 1568 from statute-of-limitations defenses for purposes of determining predominance under Rule 1569 23(b)(3). This reading of Linerboard is consistent with Barnes, which recognized that the 1570 existence of affirmative defenses as to some class members may not by itself [be] enough 1571 warrant the denial of certification. Barnes, 161 F.3d at 147 n.25.26 Thus, this Court finds that 1572 Ford s statute-of-limitations defenses and Plaintiffs equitable tolling rejoinders are relevant to 26 The Court further notes that this interpretation is consistent with Sullivan, in which the Third Circuit held that variations in state law do not defeat predominance in the class settlement certification context. See Sullivan, 2011 U.S. App. LEXIS 25185, at *58-59. 75 1573 1574 this Court s consideration of predominance with respect to jurisdiction-based sub-classes. Ford s statute-of-limitations defenses and any applicable discovery rule and/or other 1575 equitable tolling doctrine would require inquiries into the individual circumstances of each 1576 Plaintiff. As noted above, Chief Judge Brown s summary judgment decisions revealed that 1577 named Plaintiffs had widely divergent experiences vis-a-vis their E-350 vans; some purchased 1578 their vans with knowledge of the van s unique handling problems (Barrett,27 Blandon), some saw 1579 news releases or government reports about the rollover problems (Bishop Anderson, Charles St. 1580 AME, Conant Avenue), some experienced handling issues while driving (Charles St. AME, 1581 Conant Avenue), others removed seats or limited the van to less than 15 passengers (Bishop 1582 Anderson, St. Luke s), and some did not appear to have experienced any handling problems 1583 whatsoever (Barrett, St. James, St. Luke s). See July 9 Opinion, 2010 WL 2813788, at *45, 51, 1584 57, 62, 68-69, 76. At the same time, the summary judgment opinions revealed that different 1585 consumers learned of the E-350 van s handling problems, if at all, in differing degrees, from 1586 different sources, and at different times. These individual experiences would be relevant to a 1587 determination of accrual in a jurisdiction with the discovery rule, and thus the presiding court 1588 would have to conduct countless individualized inquiries. Moreover, for jurisdictions that follow 1589 New York s equitable tolling requirement of a subsequent affirmative act, Plaintiffs cannot 1590 invoke Linerboard s common proof of fraudulent concealment finding, because each Plaintiff 1591 would have to show that Ford committed some act, other than the underlying misrepresentation 27 Indeed, it is undisputed that Barrett negotiated down the price of his used 1997 E-350 van in the same conversation that he told the sales agent that the van should not be driven by an inexperienced driver, and that he knew of a prior instance where an E-350 van had experienced a rollover. July 9 Opinion, 2010 WL 2813788, at *69 (citing Barrett Dep. at 48:11-49:13, 106:1623). 76 1592 of the van s handling abilities, to conceal the original tort. Ross, 868 N.E.2d at 198. Contrary to 1593 Plaintiffs suggestion, these nuanced, fact-specific inquiries will require careful examination, and 1594 thus cannot be supplemented with concise questionnaire forms. Such inquiries are not amenable 1595 to class litigation. 1596 The Court further notes that Plaintiffs proposed classes appear to include a large number 1597 of consumers whose claims would be time-barred under the relevant statute of limitations. Ford 1598 argues that the statute of limitations will bar the vast majority of proposed New York, 1599 Pennsylvania, and Georgia warranty-claim class members, because the named Plaintiffs from 1600 these jurisdictions did not join this MDL until November 2008 (see Consent Order of November 1601 5, 2008, Doc. No. 150), and these jurisdictions do not allow cross-jurisdictional tolling. (See, 1602 e.g., Ford s Resp. Br. at 38). Ford reasons that, courtesy of the four-year limitations period and 1603 the UCC s strict accrual rule for warranty claims (tender of delivery), see, e.g., Ga. Code Ann. 1604 § 11-2-725, putative class members for these claims must have purchased and received their 1605 qualifying E-350 vans no later than November 2004. Ford further reasons that some of these 1606 classes would be deprived of their class representatives, because certain named Plaintiffs 1607 purchased their E-350 vans before this date. These arguments fail to account for the class tolling 1608 doctrine recognized by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 1609 U.S. 538 (1974) and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983). This tolling 1610 doctrine recognizes that the commencement of a class action suspends the applicable statute of 1611 limitations as to all asserted members of the class who would have been parties had the suit been 1612 permitted to continue as a class action, and that the action remains tolled for all members of the 1613 putative class until class certification is denied. Crown, Cork & Seal, 462 U.S. at 353-54. 77 1614 Because the original action in this MDL, filed in August 2003, sought a nationwide class (see 1615 Doc. No. 1 ¶ 7), it would appear that this doctrine tolled the limitations periods for other named 1616 Plaintiffs who were putative class members under the original class. Neither party addressed this 1617 class tolling doctrine, and this Court has no occasion to make tolling determinations at the 1618 present time. Yet, Ford s argument does carry some weight. Presuming that the limitations 1619 periods were tolled for the subsequent actions that joined this MDL, the cut-off line for the 1620 warranty classes, courtesy of the first-filed action (New Jersey), would be August 1999. In other 1621 words, class members would have needed to have taken delivery of their E-350 vans no later than 1622 August 1999 in order to have a timely warranty claim. Such a cut-off line would shrink the 1623 warranty classes by approximately 1/3 of the proposed model years (2000-2005 would be 1624 excluded),28 unless individual consumers of earlier models presented grounds for equitable 1625 tolling. 1626 This Court has no occasion to rule on the merits of Ford s statute of limitations defenses 1627 and Plaintiffs respective equitable tolling counter-defenses with the present motion. However, 1628 the Court agrees that Plaintiffs proposed warranty classes for these jurisdictions fail to account 1629 for the relatively straightforward effect of the respective UCC statute of limitations on the 1630 warranty claims. This Court is left to conclude that either a large portion of these proposed 1631 classes will not have viable warranty claims, or alternatively, that many putative class members 1632 will require individualized inquiries into issues of equitable tolling. 28 This Court recognizes that some new vehicles are released before their designated model year (i.e., a 2012 model can be released in 2011). However, the Court only addresses the flaws of Plaintiffs proposed classes for present purposes, and does not address the merits of these statute-of-limitations defenses. 78 1633 I. Summary 1634 The Court s decision to deny class certification should not be read to suggest that 1635 Plaintiffs remaining claims lack merit, or as tacit approval for Ford s design and marketing of 1636 the E-350 van. Indeed, this Court is aware that a number of fatal automobile accidents have been 1637 linked to occurrences of rollovers in this van, and that these accidents are the subject of other 1638 litigation. Rather, this Court s ruling reflects the unique and highly individualistic experiences of 1639 consumers, many of whom were not actually deceived and many of whom have suffered no 1640 actual injury as a result of Ford s conduct. This Court s conclusions do not address the merits of 1641 Plaintiffs consumer fraud, warranty, and unjust enrichment claims, but draws upon the summary 1642 judgment record to assess the nature of the evidence common or idiosyncratic that Plaintiffs 1643 state they will present to support their class claims. 1644 While a narrowly tailored class limited to particular misrepresentations, excluding 1645 persons with knowledge at the time of purchase, cognizant of the respective statute of limitations, 1646 and brought in a jurisdiction that did not require actual injury may have been a better candidate 1647 for class certification, Plaintiffs have not proposed such a class. As it stands, the massive claim- 1648 and jurisdiction-specific classes proposed by Plaintiffs are rife with issues that will require 1649 individualized determinations. Common issues of fact and law do not predominate over 1650 individualized inquiries, as required by Rule 23(b)(3), and thus Plaintiffs proposed classes do 1651 not withstand rigorous analysis under Hydrogen Peroxide. Consequently, the Court will deny 1652 Plaintiffs renewed motion for class certification under Rule 23(b)(3) in its entirety. 1653 III. 1654 CERTIFICATION UNDER RULE 23(b)(2) Lastly, the Court addresses Plaintiffs alternative theory for class certification under 79 1655 Federal Rule 23(b)(2). As noted above, certification pursuant to subpart (b)(2) is appropriate 1656 when the party opposing the class has acted or refused to act on grounds that apply generally to 1657 the class, so that final injunctive relief or corresponding declaratory relief is appropriate 1658 respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). The Supreme Court recently 1659 explained in Wal-Mart v. Dukes29 that [t]he key to the (b)(2) class is the indivisible nature of 1660 the injunctive or declaratory remedy warranted the notion that the conduct is such that it can be 1661 enjoined or declared unlawful only as to all of the class members or as to none of them. 131 S. 1662 Ct. 2541, 2557 (2011). Conversely, subsection (b)(2) does not authorize class certification 1663 when each individual class member would be entitled to a different injunction or declaratory 1664 judgment against the defendant, or an individualized award of monetary damages. Id. Class 1665 certification is inappropriate where the monetary relief is not incidental to the injunctive or 1666 declaratory relief. Id.; cf. Barnes, 161 F.3d at 142 ( Subsection (b)(2) class actions are limited 1667 to those class actions seeking primarily injunctive or corresponding declaratory relief. ) (citation 1668 omitted); In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 186 (D.N.J. 2003) ( [C]ourts 1669 have certified 23(b)(2) classes despite a claim for money damages where the damages were 1670 incidental or ancillary to a primary claim for an injunction. ). 1671 1672 In addition to a primary focus on injunctive or declaratory relief, the Third Circuit has recognized that class claims under Rule 23(b)(2) must be cohesive. See, e.g., Gates v. Rohm & 29 Wal-Mart involved female employees Title VII sex discrimination claims against their retail store employer, seeking injunctive and declaratory relief, back pay, and punitive damages. 131 S. Ct. at 2547-48, 2561. The Supreme Court, by a 5-4 vote, decertified the class on the grounds that the class-respondents had not met the commonality requirement of Rule 23(a)(2). Id. at 2550-57. Yet, the Court ruled unanimously that the class-respondents had not met the requirements for certification under Rule 23(b)(2). 80 1673 Haas Co., 655 F.3d 255, 263-64 (3d Cir. 2011); Barnes, 161 F.3d at 143; Geraghty v. U.S. 1674 Parole Comm n, 719 F.2d 1199, 1205-06 (3d Cir. 1983). Although, unlike subsection (b)(3), 1675 (b)(2) does not impose distinct predominance and superiority requirements, our Circuit has 1676 reasoned that a (b)(2) class may require more cohesiveness than a (b)(3) class. . . . because in a 1677 (b)(2) action, unnamed members are bound by the action without the opportunity to opt out. 1678 Barnes, 161 F.3d at 142-43; see also Gates, 655 F.3d at 265 ( The disparate factual 1679 circumstances of class members may prevent a class from being cohesive and, therefore, make 1680 the class unable to be certified under Rule 23(b)(2)). ) (citing Carter v. Butz, 479 F.2d 1084, 1681 1089 (3d Cir. 1973)). Accordingly, our Circuit has held that district courts have the discretion to 1682 deny certification under (b)(2) when a given case presents disparate factual circumstances, or a 1683 prevalence of individualized issues. Barnes, 161 F.3d at 143 (citation omitted). 1684 In their opening brief, Plaintiffs argue that certification under this Rule is proper because 1685 the core of the relief sought by Plaintiffs in this case is equitable in nature. (Pls. Br. at 61). 1686 Toward this end, Plaintiffs cite a paragraph from the Complaint s Prayer for Relief that seeks 1687 an order: 1688 1689 1690 1691 1692 1693 1694 1695 [r]equiring Ford to correct the design defect so the E-350 vans c[e]ase to be a safety hazard, enjoining Ford from distributing the vehicles without their being so corrected, and requiring Ford to warn all potential purchasers of the unsafe nature of the E-350 through its own dealers and through used car dealers and by such means as the Court determines to be effective and appropriate. (Complaint, Prayer for Relief ¶ B). From this equitable core, Plaintiffs contend that the Court 1696 may award Class members a uniform stipend of $2,100.00 each the cost of retrofitting the E- 1697 350 vans with dual rear wheels as incidental damages. (Pls. Br. at 62). 81 1698 Ford objects that Plaintiffs do not seek primarily injunctive or declaratory relief, and that 1699 the individual issues that defeated predominance demonstrate that Plaintiffs claims are not 1700 sufficiently cohesive to warrant (b)(2) certification. Plaintiffs offer no further argument in 1701 support of certification under Rule 23(b)(2) in reply. 1702 The Court notes at the onset that the Supreme Court s recent decision in Wal-Mart casts a 1703 cloud over the continued application of the Third Circuit s cohesion requirement for (b)(2) 1704 certification. The Wal-Mart Court explained that the (b)(3) procedural protections of 1705 predominance, superiority, mandatory notice, and the right to opt out did not appear in (b)(2) 1706 because they [are] unnecessary to a (b)(2) class. 131 S. Ct. at 2558. According to the Court, 1707 [w]hen a class seeks an indivisible injunction benefitting all its members at once, there is no 1708 reason to undertake a case-specific inquiry into whether class issues predominate or whether 1709 class action is a superior method of adjudicating the dispute. Predominance and superiority are 1710 self-evident. Id.; cf. id. at 2566 (Ginsburg, J., joined by Breyer, Sotomayor, and Kagan, JJ., 1711 concurring in part and dissenting in part) (suggesting that [i]ndividual [factual] differences 1712 should not bar a . . . Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met ). At the 1713 same time, the Wal-Mart Court expressed doubt regarding whether a class seeking monetary 1714 damages could ever be certified under Rule 23(b)(2), but declined to answer this question. See 1715 id. at 2557. While this logic suggests that predominance and superiority are unnecessary 1716 considerations for proper (b)(2) classes, it is unclear whether a predominance-derived 1717 consideration of cohesion may be relevant in determining whether a proposed class presents a 1718 proper (b)(2) class. To the extent that cohesion remains a relevant consideration post-Wal-Mart, 1719 this Court agrees with Ford that the myriad individual issues of fact and law identified in this 82 1720 Court s (b)(3) predominance analysis supra i.e., exposure to differing representations, 1721 deception, causation, and Ford s statutes of limitations affirmative defenses reveal that 1722 Plaintiffs proposed classes are not sufficiently cohesive to permit (b)(2) class certification. See, 1723 e.g., Gates, 655 F.3d at 265, 269 (denying (b)(2) certification of vinyl chloride exposure case, 1724 where individualized issues of members . . . characteristics and medical histories made 1725 certification inappropriate); Barnes, 161 F.3d at 143 (denying (b)(2) certification of tobacco case, 1726 where individualized issues of addiction, causation, and affirmative defenses (comparative 1727 negligence, statute of limitations) made certification inappropriate). However, to the extent that 1728 Wal-Mart abrogates the existing Circuit rule regarding cohesion, this Court concludes that (b)(2) 1729 certification is nevertheless inappropriate, simply because the monetary damages sought by 1730 Plaintiffs are not incidental to a claim for injunctive relief. 1731 Here, the core equitable relief sought by Plaintiff is an order: (1) requiring Ford to 1732 correct the design defect for existing consumers; (2) enjoining Ford from distributing vehicles 1733 with the defect; and (3) requiring Ford to warn all potential purchasers of the unsafe nature of the 1734 E-350 van through its own dealers and through used car dealers and other means determined by 1735 the Court. (See Pls. Br. at 61 & n.27; Complaint, Prayer for Relief ¶ B). Of this proposed 1736 equitable relief, only the first remedy compensates the injuries of putative class members, who, 1737 according to Plaintiffs proposed classes, have already purchased or acquired a model-year 1991- 1738 2005 E-350 van.30 Furthermore, Plaintiffs make no attempt to explain how their claims regarding 30 Presuming that putative class members opted to purchase an additional E-350 van going forward, they would already have knowledge of the defect by virtue of the repairs to their existing van. Thus, the second and third equitable remedies sought by Plaintiffs do not address the injuries of putative class members. 83 1739 model-year 1991-2005 E-350 vans could justify the broad, perpetual injunctions sought in the 1740 Complaint, which would appear to extend to subsequent model years for which no defect has 1741 been alleged. Thus, the Court is left to consider Plaintiffs proposed affirmative injunction 1742 requiring Ford to correct the design defect. At the same time that Plaintiffs classify this relief as 1743 equitable in nature, Plaintiffs concede that there must be a source of money to pay for the 1744 repair or retrofit of the vans if class members wish to have their vehicles repaired. (Id. at 59). 1745 Elsewhere, Plaintiffs suggest that the Court can simply award Class members a uniform stipend 1746 of $2,100.00 each. (Id. at 62). These statements reveal that Plaintiffs primarily seek monetary 1747 damages,31 and even suggests that some class members may choose to receive the costs of repairs 1748 instead of the actual repairs. As Ford correctly notes, Plaintiffs cannot simultaneously seek an 1749 affirmative injunction requiring the repairs to be made and the monetary costs of those repairs. 1750 (Ford s Resp. Br. at 69). Plaintiffs present nothing in their reply brief to bolster their (b)(2) 1751 claim. 1752 The Supreme Court in Wal-Mart emphasized that subpart (b)(2) applies to injunctions 1753 and declaratory judgments, not equitable remedies generally. 131 S. Ct. at 2560. The Court 1754 further expressed its dissatisfaction with the class-Respondents argument that (b)(2) certification 1755 was appropriate, simply because their claims for injunctive and declaratory relief predominated 31 This Court s conclusion that Plaintiffs primarily seek monetary damages is supported by the numerous damages theories Plaintiffs have put forth during the course of the motions for summary judgment, ranging from diminution in value to repair costs and incidental costs related to loss of use. Given this procedural history, Plaintiffs saw fit to characterize the core trial issue[] of damages in their renewed class certification brief s introductory section as whether the $2,100 cost of retrofitting the vans with dual rear wheels is an appropriate measure of damages and/or an appropriate measure of restitution to remedy Ford s unjust enrichment. (Pls. Br. at 4). 84 1756 over their claims for monetary relief (backpay). The Court responded to this argument as 1757 follows: 1758 1759 1760 1761 1762 1763 1764 1765 1766 [t]he mere predominance of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3) s procedural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request even a predominating request for an injunction. Id. at 2559. Despite Plaintiffs argument that the core of the relief sought by Plaintiffs in this 1767 case is equitable in nature (Pls. Br. at 61), the record and Plaintiffs arguments reveal that 1768 Plaintiffs do not seek predominantly injunctive or declaratory relief, and that the monetary 1769 damages they seek are anything but incidental. In light of the guidance provided by Wal-Mart, 1770 this Court concludes that it would be inappropriate to permit Plaintiffs to sidestep the (b)(3) 1771 1772 1773 1774 1775 1776 1777 1778 1779 1780 1781 1782 1783 1784 requirements under the guise of a (b)(2) class.32 32 The Court notes that Plaintiffs further propose a hybrid (b)(2)/(b)(3) class in their opening brief, but appears to abandon this idea in their reply brief. Plaintiffs present no authority for the proposition that such a hybrid class can be certified when the proposed class could not be certified under either subsection (b)(2) or (b)(3). Here, this Court has concluded that certification would be improper under both (b)(2) and (b)(3). Accordingly, the Court will decline to certify a hybrid class under a canopy of both provisions. 85 1785 1786 1787 Conclusion For the aforementioned reasons, the Court will grant Ford s motion to amend (Doc. No. 1788 393) and deny Plaintiffs renewed class certification motion (Doc. No. 375). An appropriate 1789 form of order accompanies this Opinion. 1790 1791 1792 1793 1794 1795 Dated: February 6, 2012 s/Esther Salas Esther Salas, U.S.D.J. 86

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