In re Ford Motor Co. E-350 Can Products Liability Litigation (No. II)

Page 1IN RE FORD MOTOR CO. E-350 VAN PRODUCTS LIABILITY LITIGATION(NO. II)Civil Action No. 03-4558,MDL No. 1687UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY2012 U.S. Dist. LEXIS 13887February 6, 2012, DecidedFebruary 6, 2012, FiledNOTICE:NOT FOR PUBLICATIONPRIOR HISTORY: In re Ford Motor Co. E-350 VanProds. Liab. Litig., 2011 U.S. Dist. LEXIS 16504 (D.N.J.,Feb. 16, 2011)CORE TERMS: van, consumer, handling, class certification,class member's, causation, summary judgment,warranty, certification, unjust enrichment, implied warranties,individualized, proposed class, predominance,actual injury, misrepresentation, reply, consumer fraud,passenger, warranty claims, deception, putative, expresswarranties, citation omitted, predominate, disclaimer,deceptive, omission, repair, equitableCOUNSEL: [*1] For SOCIAL CLUBHOUSE, INC.,on behalf of itself and all others similarly situated, Plaintiff:KEVEN HAL FRIEDMAN, LEAD ATTORNEY,WILENTZ GOLDMAN & SPITZER, WOODBRIDGE,NJ; KEVIN PETER RODDY, LEAD ATTORNEY,WILENTZ, GOLDMAN & SPITZER, PA, WOOD-BRIDGE, NJ; LAWRENCE JAY SASS, LEAD AT-TORNEY, WEST ORANGE, NJ; RANDALL K BER-GER, LEAD ATTORNEY, COUNSEL NOT ADMIT-TED TO USDC-NJ BAR, KIRBY MCINERNEY LLP,NEW YORK, NY; DANIEL R. LAPINSKI, WILENTZ,GOLDMAN & SPITZER, PC, WOODBRIDGE, NJ.For NEW BETHLEHEM BAPTIST CHURCH, Plaintifffor 05-3340 (HAA-ES), ELEVENTH STREET BAP-TIST CHURCH, Plainfiff for 05-3351 (HAA-ES),GREATER ALL NATION PENTECOAST CHURCHOF JESUS CHRIST, Plaintiff for 05-3352 (HAA-ES),Plaintiffs: KEVEN HAL FRIEDMAN, LEAD ATTOR-NEY, WILENTZ GOLDMAN & SPITZER, WOOD-BRIDGE, NJ; KEVIN PETER RODDY, LEAD AT-TORNEY, WILENTZ, GOLDMAN & SPITZER, PA,WOODBRIDGE, NJ.Conant Avenue United Methodist Church, Plaintiff, Prose.Bethany Baptist Church, Plaintiff, Pro se.Bethel AME Church, Plaintiff, Pro se.First United Methodist Church of Santa Barbara, Plaintiff,Pro se.Hickman Temple AME Church, Plaintiff, Pro se.Macedonia Free Will Baptist Church, Plaintiff, Pro se.St. Lukes Community Methodist Church, [*2] Plaintiff,Pro se.Allen Temple AME Church, Plaintiff, Pro se.Winston Anderson, Plaintiff, Pro se.Tania Diaz, Plaintiff, Pro se.Faith Tabernacle Church, Plaintiff, Pro se.Jose Mestre, Plaintiff, Pro se.Mount Airy Baptist Church, Plaintiff, Pro se.

2012 U.S. Dist. LEXIS 13887, *Page 368241, [WL] at *17-18, 33, 43-44, 56. These Plaintiffsresponded to the orders to show cause, and Chief JudgeBrown issued a third opinion that granted in part anddenied in part Ford's summary judgment motions as tothese claims. See In re Ford Motor Co. E-350 VanProds. Liab. Litig. (No. II), No. 03-4558, 2011 U.S. Dist.LEXIS 16504, 2011 WL 601279, at *11 (D.N.J. Feb. 16,2011) ("February 16 Opinion"). As a result of these threesummary judgment opinions, the following claims remain.________________________________________________________________________________State Plaintiff Express WarrantrantyImplied War-Consumer Fraud Unjust EnrichmentStatuteCA First United [x]Macedonia[x]Faith Tabernacle[x]NJ Social Clubhouse [x]Bethany Baptist[x]GA Allen Temple [x] [x] [x]Bethel [x] [x] (2001 van)PA Hickman Temple [x]Mt. Airy[x]Diaz[x]FL Mestre [x]MI Conant Avenue [x]NY Bishop Anderson [x] [x][x]TX St. Luke's (non-disclosuretheory)________________________________________________________________________________The [*7] omnibus July 9 Opinion denied Plaintiffs'initial motion for class certification, but granted Plaintiffsleave to re-file in light of the court's summary judgmentrulings. Following Chief Judge Brown's third andfinal summary judgment ruling, Plaintiffs renewed theirmotion for class certification. This matter was reassignedto the undersigned by Order of June 15, 2011.Plaintiffs' Proposed ClassesThe renewed motion for class certification proposesthe following claim-based classes ("claim classes"):All persons or entities residing in theStates of Georgia, Michigan, New Jersey,New York and Pennsylvania, who purchasedor otherwise acquired and currentlyown a Ford E-350 van, new orused, model years 1991-2005, and assertBREACH OF IMPLIED WARRANTYclaims under their respective state lawsand all persons or entities residing in theState of Georgia who purchased the subjectvehicles and assert a BREACH OFEXPRESS WARRANTY claim.All [*8] persons or entities residingin the States of Florida, New York andTexas, who purchased or otherwise acquiredand currently own a Ford E-350van, new or used, model years 1991-2005,and assert VIOLATION OF CON-SUMER PROTECTION ACTS in theirrespective states.All persons or entities residing in theStates of California, Georgia and Pennsylvania,who purchased or otherwise acquiredand currently own a Ford E-350van, new or used, model years 1991-2005and assert UNJUST ENRICHMENT undertheir respective state laws.(Pls.' Br. at 11). In response to Ford's opposition argument,Plaintiffs have limited their proposed unjust enrichmentclass to "purchasers of new Ford E-350 vansprior to April 2004." (Pls.' Reply Br. at 35 & n.22) (emphasisadded). As an alternative to these three classes,Plaintiffs seek certification of eight, state-based classes("state classes") consisting of:

2012 U.S. Dist. LEXIS 13887, *Page 4All persons or entities residing in theState of [state] who purchased or otherwiseacquired and currently own a FordE-350 van, new or used, model years1991-2005.(Id.). Plaintiffs contend these proposed classes satisfy thenumerosity, commonality, typicality, and adequacy requirementsof Federal Rule of Civil Procedure 23(a),[*9] and that common questions of law and fact predominateover individual considerations, rendering classlitigation a superior method of adjudication for purposesof Federal Rule 23(b)(3). Alternatively, Plaintiffs seekclass certification pursuant to Federal Rule 23(b)(2), arguingthat the "core of the relief sought by Plaintiffs inthis case is equitable in nature." (Pls.' Br. at 61). To assistthe Court's review of their proposed classes, Plaintiffssubmit a proposed trial plan. Ford objects to all of Plaintiffsproposed classes.The main thrust of Plaintiffs' certification argumentis that Chief Judge Brown's summary judgment rulingshave pared down the initial proposed classes into manageablegroups, and that the new proposed classes satisfythe predominance requirement of Federal Rule 23(b)(3).For the remaining implied warranty claims, which derivefrom each state's version of UCC § 2-314, Plaintiffs contendthat they can present common proof of a designdefect, the existence of an implied warranty, causation,and a common injury measured by the difference invalue between the product as warranted and the productas received per UCC § 2-714. Although Plaintiffs suggestedmeasuring [*10] their common injury by the costof retrofit in their initial motion for class certification(see Doc. No. 254 at 47 n.15), Plaintiffs now set forth auniform retrofit cost of $2,100 as their common proof ofinjury. With regard to the remaining consumer fraudclaims, Plaintiffs assert that they can present commonproof of Ford's alleged misrepresentations, deception,ascertainable loss, and causation. Conversely, Plaintiffsargue that they do not need to make individual showingsof reliance in order to establish their consumer fraudclaims. Finally, with regard to the remaining unjust enrichmentclaims, Plaintiffs state that they can presentcommon proof of unjust benefit to Ford, stemming fromthe fact that Ford did not disclose the E-350 van's defect(inability to carry fifteen passengers).Ford contests Plaintiffs' assertion that they can establishtheir remaining claims with common proof underthe applicable law of the remaining jurisdictions. Fordargues that many of the elements necessary to establishPlaintiffs' claims--such as deception and causation--willrequire individualized inquiries into the circumstances ofeach class member's claims. In addition to these individualized[*11] inquiries on the elements of Plaintiffs'claims, Ford argues that its statute of limitations defenseswill require additional individual inquiries to determinewhether specific class members' claims are time-barred.The prevalence of individualized inquiries, Ford argues,defeats the predominance requirement of Federal Rule23(b)(3).Motion to AmendDuring the briefing of the renewed class certificationmotion, Plaintiffs objected to Ford's argument predicatedon the factual contention that the express warranty issuedwith every new E-350 van limited the duration of anyimplied warranty. Plaintiffs argued that this line of impliedwarranty defense was foreclosed, because Fordfailed to raise it as an affirmative defense in its Answerto the Complaint, or in any of the summary judgmentmotions. (Pls.' Reply Br. at 13). In response, Ford movedto amend its Answer to include this affirmative defense,which Plaintiffs oppose on the ground of waiver.Ford now seeks to include the following "durationallimitation" implied warranty affirmative defense to itsAnswer:All of the vehicles in the purportedclasses were sold to their initial purchaserwith an express warranty provided byFord that [*12] validly limited the durationof the implied warranty of merchantabilityto the period of the express warranty,i.e., 3 years or 36,000 miles, whichevercomes first. Accordingly, the claimsof Plaintiffs or some members of the purportedclasses are barred because theynever suffered a legally cognizable injury,damages, and/or loss within 3 years or36,000 miles of the initial purchase of thevehicle.(Doc. No. 393, Ex. A). Ford contends that this amendmentis warranted, because the substance of the proposedaffirmative defense appeared in Ford's Answer as a responseto an allegation in Plaintiffs' Class Action Complaint.Furthermore, Ford points out that it invoked thisdefense in its original motion to dismiss before JudgeAckerman, and again in its opposition to Plaintiffs' renewedclass certification motion. In light of these uses ofthe defense, Ford contends that it would not prejudicePlaintiffs to allow Ford to redesignate the defense as anaffirmative defense.Plaintiffs respond that allowing the affirmative defensenearly three years after Ford's Answer, and wellafter the close of discovery and summary judgment mo-

2012 U.S. Dist. LEXIS 13887, *Page 5tions, would be prejudicial. Plaintiffs contend that Fordabandoned [*13] this "durational limitation" impliedwarranty defense after Judge Ackerman decided the motionto dismiss in September 2008, and that Ford has notshown grounds for excusing its undue delay in seekingthe amendment. As a result, Plaintiffs state that they didnot explore the factual issues pertinent to this "durationallimitation" defense in discovery. Plaintiffs also argue thatFord's proposed amendment would be futile. In this regard,Plaintiffs note that Judge Ackerman rejected Ford'sdurational limitation argument at the motion to dismissstage, and claim that Ford's disclaimers are not sufficientlyconspicuous to be enforceable under UCC § 2-316(2).The Federal Rules of Civil Procedure allow forflexibility when it comes to a party's pleadings, placinggreater emphasis on substance than technical form. FederalRule of Civil Procedure 15(a)(2) provides that leaveto amend a party's pleadings should be "freely give[n] . .. when justice so requires." Federal Rule 8(e) instructsthat "[p]leadings must be construed so as to do justice."Similarly, "[i]f a party mistakenly designates a defense acounterclaim, or a counterclaim as a defense, the courtmust, if justice requires, treat [*14] the pleading asthough it were correctly designated, and may imposeterms for doing so." Fed. R. Civ. P. 8(c)(2). The decisionregarding whether or not to grant leave to amend restswith the district court's sound discretion. "[A]ffirmativedefenses can be raised by motion, at any time (even aftertrial), if plaintiffs suffer no prejudice." Cetel v. KirwanFin. Grp., Inc., 460 F.3d 494, 506 (3d Cir. 2006). "Adistrict court may deny leave to amend a complaint if aplaintiff's delay in seeking amendment is undue, motivatedby bad faith, or prejudicial to the opposing party,"but delay alone is an insufficient ground for denyingleave to amend. Cureton v. Nat'l Collegiate AthleticAss'n, 252 F.3d 267, 272-73 (3d Cir. 2001). The Courtwill allow Ford's proposed amendment, because Plaintiffs'assertion of undue delay and prejudice is overstated,and Plaintiffs' attack on the merits of the warranty disclaimersis premature.Plaintiffs cannot claim unfair surprise at this defense,because Plaintiffs opened the door on the issue ofthe enforceability of Ford's implied warranty disclaimersin their Complaint. In fact, Paragraph 85 of the Complaintaptly anticipated Ford's "durational limitation"[*15] defense and preemptively countered that defenseby stating that any such disclaimers were unconscionableand unenforceable. That paragraph states:Any express limitation or negation ofFord's implied warranties that the E350vans were fit to accommodate and safelytransport 15 passengers, when such wasnot the case, would be unreasonable andunconscionable and, accordingly, is unenforceablepursuant to UCC § 2-316.(Consolidated Am. Class Action Compl. 85). It is undisputedthat Ford initially opposed this contention in themotion to dismiss before Judge Ackerman (Ford's MTDBr. at 31), and then subsequently denied this contentionin its Answer. (Answer 85). In ruling on the motion todismiss, Judge Ackerman addressed both Ford's "durationallimitation" defense and Plaintiffs' anticipatoryresponse that such disclaimers were unconscionable,concluding that it would be inappropriate to rule on disclaimersand unconscionability at the motion to dismissstage. MTD Opinion, 2008 U.S. Dist. LEXIS 73690, 2008WL 4126264, at *20 (D.N.J. Sept. 3, 2008). This Courtagrees that Ford's "durational limitation" defense shouldhave been affirmatively stated as an affirmative defense,see Fed. R. Civ. P. 8(c), but Plaintiffs [*16] cannotclaim unfair surprise. Nor can Plaintiff claim undue delay.It appears that neither party addressed the warrantydisclaimer or unconscionability in the summary judgmentmotions. However, when Plaintiffs objected toFord's assertion of this defense in its opposition to therenewed class certification, Ford promptly sought leaveto amend six days later. (See Doc. Nos. 392-93). 11 The Court is puzzled by Plaintiffs' suggestionthat they did not investigate Ford's awareness ofthe alleged defect and each Plaintiff's relativebargaining power and ability to detect the defect(see Pls.' Opp'n to Mot. to Amend at 2-3), becausethose factual issues are constituent parts ofPlaintiffs' claim that Ford failed to disclose the E-350 van's latent defect, and that this omission deceivedPlaintiffs. Indeed, as Plaintiffs recognizein their renewed class certification brief, theseller's awareness of the underlying defect andmisrepresentation is a necessary element formany consumer fraud statutes. (Pls.' RenewedClass 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 [*17]transport 15 passengers, and that Ford 'either affirmativelymisrepresented or omitted that factwhen marketing' the vehicle.") (citation omitted).;see also Gennari v. Weichert Co. Realtors, 148N.J. 582, 605, 691 A.2d 350 (1997) (explainingthat non-disclosure liability under the consumerfraud statute required a showing that "the defendantacted with knowledge"); Kowalsky v. Hewlett-PackardCo., 771 F. Supp. 2d 1156, 1162(N.D. Cal. 2011) (dismissing California UCL

2012 U.S. Dist. LEXIS 13887, *Page 6claim, because plaintiff failed to show that the defendanthad knowledge of the defect, and thus defendant'srepresentations could not have been deceptive).Likewise, the purchaser's ability to detectthe van's alleged defect factors into the deceptionand causation elements of Plaintiffs' consumerfraud and implied warranty claims, as wellas Ford's statute of limitations defenses.To the extent that Plaintiffs assert that Ford's impliedwarranty disclaimers are inconspicuous and thereforeunenforceable, Plaintiffs have not sufficiently addressedthe particulars of the various warranty disclaimers issuedby Ford for different model years. Typically, the futilityof a motion to amend is determined by reference to themotion to dismiss [*18] standard of Federal Rule ofCivil Procedure 12(b)(6). See, e.g., In re Burlington CoatFactory Sec. Litig., 114 F.3d 1410, 1434-35 (3d Cir.1997). Thus, this Court must consider whether the proposedamendment "contain[s] sufficient factual matter,accepted as true, to 'state a claim to relief that is plausibleon its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell AtlanticCorp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.1955, 167 L. Ed. 2d 929 (2007)). The plausibility standardrequires that "the plaintiff plead[] factual contentthat allows the court to draw the reasonable inferencethat the defendant is liable for the misconduct alleged"and demands "more than a sheer possibility that a defendanthas acted unlawfully." Id. at 1949 (citing Twombly,550 U.S. at 556). Plaintiffs do not contest that Ford's"durational limitation" defense sets forth a plausible basisfor denying relief on some of Plaintiffs' claims, butinstead generally argue that Ford's disclaimers are unenforceableas a matter of law. Such an argument, addressedto specific disclaimers issued with particularmodel-year E-350 vans (as opposed to a generic attackon all of Ford's warranty disclaimers), is properly raisedin a motion [*19] for summary judgment. It does not,however, show futility.Plaintiffs identified the same "durational limitation"defense now proposed by Ford and preemptively counteredthe same in paragraph 85 of their Complaint. BecausePlaintiffs have not shown unfair surprise, unduedelay, prejudice, or futility, the Court will permit Ford toredesignate its "durational limitation" defense as an affirmativedefense.Class CertificationFederal Rule of Civil Procedure 23 governs classcertification. The party seeking class certification mustsatisfy both the conjunctive requirements of subpart (a)and one of the requirements of subpart (b). Fed. R. Civ.P. 23; In re Schering Plough Corp. ERISA Litig., 589F.3d 585, 596 (3d Cir. 2009). The Sùpreme Court succinctlydescribed the Rule 23(a) requirements applicableto all class actions in Amchem Products, Inc. v. Windsor:"(1) numerosity (a 'class [so large] that joinder of allmembers is impracticable'); (2) commonality ('questionsof law or fact common to the class'); (3) typicality(named parties' claims or defenses 'are typical . . . of theclass'); and (4) adequacy of representation (representatives'will fairly and adequately protect the interests[*20] of the class')." 521 U.S. 591, 613, 117 S. Ct. 2231,138 L. Ed. 2d 689 (1997). Under subpart (b), Plaintiffsprimarily seek certification pursuant to subpart (b)(3),which requires a finding that "questions of law or factcommon to class members predominate over any questionsaffecting only individual members, and that a classaction is superior to other available methods for fairlyand efficiently adjudicating the controversy." Fed. R.Civ. P. 23(b)(3). Alternatively, Plaintiffs seek certificationpursuant to subpart (b)(2), which is appropriatewhen "the party opposing the class has acted or refusedto act on grounds that apply generally to the class, so thatfinal injunctive relief or corresponding declaratory reliefis appropriate respecting the class as a whole." Fed. R.Civ. P. 23(b)(2).The Third Circuit provided detailed guidance onlitigation class certification analysis in In re HydrogenPeroxide Antitrust Litigation, 552 F.3d 305 (3d Cir.2009). The Hydrogen Peroxide court recognized thatfederal law vests district courts with "broad discretion tocontrol proceedings and frame issues for considerationunder Rule 23," but noted that "proper discretion doesnot soften the rule: a class may not be certified without[*21] a finding that each Rule 23 requirement is met."552 F.3d at 310. A federal court may only certify anaction for class litigation if it concludes, after a "rigorousanalysis," that the party seeking class certification hassatisfied all of the prerequisites of Rule 23. Behrend v.Comcast Corp., 655 F.3d 182, 190 (3d Cir. 2011) ("Thedistrict court must conduct a 'rigorous analysis' of theevidence and arguments in making the class certificationdecision."); Hydrogen Peroxide, 552 F.3d at 309 (citingGen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L. Ed. 2d 740 (1982); Amchem, 521 U.S. at615; Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir.2006)). "'A class certification decision requires a thoroughexamination of the factual and legal allegations.'"Id. (quoting Newton v. Merrill Lynch, Pierce, Fenner &Smith, Inc., 259 F.3d 154, 166 (3d Cir. 2001)). In thisregard, "the requirements set out in Rule 23 are not merepleading rules"; "[t]he court may delve beyond the pleadingsto determine whether the requirements for class certificationare satisfied." Id. at 316 (internal quotationmarks and citations omitted). The class certification decision"calls for findings by the court, not merely a [*22]'threshold showing' by a party, that each requirement ofRule 23 is met," and "the court must resolve all factual or

2012 U.S. Dist. LEXIS 13887, *Page 7legal disputes relevant to class certification, even if theyoverlap with the merits--including disputes touching onelements of the cause of action." Id. at 307; see also Hohiderv. United Parcel Serv., Inc., 574 F.3d 169, 197 (3dCir. 2009) (explaining that "rigorous analysis" underHydrogen Peroxide requires the district court to "determinewhat elements plaintiffs would have to prove under[their] theory to reach a finding of liability and relief, andthen assess whether this proof can be made within theparameters of Rule 23"). "Factual determinations necessaryto make Rule 23 findings must be made by a preponderanceof the evidence." Hydrogen Peroxide, 552F.3d at 320. 22 More recently, the Third Circuit set forth a detailedanalysis for class settlement certification,following and explaining its holding in HydrogenPeroxide. See Sullivan v. DB Invs., Inc., No. 08-2784, 667 F.3d 273, 2011 U.S. App. LEXIS25185, at *68-69 (3d Cir. Dec. 20, 2011) ("Weexplained in Hydrogen Peroxide that an examinationof the elements of plaintiffs' claim is sometimesnecessary, not in order to [*23] determinewhether each class member states a valid claim,but instead to determine whether the requirementsof Rule 23--namely, that the elements ofthe claim can be proved 'through evidence commonto the class rather than individual to itsmembers'--are met.") (quoting Hydrogen Peroxide,552 F.3d at 311-12). Aware of the scope andimportance of the Third Circuit's decision in Sullivan,and in light of the fact that the parties'briefs were submitted before the Third Circuitfiled its decision in Sullivan, this Court held atelephone status conference with the parties onJanuary 4, 2012 to ask whether they wanted tosupplement their briefing. The parties declined.Counsel for Plaintiffs stated that Sullivan raisesno new issues with respect to Plaintiffs' papersand supports Plaintiffs' current arguments. Counselfor Defendants agreed that Sullivan raises nonew issues and that the decision is distinguishablebecause it relates to settlement certification andnot litigation class certification. The Courtagrees, and therefore decides this motion on thepapers before it, citing Sullivan where appropriate.Plaintiffs challenge the Hydrogen Peroxide standardon two fronts. Plaintiffs first [*24] argue that "HydrogenPeroxide left intact . . . the rule in the Third Circuit thatRule 23 should receive a liberal construction." (Pls.' Br.at 12). Next, Plaintiffs contend that Ford's reading ofHydrogen Peroxide is contrary to the Supreme Court'srecognition that class certification analysis does not involvean inquiry into whether individual plaintiffs willprevail on the merits (Pls.' Reply Br. at 6 (citing Eisen v.Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct.2140, 40 L. Ed. 2d 732 (1974)). Both contentions lackmerit, because the Third Circuit rejected both of Plaintiffs'contentions in Hydrogen Peroxide, 552 F.3d at 316-17 & n.18, 321-22; see also Merlo v. Federal ExpressCorp., No. 07-4311, 2010 U.S. Dist. LEXIS 56108, 2010WL 2326577, at *3-4 (D.N.J. June 7, 2010) (assessingand rejecting similar arguments under Hydrogen Peroxide).With regard to Plaintiffs' argument that this Courtshould apply a liberal construction that favors class certificationin close cases, the Hydrogen Peroxide court explainedthat this rule, stemming from cases such asEisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985)and Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir.1970), predated the 2003 amendments to Rule 23 that"reject[ed] tentative decisions [*25] on certification andencourage[d] development of a record sufficient for informedanalysis." Hydrogen Peroxide, 552 F.3d at 321(citing Fed. R. Civ. P. 23 advisory committee's note,2003 Amendments ("A court that is not satisfied that therequirements of Rule 23 have been met should refusecertification until they have been met.")). As a result ofthese amendments, the Third Circuit has instructed thatcourts "should not suppress 'doubt' as to whether a Rule23 requirement is met--no matter the area of substantivelaw." Id.; see also In re Schering Plough Corp. ERISALitig., 589 F.3d at 600 n.14. Plaintiffs cite the 2009 caseIn re Constar Int'l Inc. Sec. Litig., 585 F.3d 774 (3d Cir.2009) to suggest that Hydrogen Peroxide "left intact" theprior "liberal construction" rule (Pls.' Br. at 12), butPlaintiffs misrepresent what Constar held. Far from anendorsement of the "liberal construction" rule expresslyrepudiated by Hydrogen Peroxide, Constar consideredwhether the special master's and district court's passingreferences to the "liberal construction" rule in their decisionsthat predated Hydrogen Peroxide rendered the classcertification analysis invalid after the Court of Appeals[*26] decided Hydrogen Peroxide. The Constar courtfound the error harmless, because the district court didnot actually apply the "liberal construction" rule and thesubstance of the district court's analysis complied withthe standard pronounced in Hydrogen Peroxide. 585F.3d at 781-82 (explaining that references to the "liberalconstruction" rule "were not conclusions, but rather apreface to further analysis").As for Plaintiffs' suggestion that the SupremeCourt's decision in Eisen forbids merits inquiries at theclass certification stage, Hydrogen Peroxide explainedthat this reading of Eisen is at odds with prior and subsequentSupreme Court decisions that recognized that "theclass determination generally involves considerationsthat are enmeshed in the factual and legal issues compris-

2012 U.S. Dist. LEXIS 13887, *Page 8ing the plaintiff's cause of action." Hydrogen Peroxide,552 F.3d at 317 (quoting Coopers & Lybrand v. Livesay,437 U.S. 463, 469, 98 S. Ct. 2454, 57 L. Ed. 2d 351(1978)) (internal quotation marks omitted); see also Falcon,457 U.S. at 160-61 (explaining that "actual, not presumed,conformance with Rule 23(a) remains . . . indispensable,"and instructing courts to conduct a "rigorous"Rule 23 analysis); Behrend, 655 F.3d at 199 ("[A] [*27]district court may inquire into the merits only insofar asit is 'necessary' to determine whether a class certificationrequirement is met."). Previously, our Circuit explainedin Newton that the circumstances of Eisen support a narrowreading of its holding, because the preliminary meritsinquiry encountered by the Eisen Court involved adistrict court's decision to shift costs (notification of classmembers) to the defendant that was based on that court'sdetermination that the plaintiff was likely to succeed onthe merits of his claim. Newton, 259 F.3d at 166. Accordingly,our Circuit has determined that "Eisen is bestunderstood to preclude only a merits inquiry that is notnecessary to determine a Rule 23 requirement." HydrogenPeroxide, 552 F.3d at 317 (citing Newton, 259 F.3dat 166-69). The Hydrogen Peroxide court bolstered thisportion of its ruling by noting that the Courts of Appealsfor the First, Second, Fourth, Fifth, and Seventh Circuitshave similarly construed Eisen not to preclude considerationof the merits to the extent necessary to make Rule 23findings. 552 F.3d at 317 n.17 (citing In re New MotorVehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 24(1st Cir. 2008); [*28] In re Initial Pub. Offering Sec.Litig., 471 F.3d 24, 41 (2d Cir. 2006); Gariety v. GrantThornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004);Oscar Private Equity Invs. v. Allegiance Telecom, Inc.,487 F.3d 261, 268 (5th Cir. 2007); Szabo v. BridgeportMachs., Inc., 249 F.3d 672, 677 (7th Cir. 2001)). Recently,the Third Circuit echoed its Hydrogen Peroxidedecision. See Sullivan v. DB Invs., Inc., 667 F.3d 273,2011 U.S. App. LEXIS 25185, at *68 (3d Cir. Dec. 20,2011) ("[A] district court may inquire into the merits ofthe claims presented in order to determine whether therequirements of Rule 23 are met, but not in order to determinewhether the individual elements of each claimare satisfied.").This Court sees nothing about Hydrogen Peroxidethat contradicts specific Supreme Court guidance. In fact,the Supreme Court's decision in Wal-Mart Stores, Inc. v.Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) is consistentwith the Hydrogen Peroxide rule. See Behrend,655 F.3d at 190 n.6 ("The Supreme Court confirmed [theThird Circuit's] interpretation of the Rule 23 inquiry inWal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L.Ed. 2d 374 (2011)."). Wal-Mart begins with a reminderthat "[t]he class action is 'an [*29] exception to the usualrule that litigation is conducted by and on behalf of theindividual named parties only.'" Id. at 2550 (quotingCalifano v. Yamasaki, 442 U.S. 682, 700-701, 99 S. Ct.2545, 61 L. Ed. 2d 176 (1979)). Wal-Mart further recognizedthat "rigorous analysis" under Rule 23"[f]requently . . . will entail some overlap with the meritsof the plaintiff's underlying claim. That cannot behelped." Id. at 2551. The Wal-Mart Court also addressedthe limited scope of Eisen's prohibition on merits inquiries,explaining that the preliminary merits inquiry conductedby the trial judge in that case had no bearing onthe class certification analysis. Id. at 2552 n.6. "To theextent the [Eisen] statement goes beyond the permissibilityof a merits inquiry for any other pretrial purpose," theWal-Mart Court stated, "it is the purest dictum and iscontradicted by our other cases." Id.; see also Sullivan,667 F.3d 273, 2011 U.S. App. LEXIS 25185, at *49("[T]he focus is on whether the defendant's conduct wascommon as to all of the class members, not on whethereach plaintiff has a 'colorable' claim.") (quoting Wal-Mart, 131 S. Ct. at 2551).Here, in order to conduct "rigorous analysis," thisCourt must necessarily consider the substantive [*30]elements of Plaintiffs' causes of action in order to determinethe relevant Rule 23 issue: whether common issues,susceptible to common proof, predominate over individualizedissues. Unlike a summary judgment decision,this limited merits inquiry, as explained by Sullivan,Behrend, and Hydrogen Peroxide, does not entail considerationof whether plaintiffs, collectively or individually,actually have meritorious claims. But this Courtmust resolve legal disputes regarding the substantiveelements of Plaintiffs' claims in order to make a qualitativeassessment of whether or not Plaintiffs can provetheir claims with common evidence.With the above considerations in mind, the Courtturns to Ford's challenges to Plaintiffs' proposed classes.Ford addresses its objections to Plaintiffs' showings undersubparts (b)(2) and (b)(3). First, Ford objects thatPlaintiffs' proposed classes fail to exclude named classmembers whose claims were previously dismissed on themerits by Chief Judge Brown's summary judgment opinions.Second, Ford contests Plaintiffs' proposed classesfor each jurisdiction on a claim-by-claim basis, arguingthat individualized fact issues defeat predominance underRule 23(b)(3) [*31] with regard to each proposed class.Third, Ford argues that Plaintiffs cannot avail themselvesof Rule 23(b)(2), because Plaintiffs primarily seek monetaryrelief, and because the same individual issues thatdefeat predominance under Rule 23(b)(3) preclude certificationunder Rule 23(b)(2). The Court considers eachargument in turn.I. CLASS DEFINITIONS & PREVIOUSLY DIS-MISSED CLAIMS

2012 U.S. Dist. LEXIS 13887, *Page 9Ford points out that Plaintiffs' proposed classes failto exclude the following named Plaintiffs and claims,which were dismissed by Chief Judge Brown's summaryjudgment opinions: (1) all claims by New York PlaintiffBarrett; (2) the misrepresentation-based consumer fraudclaim of Texas Plaintiff St. Luke's; (3) the unjust enrichmentclaims of Pennsylvania Plaintiffs HickmanTemple and Mt. Airy; and (4) the consumer fraud claimof Florida Plaintiff Blandon. Based on Chief JudgeBrown's summary judgment opinions, the Court agreesthat these claims must be excluded from Plaintiffs' proposedclasses.With regard to New York Plaintiff Barrett, ChiefJudge Brown granted summary judgment in favor ofFord on all claims, concluding that Barrett had not presentedevidence of actual injury as required by Frank v.DaimlerChrysler Corp., 292 A.D.2d 118, 741 N.Y.S.2d 9(App. Div. 2002). [*32] July 9 Opinion, 2010 U.S. Dist.LEXIS 68241, 2010 WL 2813788, at *71-72, 75. BecauseBarrett has no remaining claims in this case, he mustnecessarily be excluded from Plaintiffs' proposed classes.The Court will therefore consider Plaintiffs' proposedNew York classes as if they had excluded Barrett.Turning to the Texas consumer fraud claim underthe Texas Deceptive Trade Practices-Consumer ProtectionAct (DTPA), Tex. Bus. & Com. Code § 2.313 etseq., Chief Judge Brown granted summary judgment infavor of Ford on Texas Plaintiff St. Luke's claim thatFord's description of the E-350 van as a "15-passengervan" misrepresented the van's ability to safely carry 15passengers. July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *54. Chief Judge Brownleft intact, however, St. Luke's omission-based theory ofa DTPA violation under § 17.46(b)(24). 2010 U.S. Dist.LEXIS 68241, [WL] at *55. Plaintiffs' proposed classesdo not distinguish between class members having a misrepresentation-basedconsumer fraud claim and an omission-basedconsumer fraud claim. Yet, the July 9 Opiniondifferentiated between the underlying factual predicatesfor these claims, and why omission was the onlyviable theory under the DTPA. With regard to Plaintiffs'claim that Ford implicitly [*33] represented that the E-350 van could safely carry 15 passengers by describing,or "packaging" the E-350 van as a "15-passenger" van,Chief Judge Brown concluded that this representationwas too vague under Texas law to be actionable underDTPA §§ 17.46(b)(5), (b)(7), and (b)(9). 2010 U.S. Dist.LEXIS 68241, [WL] at *54 ("An imprecise or vague representationamounts to mere opinion or puffing. Here,under the particular undisputed facts of this case, Ford'sdescription of the E-350 van as a 15-passenger van didnot include any representation of safety, and does notrise to the level required for a violation of [DTPA] §17.46(b)(5).") (citation omitted). Not only did this rulingeliminate the only named Texas Plaintiff's DTPA misrepresentationclaim, but it categorically rejected the contentionthat any Texas Plaintiff could bring such a claim.Conversely, as Plaintiffs' recognize in their reply brief(Pls.' Reply Br. at 27 n.18, 29) (citing Compl. 31), thesurviving omission claim under DTPA § 17.46(b)(24)was predicated on allegations that Ford failed to discloseto consumers that, due to stability issues, the E-350 vanshould only be driven by "trained experienced drivers."See July 9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010WL 2813788, at *55 [*34] . Plaintiffs recognize that theycannot proceed with a DTPA misrepresentation claim inlight of the July 9 Opinion. (See Pls.' Reply Br. at 27-29).Thus, to the extent that Plaintiffs seek certification of aDTPA claim on behalf of Texas class members, theCourt will assess Rule 23(b)(3) predominance for Plaintiffs'proposed class through the lens of the §17.46(b)(24) omission claim permitted by the July 9Opinion. 33 As noted in this Court's extensive discussionof "rigorous analysis" under Rule 23, the Courtlimits its merits analysis to whether Plaintiffs cansatisfy the requirements of Rule 23 for the relevantclaim, and does not presently considerwhether Plaintiffs have meritorious claims.As for the Pennsylvania unjust enrichment claim,Plaintiffs do not dispute that the July 9 and February 16Opinions disposed of the unjust enrichment claims ofPennsylvania Plaintiffs Mt. Airy and Hickman Temple.Chief Judge Brown rejected these claims for differentreasons. Mt. Airy's claim failed because the record establishedthat this Plaintiff purchased its E-350 van in 2005,after Plaintiffs conceded that the artificial market for thevan eroded. Meanwhile, Hickman Temple's claim [*35]failed because Plaintiffs did not show that HickmanTemple's purchase of a used vehicle conferred a benefitupon Ford. See July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *44 (Mt. Airy); February16 Opinion, 2011 U.S. Dist. LEXIS 16504, 2011 WL601279, at *6 (Hickman Temple). In their reply brief,Plaintiffs seek to bypass these problems by modifyingtheir unjust enrichment class to apply only to "purchasersof new Ford E-350 vans prior to April 2004." (Pls.' ReplyBr. at 35 & n.22) (emphasis added). Accordingly, theCourt will conduct Rule 23 analysis on Plaintiffs' modifiedunjust enrichment class, as proposed in the replybrief.Finally, Plaintiffs do not deny that Florida PlaintiffBlandon's consumer fraud claim was terminated in theJuly 9 Opinion. See July 9 Opinion, 2010 U.S. Dist.LEXIS 68241, 2010 WL 2813788, at *49. Chief JudgeBrown reasoned that Blandon could not show actual deception,because the undisputed record established "that

2012 U.S. Dist. LEXIS 13887, *Page 10Blandon assertedly knew that the vehicles were unsafebut nonetheless purchased two vehicles." Id. BecauseBlandon has no remaining claims in this case, she mustnecessarily be excluded from Plaintiffs' proposed classes.The Court will therefore consider Plaintiffs' proposedFlorida class as if they had excluded [*36] Blandon.II. CERTIFICATION UNDER RULE 23(b)(3)As noted above, class certification under Rule23(b)(3) requires a finding that common issues of lawand fact predominate over issues affecting individualmembers, and that class litigation is superior to othermethods of adjudication. In other words, subpart (b)(3)breaks down into a predominance requirement and a superiorityrequirement, both of which must be met in orderfor the district court to grant class certification.The predominance requirement of subpart (b)(3)"'tests whether proposed classes are sufficiently cohesiveto warrant adjudication by representation,'" and is a "'farmore demanding'" requirement than the commonalityrequirement of subpart (a). Hydrogen Peroxide, 552 F.3dat 311 (quoting Amchem, 521 U.S. at 623-24). Predominance"requir[es] more than a common claim," and"[i]ssues common to the class must predominate overindividual issues[.]" Id. (citation omitted). "Because thenature of the evidence that will suffice to resolve a questiondetermines whether the question is common or individual,a district court must formulate some prediction asto how specific issues will play out in order to determinewhether common [*37] or individual issues predominatein a given case[.]" Id. (internal quotation marks and citationsomitted). Notably, "'[i]f proof of the essential elementsof the cause of action requires individual treatment,then class certification is unsuitable.'" Id. at 311(quoting Newton, 259 F.3d at 172).Meanwhile, the superiority requirement of subpart(b)(3) is guided by the following "pertinent" considerations:"(A) the class members' interests in individuallycontrolling the prosecution or defense of separate actions;(B) the extent and nature of any litigation concerningthe controversy already begun by or against classmembers; (C) the desirability or undesirability of concentratingthe litigation of the claims in the particularforum; and (D) the likely difficulties in managing a classaction." Fed. R. Civ. P. 23(b)(3)(A)-(D).Ford argues that Plaintiffs have not met the predominancerequirement for any of their proposed classes,because each suffers from a multitude of individualizedissues. Ford also argues that the various jurisdictions'statutes of limitations, as well as plaintiff-specific equitabletolling doctrines that Plaintiffs will invoke tocounter such defenses, support denying [*38] class certificationof all proposed classes. The Court addressesFord's specific predominance objections by jurisdictionand claim. Consistent with Judge Ackerman's undisputedchoice-of-law determination, the Court will consider thelaw of the forum jurisdiction in evaluating whetherPlaintiffs' respective claims satisfy Rule 23(b)(3)'s predominancerequirement. The Court addresses Ford's statuteof limitations affirmative defenses separately in PartII.H, infra. 4A. New York4 The Court notes that Plaintiffs sorted their argumentsby claim and not by jurisdiction. TheCourt has endeavored to match Plaintiffs' oppositionarguments to Ford's jurisdiction-specific objections.After Chief Judge Brown's omnibus July 9 Opinion,Plaintiff Anderson is the sole remaining representative ofthe proposed New York classes, and only his impliedwarranty and consumer fraud claims remain. July 9Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *75. Ford objects to Plaintiffs' proposedNew York classes on the grounds that Plaintiffs cannotprove their New York consumer fraud and implied warrantyclaims with common proof. The Court agrees onboth counts.1. Consumer Fraud, N.Y. Gen. Bus. Law § 349 55 The Court notes that Plaintiffs' [*39] Complaintasserted a claim under GBL § 350, butPlaintiffs' renewed class certification briefs andtrial plan all appear to abandon that claim. Plaintiffspresent no distinct arguments to support theirclaims under § 350, and the Court therefore concludesthat Plaintiffs have not shown predominancefor any remaining § 350 claim."To successfully assert a section 349(h) claim, aplaintiff must allege that a defendant has engaged in (1)consumer-oriented conduct that is (2) materially misleadingand that (3) plaintiff suffered injury as a result of theallegedly deceptive act or practice." City of New York v.Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 911 N.E.2d834, 838, 883 N.Y.S.2d 772 (N.Y. 2009) (citation omitted).Ford argues that Plaintiffs cannot show predominancebecause Plaintiffs do not have common classwideproof for any of these elements.First, Ford argues that Plaintiffs have no commonproof of a uniform misrepresentation. Ford notes thatdifferent class members would present different proofsbased on their individual experiences: some class membersclaim to have seen representations that the E-350was a "15-passenger van" in sales brochures, others mayhave bought a model year van that included the descrip-

2012 U.S. Dist. LEXIS 13887, *Page 11tion [*40] "15-passenger" in the name of the vehicle,and some may have seen no representation that the vanwould carry 15 passengers. (Ford's Resp. Br. at 16) (citingPls.' Br. at 33). Second, Ford argues that this individualizedproof of the alleged representation will necessarilyrequire individualized determinations concerningwhether certain class members were actually deceived.Third, Ford argues that Plaintiffs disregard Chief JudgeBrown's ruling that New York law requires actual injuryin the form of limitation on use or out-of-pocket expenses.(Ford's Resp. Br. at 24). Under this standard,Ford contends that Plaintiffs cannot rely on a generalizedassertion of diminution in value, and, thus, the presidingcourt would need to conduct individualized inquiries todetermine if a particular class member incurred actuallosses in the form of out-of-pocket expenses or loss ofuse, and whether these losses were proximately causedby the alleged defect in the van or other, unrelatedcauses. (Id.). Finally, with regard to causation, Fordstates that, while New York law does not require a showingof reliance, it does require a showing of actual deception.Toward this end, Ford notes that Chief [*41] JudgeBrown granted summary judgment against PentecostalTemple's Illinois consumer fraud claim for lack of actualdeception and proximate causation, because the undisputedrecord revealed that Pentecostal Temple neverreceived or observed any misrepresentations from Ford.(Ford's Resp. Br. at 26) (citing July 9 Opinion, 2010 U.S.Dist. LEXIS 68241, 2010 WL 2813788, at *23).Plaintiffs respond that they do have common proofto address each of these requirements. Plaintiffs contendthat they have common proof of misrepresentations, byvirtue of the fact that Ford marketed the E-350 van as a"15 passenger" van and outfitting the van with 15 seats.Plaintiffs assert that an objective standard applies to thealleged misrepresentations, and deduce that "evidence inthe form of the vehicle's name, number of seats and soforth can be submitted to the jury for a determinationwhether reasonable consumers would understand it tomean safe transportation." (Pls.' Reply Br. at 27). Plaintiffsfurther argue that deception is measured by an objectivestandard, because New York law does not requirea showing of reliance. Citing Florida case law, Plaintiffsstate that "causation may be established with proof thatFord's conduct [*42] 'was likely to deceive a consumeracting reasonably in the same circumstances.'" (Pls.' Br.at 36; Pls.' Reply Br. at 26) (citations omitted). Finally,Plaintiffs contend that they have presented common evidenceof injury in the form of an inherent design defectthat manifests on every vehicle--an inability to "safelycarry 15 passengers." (Pls.' Br. at 36; see also Pls.' ReplyBr. at 33). Plaintiffs point to two decisions of the NewYork Court of Appeals that they claim enable them topresent common proof of deception and causation underGBL § 349. First, Plaintiffs argue that Oswego Fund v.Marine Midland Bank set an objective "reasonable consumer"standard for determining whether or not an allegedrepresentation was deceptive. See 85 N.Y.2d 20,647 N.E.2d 741, 623 N.Y.S.2d 529 (N.Y. 1995). Second,Plaintiffs invoke Stutman v. Chemical Bank for theproposition that they can show common proof of causationsimply by showing that the alleged misrepresentationswere "material." See 95 N.Y.2d 24, 731 N.E.2d 608,709 N.Y.S.2d 892 (N.Y. 2000). With regard to injury,Plaintiffs cite Ackerman v. Coca-Cola Co., No. 09-0395,2010 U.S. Dist. LEXIS 73156, 2010 WL 2925955(E.D.N.Y. July 21, 2010) and In re General Motors Corp.Pick-Up Truck Fuel Tank Products Liability Litigation,55 F.3d 768 (3d Cir. 1995), [*43] for the propositionthat they can claim a common, benefit-of-the-bargain, ordiminution in value, injury.The Court agrees that Plaintiffs have not met thepredominance requirement for its New York consumerfraud claims under GBL § 349, because resolution ofPlaintiffs and putative class members' claims will requirenumerous individualized inquiries into the material misrepresentation,deception and causation, and actual injury.a. MisrepresentationAs is evident by Chief Judge Brown's summaryjudgment opinions, different Plaintiffs were exposed todifferent representations at different times. Some receivedsales brochures from Ford describing the van as a"15-passenger van" (First United), others saw that descriptionas part of the vehicle packaging, such as thewindow sticker (First United), some were simply toldthat the E-350 was a "15-passenger van" by a salesperson(Charles St. AME, Greater All Nation), some were assuredthat the E-350 was the "best vehicle going"(Charles St. AME), and it appears that some did not seeor hear any representation regarding the van's passengercapacity or relative safety (Pentecostal Temple). See July9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *4-5, 19-20, 75. [*44] The Court furthernotes that Ford's safety disclaimers in the E-350 owner'sguides evolved over time. Whereas the 2000-2002model-year owner's guides alerted consumers that theyshould take "extra precautions" because "[l]oaded vehicles,with a higher center of gravity, may handle differently,"the 2003-2005 model-year owner's guides statedthat "[t]he risk of a rollover crash increases as the numberof people and load in the vehicle increase," and specificallyadvised that "[t]he van should be operated by anexperienced driver." (See Doc. No. 292, Smith Decl. Ex.12). Moreover, Plaintiffs recognize in their Complaintthat Ford issued a safety advisory in September 2002instructing consumers to use trained drivers for the E-350 van. (Compl. 31). Given these variations among

2012 U.S. Dist. LEXIS 13887, *Page 12the named Plaintiffs and the evolving disclosures byFord, the Court may easily deduce that putative classmembers would rely on different theories of misrepresentation.Plaintiffs' only apparent response to these variationsis that all consumers received an implicit representationthat the vans could safely carry 15 passengers by virtueof the fact that each van was equipped with 15 seats. (SeePls.' Reply Br. [*45] at 27) ("In a nutshell, that is Plaintiffs'claim under the New York, Texas and Florida consumerprotection statutes."). This answer is not satisfactory,because Plaintiffs have not shown that the merepresence of seats conveys a common message about passengercapacity or relative safety. 6 Preliminarily, theCourt does not understand Plaintiffs to assert that all E-350 vans in the proposed class had 15 individual seats,but rather some combination of front seats and rearwardbenches that can accommodate 15 passengers. (See Pls.'Br. at 7). Absent other representations and presuming atwo-front seat, four-rearward bench layout (see Carr Report,Doc. No. 290, at 3/36), reasonable consumers coulddraw differing inferential conclusions regarding passengercapacity and relative safety vis-a-vis other multipassengervehicles. 7 Such conclusions may reflect differentconsumers' individual vehicle needs, which maybe guided by such factors as the number and size of expectedpassengers, as well as cargo needs. 86 Notably, Plaintiffs do not submit any evidencethat individual Plaintiffs understood the numberand layout of the E-350's seats to constitute a representationthat the van could safely [*46] carry15 passengers.7 Plaintiffs base much of their defect argumenton the notion that the E-350 van was not safe tocarry 15 passengers, but Plaintiffs do not attemptto delineate the contours of the safety thresholdthey assert. Surely an extended passenger van,like a large SUV or truck, cannot be expected tohave the same handling characteristics as a sedanor sports car. Yet with the present motion, Plaintiffsdo not present qualitative evidence comparingthe handling, safety restraint, and crash characteristicsof the E-350 to other extended passengervans, or other large, multi-passenger vehicles.8 This Court does not presently address themerits of Plaintiffs' allegations of deceptive representations,but this Court recognizes that ChiefJudge Brown has already ruled that some of thesealleged misrepresentations were mere puffery orotherwise too vague to be actionable. See, e.g.,July 9 Opinion, 2010 U.S. Dist. LEXIS 68241,2010 WL 2813788, at *40-41 (granting summaryjudgment against Hickman Temple's express warrantyclaim, because salesperson's statement thatthe van was "the vehicle that you want to do thejob because it was safe and it would deliver" waspuffery), 54 (granting summary judgment against[*47] St. Luke's misrepresentation theory of consumerfraud 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'sexpress warranty claim, because "15-passengervan" description, without more, was puffery), 79(granting summary judgment against Charles St.AME's express warranty claim, because "Ford'sdescription of the E-350 as a 15-passenger vandoes not constitute an express warranty of safetyin transporting 15-passengers," and "best vehiclegoing" statement was puffery). These rulings notonly revealed that different consumers were exposedto different representations about the E-350van, but that the nature of the alleged misrepresentationis material to whether or not the consumerhas a valid claim.This Court finds instructive the Appellate Division'sruling in Solomon v. Bell Atlantic Corp., which deniedclass certification because, inter alia, the plaintiff consumershad not demonstrated that all class members hadseen the allegedly deceptive advertisements. 9 A.D.3d49, 777 N.Y.S.2d 50, 55 (App. Div. 2004). Similar to thiscase, in Solomon "the record show[ed] that the individual[*48] plaintiffs did not all see the same advertisements;some saw no advertisements at all before deciding to[purchase the product]." Id. Also similar to this case, thecontent of the seller's advertisements in Solomon "variedwidely and not all the advertisements contained the allegedmisrepresentations." Id. The Solomon court explainedthat "[class certification] under GBL §§ 349 and350 may be appropriate where the plaintiffs allege thatall members of the class were exposed to the same misrepresentations,"but emphasized that "class certificationis not appropriate where the plaintiffs do not point to anyspecific advertisement or public pronouncement by the[defendants] which was undoubtedly seen by all classmembers." Id. (citations and internal quotation marksomitted).This Court recognizes that a federal court in NewYork has suggested that a class of consumers did nothave to show common misrepresentations when the allegeddeceptive act was an omission. See Oscar v. BMWof N. Am., LLC, No. 09-11, 274 F.R.D. 498, 512-13(S.D.N.Y. June 7, 2011) (denying class certification forconsumer claiming that car manufacturer failed to disclosedefects and disadvantages of run-flat tires). [*49]The import of this observation is difficult to discern, becausethe Oscar court devoted little attention to the allegedomissions, and proceeded to deny class certifica-

2012 U.S. Dist. LEXIS 13887, *Page 13tion for a number of other reasons. See id. It remainsunclear whether New York courts will adopt this lesserstandard for claims based on omissions. Regardless, therecord in this case reveals that there was not a commonomission. As noted above, Ford's owner's guides for certainmodel years gave different advisories regarding thevehicle's handling characteristics. Further, Plaintiffs' individualpurchase experiences reflect that there was not auniform omission. Plaintiff Barrett, for instance, "expresslytold the salesman that these vehicles should notbe driven by an inexperienced driver, and stated that afriend of his had a roll over with a Ford van." July 9Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *69 (citing Barrett Dep. at 106:16-23). Sucha consumer cannot claim that Ford failed to disclose materialinformation about the van's handling. Thus, resolutionof Plaintiffs' claims will require numerous individualizedinquiries into the alleged misrepresentation,whether it be an affirmative representation or omission.Cf. Thorogood v. Sears, Roebuck & Co., 547 F.3d 742,747 (7th Cir. 2008) [*50] (decertifying class of consumersclaiming that distributor misrepresented the design ofa clothes dryer, because resolution of the claims wouldrequire individual inquiries regarding what each classmember "understands to be the meaning of a label oradvertisement that identifies a clothes dryer as containinga stainless steel drum"); Newman v. RCN Telecom Servs.,Inc., 238 F.R.D. 57, 75 (S.D.N.Y. 2006) (Report andRecommendation adopted by court) (denying certificationof a class of consumers claiming that an internetservice provider misrepresented the speed of the internetservice, because resolution would require "an examinationof each subscriber's understanding of the [provider's]a la carte pricing system and whether that understandingwas reasonable").Plaintiffs' proposed class makes no attempt to limitthe class to persons who saw or heard a common misrepresentation,and the record reveals that various namedPlaintiffs were exposed to different representations, if atall, about the E-350 van's seating capacity and overallsafety. Distinguishing between the different representationsmade to putative class members would require individualizedinquiries not suitable for class [*51] litigation.Accordingly, this element supports denying classcertification.b. Deception & CausationThe parties agree that, while New York's consumerfraud law does not require a showing of reliance, it doesrequire a showing of deception and causation. See, e.g.,Oswego, 647 N.E.2d at 745 ("[W]hile the statute doesnot require proof of justifiable reliance, a plaintiff seekingcompensatory damages must show that the defendantengaged in a material deceptive act or practice thatcaused actual, although not necessarily pecuniary,harm."). Plaintiffs argue that they can show commonproof of deception and causation, because Oswegoadopted an objective "reasonable consumer" standard fordetermining consumer deception under GBL § 349. Yet,the issue of deception is less clear than Plaintiffs wouldhave this Court believe. True, the Oswego court statedthat it was adopting "an objective definition of deceptiveacts and practices," id. at 745, but in applying that standard,the court considered "whether a reasonable consumerin plaintiffs' circumstances might have been misled,"id. (emphasis added) (finding record inconclusive).Elsewhere, the court reasoned that "the [defendant]Bank's liability [*52] under the statute will depend, inpart, on whether plaintiffs possessed or could reasonablyhave obtained the relevant information they now claimthe Bank failed to provide." Id. These statements suggestthat, while a reasonable consumer standard applies, someconsideration of the plaintiff's circumstances would inherein that analysis. Subsequent New York decisionshave characterized Oswego's reasonable consumer standardin this manner. E.g., Solomon v. Bell Atl. Corp., 777N.Y.S.2d at 54 ("Deceptive or misleading representationsor omissions are defined objectively as those 'likely tomislead a reasonable consumer acting reasonably underthe circumstances,' i.e., the plaintiff's circumstances.").Regardless of whether Oswego sets a purely objectivestandard or not, individualized circumstances will necessarilyseep into the deception analysis in this case, becausethere is no uniform misrepresentation.Assuming arguendo that Plaintiffs could presentcommon proof of a misrepresentation and deception,Plaintiffs do not have common proof of causation. Forpurposes of causation, "[t]he plaintiff . . . must show thatthe defendant's 'material deceptive act' caused the injury."Stutman, 731 N.E.2d at 612 [*53] (citation omitted).Courts in New York have recognized that a consumercannot show causation when he or she was notexposed to the alleged misrepresentation. E.g., Gale v.Int'l Bus. Machs. Corp., 9 A.D.3d 446, 781 N.Y.S.2d 45,47 (App. Div. 2004) (rejecting GBL §§ 349 and 350claims for lack of causation where the consumer did notclaim to have seen the alleged misrepresentations); seealso Newman, 238 F.R.D. at 75 (denying class certificationof GBL §§ 349 and 350 claims, noting numerousissues of causation, including whether each class membersaw the alleged misrepresentations). As noted above,Chief Judge Brown's summary judgment decisions revealedthat named Plaintiffs approached their E-350 purchaseswith differing amounts of information: some purchasedtheir vans with knowledge of the van's uniquehandling problems from personal experience (Barrett,Blandon), and some discerned no representations aboutthe van's passenger capacity or safety at the time of purchase(Pentecostal Temple). See July 9 Opinion, 2010

2012 U.S. Dist. LEXIS 13887, *Page 14U.S. Dist. LEXIS 68241, 2010 WL 2813788, at *19-20,45, 68-69. 9 It cannot be denied that these Plaintiffs' injurieswere caused by any representation or omission byFord, and, accordingly, these Plaintiffs' claims [*54]have been dismissed. For remaining Plaintiffs and putativeclass members, the presiding court would need toconduct individualized inquiries to determine if theirclaims similarly lacked causation, and Plaintiffs offer nocommon proof to overcome this hurdle. See, e.g., In reCurrency Conversion Fee Antitrust Litig., 230 F.R.D.303, 310-11 (S.D.N.Y. 2004) (denying certification ofclass of consumers claiming that credit card providermisrepresented and/or failed to disclose its policy forcharging currency conversion fees on international transactions,because each plaintiff had to show causation,and "[s]uch a showing entails individual inquiries, includingan examination of each cardholder's understanding[of the credit terms]"); Newman, 238 F.R.D. at 75(same, noting numerous issues of causation, includingwhether each class member saw the alleged misrepresentations,was influenced by the same, and the availabilityof alternative information).9 Most telling was New York Plaintiff Barrett,who negotiated down the price of his used 1997E-350 van after telling the sales agent that the vanshould not be driven by an inexperienced driver,and that he knew of a prior instance where an[*55] E-350 van had experienced a rollover. July9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010WL 2813788, at *69 (citing Barrett Dep. at48:11-49:13, 106:16-23). Barrett further "testifiedthat if he had heard the news reports regardingthe Ford E-350 van's tendency to rollover beforehe purchased the used 2001 van in October 2006,he still would have bought the van because heand his customers like Ford vehicles and hetrusted his driving abilities." Id. (citing BarrettDep. at 26:10-19; 35:2-14).The Court further notes that the numerous public reports,articles, and broadcasts concerning the handlingproblems of the E-350 van identified by Plaintiffs' Complaintsupport this Court's conclusion that Plaintiffs donot have common proof of causation. In their Complaint,Plaintiffs note, inter alia, that the National HighwayTraffic Safety Administration released a study concerningthe rollover propensity of 15-passenger vans (includingthe E-350 van) in April 2001, that Ford issued asafety advisory in September 2002 instructing consumersto use trained drivers for the E-350 van, and that CBSaired a news segment about the dangers of the E-350 vanin an episode of "Sixty Minutes II" in September 2002.(Compl. 28, 31, [*56] 38, 61(e)). Considering thatPlaintiffs' primary theory of damages at the class certificationstage is a common benefit-of-the-bargain injury, itstands to reason that the consumers who saw these reportsand understood the E-350 van to have significanthandling problems will have a difficult time proving causation,and in doing so, they would not rely on commonproof. This observation is not mere speculation; the recordreflects that a number of Plaintiffs reported seeingdifferent news releases at different times. See, e.g., July 9Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *5 (First United), 34 (Allen Temple). Moreover,Plaintiffs' concede in their reply brief that the variousgovernment reports and news articles about the E-350 van "may have disclosed (on a classwide basis noless) 'rollover issues associated with [Extended PassengerVans.]'" (Pls.' Reply Br. at 31). 10 Plaintiffs' proposedclass makes no effort to exclude persons having knowledgeof the van's handling problems at the time of purchase.Given the vastly different experiences of namedPlaintiffs, it would take individualized causation inquiriesto determine which putative class members saw suchnews reports prior to their purchase [*57] of an E-350and understood the van to have handling problems.10 Plaintiffs argue that these reports did not"advise consumers of the specific, inherent designdefect that manifests in handling and stabilityissues in all E-350s when loaded with 10 ormore passengers." (Pls.' Reply Br. at 31). Yet,even if the news reports did not identify the exactdesign defect that caused the E-350's handlingproblems, consumers may have had sufficientknowledge of the handling defect at the time ofpurchase to defeat causation. See July 9 Opinion,2010 U.S. Dist. LEXIS 68241, 2010 WL 2813788,at *49 (rejecting Florida Plaintiff Blandon's argumentthat she did not know that the handlingproblems stemmed from a factory defect, because"[t]his attempt to create a dispute of material factdoes not negate the undisputed fact that Blandonassertedly knew that the vehicles were unsafe butnonetheless purchased two vehicles").Plaintiffs cannot bypass the causation ramp underthe auspices of Stutman. Stutman involved homeowners'claim that their lender charged an improper "attorneyfee" when they attempted to refinance their homeowners'loan, despite the loan's guarantee that they would not beassessed a prepayment charge. 731 N.E.2d at 612. [*58]The Appellate Division dismissed the claim, concludingthat the homeowners had not shown "justifiable reliance:that is, that the note's failure to disclose the $275 attorney'sfee had any effect on plaintiffs' decision to borrowfrom defendant in the first place." Id. (internal quotationmarks omitted). The Court of Appeals affirmed on othergrounds, but rejected the Appellate Division's analysis of"justifiable reliance." Id. In doing so, the court distinguishedbetween causation, which is required by GBL §

2012 U.S. Dist. LEXIS 13887, *Page 15349, and reliance, which is not. The court concluded thatthe homeowners did not need to allege that they wouldnot have borrowed from the lender if they had known thetruth about the fee; rather, the causation requirement hadbeen met, because "plaintiffs allege that because of defendant'sdeceptive act, they were forced to pay a $275fee that they had been led to believe was not required."Id. at 612. As this Court reads Stutman's causation analysis,Plaintiffs in this case need not show that they wouldnot have purchased the E-350 van if they had known ofthe handling problems, but only that they incurred a lossas a result of the deceptive act. If Plaintiffs have noknowledge [*59] of the allegedly deceptive act (the allegedmisrepresentation), or if Plaintiffs have actualknowledge of the handling defect prior to the purchase(and, for instance, simultaneously negotiate a lowerprice), Stutman is inapposite, and these Plaintiffs havenot shown causation. Identifying which putative classmembers purchased under similar circumstances willrequire individualized inquiries that are impracticable inclass litigation.c. InjuryChief Judge Brown ruled in the July 9 Opinion thatthe actual injury requirement recognized in Frank v.Daimler Chrysler Corp. applied to Plaintiffs' GBL § 349claim. July 9 Opinion, 2010 U.S. Dist. LEXIS 68241,2010 WL 2813788, at *70-72. Under Frank, a party doesnot meet the injury requirement of GBL § 349 unless theallegedly defective product fails and causes personalinjury or property damage, or the person incurs repaircosts or diminished value as a result of the defect. 741N.Y.S.2d at 17 (affirming dismissal of § 349 claim wherethe "plaintiffs have not been involved in any accidentsand have not suffered any personal injuries or propertydamage," and "plaintiffs d[id] not allege that any seat hasfailed, been retrofitted or repaired, nor have plaintiffsattempted [*60] to sell, or sold an automobile at a financialloss because of the alleged defect"). In their oppositionto summary judgment, Plaintiffs did not argue thatthey had a common diminution in value injury underNew York law that would be measured by the cost of aretrofit. (See Doc. No. 247 at 36-37). Instead, Plaintiffsasserted that they had presented some evidence of out-ofpocketrepair costs (for Bishop Anderson), and that theywould otherwise "rely on expert testimony to determineif, and how much, prices of the new and used vans reflectedtheir publicized problems." (Id. at 37). Applyingthe Frank standard to the individual New York Plaintiffs'respective proofs, Chief Judge Brown concluded thatBishop Anderson had shown sufficient proofs of actualinjury under Frank to create a genuine dispute of fact,but that Barrett had not, because he "1) did not allege anyout-of-pocket repair or rental costs; 2) fills his vehicle tocapacity when he has sufficient passengers; and 3) statedthat he has no plans to sell his van." 2010 U.S. Dist.LEXIS 68241, [WL] at *71. Chief Judge Brown thereforegranted summary judgment against Barrett on all of hisclaims.Nevertheless, Plaintiffs now argue that they can presentcommon [*61] proof of a uniform retrofit injury,because they have expert testimony reflecting that thehandling defects are inherent in the E-350 design. Inother words, Plaintiffs contend that they can use the uniformcost of a retrofit ($2,100) as a proxy for the inflatedvalue named Plaintiffs and putative class members paidas a result of Ford's packaging of the E-350 as a "15-passenger van." Plaintiffs' argument runs flat, becausePlaintiffs have not sought reconsideration of Chief JudgeBrown's Frank rulings, which are now law of the case,and because the record reveals that Plaintiffs do not havecommon proof of actual injuries.Plaintiffs make no attempt to show that Chief JudgeBrown's Frank rulings were erroneous applications ofNew York law, or that they have common proof of actualinjury under Frank. Instead, Plaintiffs just disregardFrank in their opening brief, and it appears that Plaintiffswant this Court to disregard Frank as well. 11 This Courtcannot do so; the law of the case doctrine prevents thisCourt from arbitrarily choosing which prior decisions inthis case remain in effect. Similar to a motion for reconsideration,courts will only depart from the law of thecase when [*62] "(1) new evidence is available; (2) asupervening new law has been announced; or (3) theearlier decision was clearly erroneous and would createmanifest injustice." In re City of Phila. Litig., 158 F.3d711, 718 (3d Cir. 1998) (citation omitted); see also Falorv. G&S Billboard, No. 04-2373, 2008 U.S. Dist. LEXIS99613, 2008 WL 5190860, at *2 (D.N.J. Dec. 10, 2008)(characterizing law of the case issues as "the oppositeside of the motion for reconsideration coin"). Plaintiffshave not presented grounds for departing from the law ofthe case, and thus this Court must apply Frank. ThisCourt is persuaded that, under Frank, the presiding courtwould need to conduct the sort of detailed analysis employedby Chief Judge Brown to resolve the claims ofBarrett and Bishop Anderson for each of the thousandsof putative class members. Such individualized inquiriesare impracticable in class litigation.11 Plaintiffs' strategy of disregarding Frank appearsto have changed by the reply brief, wherePlaintiffs appear to suggest that Chief JudgeBrown concluded that Frank did not apply toPlaintiffs' claims. (See Pls.' Reply Br. at 33) ("Asdiscussed herein, and as this Court previouslyfound in adjudicating Ford's summary [*63]judgment motions, [citations omitted], [sic] doesnot control here."). But, as noted above, Chief

2012 U.S. Dist. LEXIS 13887, *Page 16Judge Brown reached the exact opposite conclusion.However, even if this Court had reason to considerthe Frank issue de novo, Plaintiffs do not present persuasivereasons to disregard Frank. Plaintiffs attempt todistinguish Frank by claiming that Frank was a productrisk-of-failure case. Not so in the present case, claimPlaintiffs, because the product defect in this case--thevan's design geometry and resultant handling issueswhen filled with ten or more passengers--was inherent inevery E-350 van in the proposed classes. Citing the Declarationof Mark Arndt, president of TransportationSafety Technologies, Inc., Plaintiffs argue that "[t]hismalfunction is one that . . . would, as a matter of physics,necessarily occur in all E-350's when driven at speedloaded with 15 passengers." (Pls.' Br. at 16-17) (emphasisomitted). Plaintiffs' argument in this regard is notpersuasive.First, this Court is not persuaded by Plaintiff's argumentthat this case fundamentally differs from a risk-offailurecase. The summary judgment record revealed thatsome Plaintiffs did not experience any handling [*64]problems and/or continued to fill their vans to capacitywhenever suitable to their transportation needs. See July9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *4 (Greater All Nation: some handling problems,fills van to capacity of 12, based on seat size), 46(Mestre: some handling problems with one van, filledboth vans to capacity during ownership), 51 (St. Luke's:no handling problems, voluntarily limited capacity to12), 56 (St. James: no handling problems, voluntarilylimited capacity to 12), 62 (Conant Avenue: some minorhandling problems, filled to capacity from 2000-2008,voluntarily limited capacity to 12 after reading governmentsafety report in 2008), 69 (Barrett: no handlingproblems, continues to fill to capacity). Plaintiffs' onlyclaim to injury for consumers that did not experiencehandling problems and/or continued to fill their vans tocapacity is a speculative diminution in value, arisingfrom the fact that the vans have an inherent design defectthat manifests with handling problems on all vehicles.Plaintiffs approximate this diminution in value with thecost of a dual-wheel retrofit. Yet, the portions of theArndt Declaration cited by Plaintiffs do not support thecontention [*65] that handling defects manifest in everyE-350 van under normal driving conditions. 12 In light ofthe summary judgment record, where some Plaintiffsreported handling problems under full load and othersdid not, and some have voluntarily limited capacity andothers have not, it appears that Plaintiffs are now assertinga "common injury" of a design defect that has increasedthe likelihood of the van losing stability undernormal driving conditions, and that this likelihood hascaused a reputational injury to the vehicle in terms ofdiminished resale value. Yet there are two flaws with thisreputational injury, beyond the fact that Plaintiffs did notrely on this injury in opposing Ford's motion for summaryjudgment: (1) it does not apply to Plaintiffs, likeBarrett, who have no intention of selling their van; and(2) it is unclear that a dual-wheel retrofit, that would addtwo additional wheels to the vans' rear axles and affectthe vehicle's overall dimensions and handling, will adequatelyaddress this reputational injury.12 The portions of the Arndt Declaration citedby Plaintiffs assert the following facts: (i) the putativeclass vans had a rear weight bias; (ii) dynamictesting [*66] of the vans in 1992 revealedsome oversteer tendencies on the applicablemodel tires; (iii) that oversteer conditions aredangerous to normal drivers; and (iv) that a Fordengineer issued a report in 1995 stating that Fordvans had a reputation for handling complaints,and that Ford should make suspension and steeringchanges to better address consumer needs andbetter compete against a competitor's new extendedpassenger van. (See Arndt Decl. 13-17). While the Arndt Declaration provides an assessmentof the E-350's general handling characteristicsand a Ford engineer's recommendationthat these handling characteristics be addressed, itdoes not support the contention that unsafe handlingdefects manifest in every loaded vehicleunder normal driving conditions, or compare theE-350 van's handling characteristics with otherlarge vehicles, including competitors' 15-passenger vans.Viewed in light of the summary judgment record,Plaintiffs' asserted "common injury" is not wholly dissimilarfrom the risk-of-failure claim at issue in Frank.Frank involved consumers' claims that vehicle seat backrestsand their reclining mechanism were inherently defective,such that the seats were subject [*67] to a dangerouscollapse in the event of a substantial rear-endcollision. Frank, 741 N.Y.S.2d at 11. The court rejectedthis latent defect theory of injury, reasoning inter alia:it would be manifestly unfair to requirea manufacturer to become, in essence, anindemnifier for a loss that may never occur.Plaintiffs' argument, basically, is thatas an accident becomes foreseeably possible,upon the occurrence of certain contingencies,due to a design aspect of aproduct, the manufacturer must retrofitthe product or otherwise make the consumerwhole. However, under such aschematic, as soon as it can be demonstrated,or alleged, that a better design ex-

2012 U.S. Dist. LEXIS 13887, *Page 17ists, a suit can be brought to force themanufacturer to upgrade the product orpay an amount to every purchaser equal tothe alteration cost. Such "no injury" or"peace of mind" actions would undoubtedlyhave a profound effect on the marketplace,as they would increase the costof manufacturing, and therefore the priceof everyday goods to compensate thoseconsumers who claim to have a better design,or a fear certain products might fail.Id. at 16-17. In reaching its decision, Frank cited withapproval a number of appellate decisions that [*68] rejectedconsumer claims for inherent automobile part defectswhere the consumer did not claim manifestation ofthe defect. Id. at 15 (citing Carlson v. Gen. MotorsCorp., 883 F.2d 287 (4th Cir. 1989) (claims of inherentlydefective diesel engines); Briehl v. Gen. Motors Corp.,172 F.3d 623 (8th Cir. 1999) (claims of inherently defectiveanti-lock brake systems)). Chief Judge Brown properlyrecognized that Frank stopped short of requiringmanifestation of the defect; yet, in the absence of suchmanifestation, Frank still required the plaintiff to presentevidence of an actual injury, in the form of out-of-pocketrepair costs or sale at a loss. July 9 Opinion, 2010 U.S.Dist. LEXIS 68241, 2010 WL 2813788, at *71 (distinguishingFrank from Arkansas case law). Here, somePlaintiffs did not report detectable handling difficulties 13or repair costs, and it appears that no Plaintiffs claim tohave sold an E-350 van at a loss as a result of the van'shandling reputation. Cf. 2010 U.S. Dist. LEXIS 68241,[WL] at *57 (applying Briehl, 172 F.3d at 626-29, andgranting summary judgment against St. James's claimsbecause "St. James has not sold its vehicles, has no specificplan to do so, and has not identified any reducedresale value"). The speculative [*69] nature of the asserted"common injury" is revealed by the fact that Plaintiffsdo not offer any evidence of how the E-350's handlingcompares to its contemporary competitors or industrystandards for extended passenger vans. Indeed, Plaintiffs'summary judgment brief stated that it would "relyon expert testimony to determine if, and how much,prices of the new and used vans reflected their publicizedproblems." (Doc. No. 247 at 37) (emphasis added). Underthese circumstances, the Court fails to see how Plaintiffscan assert a common, actual injury under Frank,without resorting to the sort of speculation that Frankwas concerned about. Ultimately, this Court does notdecide the merits of Plaintiffs' proofs of injury. See Sullivan,667 F.3d 273, 2011 U.S. App. LEXIS 25185, at *66("The question is not what valid claims can plaintiffsassert; rather, it is simply whether common issues of factor law predominate."); . For present purposes, the Courtfinds that Plaintiffs' newfound assertion of a commoninjury under Frank lacks merit. In the absence of a commoninjury susceptible to common proof, class treatmentwould be inappropriate.13 This Court does not suggest that the slightesthandling discomfort [*70] that can be experiencedin any vehicle--i.e., light steering feel,light/strong pedal feel, turning radius, torquesteer--is sufficient to state an actual injury. At thesame time, the Court does not suggest that a consumerhad to actually experience a rollover beforehe 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 detectablehandling problems that gave them concern aboutthe van's actual stability under their normal drivingcircumstances, and others did not. However,the Court suspects that the actual injury and causationanalyses would require individualized inquiriesinto each consumer's driving experience.See, e.g., Wolin v. Jaguar Land Rover N. Am.,617 F.3d 1168, 1174 (9th Cir. 2010) (remandingissue of certification under Land Rover's TireWarranty, suggesting that individualized inquirieswould be necessary to determine whether tirewear was caused by a vehicle defect or individualdriving conditions).Second, the Court notes that Chief Judge Brownbolstered his Frank analysis with the benefit-of-thebargain[*71] analysis provided by a decision from theSouthern District of New York that rejected unjust enrichmentclaims where the product had not malfunctioned.July 9 Opinion, 2010 U.S. Dist. LEXIS 68241,2010 WL 2813788, at *72 (quoting In re Canon Cameras,237 F.R.D. 357, 359-60 (S.D.N.Y. 2006)). TheCanon Cameras court reasoned that "[a] plaintiff whopurchases a digital camera that never malfunctions overits ordinary period of use cannot be said to have receivedless than what he bargained for when he made the purchase."237 F.R.D. at 360. Chief Judge Brown likenedthis reasoning to the actual injury requirement of Frank,and concluded that New York Plaintiff Barrett could notshow he was deprived of the benefit-of-the-bargain, becausehe had not shown that his van malfunctioned, orthat he had suffered actual injury. July 9 Opinion, 2010U.S. Dist. LEXIS 68241, 2010 WL 2813788, at *72. 14Plaintiffs' primary damages theory is a benefit-of-thebargaintheory, predicated on UCC § 2-714, but Plaintiffsdo not address this adverse ruling, and Plaintiffs donot suggest that GBL § 349 has a lower benefit-of-thebargainthreshold than an unjust enrichment claim. Further,Plaintiffs offer no explanation for how class mem-

2012 U.S. Dist. LEXIS 13887, *Page 18bers like Barrett--who negotiated [*72] a lower price onhis van after expressing concerns about the van's handlingcharacteristics, continues to fill his van to capacity,and has no intention of selling his van--have been deprivedof the benefit of their bargain. Or how class memberslike Blandon, who had personal knowledge of thevan's handling problems prior to purchase, were deprivedof the benefit of their bargain. Against this authority, theCourt fails to see how Plaintiffs can show that they sufferedthe same benefit-of-the-bargain injury with commonproof when some Plaintiffs (and certainly someputative class members) did not experience a handlingdefect.14 Chief Judge Brown similarly granted summaryjudgment against Plaintiff St. James' benefit-of-the-bargaintheory of injury under Missourilaw, reasoning: "St. James has elected to limit itsuse of its vehicles by limiting capacity, but thedefect has not manifested itself and therefore theyhave received the benefit of their bargain." July 9Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *58.Third, this Court notes that Plaintiffs' proposedclasses do not reflect the fact that the bubble market onE-350 vans ended, by their own account, in April 2004.See July 9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010WL 2813788, at *44 [*73] ("[A]ll Plaintiffs admitted intheir Responses and Objections to Ford's Second Set ofWritten Interrogatories that '[t]he artificial demand forthe E-350 15 passenger vans, as referred to in the Complaint,is believed to have eroded fully by April, 2004,when the [National Highway Traffic Safety Administration]reissued a safety warning concerning 15-passengervans.'"). Further, as previously noted, Plaintiffs' proposedclasses do not take into account the numerous publicreports about the E-350's handling problems that theyconcede were issued between 2000 and 2004. (SeeCompl. 25-47, 61(e)) (identifying numerous publicreports and broadcasts that were released between 2000and 2004). Plaintiffs have modified their proposed unjustenrichment class to exclude vans purchased after April2004, consistent with their position on the van's bubblemarket, but Plaintiffs have not modified their otherclasses in the same way, and Plaintiffs' proposed classesstill do not account for the consumers who viewed thenews releases prior to purchase. To the extent that Plaintiffsassert that class members who purchased their vansafter the first of these public reports (circa 2000) [*74]have a common benefit-of-the-bargain injury with therest of the class, regardless of whether these class membersviewed reports regarding the van's handling problems,Plaintiffs' argument is foreclosed by their concessionthat some of these class members did not pay a premiumfor the van because of market knowledge. Fordwould be entitled to examine which class members hadknowledge of the E-350's handling characteristics at thetime of purchase, and the extent of such knowledge,whether the knowledge was derived from personal use orpublic reports. 15 Thus, the presiding court would need toconduct individual inquiries into putative class members'respective consumer experiences.15 This Court's consideration of the news reportsissued between 2000 and 2004 should notbe construed as a ruling that every consumer whowas aware of such an article had actual knowledgeof E-350's handling problems. Rather, thisCourt merely recognizes that a consumer whohad seen such a report may have had actualknowledge of the E-350's handling defects at thetime of purchase, depending on, inter alia, the informationcontained in the article.Ackerman, 2010 U.S. Dist. LEXIS 73156, 2010 WL2925955, and General Motors Corp. Pick-Up Truck FuelTank, 55 F.3d 768, [*75] cited by Plaintiffs, do notcompel a different conclusion. With regard to Ackerman,that court held on a motion to dismiss that "[i]njury isadequately alleged under GBL §§ 349 or 350 by a claimthat a plaintiff paid a premium for a product based ondefendants' inaccurate representations." 2010 U.S. Dist.LEXIS 73156, 2010 WL 2925955, at *23. The plaintiffsin Ackerman alleged that they paid a premium for a beveragemarketed "as a fortified beverage, a dietary supplementin liquid form." Id. Here, Plaintiffs state theyhave common proof of an inherent design defect thatprevented the E-350 van from being the 15-passengervan they were promised. But as noted above, differentPlaintiffs were exposed to different representations, if atall, regarding the van's capabilities, and not all Plaintiffsexperienced the alleged handling problems in their use ofthe van. Further, Plaintiffs concede that post-April 2004purchasers did not pay a premium on the van. Ackermandid not address the issue of GBL § 349 injury in the contextof a motion for class certification and cannot be readto support Plaintiffs' contention that they have commonproof of a uniform injury by virtue of their claim of aninherent design defect. The [*76] Court further notesthat Ackerman does not cite Frank or any case recognizingNew York's actual injury requirement, and that Ackermanwas decided shortly after Chief Judge Brown'somnibus summary judgment decision of July 9, 2010. Tothe extent that Ackerman departs from the actual injuryrequirement, this Court remains bound by Chief JudgeBrown's Frank rulings.As for In re General Motors, that court suggestedthat "[t]he cost of a retrofit . . . may constitute an alternativemeasure of the damages arising from [a] breach ofwarranty." 55 F.3d at 816. At first blush, this case ap-

2012 U.S. Dist. LEXIS 13887, *Page 19pears to provide strong support for Plaintiffs' argument inthis case, because that case involved similar consumerclaims of an inherent vehicle design defect (certain GMtrucks contained dangerously defective fuel tanks) thataffected the resale value of those trucks. However, thecourt's decision arose in the context of assessing the adequacyof a class settlement. Thus, In re General Motorsdid not address whether the cost of a retrofit constitutedsufficient injury under a particular state's law (New YorkGBL § 349 or otherwise) to state a claim, and, in fact, thecourt recognized that other jurisdictions [*77] have rejectedwarranty claims asserting diminution in value fordamages. See id. This Court therefore does not read In reGeneral Motors' discussion of using the cost of a retrofitas an alternative measure of damages to displace NewYork's substantive requirement of actual injury. Indeed, aMaryland decision cited favorably by Plaintiffs, Lloyd v.General Motors Corp., recognized that New York lawdiffered from more lenient jurisdictions by requiring anactual injury showing. 397 Md. 108, 916 A.2d 257, 292-93 (Md. 2007) (citing Frank and Weaver v. ChryslerCorp., 172 F.R.D. 96 (S.D.N.Y. 1997) as examples ofcases from "other jurisdictions that have found, in automobileproduct defects cases, that an allegation of economicloss is not sufficient to articulate an injury").This Court's conclusion reflects the fact that NewYork law requires a showing of actual injury, in the formof personal or property damage incurred by the defect,out-of-pocket repair costs, or sale at a loss. The undisputedrecord in this case reveals that some Plaintiffs experiencedhandling issues under normal driving conditionswith more than 10 passengers and/or incurred repaircosts, and others did not. Under New York law,[*78] sorting through those that had an actual injury andthose that did not would require individualized inquiries.2. Implied WarrantyIn New York, an implied warranty claim requiresproof of the following elements: "(1) that the productwas defectively designed or manufactured; (2) that thedefect existed when the manufacturer delivered it to thepurchaser or user; and (3) that the defect is the proximatecause of the accident." Plemmons v. Steelcase Inc., No.04-4023, 2007 U.S. Dist. LEXIS 22954, 2007 WL950137, at *3 (S.D.N.Y. Mar. 29, 2007) (internal quotationmarks and citations omitted). The implied warrantyhas been breached when the product is not "fit for theordinary purposes for which such goods are used." SeeN.Y. U.C.C. § 2-314(2)(c); Plemmons, 2007 U.S. Dist.LEXIS 22954, 2007 WL 950137, at *3. Ford argues thatPlaintiffs do not have common proof of the existence ofan implied warranty, or common proof of any of theabove elements.First, Ford contends that all E-350 vans were soldwith an express warranty that limited the duration of theimplied warranty of merchantability to the period of theexpress warranty, three years or 36,000 miles, whichevercomes first. Because of this durational limitation disclaimer,Ford contends that [*79] class members willhave to present individualized proofs concerning whetherthe implied warranty existed at the time of purchase, inthe case of used E-350 vans, or expired prior to the pointwhen a given class member suffered an actual injury.(Ford Resp. Br. at 28-29). Next, Ford submits that Plaintiffsdo not have classwide proof of a design defect,which Ford claims must be determined by reference to arisk-utility balancing test. (Id. at 30). Third, Ford contendsthat Chief Judge Brown's Frank rulings demonstratethat Plaintiffs do not have common proof of actualinjury, for the same reason that Plaintiffs did not havecommon proof of actual injury under GBL § 349. (Id. at32-33). Finally, Ford argues that Plaintiffs do not havecommon proof of causation. (Id. at 35-36).Plaintiffs respond that their implied warranties aroseby operation of law, that any disclaimer by Ford is tooinconspicuous to be enforceable, and that, in any event,Ford's disclaimers would be subject to common proof.(Pls.' Reply Br. at 12-14). Speaking to defect, Plaintiffsnote that the New York Court of Appeals, responding toa certified question by the Second Circuit, expressly rejectedthe risk-utility [*80] analysis advocated by Fordin Denny v. Ford Motor Company, 87 N.Y.2d 248, 662N.E.2d 730, 639 N.Y.S.2d 250 (N.Y. 1995). Instead,Plaintiffs argue that Denny adopted an objective standardmeasured by "the expectations for the performance of theproduct when used in the customary, usual and reasonablyforeseeable manners." Id. at 736. Under this objectivestandard, Plaintiffs maintain that they have commonproof addressing whether the E-350 van can safely transport15 passengers when used in the customary, usual,and reasonably foreseeable manner. (Pls.' Reply Br. at11-12). Last, Plaintiffs respond that issues of causation 16support class certification, because class treatment wouldprevent the necessity for hundreds of trials featuring thesame expert witnesses, and because Ford has not shownthat any class members knew of the defect at the time ofpurchase. (Id. at 19-20).16 Plaintiffs also appear to assert that Fordshould have raised a causation argument as an affirmativedefense to Plaintiffs' implied warrantyclaims or in its prior motions. (Pls.' Reply Br. at19). Yet this argument is perplexing, consideringthat causation is an essential element of Plaintiffs'implied warranty claims. See, e.g., N.Y. U.C.C.§§ 2-314 [*81] Cmt. 13, 2-316(3)(b); AndromeLeather Co., Inc. v. Consol. Color Co., 173A.D.2d 996, 569 N.Y.S.2d 514, 515 (App. Div.

2012 U.S. Dist. LEXIS 13887, *Page 201991) (citing 1 White and Summers, Uniform18 By letter of July 14, 2011, Plaintiffs presentedsupplemental authority for their impliedCommercial Code § 9-1, at 436 (3d ed.)). Plaintiffsdo not suggest that Ford has ever admittedwarranty claims: the Eighth Circuit's recent decisionin In re Zurn Pex Plumbing Products Liabil-causation. (See Compl. 84-86; Answer 84-86). Indeed, Ford advanced causation-based argumentsin support of its motions for summaryPlaintiffs argue, inter alia, that Zurn Pex PlumbityLitigation, 644 F.3d 604 (8th Cir. 2011).judgment as to a number of Plaintiffs' othering found that class members had sufficient actualinjury, despite the fact that their plumbingclaims.had not leaked, because the plumbing containedThe Court agrees with Plaintiffs that Denny rejectedthe defect at the point of installation. (See Doc.the risk-utility standard sought by Ford, 662 N.E.2d atNo. 398). Indeed, a split panel in Zurn Pex736, and it appears that Plaintiffs may be able to satisfyPlumbing affirmed the district court's certificationthe defect requirement with common proof. The Courtof a class of homeowners asserting that the defendants'brass plumbing fittings were defectivefurther declines to decide the degree to which Ford's impliedwarranty disclaimers apply to Plaintiffs' claims. 17because they were susceptible to stress corrosionYet, the Court agrees with Ford that individual issues ofcracking ("SCC"). Id. 608-09. This class includedactual injury and causation predominate, and thus defeata group of plaintiffs whose plumbing had notclass certification.leaked, which the court referred to as "dry plaintiffs."Id. at 616. Zurn Pex Plumbing is distinguishable,however, because the plaintiffs in that17 Although the parties offer generalized argumentsabout the enforceability of Ford's disclaimers,the parties do not engage in a detailed analy-case had presented expert testimony that theplumbing defect begins to develop [*84] as soonsis of the language and context of the specificas the fittings were exposed to water and, thus,disclaimers, which varied depending on the"is already manifest in all systems." Id. at 617.model year. In fact, Ford submitted 15 differentThe plaintiffs further alleged that SCC "afflictswarranty booklets [*82] for the relevant modelall of the fittings upon use, regardless of wateryears (see Taylor Decl. Exs. A-O), and even aconditions or installation practices," id., and thecursory review reveals that different warranty periodsapplied for different warranties in differentplaintiffs' expert had further opined that 99% ofhomes would experience a plumbing leak in oneyears, and that such warranties appeared withof the fittings within the product's 25-year warranty,id. at 609-10. Similarly, Plaintiffs in thisvarying degrees of prominence from year to year.Although the Court suspects that individual issueswill arise if any of Ford's disclaimers are en-case argue that their defect manifests in all vehiclesunder normal driving conditions, but the expertopinion they cite and the summary judgmentforceable, the Court is not prepared to make sucha merits judgment on the basis of the parties' limitedbriefing, and need not do so to rule on therecord does not support this contention. Indeed,some Plaintiffs have filled the van to capacity forclass certification motion.many years and reported no discernable handlingChief Judge Brown's July 9 Opinion recognized thatproblems. See supra Part II.A.1.c ("Injury").Frank's actual injury analysis applied to implied warrantyclaims. 2010 U.S. Dist. LEXIS 68241, 2010 WLpresented evidence that the fittings were practi-Whereas the dry plaintiffs in Zurn Pex Plumbing2813788, at *70. This Court rejects Plaintiffs' attempt tocally certain to fail within the warranty period,distinguish Frank for the reasons stated above. Plaintiffsthe Plaintiffs in this case have presented evidencecannot invoke more lenient injury requirements fromthat the E-350 is likely to experience dangerousother jurisdictions to save their New York claims. Inhandling conditions under normal driving conditions.In this case, as in Frank, "it would be mani-light of Frank's actual injury requirement--personal orproperty damage, out-of-pocket repair costs, or sale at afestly unfair to require a manufacturer to becomeloss--Plaintiffs' general assertion of an inherent defect. . . an indemnifier [*85] for a loss that maycannot overcome the disparate experiences of actualnever occur." 741 N.Y.S. 2d at 16.Plaintiffs, wherein some experienced handling difficultiesand/or repair costs, others did [*83] not, and noneMoreover, numerous causation issues preclude certificationof the New York implied warranty claim. Likeclaim to have sold their vehicles at a loss due to the defect.The presiding court would need to unearth the vi-other jurisdictions, New York requires a plaintiff to showthat the defect proximately caused the injury in order toable claims via individual inquiries. 18 state a claim for warranty liability. See, e.g., AndromeLeather Co., Inc. v. Consol. Color Co., 173 A.D.2d 996,569 N.Y.S.2d 514, 515 (App. Div. 1991) (explaining that

2012 U.S. Dist. LEXIS 13887, *Page 21a plaintiff must "prove cause in fact and proximate causationon the part of a specific defendant") (quoting 1White and Summers, Uniform Commercial Code § 9-1,at 436 [3d ed.]); Complaint of Am. Export Lines, Inc.,620 F. Supp. 490, 518 (S.D.N.Y. 1985). The varied experiencesof named Plaintiffs reveal that some had actualknowledge of the van's handling problems, if not theexact design defect that caused those handling characteristics.For instance, Florida Plaintiff Blandon, prior topurchasing her used 2000 E-350 van in 2006, had lostcontrol while driving another E-350 van and had participatedin numerous discussions with co-workers regardingthe van's handling characteristics and relative safety.July 9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *49-50 (granting summary [*86] judgmentagainst Blandon's claims, because of Blandon's actualknowledge of the alleged defect). Similarly, New YorkPlaintiff Barrett told his E-350 salesman that a friend ofhis had experienced a rollover, and that the van shouldnot be driven by inexperienced drivers. 2010 U.S. Dist.LEXIS 68241, [WL] at *69. Class members with similarknowledge of the handling problems--whether from personalexperience or from viewing the numerous publicreports identified in Plaintiffs' Complaint--would not beable to prove causation under New York law and, moreimportantly for purposes of this class certification decision,would not share common proof of causation. Theproof would consist of their unique, individual consumerexperiences.This Court finds instructive the Second Circuit's decisionin Sobiech v. International Staple & Machine Co.,which held, under New York law, that the plaintiff couldnot maintain action for breach of implied warranty becausehe knew of a product's (vegetable packaging machine)defects from personally using the product on atrial basis prior to purchase. 867 F.2d 778, 782-83 (2dCir. 1989). In doing so, the Sobiech court relied on N.Y.U.C.C. § 2-316(3)(b), which states that there are no implied[*87] warranties "with regard to defects which anexamination ought in the circumstances to have [been]revealed" when the buyer has an opportunity to inspectthe goods prior to purchase. See also N.Y. U.C.C. §§ 2-314 Cmt. 13 ("In an action based on breach of warranty,it is of course necessary to show not only the existence ofthe warranty but the fact that the warranty was brokenand that the breach of the warranty was the proximatecause of the loss sustained."); 2-316 Cmt. 8 ("Of courseif the buyer discovers the defect and uses the goods anyway,or if he unreasonably fails to examine the goodsbefore he uses them, resulting injuries may be found toresult from his own action rather than proximately from abreach of warranty. . . . The particular buyer's skill andthe normal method of examining goods in the circumstancesdetermine what defects are excluded by the examination.A failure to notice defects which are obviouscannot excuse the buyer."). These principles apply withequal force here, where some Plaintiffs knew of the handlingissues from personal experience (Barrett, Blandon),and others no doubt knew of the handling issues from thenumerous public reports, articles, and broadcast [*88]announcements about the E-350 van's rollover propensitythat Plaintiffs identified in the Complaint. (See Compl. 25-47) (identifying numerous public reports andbroadcasts that were released between 2000 and 2004).Plaintiffs argue that Ford has not made a showing thatany class members had "actual knowledge" of the defectprior to purchase (Pls.' Reply Br. at 20 n.13), but Plaintiffs'assessment is wholly contradicted by the summaryjudgment record. 1919 Daffin v. Ford Motor Co., 458 F.3d 549 (6thCir. 2006), cited by Plaintiffs, does not supportcertification of Plaintiffs' implied warrantyclasses. In Daffin, the court approved certificationof the express warranty claims of consumers assertingdamages stemming from a defective throttlebody assembly that caused the accelerator tostick. Id. at 550. Ford had argued that consumerswho did not experience a sticky accelerator orsought repair of the problem "cannot 'prove' anexpress warranty claim under [Ford's] 'repair orreplace' warranty." Id. at 553. The Daffin courtrejected this argument, explaining that "[t]hequestion that forms the basis for Ford's argumentis one of contract interpretation: whether Ford'sexpress warranty [*89] promises to cover the allegeddefect in the throttle body assembly even ifno sticking occurs during the warranty period."Id. Depending on how the district court interpretedthe warranty provision on remand, theCourt of Appeals recognized that "the districtcourt may consider at that point whether to modifyor decertify the class." Id. at 554. With regardto predominance, the Daffin court found that thefollowing common issues predominated: "(1)whether the throttle body assembly is defective,(2) whether the defect reduces the value of thecar, and (3) whether Ford's express "repair or replace"warranty covers the latent defect at issuein this case." Id. The court further reasoned thatDaffin was "not a case . . . in which differentclass members were exposed to different productssuch that the uncommon issue of causation predominatedover the lesser shared issues." Id.Here, by contrast, Plaintiffs do not assert anexpress warranty claim on the basis of any writtenwarranty issued by Ford to replace defectiveparts. Rather, Plaintiffs have based their sole expresswarranty claim (Georgia, see infra PartII.G) and their several implied warranty claims

2012 U.S. Dist. LEXIS 13887, *Page 22on Ford's "core description" [*90] and/or packagingof the E-350 van as a "15-passenger van."Thus, Plaintiffs' warranty claims do not present acommon issue of contract interpretation. Rather,Plaintiffs' warranty claims rest on the various representationsof Ford representatives to individualclass members. Moreover, this case presents additionalissues requiring individual treatment thatwere not present in Daffin: actual injury (NewYork law), causation, and statutes of limitations.In light of this record, the Court concludes that it islikely that a fair number of the putative class membershad actual knowledge of the E-350's handling difficultiesat the time of purchase, whether from personal experienceor from public announcements. These class memberswould not be able to show causation to support theirimplied warranty claims. 20 Sorting out those who knewof the defect from personal use from those who learnedfrom public reports, as well as from those having noknowledge, will require numerous individual inquiries.Because of the individual variations in proof for bothactual injury and causation, the Court will deny certificationof the New York implied warranty claim.B. Texas20 Plaintiffs argue that Ford's causation [*91]argument improperly asks this Court to considerthe merits of Plaintiffs' claims. Yet, this Courtpresently makes no determination regardingwhether an individual Plaintiff or class memberfailed to show causation in fact and proximatecausation, with regard to specific consumer transactions.This Court's ruling only recognizes thedisparate consumer experiences detailed in ChiefJudge Brown's summary judgment opinions,which lead this Court to conclude that Plaintiffs'implied warranty claims are not susceptible tocommon proof.The sole remaining Texas claim is St. Luke's omissionclaim under DTPA § 17.46(b)(24). See July 9 Opinion,2010 U.S. Dist. LEXIS 68241, 2010 WL 2813788, at*55. Ford objects that Plaintiffs cannot prove their Texasconsumer fraud claims with common proof, becausethere is no classwide evidence of the elements of theDTPA claim: (1) a uniform omission; (2) deception; (3)actual injury; and (4) causation. The parties generallyrely on the same consumer fraud arguments that thisCourt addressed in the New York section, supra PartII.A.1. The Court agrees with Ford that common issuesof law and fact do not predominate.Texas Plaintiffs' omission claim is predicated on allegationsthat [*92] Ford failed to disclose to consumersthat, due to stability issues, the E-350 van should only bedriven by trained experienced drivers. (See Compl. 31;Pls.' Reply Br. at 27 n.18, 29). As detailed above, theundisputed record in this case reveals that the safety instructionsin E-350 owner's manuals changed throughoutthe proposed class period. For instance, whereas theowner's guides for model-year 2000-2002 E-350 vansincluded general notices about the vehicle's handlingcapabilities and urged "[e]xtra precautions, such asslower speeds and increased stopping distance, . . . whendriving a heavily loaded vehicle," the owner's guides formodel-year 2003-2005 E-350 vans added a "VehicleStability and Handling" section, which stated that "[t]herisk of a rollover crash increases as the number of peopleand load in the vehicle increase," and advised that "[t]hevan should be operated by an experienced driver." (SeeDoc. No. 292, Smith Decl. Ex. 12). Naturally, then,Plaintiffs cannot assert a uniform alleged omission, becausediffering amounts of information were disclosed atdifferent times.The Court is less sanguine about Ford's deceptionargument, which primarily relies on case [*93] law fromother jurisdictions. (See Ford's Br. at 42-43). As noted inthe discussion of New York law, it is unclear whetherNew York applies a purely objective or quasi-subjectivestandard for determining deception. In the absence ofclear guidance from Texas cases or statutes, the Courtwill not weigh this factor against Plaintiffs.The Court is also hesitant to accept Ford's argumentthat Texas Plaintiffs cannot show actual injury withcommon proof under the Texas Supreme Court's rulingin DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299(Tex. 2008). St. Luke's and, presumably, Texas classmembers seek damages based on diminution in value ofthe van. St. Luke's also asserts loss of use. Chief JudgeBrown distinguished the deficient pleadings in Inmanfrom St. Luke's pleadings in this case, explaining "[a]sthe Supreme Court of Texas noted, the Inman plaintiffsdid not contend that the allegedly defective 'bucklesmade their vehicles worth less than they paid for them.'"July 9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *52 (quoting Inman, 252 S.W.3d at 302).Here, all Plaintiffs, including St. Luke's and putativeclass members, assert that the defective design of the E-350 van made their vehicles [*94] worth less than theypaid for them. (See, e.g., Pls.' Br. at 35-36) (stating thatPlaintiffs paid for more than they received, in an amountof $2,100). Ford asks for this Court to recognize that theTexas Supreme Court has adopted an actual injury requirementsimilar to the one articulated in Frank (NewYork). Yet, Chief Judge Brown's ruling did not make thisconnection, and Ford does not identify Texas authority tosupport this point. Under these circumstances, the Courtwill presume that Texas Plaintiffs can present common

2012 U.S. Dist. LEXIS 13887, *Page 23proof of an injury, sufficient to have standing underInman.However, the Court agrees with Ford that Plaintiffscannot present classwide proof of reliance or causation.As Chief Judge Brown recognized in the July 9 Opinion,"[r]eliance is an essential element of a DTPA claim . . . ."2010 U.S. Dist. LEXIS 68241, 2010 WL 2813788, at *53(citing Tex. Bus. & Com. Code § 17.50(a)(1)(B); MorganBldgs. & Spas, Inc. v. Humane Soc'y of S.E. Texas, 249S.W.3d 480, 490 (Tex. App. 2008)). Applied to St. Luke'sclaim, "to satisfy the reliance element for an omission, aplaintiff must show that defendant had intent to induce atransaction through failure to disclose, and that plaintiffwould not have entered [*95] into the transaction if theinformation had been disclosed." July 9 Opinion, 2010U.S. Dist. LEXIS 68241, 2010 WL 2813788, at *55. Fordcorrectly points out that Texas courts have acknowledgedthat claims requiring a showing of reliance--including theDTPA--involve many individualized inquiries that usuallycannot be resolved through class litigation. Texascourts have reached this conclusion in the aftermath ofthe Texas Supreme Court's decertification decision inHenry Schein, Inc. v. Stromboe, which recognized thatclass members "are held to the same standards of proofof reliance--and for that matter all the other elements oftheir claims--that they would be required to meet if eachsued individually." 102 S.W.3d 675, 693 (Tex. 2002)(decertifying a class of contract, warranty, and DTPAclaims for, inter alia, failure to present classwide proofof reliance). In other words, Schein held that "[t]he burdenon plaintiffs to prove reliance in order to recover onany of these theories is in no way altered by the assertionof claims on behalf of a class." Id. After Schein, multipleappellate courts in Texas rejected class certification ofconsumer fraud claims, explaining that "[p]roof of relianceor lack of reliance [*96] necessarily requires anindividualized determination because, under all the samefacts and circumstances, one person may have relied onthe misrepresentation in reaching a decision while anotherdid not rely on it in reaching the same decision."Texas South Rentals, Inc. v. Gomez, 267 S.W.3d 228, 237(Tex. App. 2008) (quoting Fid. & Guar. Life Ins. Co. v.Pina, 165 S.W.3d 416, 423 (Tex. App. 2005); GrantThornton, L.L.P. v. Suntrust Bank, 133 S.W.3d 342, 355(Tex. App. 2004)). As of 2008, no Texas appellate courtsince Schein had found evidence of classwide reliance.Gomez, 267 S.W.3d at 237 (noting that the courts of appealshad "questioned whether given the individualizednature of reliance, any class action could ever be certifiableunder Schein"). Ford concedes, however, that theTexas Supreme Court did find classwide proof of reliancelast year in Southwestern Bell Telephone Companyv. Marketing On Hold Inc., 308 S.W.3d 909 (Tex. 2010).Southwestern Bell recognized that "Texas courts havebeen reluctant to certify a class when proof of reliance isrequired as an element of a claim" since Schein, and restatedthat class certification is improper "[w]hen evidenceexisted that individual [*97] class members' experiencesreasonably could have varied . . . ." Sw. Bell,308 S.W.3d at 921-22. Nevertheless, the SouthwesternBell court concluded that the phone service consumersbefore it had common proof of reliance, because the consumershad no choice but to rely on the phone company'srepresentations by paying the allegedly improper municipalfees on their phone bills. Id. at 922. The courtreasoned that the phone company would have discontinuedphone service if a consumer objected to the fee. Id.at 922-23.In their reply, Plaintiffs make no attempt to placetheir proposed class within the limited contours of Scheinand Southwestern Bell, nor do Plaintiffs assert that theyhave common evidence of reliance. Rather, Plaintiffscontend that Chief Judge Brown's July 9 Opinion heldthat "there is no 'reliance' requirement under the relevant. . . Texas consumer protection laws." (Pls.' Reply Br. at26). Plaintiffs' argument in this regard is disingenuous,because it flatly contradicts both Texas law and ChiefJudge Brown's decision. As noted above, reliance is anessential element of a DTPA claim. July 9 Opinion, 2010U.S. Dist. LEXIS 68241, 2010 WL 2813788, at *53 (citingTex. Bus. & Com. Code § 17.50(a)(1)(B); [*98]Morgan Bldgs., 249 S.W.3d at 490). Further, Chief JudgeBrown explained how Plaintiffs could satisfy the reliancerequirement for their omission claim: "to satisfy the relianceelement for an omission, a plaintiff must show thatdefendant had intent to induce a transaction through failureto disclose, and that plaintiff would not have enteredinto the transaction if the information had been disclosed."July 9 Opinion, 2010 U.S. Dist. LEXIS 68241,2010 WL 2813788, at *55 (emphasis added). In otherwords, Plaintiffs must have common proof that classmembers would not have purchased the E-350 van ifFord had fully disclosed the E-350 van's handling problemsto consumers. Not only do Plaintiffs not attempt tomake this showing, but Ford correctly notes that the recordindicates that some named Plaintiffs would havebought their E-350 vans despite the handling problems.(See, e.g., Barrett 56.1 Statement, Doc. No. 206, Ex. 2, 22-29) (explaining that he would have bought the E-350 van despite the handling issues); (Blandon 56.1Statement, Doc. No. 190, Ex. 2, 3-6) (explaining thatshe purchased an E-350 van, despite knowing of its handlingproblems). No doubt, unidentified members of theproposed Texas class would [*99] have similar variationsthat would be material to whether or not they couldstate a DTPA claim. Plaintiffs have no answer for howthese individual variations can be resolved without individualinquiries.

2012 U.S. Dist. LEXIS 13887, *Page 24Plaintiffs have not shown common proof of omissionor reliance, and, therefore, common issues of factand law do not predominate over individual issues. Consequently,the Court will deny certification of Plaintiffs'proposed Texas class.C. PennsylvaniaThe only remaining Pennsylvania claims are the impliedwarranty claims of Bethel, Hickman Temple, andMt. Airy, as well Bethel's unjust enrichment claim on its2001 van. See July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *44; February 16 Opinion,2011 U.S. Dist. LEXIS 16504, 2011 WL 601279, at *6.Ford objects to Plaintiffs' proposed Pennsylvania classeson the grounds that Plaintiffs cannot prove their impliedwarranty and unjust enrichment claims with commonproof. The Court agrees on both counts.1. Implied WarrantyFord advances essentially the same objections to theproposed Pennsylvania implied warranty class that itpresented in opposition to the proposed New York impliedwarranty class, and Plaintiffs offer essentially thesame responses. Accordingly, one would presuppose[*100] that the same class certification analysis the Courtconducted with regard to the New York implied warrantyclass would be applicable to the other jurisdictions' impliedwarranty classes. However, as Chief Judge Brownrecognized in the omnibus July 9 Opinion, 2010 U.S.Dist. LEXIS 68241, 2010 WL 2813788, at *41-42, Pennsylvaniacourts have not yet adopted actual injury requirementsakin to Frank. The question remains whetherPlaintiffs' implied warranty classes survive in jurisdictionswith less stringent injury requirements than NewYork. This Court concludes that the Pennsylvania impliedwarranty class still suffers from individual issues ofcausation that render class treatment impracticable.Like other states, Pennsylvania imposes an impliedwarranty of merchantability on all contracts for the saleof goods if the seller is a merchant. 13 Pa. Cons. Stat. §2314(a). The UCC as codified in Pennsylvania statesthat, in order to be merchantable, the goods must "passwithout objection in the trade under the contract description"and be "fit for the ordinary purposes for which suchgoods are used." Id. § 2314(b). The Pennsylvania SupremeCourt has held that "[t]he concept of merchantabilitydoes not require that [*101] the goods be the bestquality or the best obtainable but it does require that theyhave an inherent soundness which makes them suitablefor the purpose for which they are designed, that they befree from significant defects, that they perform in theway that goods of that kind should perform, and that theybe of reasonable quality within expected variations andfor the ordinary purpose for which they are used." Gall v.Allegheny Cty., Health Dep't, 521 Pa. 68, 555 A.2d 786,789-90 (Pa. 1989) (internal citations omitted). Like otherjurisdictions, Pennsylvania's UCC requires a showing ofcausation that can be overcome by knowledge of thedefect at the time of purchase. "When the buyer beforeentering into the contract has examined the goods or thesample or model as fully as he desired or has refused toexamine the goods there is no implied warranty withregard to defects which an examination ought in the circumstancesto have revealed to him." 13 Pa. Cons. Stat.§ 2316(c)(2); see also id. Cmt. 8 ("The particular buyer'sskill and the normal method of examining goods in thecircumstances determine what defects are excluded bythe examination. A failure to notice defects which areobvious cannot [*102] excuse the buyer."); id. § 2314Cmt. 13 ("Action by the buyer following an examinationof the goods which ought to have indicated the defectcomplained of can be shown as matter bearing onwhether the breach itself was the cause of the injury.");Nufeeds, Inc. v. Westmin Corp., No. 04-1071, 2006 U.S.Dist. LEXIS 21030, 2006 WL 1000021, at *18 (M.D. Pa.Apr. 17, 2006). Consequently, this Court's causation reasoningwith regard to the New York implied warrantyclass applies equally to the Pennsylvania implied warrantyclass. Resolution of these claims will require individualizedinquiries into each consumer experience, so asto identify and exclude those consumers who purchasedE-350 vans with actual knowledge of its handling problems,whether from personal use or from a variety ofreports that were published between 2000 and 2004.2. Unjust EnrichmentTo assert a claim of unjust enrichment under Pennsylvanialaw, a plaintiff must show that: "(1) benefitsconferred on defendant by plaintiff; (2) appreciation ofsuch benefits by defendant; and (3) acceptance and retentionof such benefits under such circumstances that itwould be inequitable for defendant to retain the benefitwithout payment of value." Williams Twp. Bd. of Supervisorsv. Williams Twp. Emergency Co., 986 A.2d 914,923-24 (Pa. Commw. Ct. 2009) [*103] (citations omitted).Pennsylvania law views unjust enrichment as anequitable remedy based on the law of restitution. See,e.g., Mitchell v. Moore, 1999 PA Super 77, 729 A.2d1200, 1203-04 (Pa. Super. Ct. 1999); Powers v. LycomingEngines, 328 F. App'x 121, 125 (3d Cir. 2009) (collectingPennsylvania cases).Ford argues that Plaintiffs do not have commonproof of a benefit conferred upon Ford, that the benefitexceeded the value of the vehicle, or that retention of thebenefit by Ford would be unjust. Plaintiffs respond bylimiting their proposed unjust enrichment class "to consumerpurchases of new vehicles during the time periodprior to April 2004," so as to limit the class to consumers

2012 U.S. Dist. LEXIS 13887, *Page 25who conveyed a benefit upon Ford, and argue that theyhave common proof of Ford's misconduct, in the form ofevidence that Ford disregarded and failed to disclose toconsumers an engineering recommendation that Fordshould redesign their 15-passenger vans to improve vanstability and handling. (Pls.' Reply Br. at 37).While it appears that the modifications to Plaintiffs'proposed unjust enrichment classes address the first objectionraised by Ford (common benefit), the Courtagrees with Ford that Plaintiffs cannot [*104] satisfy theremaining elements of their unjust enrichment claimswith common proof.As this Court has explained with regard to otherproposed classes, the summary judgment record in thiscase established that different named Plaintiffs had differentconsumer experiences vis-a-vis their E-350 van.Some were not exposed to any representations about thevan's capacity or relative safety, some experienced nodiscernable handling problems with their vans, somecontinue to fill their van to capacity, and some incurredno injury whatsoever. At the same time, the E-350 owners'manuals issued by Ford progressively alerted consumersto the van's unique handling characteristics andthe need to drive with caution. This Court finds illustrativeChief Judge Brown's rulings with regard to the unjustenrichment claims of Illinois Plaintiff PentecostalTemple, New York Plaintiff Barrett, and Florida PlaintiffBlandon.Addressing the former, Chief Judge Brown grantedsummary judgment against Pentecostal Temple's unjustenrichment claim, reasoning as follows:It is undisputed, based on Pastor Edwards'sdeposition testimony, that no oneat Pentecostal Temple received any representationsfrom Ford, saw any [*105]Ford marketing materials, or even observedthat the E-350 purported to be a15-passenger van. Pentecostal Templesold its first E-350 van for reasons unrelatedto the handling issues giving rise tothis litigation, and it purchased the 1998van based on the desire for "somethingthat would take more than four or fivemembers at a time" and that would haveease of access for seniors and young people.(Edwards Dep. at 56:16-17; 57:1-19).While other Plaintiffs in this action mighthave acquired their E-350 vans based onFord's representations or labeling of thevehicles as 15-passenger vans, the undisputedrecord shows that Pentecostal Templedid not.July 9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *25. Chief Judge Brown explained that PentecostalTemple's "unjust enrichment claim fails for thesame substantive flaw that dooms its [consumer fraudact] claim: it cannot show deception or other wrongfulconduct directed at Pentecostal Temple." 2010 U.S. Dist.LEXIS 68241, [WL] at *24. Similarly, Chief JudgeBrown granted summary judgment against New YorkPlaintiff Barrett's unjust enrichment claim, because theundisputed record revealed that Barrett: (i) knew of thehandling defects prior to purchase and told his salesmanof the [*106] same (simultaneously negotiating a lowerprice that Barrett deemed fair); (ii) did not experiencehandling problems and continued to fill his van to capacity;(iii) still would have bought the van if he had all theknowledge that he had at the time of his deposition; and(iv) had no intention of selling the van. 2010 U.S. Dist.LEXIS 68241, [WL] at *71-72 (citing the benefit-of-thebargainprinciples of Canon Cameras and the actual injuryrequirement of Frank). As this Court observed, supra,it cannot be denied that such a class member hasbeen deprived of the benefit of his or her bargain. ChiefJudge Brown further granted summary judgment againstFlorida Plaintiff Blandon's unjust enrichment claim becauseshe purchased her van in 2008 from a private individualafter the point in time (April 2004) that Plaintiffsconcede that the bubble market for E-350 vans hadended. 2010 U.S. Dist. LEXIS 68241, [WL] at *50. Beyondthe April 2004 end-point conceded by Plaintiffs, itis undisputed that a number of public reports concerningthe E-350's handling problems were published and/orbroadcast between 2000 and 2004. Such reports wouldnecessarily factor into consideration of the equities forthe unjust enrichment claims of those consumers thatviewed [*107] the reports.Where individual consumers bargained with varyingdegrees of knowledge regarding the alleged defect, wereexposed to varying representations, if at all, about thevan's capacity and relative safety, and filled their vans atvarying capacities with varying handling problems, ifany, Plaintiffs cannot overcome these individual consumerexperiences with the claim that they have commonproof that Ford failed to disclose information about thevehicle's handling. The presiding court would need toconduct separate inquiries into the equities of each classmember's consumer experience to resolve these claims.See, e.g., Vega v. T-Mobile USA, Inc., 564 F.3d 1256,1274 (11th Cir. 2009) (explaining that unjust enrichmentclaims require the reviewing court to "examine the particularcircumstances of an individual case and assureitself that, without a remedy, inequity would result orpersist," and therefore "courts . . . have found unjust enrichmentclaims inappropriate for class action treatment").Common issues of law and fact thus do not pre-

2012 U.S. Dist. LEXIS 13887, *Page 26dominate over individualized inquiries, and this Courtwill deny class certification of the Pennsylvania unjustenrichment classes.D. FloridaThe [*108] only remaining Florida claims are theFlorida Deceptive and Unfair Trade Practices Act(FDUPTA) claims of Diaz and Mestre. See July 9 Opinion,2010 U.S. Dist. LEXIS 68241, 2010 WL 2813788, at*51. Ford argues that Plaintiffs ignore the "central" issueof consumer knowledge, which led to the dismissal ofFlorida Plaintiff Blandon's FDUPTA claim. Ford alsoargues that the proposed Florida class fails for the samereasons that the New York and Texas consumer fraudclaims fail, because the law of the three jurisdictions arerelatively similar. (Ford Resp. Br. at 61). Plaintiffs respondwith the essentially the same arguments that theyadvanced in support of their New York and Texas consumerfraud claims, and emphasize that they do not needto show reliance under Florida law. (Pls.' Reply Br. at25-35). Although the Court agrees with Plaintiffs that theprevailing Florida authority holds that Plaintiffs do notneed to show reliance, the Court agrees with Ford thatindividualized issues of deception and causation predominateand defeat Plaintiffs' motion for class certification."[U]nder FDUTPA, a litigant must demonstratethree elements: (1) a deceptive act or unfair practice; (2)causation; and (3) actual damages." [*109] Pop's Pancakes,Inc. v. NuCO2, Inc., 251 F.R.D. 677, 685 (S.D.Fla. 2008) (citing Rollins, Inc. v. Butland, 951 So.2d860, 869 (Fla. 2d Dist. Ct. App. 2006)). Plaintiffs citeFitzpatrick v. General Mills, 263 F.R.D. 687, 695 (S.D.Fla. 2010) and Davis v. Powertel, Inc., 776 So. 2d 971,974 (Fla. 1st Dist. Ct. App. 2000), two cases that approvedcertification of FDUTPA classes, for the propositionthat FDUTPA does not require a showing of reliance.The Eleventh Circuit has since vacated the classdefinition certified in Fitzpatrick, but in doing so approvedof the district court's predominance analysis,which relied on Davis. Fitzpatrick v. Gen. Mills, Inc.,635 F.3d 1279, 1282-83 (11th Cir. 2011). However, theappellate court's decision in Davis has since been criticizedby multiple appellate decisions and a federal districtcourt for its failure to account for FDUTPA's causationrequirement. Pop's Pancakes, 251 F.R.D. at 687;Black Diamond Props., Inc. v. Haines, 940 So. 2d 1176,1179 n.1 (Fla. 5th Dist. Ct. App. 2006); Philip MorrisUSA, Inc. v. Hines, 883 So.2d 292, 294 (Fla. 4th Dist. Ct.App. 2003). Pop's Pancakes further cited Egwuatu v.South Lubes, Inc., 976 So. 2d 50, 53 (Fla. 1st Dist. Ct.App. 2008), [*110] as evidence that the appellate courtthat issued Davis had limited its holding. Pop's Pancakes,251 F.R.D. at 687. The Eleventh Circuit in Fitzgeralddid not address these developments in Floridalaw, 21 and it appears that the FDUTPA issue of causationwas not raised on appeal.21 Similarly, Wolin v. Jaguar Land Rover NorthAmerica, 617 F.3d 1168 (9th Cir. 2010), whichPlaintiffs correctly note approved an FDUTPAclass, does not appear to contain any discussionof how Florida courts have interpreted the state'sconsumer fraud law.This Court finds persuasive the deception and causationanalysis in Pop's Pancakes and Black Diamond.Both courts denied class certification of the plaintiffs'respective FDUTPA claims, because resolution of theclaims would require individualized deceptive act andcausation inquiries. In Pop's Pancakes, for instance, theplaintiffs, lessees of beverage equipment, alleged that thedefendant lessor had included an illicit administrative feein its property tax invoices. The court ruled that the proposedFDUTPA class "fail[ed] to account for those customerswho fall within the class description, who eitherwere told, prior to receiving the property tax invoice,[*111] that the invoice included an administrative fee, or,those customers who read the back of the invoice andunderstood, based upon that reading, that the 'propertytax' fee on the front of the invoice included an administrativefee." 251 F.R.D. at 685. Although the plaintiffs inthat case characterized the invoice as a uniform misrepresentation,the court disagreed, stating "Plaintiffs fail toacknowledge that whether the invoice was deceptivedepends, in part, on the knowledge and/or understandingof each NUCO customer." Id. at 686. Meanwhile, inBlack Diamond, plaintiffs, homeowners in a residentialgolf community and members of the golf course, allegedthat the community developer misrepresented the ownershipinterest attendant to their golf memberships. 940 So.2d at 1178. The district court of appeals rejected thehomeowners' FDUPTA class, explaining that the classclaims:alleg[ed] that oral and written misrepresentationstook place in 500 separate oralcontract transactions spanning many yearsand involving numerous sales personnel.To prove these allegations, it will be necessarythat each plaintiff testify. Additionally,it will be necessary for eachplaintiff to offer proof [*112] that he orshe was damaged as a result of the purportedmisrepresentations. Finally, giventhe varied circumstances and span of timeover which the transactions occurred, defensesapplicable to some plaintiffs willnot be applicable to others.

2012 U.S. Dist. LEXIS 13887, *Page 27Id. at 1178-79.Chief Judge Brown found this reasoning persuasive;he cited Pop's Pancakes with approval in granting summaryjudgment against Florida Plaintiff Blandon'sFDUTPA claim. July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *49 (reasoning underFDUTPA, per Pop's Pancakes, "a defendant's deceptivepractice must cause a plaintiff's injury, and if a plaintiffknew of the safety issues that Ford's allegedly deceptivesales practices attempted to conceal, her injuries couldnot have been caused by those practices"). Plaintiffs havenot sought reconsideration of this ruling, and it is nowlaw of the case. This Court agrees that the deception andcausation analysis of Pop's Pancakes and Black Diamondcontrols for the circumstances presented in thiscase. In light of the varied consumer experiences ofPlaintiffs in this case--in terms of exposure to representationsof capacity and safety, pre-existing knowledge ofthe alleged defect from personal use and/or [*113] publicreports, and manifestation of handling problems atdifferent occupancy levels, see generally discussion ofNew York GBL § 349 class, supra Part II.A.1--resolutionof Plaintiffs' FDUTPA claims will require individualizeddeception and causation inquiries. Accordingly, commonissues do not predominate, and this Court will deny certificationof the Florida class.E. Michigan & New JerseyThe only remaining Michigan and New Jerseyclaims are for breach of the implied warranty of merchantability.July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *33, 67; February 16Opinion, 2011 U.S. Dist. LEXIS 16504, 2011 WL601279, at *10. Ford and Plaintiffs present essentiallythe same class certification arguments as to these proposedclasses as they did with regard to the proposedNew York and Pennsylvania implied warranty classes.Plaintiffs further rely on In re Mercedes-Benz Tele AidContract Litigation, 257 F.R.D. 46 (D.N.J. 2009), whichcertified a class of vehicle owners who brought consumerfraud and unjust enrichment claims against themanufacturer for failing to tell them that the Tele Aidemergency response systems they purchased with theirvehicles and paid for with subscription fees would becomeobsolete.This Court detects [*114] no material differencesbetween Michigan's and New Jersey's implied warrantylaw and Pennsylvania's implied warranty law that wouldcompel a different conclusion, and therefore the Courtdiscusses them together. Like Pennsylvania, Michiganand New Jersey require a showing of causation that canbe overcome by proof that the consumer had actualknowledge of the defect at the time of purchase. See,e.g., Mich. Comp. Laws §§ 440.2314 Cmt.13,440.2316(3)(b) & Cmt. 8; Jodway v. Kennametal, Inc.,207 Mich. App. 622, 525 N.W.2d 883, 890 (Mich. Ct.App. 1994) ("A purchaser who has extensive knowledgeof a product's inherently dangerous propensities shouldnot be allowed to claim that an implied warranty of merchantabilityexists as a guaranty against such characteristics.");N.J. Stat. Ann. §§ 12A:2-314 Cmt. 13, 12A:2-316(3)(b) & Cmt. 8; Henry Heide, Inc. v. WRH Prods.Co., 766 F.2d 105, 110 (3d Cir. 1985) (applying NewJersey law and stating that "if a buyer undertakes a reasonableexamination of the goods, he is precluded fromasserting a claim for breach of implied warranty againstanyone who was responsible for a defect that the buyerought, in the circumstances, to have noticed"). Accordingly,the Court's [*115] causation analysis of the NewYork and Pennsylvania implied warranty classes appliesequally here. See Parts II.A.2 and II.C.1, supra. In lightof the summary judgment record, individual issues ofcausation predominate, and this Court will deny certificationof these classes.In re Mercedes-Benz, cited by Plaintiffs, does notsuggest otherwise, because the plaintiffs in that case voluntarilydismissed their implied warranty claims prior toclass certification. 257 F.R.D. at 50 n.5. Nor is that casepersuasive, because, unlike the present case, the consumerfraud and unjust enrichment allegations in thatcase were not undercut by differing accounts of misrepresentation,record evidence that some consumers knewof the alleged defect at the time of purchase (both frompersonal knowledge and from public reports), and therewas no doubt that the defect--the obsolescence of theanalog network utilized by the vehicles' emergency responsesystems--manifested in all class vehicles. See id.at 73 ("Each member of the proposed class demonstratedhis or her intention to utilize the system by continuing tosubscribe until being informed that analog service wouldbe discontinued at the end of 2007, [*116] and somePlaintiffs went so far as to purchase a digital upgrade inorder to assure that they could continue to use Tele Aid.Thus, each class member got something less than he orshe was promised: a vehicle that was meant to last up to20 years, but contained a Tele Aid system that wouldbecome useless at the end of 2007.").F. CaliforniaThe only remaining California claim is First United'sunjust enrichment claim. July 9 Opinion, 2010 U.S. Dist.LEXIS 68241, 2010 WL 2813788, at *19; February 16Opinion, 2011 U.S. Dist. LEXIS 16504, 2011 WL601279, at *6-8. Ford and Plaintiffs generally present thesame class certification arguments as to the proposedCalifornia class as they did with regard to the proposedPennsylvania class. This Court detects no distinguishing

2012 U.S. Dist. LEXIS 13887, *Page 28features of California's law of unjust enrichment thatwould compel a different conclusion. See, e.g., Ghirardov. Antonioli, 14 Cal. 4th 39, 57 Cal. Rptr. 2d 687, 924P.2d 996, 1003 (Cal. 1996) ("Under the law of restitution,an individual may be required to make restitution ifhe is unjustly enriched at the expense of another. A personis enriched if he receives a benefit at another's expense.The term 'benefit' 'denotes any form of advantage.'Thus, a benefit is conferred not only when one adds tothe property of [*117] another, but also when one savesthe other from expense or loss.") (citing Restatement ofRestitution § 1); February 16 Opinion, 2011 U.S. Dist.LEXIS 16504, 2011 WL 601279, at *5 (recognizing similaritiesbetween law of unjust enrichment in Pennsylvaniaand California). Accordingly, the Court will denycertification of Plaintiffs' proposed California unjust enrichmentclass for the same reasons that the Court rejectedPlaintiffs' proposed Pennsylvania unjust enrichmentclass. See Part II.C.2, supra. 2222 Two Ninth Circuit decisions cited by Plaintiffs,Chamberlan v. Ford Motor Co., 402 F.3d952 (9th Cir. 2005) and Hanlon v. ChryslerCorp., 150 F.3d 1011 (9th Cir. 1998), do notsupport certification of Plaintiffs' California unjustenrichment class. Chamberlan denied interlocutoryreview of the district court's certificationof a class under the California Consumers LegalRemedies Act. 402 F.3d at 962. The common issuesin that case were: "(1) whether the design ofthe plastic intake manifold was defective; (2)whether Ford was aware of alleged design defects;(3) whether Ford had a duty to disclose itsknowledge; (4) whether it failed to do so; (5)whether the facts that Ford allegedly failed todisclose were [*118] material; and (6) whetherthe alleged failure to disclose violated theCLRA." Id. Chamberlan did not involve an unjustenrichment class under California law, andits analysis of common issues under California'sconsumer fraud statute is not applicable to theremaining consumer fraud claims (Florida, NewYork, Texas) in this MDL action. Likewise, Hanlon,which approved a class settlement of productdefect claims against a minivan manufacturer, didnot address certification of an unjust enrichmentclaim under California law, and the court's scantpredominance analysis did not address any materialfactual variations among consumers thatwould require individualized treatment of classmembers' claims. Thus, Hanlon provides minimalsupport for Plaintiffs' position in this case, wherethe summary judgment record revealed numerous,material differences from Plaintiffs' respectiveconsumer experiences.G. GeorgiaGeorgia Plaintiff Allen Temple seeks certification ofits remaining express warranty, implied warranty, andunjust enrichment claims. See July 9 Opinion, 2010 U.S.Dist. LEXIS 68241, 2010 WL 2813788, at *38. AllenTemple is the only Plaintiff that still has an active expresswarranty claim after the summary judgment[*119] rulings. The parties present essentially the samearguments in support of the implied warranty and unjustenrichment claims. In addition, the parties disputewhether purchasers of used vans can be included in awarranty class under Georgia law. 23 With regard to theexpress warranty class, Ford argues that Chief JudgeBrown's summary judgment rulings as to other namedPlaintiffs reveal that different consumers were exposedto different representations about the E-350's seatingcapacity and relative safety. Consequently, Ford reasonsthat the presiding court would have to undertake individualizedinquiries of putative class members' respectiveconsumer experiences to see if any affirmative representationsby Ford became the "basis of the bargain."(Ford Resp. Br. at 65). Plaintiffs do not appear to addressFord's express warranty argument in their reply brief, butin their class certification brief Plaintiffs generally arguedthat "[w]hether Ford's marketing of the E-350 as a15-passenger vehicle, its '15 Passenger' name, and 15installed [sic] seats, constitutes a description and warrantyof safe 15-passenger travel turns wholly on howFord sold the vans, not on any particulars in [*120] respectof consumers." (Pls.' Br. at 43). The Court agreeswith Ford on all counts.23 Plaintiffs' reply brief modified the proposedunjust enrichment classes to extend only to purchasersof new E-350 vans, but Plaintiffs havenot sought to modify their implied warrantyclasses in the same vein.This Court detects no material differences betweenGeorgia's implied warranty law and Pennsylvania's impliedwarranty law that would compel a different conclusion.Like Pennsylvania, Georgia's implied warranty lawrequires a showing of causation that can be overcome byproof that the consumer had actual knowledge of thedefect at the time of purchase. See, e.g., Ga. Code Ann.§§ 11-2-314 Cmt. 13, 11-2-316(3)(b) & Cmt. 8; W.M.Hobbs, Ltd. v. Accusystems of Ga., Inc., 177 Ga. App.432, 339 S.E.2d 646, 647 (Ga. Ct. App. 1986) (rejectingimplied warranty claim where consumer had the opportunityto use the copier machine on a trial basis prior topurchase). Accordingly, the Court's causation analysis ofthe New York and Pennsylvania implied warrantyclasses applies equally here. See Parts II.A.2 and II.C.1,supra. Likewise, the Court discerns no material differ-

2012 U.S. Dist. LEXIS 13887, *Page 29ence between Georgia's law of unjust enrichment andthat [*121] of Pennsylvania. See, e.g., Tuvim v. UnitedJewish Cmtys., Inc., 285 Ga. 632, 680 S.E. 2d 827, 829-30 (Ga. 2009) ("Unjust enrichment applies when as amatter of fact there is no legal contract, but when theparty sought to be charged has been conferred a benefitby the party contending an unjust enrichment which thebenefitted party equitably ought to return or compensatefor.") (citation omitted). Accordingly, the Court willdeny certification of Plaintiffs' proposed Georgia unjustenrichment class for the same reasons that the Court rejectedPlaintiffs' proposed Pennsylvania unjust enrichmentclass. See Part II.C.2, supra.With regard to the proposed express warranty class,the Court agrees with Ford that common issues do notpredominate. Like other jurisdictions, Georgia law recognizesexpress warranties in the following circumstances:(a) Any affirmation of fact or promisemade by the seller to the buyer which relatesto the goods and becomes part of thebasis of the bargain creates an expresswarranty that the goods shall conform tothe affirmation or promise.(b) Any description of the goodswhich is made part of the basis of the bargaincreates an express warranty that thegoods shall conform [*122] to the description.Ga. Code Ann. § 11-2-313(1). "It is not necessary to thecreation of an express warranty that the seller use formalwords such as 'warrant' or 'guarantee' or that he have aspecific intention to make a warranty, but an affirmationmerely of the value of the goods or a statement purportingto be merely the seller's opinion or commendation ofthe goods does not create a warranty." Id. § 11-2-313(2).The decisive test, in determiningwhether language used is a mere expressionof opinion or a warranty, is whetherit purported to state a fact upon which itmay fairly be presumed the seller expectedthe buyer to rely, and upon which abuyer would ordinarily rely. If the languageused is of that character, the fact ofreliance on the part of the buyer and thepresumption of intent on the part of theseller which the law would raise in such acase would operate to create a warranty.Smith v. Frazer, 144 Ga. 85, 86 S.E. 225, 226 (Ga. 1915)(quoting 30 Am. & Eng. Enc. Law at 142). Chief JudgeBrown's omnibus July 9 Opinion rejected other Plaintiffs'contention that Ford's "core description" of the E-350 asa "15-passenger" van created an express warranty ofsafety under the respective jurisdictions' [*123] UCCprovisions. E.g., July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *9 (California Plaintiffs),31 (New Jersey Plaintiffs), 41 (Pennsylvania Plaintiffs),73 (Bishop Anderson), 79 (Massachusetts Plaintiff). 24Plaintiffs have not sought reconsideration of these rulings,and Plaintiffs do not suggest that Georgia lawwould require a different conclusion. The summaryjudgment record in this case further revealed that differentconsumers were exposed to different representations,if at all, at the time of purchase. See Part II.A.1.a ("Misrepresentation")& n.7, supra. Individual inquiries willbe necessary to determine whether Ford representativesmade affirmative representations about the E-350's relativesafety as a 15-passenger van to specific consumers.Consumers who were not exposed to such representationscannot assert that such representations were a basisfor their bargains. See, e.g., Am. Coach Lines of Orlando,Inc. v. N. Am. Bus Indus., Inc., No. 09-999, 2011 U.S.Dist. LEXIS 14417, 2011 WL 653524, at *18 (M.D. Fla.Feb. 14, 2011) (applying Florida and Georgia law, andconcluding that statements made after delivery of theproduct could not have been the basis of the bargain).Plaintiffs have not shown that they can [*124] establishtheir express warranty claim with common proof. Therefore,the Court concludes that common issues of fact donot predominate, and the Court will deny certification ofGeorgia Plaintiff's express warranty class.24 Unlike it did with regard to Plaintiffs' otherexpress warranty claims, Ford did not seek summaryjudgment against Allen Temple's expresswarranty claim on the ground that Ford's allegedrepresentations were too vague to be actionableas an express warranty. Consequently, ChiefJudge Brown did not have occasion to rule onwhether Allen Temple had presented colorableevidence that Ford made specific representationsabout the E-350 van that were actionable as expresswarranties under Georgia law. July 9 Opinion,2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *35.In addition to these reasons, the Court agrees withFord that Plaintiffs' proposed warranty class fails to accountfor Georgia's treatment of purchasers of usedgoods. Plaintiffs cite Georgia Timberlands, Inc. v. S.Airways, Co., 125 Ga. App. 404, 188 S.E.2d 108 (Ga. Ct.App. 1972) for the proposition that an implied warrantyof merchantability inheres when the used goods are soldby merchants who deal in the subject goods. (Pls.' Reply

2012 U.S. Dist. LEXIS 13887, *Page 30Br. at 21). Yet, [*125] Plaintiffs fail to explain how thisrule would apply to consumers that bought used E-350vans from third-parties, such as private individuals orindependent car dealerships. The Court is aware of noGeorgia authority that would permit express or impliedwarranty claims to lie against the manufacturer where theconsumer purchased used goods (even a vehicle) from anunrelated third party. See Gen. Motors Corp. v. HalcoInstruments, Inc., 124 Ga. App. 630, 185 S.E. 2d 619,622 (Ga. Ct. App. 1971) (collecting cases for the propositionthat there is no implied warranty of merchantabilityagainst the manufacturer "[w]hen goods are sold byan original purchaser to a third party as used or secondhandgoods"); Stewart v. Gainesville Glass Co., 233 Ga.578, 212 S.E. 2d 377, 377 (Ga. 1975) (stating that, withfew exceptions, express warranty claims require privity);Jones v. Cranman's Sporting Goods, 142 Ga. App. 838,237 S.E. 2d 402, 405 (Ga. Ct. App. 1977) (recognizingthat privity exists "(W)here an automobile manufacturer,through its authorized dealer issues to a purchaser of oneof its automobiles from such dealer"); see also Cole v.Gen. Motors Corp., 484 F.3d 717, 730 (5th Cir. 2007)(citing Georgia as a jurisdiction that does not [*126]allow implied warranty claims for used goods against aremote manufacturer). Plaintiffs' proposed warranty classdoes not exclude consumers who purchased their usedvans from third parties, and thus are over-inclusive.H. Statute of Limitations DefensesIn addition to the jurisdiction- and claim-specific objectionsdiscussed above, Ford contends that the individualissues surrounding its statute-of-limitations affirmativedefenses, as well as any tolling doctrine advanced byPlaintiffs to counter these defenses, weighs against afinding of predominance. Although the above predominancedeterminations stand on their own, the Courtagrees that the individualized inquiries attendant toFord's statute-of-limitations defenses as to each jurisdiction-basedsub-class support the denial of class certification.25 25 Additionally, the Court notes that the individualizedinquiries necessary to evaluate Ford'sstatute-of-limitations defenses in light of thevariations in state law across multi-jurisdictionclaim-based classes would pose significant administrativedifficulty in the trial context. Sullivan,667 F.3d 273, 2011 U.S. App. LEXIS 25185,at *62 n.28 ("We are aware that there may still becircumstances, [*127] as we and other Courts ofAppeals have noted, where '[i]n a multi-stateclass action, variations in state law may swampany common issues and defeat predominance.'")(citations omitted). In its recent decision, theThird Circuit noted that litigation class certification--asopposed to settlement class certification,which was at issue in Sullivan--potentially implicates"'intractable management problems'" and"'insuperable obstacles' that could render classlitigation unmanageable." 2011 U.S. App. LEXIS25185, [WL] at *59-60 (citations omitted). In thiscase, the Court need not decide whether variationsin state law would make class litigation unmanageable,because the Court is persuaded thatpredominance has been defeated for the independentreasons explained above.Before the Court can assess the effect of Ford's statute-of-limitationsdefenses on the predominance inquiryas to each jurisdiction-based sub-class, the Court mustdetermine whether such inquiry is even relevant to thepredominance inquiry. The Third Circuit in Barnes v.American Tobacco Co. squarely held that affirmativedefenses, including statute-of-limitations defenses, areproperly considered in determining predominance andcohesion for purposes [*128] of class certification undersubsections (b)(2) and (b)(3). 161 F.3d 127, 147-49 (3dCir. 1998) (affirming denial of class certification forputative class of smokers). Indeed, the Barnes court citedthe individual issues arising under those defenses as partof its reasoning for denying class certification. Id. at 143("We believe that addiction, causation, the defenses ofcomparative and contributory negligence, the need formedical monitoring and the statute of limitations presenttoo many individual issues to permit certification."), 146-47 (discussing individual issues related to comparativeand/or contributory negligence), 149 (citing individualissues attendant to the statute of limitations defense asgrounds for denying class certification). However, fouryears later in In re Linerboard Antitrust Litigation, thecourt affirmed certification of an antitrust class againstmanufacturers of linerboard, despite the manufacturers'contention that their statute of limitations defenses andconsumers' fraudulent concealment tolling theories presentedindividual issues that defeated predominance. 305F.3d 145, 160-64 (3d Cir. 2002). In doing so, the Linerboardcourt cited with approval [*129] case law and atreatise that suggested that such individual issues did notdefeat class certification, but could be dealt with at asubsequent damages stage. Id. at 163. Quoting the treatise,the Linerboard court explained:Challenges based on the statute of limitations,fraudulent concealment, releases,causation, or reliance have usually beenrejected and will not bar predominancesatisfaction because those issues go to theright of a class member to recover, in contrastto underlying common issues of thedefendant's liability.

2012 U.S. Dist. LEXIS 13887, *Page 31Id. (quoting Newberg & Conti, Newberg on Class Actions§ 4.26 (3d ed.)). Speaking to the federal antitrustclaims before it, the Linerboard court recognized thatindividual issues pertaining to fraudulent concealmentwould arise, but reasoned that "common issues of concealmentpredominate here because 'the inquiry necessarilyfocuses on defendants' conduct, that is, what defendantsdid rather than what plaintiffs did.'" Id. (citationomitted). The court further reasoned:Key questions will not revolve aroundwhether [the consumers] knew that theprices paid were higher than they shouldhave been or whether [they] knew of thealleged conspiracy among Appellants.[*130] Instead, the critical inquiry will bewhether "defendants successfully concealedthe existence of the alleged conspiracy,which proof will be commonamong the class members in each class."Id. (citation omitted).While at first blush Linerboard appears inconsistentwith Barnes, Plaintiffs acknowledge (Pls.' Reply Br. at23) that Linerboard endorsed the First Circuit's reasoningin Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d288, 296 (1st Cir. 2000):Although a necessity for individualizedstatute-of-limitations determinations invariablyweighs against class certificationunder Rule 23(b)(3), we reject any per serule that treats the presence of such issuesas an automatic disqualifier. In otherwords, the mere fact that such concernsmay arise and may affect different classmembers differently does not compel afinding that individual issues predominateover common ones. As long as a sufficientconstellation of common issuesbinds class members together, variationsin the sources and application of statutesof limitations will not automatically forecloseclass certification under Rule23(b)(3). Predominance under Rule23(b)(3) cannot be reduced to a mechanical,single-issue test.Linerboard, 305 F.3d at 162-63 [*131] (internal citationsfrom Waste Management Holdings omitted). Thus,Linerboard cannot be read to prohibit consideration ofthe individualized issues arising from statute-oflimitationsdefenses for purposes of determining predominanceunder Rule 23(b)(3). This reading of Linerboardis consistent with Barnes, which recognized that"the existence of affirmative defenses as to some classmembers may not by itself [be] enough warrant the denialof certification." Barnes, 161 F.3d at 147 n.25. 26Thus, this Court finds that Ford's statute-of-limitationsdefenses and Plaintiffs' equitable tolling rejoinders arerelevant to this Court's consideration of predominancewith respect to jurisdiction-based sub-classes.26 The Court further notes that this interpretationis consistent with Sullivan, in which theThird Circuit held that variations in state law donot defeat predominance in the class settlementcertification context. See Sullivan, 667 F.3d 273,2011 U.S. App. LEXIS 25185, at *58-59.Ford's statute-of-limitations defenses and any applicablediscovery rule and/or other equitable tolling doctrinewould require inquiries into the individual circumstancesof each Plaintiff. As noted above, Chief JudgeBrown's [*132] summary judgment decisions revealedthat named Plaintiffs had widely divergent experiencesvis-a-vis their E-350 vans; some purchased their vanswith knowledge of the van's unique handling problems(Barrett, 27 Blandon), some saw news releases or governmentreports about the rollover problems (BishopAnderson, Charles St. AME, Conant Avenue), some experiencedhandling issues while driving (Charles St.AME, Conant Avenue), others removed seats or limitedthe van to less than 15 passengers (Bishop Anderson, St.Luke's), and some did not appear to have experiencedany handling problems whatsoever (Barrett, St. James,St. Luke's). See July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *45, 51, 57, 62, 68-69, 76.At the same time, the summary judgment opinions revealedthat different consumers learned of the E-350van's handling problems, if at all, in differing degrees,from different sources, and at different times. These individualexperiences would be relevant to a determinationof accrual in a jurisdiction with the discovery rule,and thus the presiding court would have to conductcountless individualized inquiries. Moreover, for jurisdictionsthat follow New York's equitable tolling requirement[*133] of a subsequent affirmative act, Plaintiffscannot invoke Linerboard's common proof offraudulent concealment finding, because each Plaintiffwould have to show that Ford committed some act, otherthan the underlying misrepresentation of the van's handlingabilities, to conceal the original tort. Ross, 868N.E.2d at 198. Contrary to Plaintiffs' suggestion, thesenuanced, fact-specific inquiries will require careful examination,and thus cannot be supplemented with concisequestionnaire forms. Such inquiries are not amenableto class litigation.

2012 U.S. Dist. LEXIS 13887, *Page 3227 Indeed, it is undisputed that Barrett negotiateddown the price of his used 1997 E-350 vanin the same conversation that he told the salesagent that the van should not be driven by an inexperienceddriver, and that he knew of a priorinstance where an E-350 van had experienced arollover. July 9 Opinion, 2010 U.S. Dist. LEXIS68241, 2010 WL 2813788, at *69 (citing BarrettDep. at 48:11-49:13, 106:16-23).The Court further notes that Plaintiffs' proposedclasses appear to include a large number of consumerswhose claims would be time-barred under the relevantstatute of limitations. Ford argues that the statute of limitationswill bar the vast majority of proposed New York,[*134] Pennsylvania, and Georgia warranty-claim classmembers, because the named Plaintiffs from these jurisdictionsdid not join this MDL until November 2008 (seeConsent Order of November 5, 2008, Doc. No. 150), andthese jurisdictions do not allow cross-jurisdictional tolling.(See, e.g., Ford's Resp. Br. at 38). Ford reasons that,courtesy of the four-year limitations period and theUCC's strict accrual rule for warranty claims (tender ofdelivery), see, e.g., Ga. Code Ann. § 11-2-725, putativeclass members for these claims must have purchased andreceived their qualifying E-350 vans no later than November2004. Ford further reasons that some of theseclasses would be deprived of their class representatives,because certain named Plaintiffs purchased their E-350vans before this date. These arguments fail to account forthe class tolling doctrine recognized by the SupremeCourt in American Pipe & Construction Co. v. Utah, 414U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) andCrown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L. Ed. 2d 628 (1983). This tolling doctrinerecognizes that "the commencement of a class actionsuspends the applicable statute of limitations as to allasserted members of the class who would have been parties[*135] had the suit been permitted to continue as aclass action," and that the action "remains tolled for allmembers of the putative class until class certification isdenied." Crown, Cork & Seal, 462 U.S. at 353-54. Becausethe original action in this MDL, filed in August2003, sought a nationwide class (see Doc. No. 1 7), itwould appear that this doctrine tolled the limitations periodsfor other named Plaintiffs who were putative classmembers under the original class. Neither party addressedthis class tolling doctrine, and this Court has nooccasion to make tolling determinations at the presenttime. Yet, Ford's argument does carry some weight. Presumingthat the limitations periods were tolled for thesubsequent actions that joined this MDL, the cut-off linefor the warranty classes, courtesy of the first-filed action(New Jersey), would be August 1999. In other words,class members would have needed to have taken deliveryof their E-350 vans no later than August 1999 in order tohave a timely warranty claim. Such a cut-off line wouldshrink the warranty classes by approximately 1/3 of theproposed model years (2000-2005 would be excluded), 28unless individual consumers of earlier [*136] modelspresented grounds for equitable tolling.28 This Court recognizes that some new vehiclesare released before their designated modelyear (i.e., a 2012 model can be released in 2011).However, the Court only addresses the flaws ofPlaintiffs' proposed classes for present purposes,and does not address the merits of these statuteof-limitationsdefenses.This Court has no occasion to rule on the merits ofFord's statute of limitations defenses and Plaintiffs' respectiveequitable tolling counter-defenses with the presentmotion. However, the Court agrees that Plaintiffs'proposed warranty classes for these jurisdictions fail toaccount for the relatively straightforward effect of therespective UCC statute of limitations on the warrantyclaims. This Court is left to conclude that either a largeportion of these proposed classes will not have viablewarranty claims, or alternatively, that many putativeclass members will require individualized inquiries intoissues of equitable tolling.I. SummaryThe Court's decision to deny class certificationshould not be read to suggest that Plaintiffs' remainingclaims lack merit, or as tacit approval for Ford's designand marketing of the E-350 [*137] van. Indeed, thisCourt is aware that a number of fatal automobile accidentshave been linked to occurrences of rollovers in thisvan, and that these accidents are the subject of other litigation.Rather, this Court's ruling reflects the unique andhighly individualistic experiences of consumers, many ofwhom were not actually deceived and many of whomhave suffered no actual injury as a result of Ford's conduct.This Court's conclusions do not address the meritsof Plaintiffs' consumer fraud, warranty, and unjust enrichmentclaims, but draws upon the summary judgmentrecord to assess the nature of the evidence--common oridiosyncratic--that Plaintiffs state they will present tosupport their class claims.While a narrowly tailored class limited to particularmisrepresentations, excluding persons with knowledge atthe time of purchase, cognizant of the respective statuteof limitations, and brought in a jurisdiction that did notrequire actual injury may have been a better candidatefor class certification, Plaintiffs have not proposed such aclass. As it stands, the massive claim- and jurisdictionspecificclasses proposed by Plaintiffs are rife with issuesthat will require individualized [*138] determinations.Common issues of fact and law do not predominate over

2012 U.S. Dist. LEXIS 13887, *Page 33individualized inquiries, as required by Rule 23(b)(3),and thus Plaintiffs' proposed classes do not withstand"rigorous analysis" under Hydrogen Peroxide. Consequently,the Court will deny Plaintiffs' renewed motionfor class certification under Rule 23(b)(3) in its entirety.III. CERTIFICATION UNDER RULE 23(b)(2)Lastly, the Court addresses Plaintiffs' alternativetheory for class certification under Federal Rule 23(b)(2).As noted above, certification pursuant to subpart (b)(2) isappropriate when "the party opposing the class has actedor refused to act on grounds that apply generally to theclass, so that final injunctive relief or corresponding declaratoryrelief is appropriate respecting the class as awhole." Fed. R. Civ. P. 23(b)(2). The Supreme Courtrecently explained in Wal-Mart v. Dukes 29 that "[t]he keyto the (b)(2) class is 'the indivisible nature of the injunctiveor declaratory remedy warranted--the notion that theconduct is such that it can be enjoined or declared unlawfulonly as to all of the class members or as to none ofthem." 131 S. Ct. 2541, 2557, 180 L. Ed. 2d 374 (2011).Conversely, subsection (b)(2) "does [*139] not authorizeclass certification when each individual class memberwould be entitled to a different injunction or declaratoryjudgment against the defendant," or "an individualizedaward of monetary damages." Id. Class certification isinappropriate where "the monetary relief is not incidentalto the injunctive or declaratory relief." Id.; cf. Barnes,161 F.3d at 142 ("Subsection (b)(2) class actions are'limited to those class actions seeking primarily injunctiveor corresponding declaratory relief.'") (citation omitted);In re Mercedes-Benz Antitrust Litig., 213 F.R.D.180, 186 (D.N.J. 2003) ("[C]ourts have certified 23(b)(2)classes despite a claim for money damages where thedamages were incidental or ancillary to a primary claimfor an injunction.").29 Wal-Mart involved female employees' TitleVII sex discrimination claims against their retailstore employer, seeking injunctive and declaratoryrelief, back pay, and punitive damages. 131S. Ct. at 2547-48, 2561. The Supreme Court, by a5-4 vote, decertified the class on the grounds thatthe class-respondents had not met the commonalityrequirement of Rule 23(a)(2). Id. at 2550-57.Yet, the Court ruled unanimously that the classrespondents[*140] had not met the requirementsfor certification under Rule 23(b)(2).In addition to a primary focus on injunctive or declaratoryrelief, the Third Circuit has recognized thatclass claims under Rule 23(b)(2) must be cohesive. See,e.g., Gates v. Rohm & Haas Co., 655 F.3d 255, 263-64(3d Cir. 2011); Barnes, 161 F.3d at 143; Geraghty v.U.S. Parole Comm'n, 719 F.2d 1199, 1205-06 (3d Cir.1983). Although, unlike subsection (b)(3), (b)(2) doesnot impose distinct predominance and superiority requirements,our Circuit has reasoned that "a (b)(2) classmay require more cohesiveness than a (b)(3) class. . . .because in a (b)(2) action, unnamed members are boundby the action without the opportunity to opt out." Barnes,161 F.3d at 142-43; see also Gates, 655 F.3d at 265("The 'disparate factual circumstances of class members'may prevent a class from being cohesive and, therefore,make the class unable to be certified under Rule23(b)(2)).") (citing Carter v. Butz, 479 F.2d 1084, 1089(3d Cir. 1973)). Accordingly, our Circuit has held thatdistrict courts have the discretion to deny certificationunder (b)(2) when a given case presents "disparate factualcircumstances," or a prevalence of [*141] individualizedissues. Barnes, 161 F.3d at 143 (citation omitted).In their opening brief, Plaintiffs argue that certificationunder this Rule is proper because "the core of therelief sought by Plaintiffs in this case is equitable in nature."(Pls.' Br. at 61). Toward this end, Plaintiffs cite aparagraph from the Complaint's Prayer for Relief thatseeks an order:[r]equiring Ford to correct the designdefect so the E-350 vans c[e]ase to be asafety hazard, enjoining Ford from distributingthe vehicles without their beingso corrected, and requiring Ford to warnall potential purchasers of the unsafe natureof the E-350 through its own dealersand through used car dealers and by suchmeans as the Court determines to be effectiveand appropriate.(Complaint, Prayer for Relief B). From this equitable"core," Plaintiffs contend that "the Court may awardClass members a uniform stipend of $2,100.00 each"--the cost of retrofitting the E-350 vans with dual rearwheels--as incidental damages. (Pls.' Br. at 62).Ford objects that Plaintiffs do not seek primarily injunctiveor declaratory relief, and that the individual issuesthat defeated predominance demonstrate that Plaintiffs'claims are [*142] not sufficiently cohesive to warrant(b)(2) certification. Plaintiffs offer no further argumentin support of certification under Rule 23(b)(2) inreply.The Court notes at the onset that the SupremeCourt's recent decision in Wal-Mart casts a cloud overthe continued application of the Third Circuit's cohesionrequirement for (b)(2) certification. The Wal-Mart Courtexplained that the (b)(3) "procedural protections" of predominance,superiority, mandatory notice, and the rightto opt out did not appear in (b)(2) because they "[are]

2012 U.S. Dist. LEXIS 13887, *Page 34unnecessary to a (b)(2) class." 131 S. Ct. at 2558. Accordingto the Court, "[w]hen a class seeks an indivisibleinjunction benefitting all its members at once, there is noreason to undertake a case-specific inquiry into whetherclass issues predominate or whether class action is a superiormethod of adjudicating the dispute. Predominanceand superiority are self-evident." Id.; cf. id. at 2566(Ginsburg, J., joined by Breyer, Sotomayor, and Kagan,JJ., concurring in part and dissenting in part) (suggestingthat "[i]ndividual [factual] differences should not bar a . .. Rule 23(b)(2) class, so long as the Rule 23(a) thresholdis met"). At the same time, [*143] the Wal-Mart Courtexpressed doubt regarding whether a class seeking monetarydamages could ever be certified under Rule 23(b)(2),but declined to answer this question. See id. at 2557.While this logic suggests that predominance and superiorityare unnecessary considerations for proper (b)(2)classes, it is unclear whether a predominance-derivedconsideration of cohesion may be relevant in determiningwhether a proposed class presents a proper (b)(2) class.To the extent that cohesion remains a relevant considerationpost-Wal-Mart, this Court agrees with Ford that themyriad individual issues of fact and law identified in thisCourt's (b)(3) predominance analysis supra--i.e., exposureto differing representations, deception, causation,and Ford's statutes of limitations affirmative defenses--reveal that Plaintiffs' proposed classes are not sufficientlycohesive to permit (b)(2) class certification. See, e.g.,Gates, 655 F.3d at 265, 269 (denying (b)(2) certificationof vinyl chloride exposure case, where individualizedissues of "members' . . . characteristics and medical histories"made certification inappropriate); Barnes, 161F.3d at 143 (denying (b)(2) certification of tobacco case,[*144] where individualized issues of addiction, causation,and affirmative defenses (comparative negligence,statute of limitations) made certification inappropriate).However, to the extent that Wal-Mart abrogates the existingCircuit rule regarding cohesion, this Court concludesthat (b)(2) certification is nevertheless inappropriate,simply because the monetary damages sought byPlaintiffs are not incidental to a claim for injunctive relief.Here, the "'core' equitable relief" sought by Plaintiffis an order: (1) requiring Ford to correct the design defectfor existing consumers; (2) enjoining Ford from distributingvehicles with the defect; and (3) requiring Fordto warn all potential purchasers of the unsafe nature ofthe E-350 van through its own dealers and through usedcar dealers and other means determined by the Court.(See Pls.' Br. at 61 & n.27; Complaint, Prayer for Relief B). Of this proposed equitable relief, only the first remedycompensates the injuries of putative class members,who, according to Plaintiffs' proposed classes, have alreadypurchased or acquired a model-year 1991-2005 E-350 van. 30 Furthermore, Plaintiffs make no attempt toexplain how their claims regarding [*145] model-year1991-2005 E-350 vans could justify the broad, perpetualinjunctions sought in the Complaint, which would appearto extend to subsequent model years for which no defecthas been alleged. Thus, the Court is left to considerPlaintiffs' proposed affirmative injunction requiring Fordto correct the design defect. At the same time that Plaintiffsclassify this relief as "equitable" in nature, Plaintiffsconcede that "there must be a source of money to pay forthe repair or retrofit of the vans" if class members "wish"to have their vehicles repaired. (Id. at 59). Elsewhere,Plaintiffs suggest that the Court can simply "award Classmembers a uniform stipend of $2,100.00 each." (Id. at62). These statements reveal that Plaintiffs primarilyseek monetary damages, 31 and even suggests that someclass members may choose to receive the costs of repairsinstead of the actual repairs. As Ford correctly notes,Plaintiffs cannot simultaneously seek an affirmative injunctionrequiring the repairs to be made and the monetarycosts of those repairs. (Ford's Resp. Br. at 69). Plaintiffspresent nothing in their reply brief to bolster their(b)(2) claim.30 Presuming that putative class members[*146] opted to purchase an additional E-350 vangoing forward, they would already have knowledgeof the defect by virtue of the repairs to theirexisting van. Thus, the second and third equitableremedies sought by Plaintiffs do not address theinjuries of putative class members.31 This Court's conclusion that Plaintiffs primarilyseek monetary damages is supported bythe numerous damages theories Plaintiffs haveput forth during the course of the motions forsummary judgment, ranging from diminution invalue to repair costs and incidental costs relatedto loss of use. Given this procedural history,Plaintiffs saw fit to characterize the "core trial issue[]"of damages in their renewed class certificationbrief's introductory section as "whether the$2,100 cost of retrofitting the vans with dual rearwheels is an appropriate measure of damagesand/or an appropriate measure of restitution toremedy Ford's unjust enrichment." (Pls.' Br. at 4).The Supreme Court in Wal-Mart emphasized thatsubpart (b)(2) applies to injunctions and declaratoryjudgments, not "'equitable' remedies generally." 131 S.Ct. at 2560. The Court further expressed its dissatisfactionwith the class-Respondents' argument [*147] that(b)(2) certification was appropriate, simply because theirclaims for injunctive and declaratory relief predominatedover their claims for monetary relief (backpay). TheCourt responded to this argument as follows:

2012 U.S. Dist. LEXIS 13887, *Page 35[t]he mere "predominance" of a proper(b)(2) injunctive claim does nothing to32 The Court notes that Plaintiffs' further proposeguise of a (b)(2) class. 32justify elimination of Rule 23(b)(3)'s proceduralprotections: It neither establishesthe superiority of class adjudication overindividual adjudication nor cures the noticeand opt-out problems. We fail to seewhy the Rule should be read to nullifythese protections whenever a plaintiffclass, at its option, combines its monetaryclaims with a request--even a "predominatingrequest"--for an injunction.a "hybrid" (b)(2)/(b)(3) class in their open-ing brief, but appears to abandon this idea in theirreply brief. Plaintiffs present no authority for theproposition that such a "hybrid" class can be certifiedwhen the proposed class could not be certifiedunder either subsection (b)(2) or (b)(3). Here,this Court has concluded that certification wouldbe improper under both (b)(2) and (b)(3). Accordingly,the Court will decline to certify a hybridclass under a canopy of both provisions.ConclusionId. at 2559. Despite Plaintiffs' argument that "the core ofFor the aforementioned reasons, the Court will grantthe relief sought by Plaintiffs in this case is equitable inFord's motion to amend (Doc. No. 393) and deny Plaintiffs'renewed class certification motion (Doc. No. 375).nature" (Pls.' Br. at 61), the record and Plaintiffs' argumentsreveal that Plaintiffs do not seek predominantlyAn appropriate form of order accompanies this Opinion.injunctive or declaratory relief, and that the monetarydamages they seek are anything but incidental. In light ofthe guidance provided by Wal-Mart, this Court concludesthat it would be inappropriate to permit PlaintiffsDated: February 6, 2012/s/ Esther Salasto sidestep the (b)(3) requirements under [*148] the Esther Salas, U.S.D.J.Reproduced by Wilentz, Goldman & Spitzer, P.A. with the permission of LexisNexis. Copyright 2012 LexisNexis,a division of Reed Elsevier Inc. All rights reserved. No copyright is claimed as to any portion of theoriginal work prepared by a government officer or employee as part of that person’s official duties