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

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

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