IN RE: HONDA IDLE STOP LITIGATION. (2024)

ORDER RE: MOTION FOR CLASS CERTIFICATION (ECF NO. 137)

Plaintiffs Janice Stewart, Sirous Pourjafar, Kevin Bishop, Abby O'Neill, Jeff Kaminski, Antoinette Lanus, Devron Elliott, Brandon Derry, Ali Qureshi, Daniel Rock, Latasha Ransome, Sharon Marie Johnson, Marilyn Thomas, and David Jew move for class certification. (Mot., ECF No. 137-1.) Defendant American Honda Motor Co., Inc., opposes, (Opp'n, ECF No. 144-3), and Plaintiffs filed a reply, (Reply, ECF No. 150).¹ After briefing concluded, Plaintiffs Lanus, O'Neill, Qureshi, and Ransome withdrew some claims from their motions for certification. (Notice, ECF No. 153.) The Court heard oral argument on August 12, 2024. (Mins., ECF No. 159.)

I. BACKGROUND

This case concerns an alleged automotive defect in certain Honda and Acura vehicles ² called “Automatic Idle Stop” (“AIS”). Briefly, as alleged in the third consolidated amended complaint, the Class Vehicles come equipped with the AIS function, which “automatically shuts off a Class Vehicle's engine when the brake pedal is fully applied and the vehicle reaches idling revolutions per minute.” (TCAC ¶ 3, ECF No. 111.) “When working properly,” AIS “automatically restarts the engine when the driver releases the brake pedal or when the vehicle sits for an extended period of time with auxiliary systems running.” (Id.) But AIS in the Class Vehicles “is subject to sudden and unexpected failure.” (Id. ¶ 4.)³ Specifically, while AIS shuts down the Class Vehicles’ engines, it “will oftentimes not automatically restart the engine when a driver ․ releases the brake pedal.” (Id.) “The vehicle will suddenly and without notice[ ] become inoperable and undriveable wherever it rests, whether at a red light or stop sign, in the middle of an intersection while making a left-hand turn, or on an entrance ramp to a highway.” (Id.) “Despite having longstanding knowledge of the ․ [d]efect, Honda has continued selling Class Vehicles with the ․ feature, without disclosing that defect to purchasers and lessees.” (Id. ¶ 6.)

Plaintiffs move to certify 13 classes, one each in Alabama, California, Connecticut, Indiana, Louisiana, Maryland, New Hampshire, New York, Pennsylvania, Rhode Island, Texas, Virginia, and Washington.⁴ The putative class definitions would include “[a]ll purchasers or lessees of a Class Vehicle that was purchased” in the state at issue. The California, Connecticut, Indiana, Louisiana, New York, Pennsylvania, Texas, Virginia, and Washington putative classes also include “[a]ll purchasers or lessees of a Class Vehicle that was ․ leased” in those states. (Notice of Mot. 1–4, ECF No. 137.)

The putative classes would bring the following claims:

[Editor's Note: The preceding image contains the reference for footnote ⁵ ].

(Id.; see Notice 1.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 23 requires a party seeking class certification to “affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). This requires a district court to conduct “rigorous analysis” that frequently “will entail some overlap with the merits of the plaintiff's underlying claim.” Id. at 351, 131 S.Ct. 2541 (internal quotation marks omitted). A plaintiff must demonstrate that the four requirements of Rule 23(a) are met: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. These requirements effectively “limit the class claims to those fairly encompassed by the named plaintiff's claims.” Id. at 349, 131 S.Ct. 2541 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The party also must prove the class meets one of the three alternative provisions in Rule 23(b). Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013).

Where, as here, the plaintiff seeks certification under Rule 23(b)(3), the plaintiff must show “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In evaluating predominance and superiority, courts consider four factors: “(A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” Id.

III. DISCUSSION

Defendant challenges Plaintiffs’ motion on several grounds. First, Defendant argues that the putative classes are not ascertainable because (1) they cannot be readily identified, (2) the classes are fail-safe, and (3) potential class members who purchased cars for personal use cannot be identified. Second, Defendant argues that Plaintiffs’ purported common questions cannot generate common answers. Third, Defendants argues that the class representative are neither typical nor adequate. Fourth, Defendants argue that individual questions of law and face predominate every claim. Fifth and finally, Defendants argue that a class action is an inferior method of resolving the claims at issue. The Court addresses each argument independently.

A. Ascertainability

While not specifically mentioned in Rule 23, district courts require a class to be ascertainable. See Martin v. Pac. Parking Sys. Inc., 583 F. App'x 803, 804 (9th Cir. 2014) (affirming denial of class certification motion based on the conclusion “that the proposed class was not ascertainable”); Keegan v. Am. Honda Motor Co., Inc., 284 F.R.D. 504, 521 (C.D. Cal. 2012) (collecting cases). “A class is sufficiently defined and 6 ascertainable if it is ‘administratively feasible for the court to determine whether a particular individual is a member.’ ” Keegan, 284 F.R.D. at 521 (quoting O'Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998)). But the Ninth Circuit has declined to adopt an “administrative feasibility” requirement beyond what is demanded by Rule 23(a). Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124 n.4, 1125–26 (9th Cir. 2017) (“[T]he language of Rule 23 does not impose a freestanding administrative feasibility prerequisite to class certification. Mindful of the Supreme Court's guidance, we decline to interpose an additional hurdle into the class certification process delineated in the enacted Rule.” (citing Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016))).

Defendant challenges ascertainability on three grounds: (1) the classes cannot be readily identified, (2) the classes are fail-safe, and (3) potential class members who purchased cars for personal use cannot be identified. The Court considers and rejects each argument in turn.

1. Identification

First, Defendant, without citation of authorities or the record, argues that Plaintiffs’ classes are not ascertainable because “[c]ars without an A53 starter and the owners of these cars cannot be identified with accuracy.” (Opp'n 9.) Defendant avers that to ascertain the classes, especially as to successive owners of cars, “without knowing who owned a car and when in relation to the starter replacement,” would be impracticable given that Defendant's records are imperfect. (Id. at 9–10.) The Court does not perceive an issue. “Plaintiffs’ class definitions rely on objective criteria that are verifiable through documentation of a purchase or lease of a class vehicle.” Keegan, 284 F.R.D. at 521–22. Whatever the relationship between successive owners, the owners would be a “purchaser or lessee” of the Class Vehicle. As such, it “is ‘administratively feasible for the court to determine whether a particular individual is a member” of the classes. Id. (quoting O'Connor, 184 F.R.D. at 327).

2. Fail-Safe Class

Second, Defendant argues that Plaintiffs’ classes are unascertainable because the classes are impermissible fail-safe classes. (Opp'n 10–11.) “The fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of the defendant is established.” Kamar v. Radio Shack Corp., 375 F. App'x 734, 736 (9th Cir. 2010). “When the class is so defined, once it is determined that a person, who is a possible class member, cannot prevail against the defendant, that member drops out of the class.” Id. “That is palpably unfair to the defendant, and is also unmanageable ․” Id. Defendant argues that the classes here are fail-safe because they are effective defined as “AIS cars with defective starters Honda has not repaired.” (Opp'n 10 (emphasis added).) Not so. The classes are defined as “[a]ll purchasers and lessees” of “model year 2015–2021 Honda Pilot, Ridgeline, or Passport, or Acura TLX or MDX, equipped with the NP0 engine, nine-speed automatic transmission, and the Automatic Idle Stop feature (“AIS”); and that has not had the starter motor assembly replaced with the A53 starter motor assembly for free under warranty” in the states at issue. (Proposed Order 1 & n.1, ECF No. 137-2.) This is a definite class of people. No liability findings at trial would change who did or did not purchase or lease a Class Vehicle, and the Class Vehicle definition does not hinge on a finding of defectiveness.

3. Business Use

Third, Defendant argues that Plaintiffs’ classes are unascertainable because class members who bought a Class Vehicle for personal use cannot be readily identified. (Opp'n 11–12.) This is important because several of the claims Plaintiffs bring require that a vehicle be purchased for personal use. See, e.g., Ala. Code § 8-19-3(4); Cal. Civ. Code § 1761. Thus, individual examination will be required. That said, this issue is not dispositive, Johnson v. Harley-Davidson Motor Co. Grp., LLC, 285 F.R.D. 573, 582–83 (E.D. Cal. 2012) (“While [personal or business use] by itself might not preclude class certification, it is nevertheless an individual question that weighs against class certification.”), and “[t]he majority of courts to have considered this issue have concluded that factual questions related to personal use do not prevent the certification of consumer protection class actions,” Yazzie v. Gurley Motor Co., No. CIV 14-555 JAP/SCY, 2015 WL 10818834, at *5 (D.N.M. Oct. 30, 2015) (collecting cases).

“[M]any consumer protection statutes ․ provide heightened safeguards for individuals who purchase goods primarily for person, family, or household use.” Yazzie, 2015 WL 10818834, at *5. “[T]he class action mechanism is well-suited to address technical violations of these statutes because class actions are designed ‘to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’ ” Id. (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).

And “the process for determining whether class members entered into a transaction primarily for personal, family, or household use is straightforward.” Id. As applicable to the ascertainability challenge, the Court finds persuasive the reasoning set forth by a Northern District of California court in its analysis of predominance:

[T]he fact finder may determine whether a vehicle was purchased for business or personal reasons by other means. If a vehicle was purchased for business purposes, then it is likely that the consumer will have taken title in a corporate name, will have a commercial license plate, or will have taken a tax deduction [on] the business use of that vehicle. In order to recover for this claim, class members may be required to submit a copy of the vehicle title showing it was taken in a personal name; a record showing that the car is not registered as a commercial vehicle, and a declaration under oath or document showing that they did not take a business tax deduction on their vehicle. This showing, while individualized, is relatively simple ․

In re Myford Touch Consumer Litig., No. 13-cv-03072-EMC, 2016 WL 7734558, at *24 (N.D. Cal. Sept. 14, 2016).

B. Rule 23(a)

1. Numerosity

Rule 23(a)(1) requires a class to be “so numerous that joinder of all members is impracticable.” “There is no set numerical cutoff used to determine whether a class is sufficiently numerous; courts must examine the specific facts of each case to evaluate whether the requirement has been satisfied.” Keegan, 284 F.R.D. at 522 (citing Gen. Tel. Co. v. EEOC, 446 U.S. 318, 329–30, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)). Defendant does not dispute that Plaintiffs’ proposed classes are sufficiently numerous, (see generally Opp'n), and Plaintiffs state that the smallest class has over 2,400 members, (see Mot. 12). As such, this element is met.

2. Commonality

Rule 23(a)(2) requires “questions of law or fact common to the class.” Courts construe this requirement permissively. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). “What matters to class certification ․ is not the raising of common ‘questions’ ․ but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (first ellipsis in original) (citation and internal quotation marks omitted). But “even a single common question will do.” Id. at 359, 131 S.Ct. 2541 (cleaned up).

Plaintiffs identify several common questions that would lead to a common answer: (1) whether the Class Vehicles are defective; (2) whether Defendant knew that they were defective at the time of sale; (3) whether any defect was material; (4) whether the Class Vehicles are unmerchantable; and (5) whether Defendant was unjustly enriched. (Reply 6.) Determination of these questions “will resolve an issue that is central to the validity of each [claim] in one stroke.” Dukes, 564 U.S. at 350, 131 S.Ct. 2541. As such, Plaintiffs have identified common questions susceptible to common answers.

Defendant complains that multiple issues can cause AIS No Restart, so “[c]ausation problems also stand in the way of identifying common issues here.” (Opp'n 13) (quoting Cholakyan v. Mercedes-Benz USA, LLC, 281 F.R.D. 534, 556 n.108 (C.D. Cal. 2012).) Defendant's argument is too narrowly framed. In Defendant's version of events, the defect is the Class Vehicle's overall failing to restart after the engine is shut off, which can be caused by a multitude of factors. (Opp'n 12–13.) But Plaintiffs’ asserted defect is not just that the Class Vehicles fail to restart. Rather, it is that the Class Vehicles use an underpowered starter motor. (Mot. 3–4.) This is sufficient to satisfy that commonality requirement. See Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1173 (9th Cir. 2010) (finding commonality satisfied as to early tire wear because “[a]lthough individual factors may affect premature tire ear, they do not affect whether the vehicles were sold with an alignment defect”).

Though the issue Defendant identifies does not defeat commonality, the Court examines it further in the predominance analysis. See Brewer v. Gen Nutrition Corp., No. 11-CV-3587 YGR, 2014 U.S. Dist. LEXIS 159380 at *14 (N.D. Cal. Nov. 12, 2014) (noting commonality and predominance may be analyzed together given that predominance subsumes commonality).

3. Typicality

Rule 23(a)(3) requires “the claims or defenses of the representative parties [to be] typical of the claims or defenses of the class.” “[R]epresentative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F.3d at 1020. “Typicality may be found lacking ‘if there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it.’ ” Keegan, 284 F.R.D. at 525 (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). But “[t]o be typical, a class member need not prove that she is immune from any possible defense, or that her claim will fail only if every other class member's claim also fails.” Id. “Instead, she must establish that she is not subject to a defense that is ‘[a]typical of the defenses which may be raised against other members of the proposed class.’ ” Id. (alteration in original) (quoting Hanon, 976 F.2d at 508).

Plaintiffs assert that their claims are typical because “all Class Members overpaid for vehicles with a defect that can cause them to unexpectedly stall, and each Class Member's claim arises from Honda's sale of these vehicles.” (Mot. 13.) Defendant argues that unique defenses apply to several of the named plaintiffs, which the Court addresses in turn.

Defendant argues that California Plaintiff Pourjafar bought a Class Vehicle just for business, and thus cannot assert California consumer protection and warranty claims, (Opp'n 14; see First Pourjafar Dep. Tr. 39–41, ECF No. 146-10). This argument ignores record evidence showing that Plaintiff Pourjafar may have actually purchased his vehicle for personal use, such as testimony that he leased it in his own name and used it to drive between work and home and to run personal errands. (Second Pourjafar Dep. Tr. 134, ECF No. 150-10.) Nor is this issue likely to be restricted to Plaintiff Pourjafar. As such, it is not a basis to find him atypical.

Defendant argues that Virginia Plaintiff Howell is atypical because she does not own the Class Vehicle at issue. Rather, her husband is on the title. (First Howell Dep. Tr. 37–38, ECF No. 146-12.) Based on this, Defendant argues, without citation of legal authority, that Plaintiff Howell lacks standing to bring Virginia claims. (Opp'n 15.) This argument is too underdeveloped to address. See Hibbs v. Dep't of Human Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001) (declining to address an “argument ․ too undeveloped to be capable of assessment”). In any case, the Court does not perceive why a Virginia resident would not have standing related to a purchase she researched and made jointly with her husband. (Second Howell Dep. Tr. 47–49, ECF No. 150-25). As such, Plaintiff Howell's standing is not a basis to find her atypical.

Defendant argues that New Hampshire Plaintiff Derry and Indiana Plaintiff Kaminski are time-barred from asserting claims, making them atypical. (Opp'n 15.) But “statute of limitations ․ defenses are not likely to be unique to the class representatives,” as class members discovered vehicle issues at different times. Sloan v. Gen. Motors LLC, No. 16-cv-07244-EMC, 2020 WL 1955643, at *49 (N.D. Cal. Apr. 23, 2020). As such, statute of limitations defenses do not provide a basis to find Plaintiffs Derry and Kaminski atypical.

4. Adequacy

Rule 23(a)(4) requires the named plaintiffs to “fairly and adequately protect the interests of the class.” “The adequacy of representation requirement ․ involves a two-part inquiry: ‘(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Keegan, 284 F.R.D. at 525 (quoting Hanlon, 150 F.3d at 1020).

Defendant argues that New York Plaintiff Qureshi, California Plaintiff Pourjafar, and Alabama Plaintiff Stewart are inadequate because the lawsuit found them, not the other way around. Specifically, Plaintiff Qureshi received a phone call after he filed a National Highway Traffic Safety Administration AIS No Restart complaint online, (First Qureshi Dep. Tr. 13–16, ECF No. 146-13); Plaintiff Pourjafar joined the action after his daughter saw a social media advertisement about the case, (First Pourjafar Dep. Tr. 18–19); and Plaintiff Stewart joined the action after filling out a form he found on social media, (First Stewart Dep. Tr. 12–13, ECF No. 146-15).

The Court does not see a problem with contact of this type. The cases Defendant cite are readily distinguishable. Bodner v. Oreck Direct, LLC, involved a plaintiff recruited through a newspaper advertisement who evinced “undeniable and overwhelming ignorance regarding the nature” of the case. No. C 06-4756, 2007 WL 1223777, at *1–2 (N.D. Cal. Apr. 25, 2007). He did not meet his attorney in person until the day before his deposition and did not read the complaint before it was filed. Id. And the plaintiff in Moheb v. Nutramax Laboratories Inc. only had “extremely limited” experience with the alleged defective product and was a had a “long-time friendship with the mother of one of her counsel.” No. CV 12-3633-JFW, 2012 WL 6951904, at *5 (C.D. Cal. Sept. 4, 2012). Finally, two of the named plaintiffs in English v. Apple Inc. were former employees of class counsel. No. 14-cv-01619-WHO, 2016 U.S. Dist. LEXIS 1555, at *43–44 (N.D. Cal. Jan. 5, 2016). No such extreme facts are before the Court here, and Defendant fails to meaningfully explain why Qureshi, Pourjafar, and Stewart's path to joining the action creates a conflict of interest or undermines their adequacy as class representatives.

Plaintiffs proffer that the named class plaintiffs “have demonstrated their commitment to this case and their familiarity with the claims ․ by actively participating in this litigation through producing, documents, providing written discovery responses, and making themselves available for depositions and even vehicle inspections.” (Mot. 14.)

As such, Plaintiffs are adequate representatives and satisfy all four elements of Rule 23(a).

C. Rule 23(b)(3)

Plaintiffs seek certification under Rule 23(b)(3). “Rule 23(b) requires two separate inquiries: (1) do issues common to the class ‘predominate’ over issues unique to individual class members, and (2) is the proposed class action ‘superior’ to other methods available for adjudicating the controversy.” Keegan, 284 F.R.D. at 546 (citing Fed. R. Civ. P. 23(b)(3)).

1. Predominance

“The predominance requirement is ‘far more demanding’ than the commonality requirement of Rule 23(a).” Id. (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623–24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). “If common questions ‘present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication,’ then ‘there is clear justification for handling the dispute on a representative rather than on an individual basis,’ and the predominance test is satisfied.” Id. (quoting Hanlon, 150 F.3d at 1022). “If the main issues in a case require the separate adjudication of each class member's individual claim or defense, [however,] a Rule 23(b)(3) action would be inappropriate.” Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1190 (9th Cir. 2001) (internal quotation marks omitted). “The class members’ claims do not need to be identical.” In re Myford Touch Consumer Litig., 2016 WL 7734558, at *13 (citing Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001)). “The inquiry before the Court is whether ․ ‘variation is enough to defeat predominance under Rule 23(b)(3).’ ” Id. (quoting Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund, 244 F.3d at 1163). “In other words, the Court must examine whether the variations ‘swamp’ the common issues.” Id.

Defendant argues that individual issues predominate every single claim. (Opp'n 16.) The Court considers each family of claims in turn.

a. Fraud and Consumer Protection Claims

At least one major common question exists for the fraud and consumer protection claims: whether Defendant knowingly omitted the alleged defect when dealing with its customers.

But Defendant highlights several grounds that it argues defeat predominance. First, each class member's reliance and exposure are individual issues. (Opp'n 17–20.) Second, materiality is individual to each class member. (Id. at 20–22.) And third, Defendant's evolving knowledge during the course of the alleged time frame bars the assumption of a common duty to disclose. (Id. at 22–23.) The Court addresses each argument.

i. Reliance and Exposure

All of Plaintiffs’ fraud ⁶ and many of Plaintiffs’ consumer protection claims require evidence of exposure and/or reliance.⁷ Plaintiffs do not cite any common evidence showing that exposure, reliance, or causation can be determined on a classwide basis. As such, determining whether each class member relied on, was exposed to, or had damages caused by the alleged fraudulent omission threatens to “swamp” this litigation. In re Myford Touch Consumer Litig., 2016 WL 7734558, at *13.

But these questions are not the end of the story. Several consumer protection laws allow for a classwide inference of reliance based on allegations or evidence that the same omission was made to the entire class.⁸ The same is true of some states’ fraud laws.⁹ Here, the third consolidated amended complaint alleges that Defendant told all class members that the vehicles were safe and failed to tell the class members about the defect. (See, e.g., TCAC ¶¶ 1363, 1412.) The third consolidated amended complaint also alleges that Plaintiff's “misleading statements and deceptive acts and practices were directed to the public at large, including” Plaintiffs and class members. (See, e.g., id. ¶ 1389.) These allegations are sufficient for the Court to infer classwide reliance on Defendant's alleged omission for the claims that allow for a classwide inference.

Defendant notes that only Class Members who purchased vehicles from Defendant-authorized dealerships and distributors interacted with Defendant, and thus the Court cannot assume exposure for Class Members who purchased used or salvaged vehicles. (Opp'n 18–19.) Plaintiff agrees “that the fraud and consumer protection claims should only be certified with respect to those who purchased or leased at an authorized dealership.” (Reply 8); see Daniel v. Ford Motor Co., 806 F.3d 1217, 1226 (9th Cir. 2015) (recognizing that manufacturers can make disclosures through authorized dealerships). The Court notes that some used vehicles also may have been purchased through an authorized dealer or distributor. As such, the Court certifies the fraud and consumer protection classes only as to purchasers and lessees who dealt with a Defendant-authorized dealership or distributor. This limitation also mitigates Defendants’ predominance concern as to whether Class Members were exposed to different information and evolving information. (Opp'n 19.)

ii. Materiality

Defendant also argues that the materiality of the alleged omission is an individual issue. (Opp'n 20.) “[I]n certain areas of the law materiality ‘is judged by an objective reasonable person standard ․ and can be determined relative to the class as a whole.’ ” In re Myford Touch Consumer Litig., 2016 WL 7734558, at *14 (ellipsis in original) (quoting Ehret v. Uber, 148 F. Supp. 3d 884, 902 (N.D. Cal. 2015)).¹⁰ But beyond the laws of the states discussed in the few cases Plaintiffs cite, (Mot. 16 n.8), it is not clear to the Court whether materiality can be determined on a classwide basis. Thus, whether each class member in states where materiality is not judged objectively found Defendant's omission material would “swamp” this litigation. In re Myford Touch Consumer Litig., 2016 WL 7734558, at *13. While Plaintiffs could have marshalled some evidence to show that materiality could be decided on a classwide basis, such as survey data, they have not done so. As such, they have failed to show predominance as to state laws where materiality is determined subjectively. Thus, the Court will only certify fraud and consumer protection classes in the four states for which Plaintiffs have provided authority to support a classwide finding of materiality.

Defendant separately argues that its investigation shows that AIS No Restart is not a safety issue, noting that some named plaintiffs would still have purchased their Class Vehicles if they had been informed of the alleged defect. (Opp'n 20–22.) There is conflicting evidence in the record as to whether AIS No Restart presents a safety issue, and it is within the role of the jury to determine the question either way. (Reply 9; see, e.g., Ferri Decl. Ex. 55, ECF No. 155-33.)

iii. Duty to Disclose

Defendant also argues that (1) there is no evidence it had a duty to disclose whatsoever and (2) even if it did have a duty to disclose, the duty arose at different times for each make and model. (Opp'n 22–23.) Again, Defendant does not engage with record evidence showing restart issues dating back to 2015. (See, e.g., Ferri Decl. Ex. 56, at 13, ECF No. 155-34; Gibson Dep. Tr. 241–42, ECF No. 155-3.) And ultimately, whether Defendant had a duty to disclose is a question going to the merits, not to predominance.

iv. Conclusion

For the reasons stated above, the Court certifies fraud and consumer protection classes where reliance and materiality can be inferred on a classwide basis: Maryland, California CLRA, Alabama, and Texas. As noted below, the class shall be restricted to those who purchased or leased vehicles directly from Defendant-affiliated dealers or distributors.

b. Implied Warranty Claims

Plaintiff contends that one common, determinative question predominates the implied warranty claims: “whether the Class Vehicles were fit for their ordinary use at the time of purchase or lease.” (Mot. 18.) Plaintiffs assert that all the states have substantially the same law as it applies to implied warranties, (id. at 17), and Defendant does not contest the issue except to note that California requires “substantial evidence of a defect that is substantially certain to result in malfunction during the useful life of the product.” (Opp'n 26 (quoting Torres v. Nissan N. Am., Inc., No. CV 15-03251 RGK (FFMx), 2015 WL 5170539, at *4, 2015 U.S. Dist. LEXIS 120381, at *13 (C.D. Cal. Sept. 1, 2015)); see id. at 23–26.) Defendant argues that three individual issues would actually predominate: (1) personal use, (id. at 23–25); (2) privity, (id. at 25–26); and (3) manifestation, (id. at 26). The Court considers each in turn.

i. Personal Use

Defendant contends that whether a vehicle was fit for its ordinary use cannot be determined on a classwide basis given some Plaintiffs’ substantial use of their vehicles. (Id. at 23–25.) The Court does not perceive why class members’ individual use of their cars would predominate, especially given how the defect in this action is framed. Plaintiffs do not argue that the Class Vehicles are defective because they become undriveable at a certain mileage. Rather, they argue that AIS No Restart is an inherent safety issue that exists in each Class Vehicle from the outset. See Daniel v. Ford Motor Co., No. 2:11-02890 WBS EFB, 2016 WL 8077932, at *6 (E.D. Cal. Sept. 23, 2016) (certifying implied warranty class where “fitness for ordinary purpose means that ‘the product is in safe condition and substantially free of defects’ ” (quoting Brand v. Hyundai Motor Am., 226 Cal. App. 4th 1538, 1546, 173 Cal.Rptr.3d 454 (2014))).

Defendant's assertion that some consumers turn off the AIS feature is inapposite. For one, all the Class Vehicles were sold with AIS, which is either defective or not defective. Further, as noted at the hearing, Class Vehicle owners cannot permanently disable AIS. They must do so each time they start the car. Thus, they risk exposure to the alleged defect. As such, class members’ personal usage would not predominate.

ii. Privity

Defendant argues that individual privity questions will predominate for classes in states that require privity for implied warranty claims: Alabama, Connecticut, New York, and Washington.¹¹ (Opp'n 25.) Plaintiffs counter that even in states that require privity, common questions such as whether a privity exception would apply would exist. (Reply 11–12.) But this inquiry would not come into existence until after the resolution of an individual question regarding whether a class member had privity. As such, the inquiry would swamp the litigation. That said, this issue can be mitigated by certifying a class of only persons who purchased directly from a Defendant-affiliated dealer or distributor, consistent with the consumer protection and fraud classes above.

iii. Manifestation

Defendant argues that a California implied warranty class is improper because Plaintiffs lack evidence that the alleged defect is substantially certain to result during the useful lifetime of the Class Vehicle. (Opp'n 26.) But the question is susceptible to common proof and common determination. See Keegan, 284 F.R.D. at 537 (“[I]f defendants can demonstrate that the design specification ․ is not ‘substantially certain’ to result in the excessive and premature tire wear about which plaintiffs complain, they will prevail. If plaintiffs, on the other hand, can demonstrate that the specification is substantially certain to result in premature and excessive tire wear that renders the vehicles unfit for driving, they will prevail. The breach of implied warranty claim is therefore susceptible of common proof, and the court will certify the implied warranty claim for class treatment.”).

iv. Conclusion

For the reasons stated above, the Court certifies implied warranty classes in Alabama, California, Connecticut, Indiana, Louisiana, Maryland, New Hampshire, New York, Pennsylvania, Texas, Virginia, and Washington. For the states that require privity—Alabama, Connecticut, New York, and Washington—the Court will define the classes to include only those who purchased vehicles from Defendant-affiliated dealers or distributors.

c. Unjust Enrichment Claims

Whether Defendant received an enrichment that is unjust is a common question that can be resolved on classwide basis.¹² Defendant argues that individual issues would predominate, as those who purchased used vehicles from third-party sellers would not have conferred an enrichment on Defendant. (Opp'n 27.) Consistent with the analysis above, this issue would be mitigated by restricting the class definition to only include those who purchased vehicles from Defendant-affiliated dealers or distributors.

d. Damages

A party seeking class certification must “establish[ ] that damages are capable of measurement on a classwide basis.” Comcast, 569 U.S. at 34, 133 S.Ct. 1426. “[A]ny model supporting a plaintiff's damages case must be consistent with its liability case ․” Id. at 35, 133 S.Ct. 1426 (internal quotation marks omitted). That is, a damages model must “measure damages resulting from the particular ․ injury on which ․ liability ․ is premised.” Id. at 36, 133 S.Ct. 1426.

“Plaintiffs seek benefit-of-the-bargain (or overpayment) damages, since Plaintiffs and Class Members paid for vehicles with a functioning AIS system but received vehicles with the AIS No Restart defect.” (Mot. 22; see Stockton Rep. ¶¶ 11–13, ECF No. 137-78.) Plaintiffs essentially seek $1,100 per class member, the cost of a starter replacement. (Stockton Rep. ¶ 61; Grout Dep. Tr. 188, ECF No. 155-24.)

Benefit-of-the-bargain damages are available for all the classes the Court is considering certifying.¹³ Defendant primarily takes issue with the fact that the damages model does not account for all the perceivable damages of the classes. (Opp'n 28–29.) But this does not mean the damages model is inconsistent with the liability case. Rather, there may be parts of the liability case that are broader than the model, but the benefit-of-the-bargain damages fit with each class and claim. See Nguyen v. Nissan N. Am., Inc., 932 F.3d 811, 819–22 (9th Cir. 2019) (affirming cost-of-repair damages); id. at 817 (“[I]ndividualized damages issues do not alone defeat certification.”).

Defendant also takes issue with the assumptions Plaintiffs’ expert takes to arrive at a damages estimate, (Opp'n 30–31), but damages experts are “entitled to assume liability in order to model the damages,” Riddell v. Gen. Motors LLC, No. 1:20-CV-254-SNLJ, 2024 WL 2077559, at *2 (E.D. Mo. May 9, 2024). Finally, Defendant's arguments about the relevance of ex post events, (Opp'n 31–32), are inconsistent with Plaintiffs’ theory of liability. Plaintiffs’ “theory is that the defect was inherent in each of the Class Vehicles at the time of purchase, regardless of when and if the defect manifested.” Nguyen, 932 F.3d at 819. As such, the damages model is consistent with Plaintiffs’ liability theory.

2. Superiority

“The superiority inquiry under Rule 23(b)(3) requires determination of whether the objectives of the particular class action procedure will be achieved in the particular case.” Hanlon, 150 F.3d at 1023. This requires evaluation of four factors:

(1) the interest of each class member in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in a particular forum; and (4) the difficulties likely to be encountered in the management of a class action.

Edwards v. City of Long Beach, 467 F. Supp. 2d 986, 992 (C.D. Cal. 2006) (internal quotation marks omitted).

“The first three factors are easily resolved.” In re Myford Touch Consumer Litig., 2016 WL 7734558, at *28. “Plaintiffs argue individual recovery here is likely to be so small as to make individual actions not worth bringing. A class action is therefore a superior option.” Id. No party has identified other litigation begun by class members, “so [that] factor is neutral.” Id. “So too is the desirability of concentrating the claims in this forum.” Id. “In evaluating this factor, courts look at ‘the location of the parties, witnesses, and evidence.’ ” Id. (quoting Breeden v. Benchmark Lending Grp., Inc., 229 F.R.D. 623, 631 (N.D. Cal. 2005)). “Here, class members are scattered across the country, so this forum is neither better nor worse for Plaintiffs than any other.” Id.

As to the fourth factor, Defendant argues that a class action is not superior because each class member would have to litigate numerous and substantial separate issues. (Opp'n 32.) The Court has narrowed Plaintiffs’ proposed classes to minimize the number and substance of the individual issues. While Defendant contends its fixes to the purported defect have been effective, record evidence does not bear that contention out. As such, this action is not obviously unmanageable.

In sum, subject to the limitations set forth above, the Court exercises its discretion to certify classes pursuant to Rule 23(b)(3).

D. Class Representatives and Class Counsel

Plaintiffs seek an order appointing the named plaintiffs as class representatives and appointing interim class counsel as class counsel. (Proposed Order 1–4.) The Court declines to do so at this juncture for two reasons. First, the Court's certification order departs from the proposed class definitions; as detailed above, some classes and subclasses consist of purchasers or lessees who purchased or leased Class Vehicles from Defendant-authorized dealers or distributors. Plaintiffs should confirm that the named plaintiffs are adequate class representatives for those narrowed classes and subclasses. Second, the parties offer no briefing on whether interim class counsel should be appointed as class counsel. Of course, the Court already conducted a Rule 23(g) analysis when it appointed interim class counsel over a competing movant. (See generally Order Re: Cross-Mots. to Appoint Interim Lead Counsel, ECF No. 62.) But Plaintiffs should provide any additional information material to the Rule 23(g) analysis that arose in the year and a half since the Court appointed interim class counsel. The Court invites additional briefing on these issues.

IV. CONCLUSION

For the reasons stated above, the Court grants in substantial part Plaintiffs’ motion to certify. The Court certifies the following classes:

• Alabama: a class of all purchasers or lessees of a Class Vehicle that was purchased in the State of Alabama from a Defendant-authorized dealer or distributor, which class may pursue claims under Alabama law for violation of the ADTPA, breach of the implied warranty of merchantability, fraudulent omission, and unjust enrichment.

• California: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of California, which class may pursue a claim under California law for breach of implied warranty, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of California from a Defendant-authorized dealer or distributor, which subclass may additionally pursue claims under California law for violation of the CLRA and unjust enrichment.

• Connecticut: a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of Connecticut from a Defendant-authorized dealer or distributor, which class may pursue claims under Connecticut law for breach of the implied warranty of merchantability and unjust enrichment.

• Indiana: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of Indiana, which class may pursue a claim under Indiana law for breach of the implied warranty of merchantability, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of Indiana from a Defendant-authorized dealer or distributor, which subclass may additionally pursue a claim under Indiana law for unjust enrichment.

• Louisiana: a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of Louisiana, which class may pursue claims under Louisiana law for redhibition and breach of warranty of fitness for ordinary use.

• Maryland: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased in the State of Maryland, which class may pursue a claim under Maryland law for breach of the implied warranty of merchantability, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased in the State of Maryland from a Defendant-authorized dealer or distributor, which subclass may additionally pursue claims under Maryland law for violation of the Maryland Consumer Protection Act, fraudulent omission, and unjust enrichment.

• New Hampshire: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased in the State of New Hampshire, which class may pursue a claim under New Hampshire law for breach of the implied warranty of merchantability, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased in the State of New Hampshire from a Defendant-authorized dealer or distributor, which subclass may additionally pursue a claim under New Hampshire law for unjust enrichment.

• New York: a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of New York from a Defendant-authorized dealer or distributor, which class may pursue a claim under New York law for breach of the implied warranty of merchantability.

• Pennsylvania: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the Commonwealth of Pennsylvania, which class may pursue a claim under Pennsylvania law for breach of the implied warranty of merchantability, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased or leased in the Commonwealth of Pennsylvania from a Defendant-authorized dealer or distributor, which subclass may additionally pursue a claim under Pennsylvania law for unjust enrichment.

• Rhode Island: a class of all purchasers or lessees of a Class Vehicle that was purchased in the State of Rhode Island from a Defendant-authorized dealer or distributor, which class may pursue claims under Rhode Island law for unjust enrichment.

• Texas: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of Texas, which class may pursue a claim under Texas law for breach of the implied warranty of merchantability, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased or leased in the State of Texas from a Defendant-authorized dealer or distributor, which subclass may additionally pursue claims under Texas law for violation of the Texas Deceptive Trade Practices–Consumer Protection Act, fraudulent omission, and unjust enrichment.

• Virginia: (1) a class of all purchasers or lessees of a Class Vehicle that was purchased or leased in the Commonwealth of Virginia, which class may pursue a claim under Virginia law for breach of the implied warranty of merchantability, and (2) a subclass of all purchasers or lessees of a Class Vehicle that was purchased or leased in the Commonwealth of Virginia, which subclass may additionally pursue a claim under Virginia law for unjust enrichment.

• Washington: a class of all purchasers or lessees of a Class Vehicle that was purchased in the State of Washington from a Defendant-authorized dealer or distributor, which class may pursue claims under Washington law for breach of the implied warranty of merchantability and unjust enrichment.

Decisions on class certification are subject to modification, including decertification. Falcon, 457 U.S. at 160, 102 S.Ct. 2364 (“Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.”); Rodriguez v. W. Publ'g Corp., 563 F.3d 948, 966 (9th Cir. 2009) (“A district court may decertify a class at any time.”).

The Court orders the parties to submit additional briefing on whether the named plaintiffs should be appointed as class representatives and whether interim class counsel should be appointed as class counsel. Plaintiffs shall file their brief within 14 days, and Defendant may file a response within 14 days after Plaintiffs file their brief. The briefs may not exceed 3,000 words.

The Court further orders the parties to meet and confer and to file within 28 days a proposed schedule and plan for further litigation, including the terms and timing of class notice, deadlines to complete motion practice and make pretrial filings, and dates the parties are available for trial. The parties shall propose dates for trial in or before May 2025.

IT IS SO ORDERED.

FOOTNOTES

1.   The Court granted the parties’ applications to seal documents filed in connection with the motion, (Order Re: Sealing Appls. 2, ECF No. 152), but some materials, including Defendant's memorandum of points and authorities, have not been publicly filed separately from the sealing applications.

2.   The vehicles are model year 2015 to 2021 Honda Pilots, Ridgelines, and Passports and Acura TLXs and MDXs equipped with the NP0 engine, nine-speed automatic transmission, and the Automatic Idle Stop feature where the starter motor assembly has not been replaced with the A53 starter motor assembly for free under warranty. (Notice of Mot. 1, ECF No. 137.) This Order refers to these vehicles as the “Class Vehicles.”

3.   The parties refer to this alleged defect as “AIS No Restart.” The Court adopts this appellation.

4.   Plaintiffs originally sought to certify a fourteenth Illinois class but have withdrawn that component of the motion. (See Notice 1 & n.1.)

5.   Redhibition is a Louisiana claim involving products that are “ ‘absolutely useless’ or ․ were so inconvenient or imperfect that a reasonable person would not have purchased them.” Hauck v. Advanced Micro Devices, Inc., 816 F. App'x 39, 44 (9th Cir. 2020) (quoting Justiss Oil Co. v. Oil Country Tubular Corp., 216 So. 3d 346, 361 (La. Ct. App. 2017)).” “In a suit for redhibition, the plaintiff must prove: 1) the seller sold the thing to him and it is either absolutely useless for its intended purpose or its use is so inconvenient or imperfect that, judged by the reasonable person standard, had he known of the defect, he would never have purchased it; 2) the thing contained a nonapparent defect at the time of sale; and 3) the seller was given an opportunity to repair the defect.” Justiss Oil Co., 216 So. 3d at 361 (cleaned up). In this Order, the Court groups the claim with the implied warranty claims.

6.   The parties agree that all the states at issue require reliance for fraud by omission. (Mot. 20; see Opp'n 17.)

7.   As it relates to consumer protection laws, reliance is required for (1) the Alabama Deceptive Trade Practices Act, Suchanek v. Sturm Foods, Inc., No. 11-CV-565-NJR-RJD, 2018 WL 6617106, at *6 (S.D. Ill. July 3, 2018) (“In sum, causation and reliance are elements of the ADTPA, but Plaintiffs are entitled to a rebuttable presumption of reliance if they show Defendants made a uniform and material misrepresentation to the class.”); (2) the California Consumer Legal Remedies Act, id. at *7 (“To recover under the CLRA, Plaintiffs must establish ․ Plaintiffs’ reliance on the act or omission ․”); (3) the Indiana Deceptive Consumer Sales Act, Crum v. SN Servicing Corp., No. 1:19-cv-02045-JRS-TAB, 2021 WL 3514153, at *4 (S.D. Ind. Aug. 10, 2021) (“Only a ‘person relying upon an uncured or incurable deceptive act may bring an action for the damages’ under the IDCSA.” (emphasis removed) (quoting Ind. Code § 24-5-0.5-4(a))); (4) the Maryland Consumer Protection Act, Lloyd v. Gen. Motors Corp., 397 Md. 108, 916 A.2d 257, 277 (Md. Ct. App. 2007) (“[T]he consumer must have suffered an identifiable loss, measured by the amount the consumer spent or lost as a result of his or her reliance on the sellers’ misrepresentation.”); (5) the Pennsylvania Unfair Trade Practices Act, Cessna v. REA Energy Coop., Inc., 258 F. Supp. 3d 566, 579 (W.D. Pa. 2017) (“To bring a private cause of action under the UTPCPL, a plaintiff must show that he justifiably relied on the defendant's wrongful conduct or representation and that he suffered harm as a result of that reliance.” (quoting Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425, 438 (2004))); (6) the Texas Deceptive Trade Practices–Consumer Protection Act, Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 693 (Tex. 2002) (“As we have noted, reliance is an element of ․ DTPA ․”); and (7) the Virginia Consumer Protection Act, Fravel v. Ford Motor Co., 973 F. Supp. 2d 651, 658 (W.D. Va. 2013) (“Virginia courts have consistently held that reliance is required to establish a VCPA claim.” (quoting Adardour v. Am. Settlements Inc., No. 1:08CV798, 2009 WL 1971458, at *3 (E.D. Va. July 2, 2009))). And even where reliance is not explicitly required, reliance may still be relevant in considering causation. See Martinelli v. Petland, Inc., No. CV-09-529-PHX-DGC, 2010 WL 376921 at *9, 2010 U.S. Dist. LEXIS 5965 at *30 (D. Ariz. Jan. 30, 2010) (“causation required under Washington consumer protection statute even through ‘reliance is not the only means by which causation can be proven’ ” (quoting Schnall v. AT&T Wireless Servs., Inc., 139 Wash.App. 280, 161 P.3d 395, 401–02 (2007))); id. (“plaintiff bringing a claim under New Hampshire statute must ‘establish a causal link between the conduct at issue and his or her injury’ ” (quoting Mulligan v. Choice Mortg. Corp. USA, No. CIV. 96-596-B, 1998 WL 544431 at *11, 1998 U.S. Dist. LEXIS 13248 at *11 (D.N.H. Aug. 11, 1998))).

8.   This is true of the laws of Alabama, Suchanek, 2018 WL 6617106, at *6 (“[C]ausation and reliance are elements of the ADTPA, but Plaintiffs are entitled to a rebuttable presumption of reliance if they show Defendants made a uniform and material misrepresentation to the class.”); California, Mass. Mut. Life Ins. Co. v. Superior Ct., 97 Cal. App. 4th 1282, 1292–93, 119 Cal.Rptr.2d 190 (2002) (“[I]f the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class.” (internal quotation marks omitted)); Indiana, Heckler & Koch, Inc. v. German Sport Guns GmbH, No. 1:11-cv-01108-SEB-TAB, 2015 WL 13639195, at *4 (S.D. Ind. Apr. 21, 2015) (“[R]eliance may be inferred indirectly from circumstances, and ․ a plaintiff need not produce direct evidence of it to withstand summary judgment.”); Maryland, In re Marriott Int'l, Inc. Customer Data Sec. Breach Litig., 341 F.R.D. 128, 160 (D. Md. 2022) (“The use of an objective test to determine materiality allows courts to presume classwide reliance under the MCPA when the alleged omission is uniformly applicable to the putative class.”), vacated and remanded on other grounds, Marriott Int'l, Inc. v. Accenture LLP, 78 F.4th 677 (4th Cir. 2023); Texas, Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 1164–65 (N.D. Cal. 2008) (“If a plaintiff could prove reliance in an individual action with the same evidence offered to show class-wide reliance, then the issue is one of law and fact common to the class.” (quoting Henry Schein, 102 S.W.3d at 694)); and Virginia, Sonneveldt v. Mazda Motor of Am., Inc., No. 8:18-cv-01298-JLS-KES, 2022 WL 17357780, at *31 (C.D. Cal. Oct. 21, 2022) (“ ‘[O]ften reliance is a matter that is demonstrated inferentially and by circumstantial proof’ and could be proven indirectly and inferentially for a class of consumers.” (quoting Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538, 563 (E.D. Va. 2000))), class decertified in part, 2023 WL 1812157 (C.D. Cal. Jan. 25, 2023).

9.   This is true of California, Sonneveldt, 2022 WL 17357780, at *23 (“Federal courts applying California law have concluded that ‘[c]lass certification of a fraud claim may be appropriate if the plaintiffs allege that an entire class of people has been defrauded by a common course of conduct.’ ” (quoting Plascencia v. Lending 1st Mortg., LLC, 259 F.R.D. 437, 447 (N.D. Cal. 2009))); and Illinois, Mullen v. GLV, Inc., 330 F.R.D. 155, 167 (N.D. Ill. 2019) (“[A] court may infer reliance or proximate causation on a class-wide basis when ‘potential members have been subject to standardized misrepresentations’ and there is a ‘clear and logical connection’ between the misrepresentation and the class members’ conduct that suggests that no rational class member would have acted as they did absent the misrepresentation.” (quoting Rowe v. Bankers Life & Cas. Co., No. 09-cv-491, 2012 WL 1068754, at *10–11 (N.D. Ill. Mar. 29, 2012))). Plaintiffs argue that the same is true in Alabama and Rhode Island, but the case they cite stands for no such thing. See In re Takata Airbag Prod. Liab. Litig., 677 F. Supp. 3d 1311, 1319, 1327–28 (S.D. Fla. 2023).

10.   According authorities extend to the laws of Maryland, In re Marriott Int'l, Inc. Customer Data Sec. Breach Litig., 341 F.R.D. at 159–60 (“Under the MCPA, whether the failure to state a material fact tends to deceive is ‘judged from the point of view of a reasonable, but unsophisticated consumer.’ ” (quoting Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 484 (C.D. Cal. 2012))); California’s CLRA, Torres v. Adventist Health Sys./W., 77 Cal. App. 5th 500, 513, 292 Cal.Rptr.3d 557 (2022) (“For purposes of the CLRA, a fact is material if a reasonable consumer would deem it important in determining how to act in the transaction at issue.” (internal quotations marks removed)); and Alabama and Texas, Speerly v. Gen. Motors, LLC, 343 F.R.D. 493, 520 (E.D. Mich. 2023) (collecting cases).

11.   Defendant also challenged certification of the Rhode Island implied warranty claim, which Plaintiffs withdrew. (See Reply 12.)

12.   The Court notes that, at least in California, “there is not a standalone cause of action for ‘unjust enrichment.’ ” Astiana v. Hain Celestial Grp., 783 F.3d 753, 762 (9th Cir. 2015). The implications of this principle are better addressed in a separate motion.

13.   To wit, such damages are available for the Alabama fraud class, Reynolds v. Mitchell, 529 So. 2d 227, 233–34 (Ala. 1988); the Alabama implied warranty class, Ala. Code §§ 7-2-714(2), 7-2A-519(4); the Alabama unjust enrichment class, Scrushy v. Tucker, 955 So.2d 988, 1011 (Ala. 2006); the California CLRA class, In re Gen. Motors LLC Ignition Switch Litig., 407 F. Supp. 3d 212, 223–26 (S.D.N.Y. 2019) (Gen. Motors III); the California implied warranty class, id.; the California unjust enrichment class, id.; the Connecticut implied warranty class, Conn. Gen. Stat. §§ 42a-2-714(2), 42a-2A-735(a); the Connecticut unjust enrichment class, In re Gen. Motors LLC Ignition Switch Litig., 339 F. Supp. 3d 262, 334–35 (S.D.N.Y. 2018) (Gen. Motors II); the Indiana implied warranty class, Ind. Code §§ 26-1-2-714(2), 26-1-2.1-519(4); the Indiana unjust enrichment class, Neibert v. Perdomo, 54 N.E. 3d 1046, 1051 (Ind. Ct. App. 2016); the Louisiana redhibition class, Dixie Roofing Co. of Pineville, Inc. v. Allen Parish Sch. Bd., 690 So. 2d 49, 56 (La. Ct. App. 1996); the Maryland fraud class, Call Carl, Inc. v. BP Oil Corp., 554 F.2d 623, 629 (4th Cir. 1977); the Maryland consumer protection class, see id.; the Maryland implied warranty class, Lloyd v. Gen. Motors Corp., 397 Md. 108, 916 A.2d 257, 287 (Md. Ct. App. 2007); the Maryland unjust enrichment class, Hill v. Cross Country Settlements, LLC, 402 Md. 281, 936 A.2d 343, 351–52 (Md. Ct. App. 2007); the New Hampshire implied warranty class, N.H. Rev. Stat. Ann. §§ 382-A:2-714(2), 382-A:2A-519(4); the New Hampshire unjust enrichment class, Gen. Motors II, 339 F. Supp. 3d at 336–37; the New York implied warranty class, N.Y. U.C.C. Law §§ 2-714(2), 2A-519(4); the Pennsylvania implied warranty class, 13 Pa. Cons. Stat. §§ 2714(b), 2A519(d); the Pennsylvania unjust enrichment class, In re Gen. Motors LLC Ignition Switch Litig., 257 F. Supp. 3d 372, 444–45 (S.D.N.Y. 2017) (Gen. Motors I); the Rhode Island unjust enrichment class, Keystone Elevator Co., Inc. v. Johnson & Wales Univ., No. M.P.00-767, C.A.00-406, 2002 WL 169195, at *10 (R.I. Superior Ct. Jan. 17, 2002); the Texas fraud class, Gen. Motors III, 407 F. Supp. 3d at 229–31; the Texas consumer protection class, id.; the Texas implied warranty class, id.; the Texas unjust enrichment class, Gen. Motors I, 257 F. Supp. 3d at 444–45; the Virginia implied warranty class, Va. Code Ann. §§ 8.2-714(2), 8.2A-519(4); the Virginia unjust enrichment class, Oswald v. Holtzman, 90 Va. Cir. 9, 12 (2015); the Washington implied warranty class, Wash. Rev. Code §§ 62A.2-714(2), 62A.2A-519(4); and the Washington unjust enrichment class, Young v. Young, 164 Wash.2d 477, 191 P.3d 1258, 1261–62 (2008).

MARK C. SCARSI, UNITED STATES DISTRICT JUDGE