2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-7-2012

Jeffrey Marcus v. BMW

Precedential or Non-Precedential: Precedential

Docket No. 11-1192

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 11-1192 & 11-1193

_______________

JEFFREY MARCUS, Individually and On Behalf of All 

Others Similarly Situated.

v.

BMW of NORTH AMERICA, LLC;

BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC,

f/k/a BRIDGESTONE FIRESTONE 

NORTH AMERICAN TIRE, LLC;

BRIDGESTONE CORPORATION

BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC,

f/k/a BRIDGESTONE FIRESTONE 

NORTH AMERICAN TIRE, LLC;

BRIDGESTONE CORPORATION,

Appellants (No. 11-1192)

BMW OF NORTH AMERICA, LLC,

Appellant (No. 11-1193)
2

_______________

On Appeal from the United States District Court

For the District of New Jersey

(D.C. Civil Action No. 2-08-cv-05859)

District Judge: Honorable Katharine S. Hayden

_______________

Argued September 20, 2011

_______________

Before: AMBRO, CHAGARES, and ALDISERT, Circuit 

Judges

(Opinion filed August 07, 2012)

Hugh R. Whiting, Esq. [ARGUED]

Dustin B. Rawlin, Esq.

Jones Day

North Point

901 Lakeside Avenue

Cleveland, OH 44114

Counsel for Appellant,

Bridgestone Corporation

Susan T. Dwyer, Esq.

Herrick Feinstein LLP

2 Park Avenue

New York, NY 10016

Ronald J. Levine, Esq.

David R. King, Esq.
3

Herrick Feinstein LLP

210 Carnegie Center

Princeton, NJ 08540

Counsel for Appellant,

Bridgestone Americas Tire Operations, LLC

Rosemary J. Bruno, Esq.

Christopher J. Dalton, Esq. [ARGUED]

Buchanan Ingersoll & Rooney

550 Broad Street, Suite 810

Newark, NJ 07102

Counsel for Appellant,

BMW of North America, LLC

Karin E. Fisch, Esq. [ARGUED]

Orin Kurtz, Esq.

Abbe, Spanier, Rodd & Abrams LLP

212 East 39th Street

New York, NY 10016

Alan E. Sash, Esq.

Steven J. Hyman, Esq.

McLaughlin & Stern, LLP

260 Madison Avenue

New York, NY 10016

Counsel for Appellee,

Jeffrey Marcus
4

_______________

OPINION OF THE COURT

_______________

AMBRO, Circuit Judge

Table of Contents

I. Factual and Procedural Background ...............................6

II. Jurisdiction and Standard of Review.............................10

III. Preliminary Matters.......................................................10

A. The Class Definition and the Claims to be Given Class 

Treatment ...................................................................12

B. Ascertainability...........................................................14

IV. Rule 23(a)......................................................................18

A. Numerosity .................................................................18

B. Commonality ..............................................................24

C. Typicality....................................................................25

V. Rule 23(b)(3): Predominance.......................................29

A. The Common Law Claims .........................................30

1. Common Proof of Susceptibility to Road Hazard 

Damage.................................................................32

2. Common Proof of Proximate Causation ..............36

B. The New Jersey Consumer Fraud Act Claims...........39

VI. Conclusion ....................................................................55

This class action involves run-flat tires (“RFTs”). As 

their name suggests, they can “run” while “flat.” Even if an 

RFT suffers a total and abrupt loss of air pressure from a 

puncture or other road damage, the vehicle it is on remains 
5

stable and can continue driving for 50 to 150 miles at a speed 

of up to 50 miles per hour.

Jeffrey Marcus leased a BMW convertible equipped 

with four Bridgestone RFTs. Unfortunately, he experienced 

four “flat” tires during his three-year lease. In each case, the 

RFT worked as intended. Even though the tire lost air 

pressure, Marcus was able to drive his car to a BMW dealer

to have the tire replaced. Unsatisfied nonetheless, Marcus

sued Bridgestone Corporation, Bridgestone Americas Tire 

Operations, LLC (“BATO”) (together “Bridgestone”), and 

BMW of North America, LLC (“BMW”), asserting consumer 

fraud, breach of warranty, and breach of contract claims. 

Among other things, he claims that Bridgestone RFTs are 

“defective” because they: (1) are “highly susceptible to flats, 

punctures and bubbles, and . . . fail at a significantly higher 

rate than radial tires or other run-flat tires;” (2) cannot be 

repaired, only replaced, “in the event of a small puncture;” 

and (3) are “exorbitantly priced.” J.A. 91, 100, 102. He also 

claims RFT-equipped BMWs cannot be retrofitted to operate 

with conventional, non-run-flat tires, and that “many service 

stations do not sell” Bridgestone RFTs, making them difficult 

to replace. J.A. 91, 92. He faults BMW and Bridgestone for 

failing to disclose these “defects.”

The District Court certified Marcus’s suit under 

Federal Rule of Civil Procedure 23(b)(3) as an opt-out class 

action brought on behalf of all purchasers and lessees of 

certain model-year BMWs equipped with Bridgestone RFTs 

sold or leased in New Jersey with tires that “have gone flat 

and been replaced.” For the reasons that follow, we part from

the District Court. Among other problems, on the record 

before us, Marcus’s claims do not satisfy the numerosity and

predominance requirements. We thus vacate the District 

Court’s certification order and remand for proceedings 

consistent with this opinion.
6

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 2007, Jeffrey Marcus (a New York resident) leased 

a 2007 BMW 328ci from an authorized BMW dealership in 

Ramsey, New Jersey. The convertible first caught his eye at 

another dealership in South Hampton, New York. He saw the 

car on the showroom floor and, interest piqued, picked up a 

brochure. Aside from visiting the dealership, picking up the 

brochure, and riding in a friend’s 328ci as a passenger, 

Marcus claims he “absolutely [did] not” do any other research 

on BMW vehicles or RFTs before leasing his car. J.A. 875.

As noted, Marcus suffered four “flat”1

Marcus’s first two flat tires were not available for 

inspection in this lawsuit. Dealer records show that a nail 

punctured the first tire and the second was replaced due to a 

“blown out bubble.” J.A. 407-08. Marcus’s third tire was 

replaced because he ran over a chunk of metal “the size of a 

finger,” according to his own expert, and his fourth because 

he ran over another sharp object that tore and gouged the tire 

and damaged the sidewall. J.A. 300. The parties’ experts 

agree that the third and fourth tires could not have been 

tires during his 

three-year lease. Each time he experienced a flat, he drove 

his car to a BMW dealership in New York and had the tire

replaced. BMW then billed Marcus between $350 to $390 for 

parts, labor, fees, and taxes. See J.A. 407-11. After his first 

flat, Marcus purchased a road-hazard warranty for about 

$400, which covered at least some of the replacement costs 

for flat tires two through four. See J.A. 880.

 1 As noted in our introduction, RFTs do not go “flat” in the 

conventional sense. When discussing RFTs, we use the term 

“flat” to mean a tire that has suffered a loss of air pressure 

and been replaced.
7

repaired, and that any tire (run-flat or conventional) would 

have been damaged, if not destroyed, under the 

circumstances. See J.A. 300, 414-15. They also agree on two 

other, more general propositions: (1) a tire can “go flat” or 

fail for a wide variety of reasons and not be a “defective” tire;

and (2) to determine properly and accurately the cause of any 

particular tire failure, a careful and thorough examination of 

that tire is necessary. See J.A. 305, 399, 1476-77.

The parties dispute what Marcus knew about RFTs and 

RFT-equipped BMWs before leasing his car and, more 

importantly, what other purchasers and lessees could have 

known. To “provide a market and consumer perspective” on 

RFTs and BMWs, BMW presented the expert report and 

testimony of William Pettit. See J.A. 1761-76. He concluded 

that “[a]n abundance of [RFT] information exists in the public 

domain extolling the safety and convenience benefits and

discussing potential downsides.” J.A. 1769. He pointed to 

BMW and Bridgestone documents (e.g., their press releases

and marketing brochures), as well as information from the 

public domain (e.g., articles in publications like Consumer 

Reports, BusinessWeek, The Wall Street Journal, and The

New York Times).

To take but a few examples, BMW boasts in its 

brochures that “should you get a flat, you can still travel up to 

150 miles at 50 mph, thanks to [the 2007 BMW 3 Series 

Convertible’s] standard run-flat tires,” J.A. 329, “so you can 

drive off a busy highway, out of a dangerous area, or just 

continue on your journey on a rainy night,” J.A. 1108. In 

several other places, its brochures mention that the car comes 

equipped with RFTs and that, “[d]ue to low-profile tires, 

wheels, tires and suspension parts are more susceptible to 

road hazard and consequential damages.” J.A. 366, 374, 377, 

380. A warning about road hazard susceptibility also appears

in Bridgestone’s tire warranty — “low aspect ratio tires, with 
8

reduced sidewall height, may be more susceptible to damage 

from potholes, road hazards, and other objects such as curbs” 

— as well as in BMW press releases from July 2006 and 

March 2007. See J.A. 577, 579, 580, 993, 1449. In addition, 

the BMW Owner’s Manual for the 328i warns drivers that,

“[f]or safety reasons, BMW recommends that damaged RunFlat Tires be replaced rather than repaired.” J.A. 1558. 

BMW’s “Approved Tires” brochure similarly advises 

consumers that “[w]hile some tire manufacturers will allow 

tire repairs, BMW only recommends replacement of damaged 

tires.” J.A. 1092. BMW and Bridgestone also highlight 

information from the public domain. An April 2006 

BusinessWeek article says, “Run-flat tires aren’t cheap. Four 

Bridgestone Blizzak Run-Flats cost about $1,200, compared 

with perhaps $500 to $800 for comparable conventional 

tires.” J.A. 762. Sounding a similar note, an article from the 

June 2007 Consumer Reports mentions that some RFT 

owners have complained about “limited replacement choices” 

and “high replacement costs.” J.A. 961. However, this report 

concludes that “[d]espite the disadvantages and 

inconveniences of run-flat tires for many, Consumer Reports

believes that the safety benefits can outweigh the downsides.” 

Id.

Marcus disputes BMW’s and Bridgestone’s openness

about RFTs, the information available in the public domain, 

and whether this information is sufficient to provide 

consumers with notice about the downsides of Bridgestone 

RFTs. He offers internal BMW and Bridgestone documents 

— such as emails, research reports and marketing surveys —

to show that the defendants were aware that many other 

consumers were as displeased with RFTs as he was.

After his second flat tire, Marcus sued BMW and 

Bridgestone. In his Amended Class Action Complaint, he

asserts claims against BMW and Bridgestone: (1) on behalf of 
9

a nationwide class, for breach of implied warranty in 

violation of the Magnuson Moss Warranty Act (“MMWA”);

and (2) on behalf of a New Jersey sub-class for (a) consumer 

fraud in violation of the New Jersey Consumer Fraud Act 

(“NJCFA”), (b) breach of implied warranty, (c) breach of 

contract, and (d) breach of the implied covenant of good faith 

and fair dealing. He also asserts a claim on behalf of the New 

Jersey sub-class for breach of express warranty against 

BMW.

The District Court denied Marcus’s motion for class 

certification with respect to the nationwide class, but granted

the motion with respect to the New Jersey sub-class. See 

Marcus v. BMW of N. Am., LLC, No. 08-5859 (KSH), 2010 

WL 4853308 (D.N.J. Nov. 19, 2010). The Court did not 

provide a definition of the class it certified, though it crossreferenced the docket entry for Marcus’s amended notice of 

motion for class certification. That notice sought certification 

of a

New Jersey state subclass consisting of [any] 

and [a]ll current and former owners and lessees 

of 2006, 2007, 2008, and 2009 BMW vehicles 

equipped with run-flat tires manufactured by 

Bridgestone and/or BATO and sold or leased in 

[New Jersey] whose Tires have gone flat and 

been replaced (excluded from the Class and the 

Sub-Class are Defendants, as well as 

Defendants’ affiliates, employees, officers and 

directors, including franchised dealers, and any 

person who has experienced physical injury as a 

result of the defects at issue in this litigation) . . 

. .

J.A. 198.
10

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. 

§ 1332(d). Having granted BMW’s and Bridgestone’s 

petitions for leave to appeal under Federal Rule of Civil 

Procedure 23(f), we have appellate jurisdiction under 28 

U.S.C. § 1292(e).

“We review a class certification order for abuse of 

discretion, which occurs if the district court’s decision rests 

upon a clearly erroneous finding of fact, an errant conclusion 

of law or an improper application of law to fact.” In re 

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d 

Cir. 2009) (quotation marks omitted). “[W]hether an 

incorrect legal standard has been used is an issue of law to be 

reviewed de novo.” Id.

III. PRELIMINARY MATTERS

“The class action is an exception to the usual rule that 

litigation is conducted by and on behalf of the individual 

named parties only.” Wal-Mart Stores v. Dukes, 131 S. Ct. 

2541, 2550 (2011) (quotation marks omitted). To invoke this 

exception, every putative class action must satisfy the four 

requirements of Rule 23(a) and the requirements of either

Rule 23(b)(1), (2), or (3). See Fed. R. Civ. P. 23(a)-(b). To 

satisfy Rule 23(a),

(1) the class must be “so numerous that joinder 

of all members is impracticable” (numerosity); 

(2) there must be “questions of law or fact 

common to the class” (commonality); (3) “the 

claims or defenses of the representative parties” 

must be “typical of the claims or defenses of the 

class” (typicality); and (4) the named plaintiffs 

must “fairly and adequately protect the interests 
11

of the class” (adequacy of representation, or 

simply adequacy).

In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010)

(quoting Fed. R. Civ. P. 23). Rule 23(b)(3), the basis for 

certification here, “requires that (i) common questions of law 

or fact predominate (predominance), and (ii) the class action 

is the superior method for adjudication (superiority).” Id.

“[T]he requirements set out in Rule 23 are not mere 

pleading rules.” Hydrogen Peroxide, 552 F.3d at 316; see 

also Dukes, 131 S. Ct. at 2551. The party seeking 

certification bears the burden of establishing each element of 

Rule 23 by a preponderance of the evidence. See Hydrogen 

Peroxide, 553 F.3d at 307. Echoing the Supreme Court, we 

have repeatedly “emphasize[d] that ‘[a]ctual, not presumed[,]

conformance’ with Rule 23 requirements is essential.” Id. at 

326 (quoting Newton v. Merril Lynch, Pierce, Fenner & 

Smith, Inc., 259 F.3d 154, 167 (3d Cir. 2001) (quoting Gen. 

Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982))). 

To determine whether there is actual conformance with 

Rule 23, a district court must conduct a “rigorous analysis” of 

the evidence and arguments put forth. Id. at 316 (quoting

Falcon, 457 U.S. at 161). When doing so, the court cannot be 

bashful. It “must resolve all factual or legal disputes relevant 

to class certification, even if they overlap with the merits —

including disputes touching on elements of the cause of 

action.” Id. at 307.2

 2 As a practical matter, the certification decision is typically a 

game-changer, often the whole ballgame, for plaintiffs and 

plaintiffs’ counsel. See Newton, 259 F.3d at 167 (“[D]enying 

or granting class certification is often the defining moment in 

class actions (for it may sound the ‘death knell’ of the 

 Rule 23 gives no license to shy away 
12

from making factual findings that are necessary to determine 

whether the Rule’s requirements have been met.

Before considering Rule 23(a) and Rule 23(b)(3), we 

address two preliminary matters: (1) whether the District 

Court clearly defined the parameters of the class and the 

claims to be given class treatment, as required by Rule 

23(c)(1)(B); and (2) whether the class must be (and, if so, is 

in fact) objectively ascertainable.

A. The Class Definition and the Claims to be Given 

Class Treatment

“An order that certifies a class action must define the 

class and the class claims, issues, or defenses . . . .” Fed. R. 

Civ. P. 23(c)(1)(B). Specifically, “the text of the order or an 

incorporated opinion must include (1) a readily discernible, 

clear, and precise statement of the parameters defining the 

class or classes to be certified, and (2) a readily discernible, 

clear, and complete list of the claims, issues or defenses to be 

treated on a class basis.” Wachtel v. Guardian Life Ins. Co., 

453 F.3d 179, 187 (3d Cir. 2006). Clearly delineating the 

contours of the class along with the issues, claims, and 

defenses to be given class treatment serves several important 

purposes, such as providing the parties with clarity and 

assisting class members in understanding their rights and 

making informed opt-out decisions. Id.

 

litigation on the part of plaintiffs, or create unwarranted 

pressure to settle nonmeritorious claims on the part of 

defendants) . . . . ”). Appropriately, attentiveness to “the 

potential for unwarranted settlement pressure” coincides with 

a court’s obligation to conduct a “rigorous analysis” of 

whether a plaintiff has demonstrated actual conformance with 

Rule 23. Hydrogen Peroxide, 552 F.3d at 310.
13

The definition of the class certified here is not clear 

and precise. Rather than set out its own definition, the 

District Court noted in its certification order that

“[c]ertification of the New Jersey sub-class is granted [D.E. 

144],” cross-referencing the docket entry for Marcus’s 

amended notice of motion for class certification. That notice 

sought certification of a

New Jersey state subclass consisting of [any] 

and [a]ll current and former owners and lessees 

of 2006, 2007, 2008, and 2009 BMW vehicles 

equipped with run-flat tires manufactured by 

Bridgestone and/or BATO and sold or leased in 

the United States whose Tires have gone flat 

and been replaced (excluded from the Class and 

the Sub-Class are Defendants, as well as 

Defendants’ affiliates, employees, officers and 

directors, including franchised dealers, and any 

person who has experienced physical injury as a 

result of the defects at issue in this litigation) . . 

. .

J.A. 198. Although Marcus’s notice of motion defines the 

New Jersey subclass in terms of vehicles “sold or leased in 

the United States,” the Court mentions in its accompanying 

opinion that the subclass is “limited to those who bought or 

leased their cars in New Jersey.” Marcus, 2010 WL 4853308 

at *1. 

Even with this correction, however, the parameters of 

Marcus’s class definition are far from clear. As written, the 

definition seems to include not only (1) owners and lessees

who bought or leased a new or used BMW from a New Jersey

BMW dealership, but also (2) subsequent owners and lessees 

who bought or leased a used BMW in New Jersey from 

anyone, not just BMW dealers, and even (3) subsequent 
14

owners and lessees who bought or leased a used BMW 

anywhere in the country from anyone whose BMW was 

initially bought or leased in New Jersey. When confronted 

with this ambiguity at oral argument, Marcus’s counsel 

clarified that the “intent” was to include only owners and 

lessees of new BMWs purchased or leased in New Jersey

from BMW dealerships with original-equipment Bridgestone 

RFTs. See Oral Arg. Tr. 20:19-:24. Even if the District 

Court shared counsel’s understanding of the class definition, 

counsel’s post hoc clarification is no substitute for a “readily 

discernible, clear, and precise statement of the parameters 

defining the class . . . to be certified” in either the certification 

order or accompanying opinion. Wachtel, 453 F.3d at 187.

In addition, the certification order does not define the 

claims, issues, or defenses to be treated on a class basis at all. 

The District Court’s opinion does address Marcus’s claims 

and the issues presented, but we cannot find “a readily 

discernible, clear, and complete list.” Id.; see also id. at 189 

(noting that an opinion that forces us to “comb the entirety of 

its text” and “cobble together the various statements” in 

search of “isolated statements that may add up to a partial list 

of class claims, issues, or defenses falls short of the readily 

discernible and complete list of class claims, issues, or 

defenses required by the Rule”).

Rule 23(c)(1)(B) requires more, and thus a remand. If 

Marcus continues to attempt to certify a class, he needs to 

provide the Court with a more clearly defined class and set of

claims, issues, or defenses to be given class treatment.

B. Ascertainability

Many courts and commentators have recognized that

an essential prerequisite of a class action, at least with respect 

to actions under Rule 23(b)(3), is that the class must be 
15

currently and readily ascertainable based on objective criteria. 

See, e.g., John v. Nat. Sec. Fire & Cas. Co., 501 F.3d 443, 

445 (5th Cir. 2007); In re Initial Pub. Offerings Sec. Litig., 

471 F.3d 24, 30 (2d Cir. 2006); Crosby v. Social Sec. Admin. 

of the U.S., 796 F.2d 576, 580 (1st Cir. 1986); see also 

Chiang v. Veneman, 385 F.3d 256, 271 (3d Cir. 2004) 

(holding that “defining a class by reference to those who 

‘believe’ they were discriminated against undermines the 

validity of the class by introducing a subjective criterion into 

what should be an objective evaluation”), abrog. on other 

grounds by Hydrogen Peroxide, 552 F.3d at 318 n.18; 

Johnson v. Geico Cas. Co., 673 F.Supp.2d 255, 268 (D. Del. 

2009); Agostino v. Quest Diagnostics, Inc., 256 F.R.D. 437, 

478 (D.N.J. Feb. 11, 2009); 1 William B. Rubenstein et al., 

Newberg on Class Actions, § 3:2-3:3 (5th ed.); 7A Charles 

Alan Wright et al., Federal Practice and Procedure § 1760 

(3d ed. 2005). If class members are impossible to identify 

without extensive and individualized fact-finding or “minitrials,” then a class action is inappropriate. Some courts have 

held that where nothing in company databases shows or could 

show whether individuals should be included in the proposed 

class, the class definition fails. See Clavell v. Midland 

Funding LLC, No. 10-3593, 2011 WL 2462046, at *4 (E.D. 

Pa. June 21, 2011); Sadler v. Midland Credit Mgmt, Inc., 

No.06-C-5045, 2008 WL 2692274, at *5 (N.D. Ill. July 3, 

2008); In re Wal-Mart Stores, Inc. Wage & Hour Litig., No. 

C 06-2069 SBA, 2008 WL 413749, at *8 (N.D. Cal. Feb. 13, 

2008); Deitz v. Comcast Corp., No. C 06-06352 WHA, 2007 

WL 2015440, at *8 (N.D. Cal. July 11, 2007).

The ascertainability requirement serves several 

important objectives. First, it eliminates “serious 

administrative burdens that are incongruous with the 

efficiencies expected in a class action” by insisting on the 

easy identification of class members. Sanneman v. Chrysler 

Corp., 191 F.R.D. 441, 446 (E.D. Pa. Mar. 2, 2000). Second, 
16

it protects absent class members by facilitating the “best 

notice practicable” under Rule 23(c)(2) in a Rule 23(b)(3) 

action. See Manual for Complex Litigation, § 21.222 (4th ed. 

2004). Third, it protects defendants by ensuring that those 

persons who will be bound by the final judgment are clearly 

identifiable. See Xavier v. Philip Morris USA, Inc., 787 F.

Supp. 2d 1075, 1089 (N.D. Cal. 2011) (“Ascertainability is 

needed for properly enforcing the preclusive effect of final 

judgment. The class definition must be clear in its 

applicability so that it will be clear later on whose rights are 

merged into the judgment, that is, who gets the benefit of any 

relief and who gets the burden of any loss. If the definition is 

not clear in its applicability, then satellite litigation will be 

invited over who was in the class in the first place.”); 1 

William B. Rubenstein et al., Newberg on Class Actions, § 

3:1 (5th ed.).

The proposed class raises serious ascertainability 

issues. In its briefs, BMW claims that it “may be able to 

identify current and former original owners and lessees of 

BMW vehicles factory-equipped with Bridgestone RFTS 

which were initially purchased or leased from New Jersey 

dealerships.” BMW Br. at 38 (emphasis in original); see also

BMW Reply Br. 8. At oral argument, BMW’s counsel was 

even less optimistic. He suggested that BMW could not 

know which of the vehicles that fit the class definition had 

Bridgestone RFTs because “[t]hey’re made in Germany by a 

different company,” and BMW does not have a “parts 

manifest.” See Oral Arg. Tr. 16:3-16:8. To complicate 

matters further, not every car that comes onto a dealership lot 

with Bridgestone RFTs necessarily leaves the lot with the 

same tires. According to BMW, dealers might change the 

tires at a customer’s request. In any event, says BMW, even 

if the proper cars with the proper tires could be identified, 

defendants’ records would not indicate whether all potential 

class members’ Bridgestone RFTs “have gone flat and been 
17

replaced,” as the class definition requires, because the class is 

not limited to those persons who took their vehicles to BMW 

dealers to have their tires replaced.

If Marcus attempts to certify a class on remand, the 

District Court — adjusting the class definition as needed — 

must resolve the critical issue of whether the defendants’ 

records can ascertain class members and, if not, whether there 

is a reliable, administratively feasible alternative. We 

caution, however, against approving a method that would 

amount to no more than ascertaining by potential class 

members’ say so. For example, simply having potential class

members submit affidavits that their Bridgestone RFTs have 

gone flat and been replaced may not be “proper or just.” See 

Xavier, 787 F.Supp.2d at 1089-90 (rejecting plaintiffs’

ascertainability proposal to have potential class members 

submit affidavits about their smoking histories). BMW and 

Bridgestone will be able to cross-examine Marcus at trial 

about whether and why his tires “have gone flat and been 

replaced.” Forcing BMW and Bridgestone to accept as true 

absent persons’ declarations that they are members of the 

class, without further indicia of reliability, would have serious 

due process implications.

3

 3 The class definition and ascertainability problems spill into 

the predominance inquiry as well. According to BMW and 

Bridgestone, the District Court could not have properly 

conducted a choice-of-law analysis because the class 

definition includes “unidentified persons from jurisdictions 

unknown.” See BMW Br. at 45; see also BMW Reply Br. at 

19 (“[T]he nebulous class definition . . . makes the choice-oflaw analysis difficult if not impossible.”). If the District 

Court finds on remand an ascertainable class, and clarifies its 

definition accordingly, then the defendants can renew their 
18

IV. RULE 23(A)

4

A. Numerosity

Rule 23(a)(1), which requires that a class be “so 

numerous that joinder of all members is impracticable,” 

promotes three core objectives. First, it ensures judicial 

economy. It does so by freeing federal courts from the 

onerous rule of compulsory joinder inherited from the English 

Courts of Chancery and the law of equity. See 1 Rubenstein, 

supra, § 1:12. Courts no longer have to conduct a single,

administratively burdensome action with all interested parties

compelled to join and be present. Id. The impracticability of 

joinder, or numerosity, requirement also promotes judicial 

economy by sparing courts the burden of having to decide

numerous, sufficiently similar individual actions seriatim. Id.

at § 3:11. As for its second objective, Rule 23(a)(1) creates 

greater access to judicial relief, particularly for those persons 

with claims that would be uneconomical to litigate 

individually. See Phillips Petroleum Co. v. Shutts, 472 U.S. 

797, 809 (1985). Finally, the rule prevents putative class 

representatives and their counsel, when joinder can be easily 

 

choice-of-law arguments as they relate to predominance. We 

note, however, that predominance is not defeated merely 

because different states’ laws apply to different class 

members’ claims. See Sullivan v. DB Invs., Inc., 667 F.3d 

273, 301-02 (3d Cir. 2011) (en banc). In this regard, “Rule 

23(b)(3) requires merely that common issues predominate, 

not that all issues be common to the class.” Id. (quoting 

Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st Cir. 

2003) (emphasis added)).

4 BMW and Bridgestone do not challenge the District Court’s 

finding that Marcus is an adequate representative of the class.
19

accomplished, from unnecessarily depriving members of a 

small class of their right to a day in court to adjudicate their 

own claims. 7A Charles Alan Wright et al., Federal Practice 

and Procedure § 1762 (3d ed. 2005).

There is no minimum number of members needed for a 

suit to proceed as a class action. See Stewart v. Abraham, 275 

F.3d 220, 226-27 (3d Cir. 2001). We have observed, 

however, that “generally if the named plaintiff demonstrates 

that the potential number of plaintiffs exceeds 40, the first 

prong of Rule 23(a) has been met.” Id. Nonetheless, Rule 

23(a)(1) “requires examination of the specific facts of each 

case.” Gen. Tel. Co. of the N.W. v. EEOC, 446 U.S. 318, 330 

(1980). Critically, numerosity — like all Rule 23 

requirements — must be proven by a preponderance of the 

evidence. See Hydrogen Peroxide, 552 F.3d at 307.

When a plaintiff attempts to certify both a nationwide 

class and a state-specific subclass, as Marcus did here, 

evidence that is sufficient to establish numerosity with respect 

to the nationwide class is not necessarily sufficient to 

establish numerosity with respect to the state-specific 

subclass. The Court of Appeals for the Eleventh Circuit’s 

decision in Vega v. T-Mobile USA, Inc. is particularly 

instructive on this point. 564 F.3d 1256, 1266-68 (11th Cir. 

2009). There, the Court reversed a finding of numerosity 

concerning a proposed class of all T-Mobile employees in 

Florida who received commissions for the sale of cellphone 

plans. It held that the plaintiff could not simply rely on the 

nationwide presence of T-Mobile to satisfy the numerosity 

requirement without Florida-specific evidence:

Vega has not cited, and we cannot locate in the 

record, any evidence whatsoever (or even an 

allegation) of the number of retail sales 

associates T-Mobile employed during the class 
20

period in Florida who would comprise the 

membership of the class, as certified by the 

district court.

Yes, T-Mobile is a large company, with 

many retail outlets, and, as such, it might be 

tempting to assume that the number of retail 

sales associates the company employed in 

Florida during the relevant period can overcome 

the generally low hurdle presented by Rule 

23(a)(1). However, a plaintiff still bears the 

burden of establishing every element of Rule 

23, and a district court’s factual findings must 

find support in the evidence before it. In this 

case, the district court’s inference of numerosity 

for a Florida-only class without the aid of a 

shred of Florida-only evidence was an exercise 

in sheer speculation.

Id. at 1267 (emphasis added) (citations and footnotes 

omitted).

Like Vega, Marcus offered sufficient company-wide 

evidence to the District Court to support a finding of 

numerosity for a nationwide class. According to BMW, it 

sold or leased 740,102 vehicles equipped with RFTs

nationwide during the class period. But not all those vehicles 

came with Bridgestone RFTs. The group includes cars with 

RFTs from seven different manufacturers — Goodyear, 

Pirelli, Michelin, Dunlop, Continental, Uniroyal, and 

Bridgestone. With respect to these 740,102 vehicles, BMW 

recorded and produced 582 unique customer contacts from 

consumers across the nation who called BMW to complain 

about their RFTs. Of those 582 customers, 196 specifically 

identified their RFTs as Bridgestone RFTs. Marcus 

submitted 29 of the 582 complaints as evidence of the 
21

proposed nationwide class’s numerosity. In addition, he

submitted records, obtained from various companies offering 

road hazard products, showing thousands of claims made for 

road hazard damage on 2006-2009 BMW vehicles. He even 

provided loss-ratio data (the ratio of dollars received in 

premiums to dollars paid out in claims) for one warranty 

company’s contracts covering BMWs. Piled on top of that 

were internal BMW emails about customer complaints 

regarding Bridgestone RFTs.

But after digging through this supposed mountain of 

evidence, we can only speculate as to how many 2006-2009 

BMWs were purchased or leased in New Jersey with 

Bridgestone RFTs that have gone flat and been replaced. To 

begin, we can only guess as to how many 2006-2009 BMWs

were purchased or leased in New Jersey regardless of tire 

brand. That information is not in the record. There is also no 

evidence of how many of the 740,102 vehicles bought and 

leased nationwide had Bridgestone RFTs. No evidence 

shows that BMW purchased tires from its seven RFTsuppliers in roughly equal proportions or even if Bridgestone 

was among its larger or smaller suppliers. As noted, Marcus 

submitted 29 of the 582 nationwide complaints as evidence of

numerosity. The complaints, however, do not indicate in any 

readily apparent way whether the complaining customers

purchased or leased their vehicles in New Jersey. Four 

complaining customers did list New Jersey addresses. See

J.A. 1612, 1632, 1634, 1636. But only two of these four 

customers referred to Bridgestone RFTs specifically, and one 

of them apparently accepted $500 in “Lifestyle Gifts” as a 

settlement from BMW. See J.A. 1634, 1636-43. And, like 

Marcus, they could have crossed state lines to purchase or 

lease their cars. Not to pile on, but Marcus has not pointed us 

to any evidence in the record — not in the customer 

complaints, the road hazard warranty claims, the loss-ratio 

data, or the internal BMW emails — that identifies another 
22

purchaser or lessee of a 2006-2009 BMW that was sold or 

leased in New Jersey and equipped with Bridgestone RFTs 

that have gone flat and been replaced. In short, he has offered 

proof of only one potential class member: himself. 

Nonetheless, the District Court found that the New 

Jersey class met the numerosity requirement because “it is 

common sense that there will be more members of the class 

than the number of consumers who complained — probably 

significantly more,” and “common sense indicates that there 

will be at least 40.” Marcus, 2010 WL 4853308 at *3. That 

may be a bet worth making, but it cannot support a finding of 

numerosity sufficient for Rule 23(a)(1).

As we explained in Hydrogen Peroxide, a district court 

must make a factual determination, based on the 

preponderance of the evidence, that Rule 23’s requirements 

have been met. See 552 F.3d at 307. Mere speculation is 

insufficient. See 7A Wright, supra, § 1762 (collecting cases); 

Roe v. Town of Highland, 909 F.2d 1097, 1100 n.4 (7th Cir. 

1990) (“The party supporting the class cannot rely on 

conclusory allegations that joinder is impractical or on 

speculation as to the size of the class in order to prove 

numerosity.”) (quotation marks omitted). Of course, Rule 

23(a)(1) does not require a plaintiff to offer direct evidence of 

the exact number and identities of the class members. But in 

the absence of direct evidence, a plaintiff must show

sufficient circumstantial evidence specific to the products, 

problems, parties, and geographic areas actually covered by 

the class definition to allow a district court to make a factual 

finding. Only then may the court rely on “common sense” to 

forgo precise calculations and exact numbers. See In re 

Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 

450, 468, 510 (D.N.J. 1997), aff’d 148 F.3d 283 (3d Cir. 

1998) (finding numerosity requirement satisfied without 

pinpointing an exact number because the evidence suggested 
23

a class of over 8,000,000 policyholders and “[c]ommon sense 

suggest[ed] that it would be at best extremely inconvenient to 

join all class members”); cf. Lloyd v. City of Phila., 121 

F.R.D. 246, 249 (E.D. Pa. Aug. 22, 1988) (refusing to certify 

a class when, despite plaintiff’s “mere speculation” that the 

class could exceed 10,000 employees, the evidence 

demonstrated that only the four plaintiffs met the class 

definition).

Given the complete lack of evidence specific to 

BMWs purchased or leased in New Jersey with Bridgestone 

RFTs that have gone flat and been replaced, the District 

Court’s numerosity ruling crossed the line separating

inference and speculation. BMW is a large company that 

sells and leases many cars throughout the country, many with 

RFTs. But the Court did not certify a nationwide class of 

BMW owners and lessees with any brand of RFTs. It 

certified a New Jersey class of owners and lessees with 

Bridgestone RFTs that have gone flat and been replaced. It is 

tempting to assume that the New Jersey class meets the 

numerosity requirement based on the defendant companies’

nationwide presence. But the only fact with respect to 

numerosity proven by a preponderance of the evidence is that 

Marcus himself is a member of the proposed class. “[I]f there 

are no members of the class other than the named 

representatives, then Rule 23(a)(1) obviously has not been 

satisfied.” 7A Wright, supra, § 1762. And “we are not 

prepared to read the numerosity requirement out of the class 

action rule,” as we have no authority to do so. Gurmankin v. 

Costanzo, 626 F.2d 1132, 1135 (3d Cir. 1980). Accordingly, 

we hold that the District Court abused its discretion by 

finding the numerosity requirement to be satisfied with 

respect to the New Jersey class. 
24

B. Commonality

Rule 23(a)(2)’s commonality requirement “does not 

require identical claims or facts among class member[s].” 

Chiang v. Veneman, 385 F.3d 256, 265 (3d Cir. 2004), abrog. 

on other grounds by Hydrogen Peroxide, 552 F.3d at 318 

n.18. “For purposes of Rule 23(a)(2), even a single common 

question will do.” Dukes, 131 S.Ct. at 2556 (quotation marks 

and alterations omitted); see also In re Schering Plough Corp. 

ERISA Litig., 589 F.3d 585, 597 (3d Cir. 2009).

Marcus seeks to offer evidence about, among other 

things, whether Bridgestone RFTs are “defective,” whether 

the defendants had a duty to disclose those defects, and 

whether the defendants did in fact fail to disclose those

defects.5

 5 Whether Marcus has alleged actionable “defects” or simply 

trade-offs that a consumer should consider in the purchase or 

lease calculus was the not the question before the District 

Court at the certification stage nor is it the one before us now. 

So while BMW argues that it had no duty to provide 

purchasers and lessees with a part-by-part price list for each 

of its vehicles and warn them about Bridgestone RFTs being 

“exorbitantly priced,” we cannot consider that argument at 

this stage of the litigation.

 These issues of fact and law (or some subset of 

them) apply to each of Marcus’s causes of actions against 

each of the defendants, and are issues common to all class 

members. Accordingly, the District Court did not abuse its 

discretion in finding the commonality requirement to be 

satisfied.
25

C. Typicality

The concepts of typicality and commonality are 

closely related and often tend to merge. See Baby Neal v. 

Casey, 43 F.3d 48, 56 (3d Cir. 1994). “Both serve as 

guideposts for determining whether under the particular 

circumstances maintenance of a class action is economical 

and whether the named plaintiff’s claim and the class claims 

are so interrelated that the interests of the class members will 

be fairly and adequately protected in their absence.” Falcon, 

457 U.S. at 158 n.13. Typicality, however, derives its 

independent legal significance from its ability to “screen out 

class actions in which the legal or factual position of the 

representatives is markedly different from that of other 

members of the class even though common issues of law or 

fact are present.” 7A Wright, supra, § 1764. 

To determine whether a plaintiff is markedly different 

from the class as a whole, we consider the attributes of the 

plaintiff, the class as a whole, and the similarity between the 

plaintiff and the class. See Schering Plough, 589 F.3d at 597. 

This comparative analysis addresses

three distinct, though related, concerns: (1) the 

claims of the class representative must be 

generally the same as those of the class in terms 

of both (a) the legal theory advanced and (b) the 

factual circumstances underlying that theory; 

(2) the class representative must not be subject 

to a defense that is both inapplicable to many 

members of the class and likely to become a 

major focus of the litigation; and (3) the 

interests and incentives of the representative 

must be sufficiently aligned with those of the 

class.
26

Id. at 599. If a plaintiff’s claim arises from the same event, 

practice or course of conduct that gives rises to the claims of 

the class members, factual differences will not render that 

claim atypical if it is based on the same legal theory as the 

claims of the class. Hoxworth v. Blinder, Robinson & Co., 

980 F.2d 912, 923 (3d Cir. 1992). 

The District Court found that Marcus is typical of the 

class, because “[w]hat is crucial to the typicality analysis here 

is that Marcus and the class members purportedly suffered 

harm from the same alleged course of conduct: the 

defendants failed to disclose defects in their products, 

misrepresented or omitted important information about the 

products, and made promises about the products that were not 

true.” Marcus, 2010 WL 4853308 at *6. BMW and 

Bridgestone argue that the Court erred in its finding for three

reasons. First, Marcus performed very little research before

leasing his car, whereas the average BMW purchaser or 

lessee performs significant research prior to purchase or lease. 

Second, Marcus leased only one model BMW with one kind 

of Bridgestone RFT, yet he seeks to represent a class 

composed of people with other model-year BMWs and 

Bridgestone tire types. According to Bridgestone, Marcus’s 

claims potentially cover 49 different tire designs of varying 

specifications, including size, load rating, and model type. 

Third, New York law — not New Jersey law — applies to 

Marcus’s claims and, as a result, Marcus is subject to unique 

defenses that do not apply to all members of the proposed 

class. We see no abuse of discretion behind any of these 

arguments.

First, even if there are marked differences in the 

amounts of research class members performed, these 

differences by themselves do not render Marcus’s claims 

atypical. As discussed below, if a class member knew about

the alleged “defects” prior to purchase or lease, then that 
27

knowledge could break the proximate cause link between the 

alleged defect and any damages suffered. Determining 

whether a class member had such knowledge requires an 

individualized inquiry. That creates a predominance problem. 

If Marcus knew of the defects prior to his lease, then he 

would risk having the causal link between the defendants’ 

conduct and his damages broken. If that were so, he would 

be unable to represent fairly the interests of class members 

who did not have such knowledge. That would create a 

typicality problem. But Marcus may be in a better position 

than other potential class members because he did not do 

significant research before leasing his car. That fact may

distinguish him from other class members, but it does not 

prejudice his ability to protect absent class members’ interests

fairly and adequately.

The fact that Marcus leased only one model BMW 

with one kind of Bridgestone RFT also does not pose a

typicality problem. When a class includes purchasers of a

variety of different products, a named plaintiff that purchases 

only one type of product satisfies the typicality requirement if

the alleged misrepresentations or omissions apply uniformly 

across the different product types. See, e.g., Wiener v. 

Dannon Co., 255 F.R.D. 658, 666-67 (C.D. Cal. Jan. 30, 

2009); Gonzalez v. Proctor & Gamble Co., 247 F.R.D. 616, 

621-22 (S.D. Cal. Sept. 12, 2007); Lewis Tree Serv. Inc. v. 

Lucent Techs. Inc., 211 F.R.D. 228, 232-34 (S.D.N.Y. Nov. 

20, 2002); Kaczmarek v. Int’ Bus. Machs. Corp., 186 F.R.D. 

307, 313 (S.D.N.Y. May 12, 1999). The parties agree that 

different tire models and sizes, and different vehicles, have 

different performance characteristics, compositions, designs, 

purposes, and uses. But Marcus alleges that the problems 

with Bridgestone RFTs — that they are highly susceptible to 

road hazard damage, unrepairable, expensive, difficult to 

purchase, and that a vehicle cannot be converted for use of
28

conventional tires — are uniform and apply to all 2006-2009 

BMW vehicles equipped with Bridgestone RFTs.

As we discuss below with respect to predominance, the 

District Court did not abuse its discretion when finding that a 

defect making Bridgestone RFTs highly susceptible to road 

hazard damage will show itself in a substantially similar way 

across the various tire models and sizes at issue here. Nor is 

there any indication that BMW’s and Bridgestone’s 

representations differed significantly depending on the 

model-year BMW or specification of Bridgestone RFT. 

Therefore, the fact that Marcus leased only one model BMW 

with one kind of Bridgestone RFT does not pose a typicality 

problem.

Finally, “[i]t is well-established that a proposed class 

representative is not ‘typical’ under Rule 23(a)(3) if ‘the 

representative is subject to a unique defense that is likely to 

become a major focus of the litigation.’” Schering Plough, 

589 F.3d at 598 (quoting Beck v. Maximus, Inc., 457 F.3d 

291, 301 (3d Cir. 2006)). “Other courts of appeals 

emphasize, as do we, the challenge presented by a defense 

unique to a class representative — the representative’s 

interests might not be aligned with those of the class, and the 

representative might devote time and effort to the defense at 

the expense of issues that are common and controlling for the 

class.” Beck, 457 F.3d at 297. Here, BMW and Bridgestone 

argue that New York law, not New Jersey law, applies to 

Marcus’s claims and, along with it, certain unique defenses. 

For example, they claim that New York law, unlike New 

Jersey law, requires privity of contract in order to pursue a 

claim for breach of implied warranty. Compare Arthur Jaffe 

Assocs. v. Bilsco Auto Serv. Inc., 89 A.D.2d 785, 785 (App. 

Div. 1982), aff’d 448 N.E.2d 792, 792 (N.Y. 1983), with

Paramount Aviation Corp. v. Augusta, 288 F.3d 67, 73-76 (3d 

Cir. 2002) (applying New Jersey law).
29

The defendants presented this argument to the District 

Court, but it did not respond to it. The Court did conduct a 

choice-of-law analysis with respect to the class members’

MMWA claims when considering issues of predominance. It

did not, however, conduct a choice-of-law analysis with 

respect to Marcus’s consumer fraud or common law claims

when considering issues of typicality, specifically whether 

Marcus’s claims are subject to unique defenses that are likely 

to become a major focus of the litigation. But even if New 

York, rather than New Jersey, law applies to Marcus’s claims, 

BMW and Bridgestone have failed to demonstrate how any 

defenses unique to Marcus’s claims will become a major 

focus of the litigation. On remand, the parties and the District 

Court may find that the contours of the litigation have

changed significantly and what will or will not likely be a 

major focus of the litigation will have to be assessed. We 

leave this to the District Court to address when and if the 

issue should arise.

V. RULE 23(B)(3): PREDOMINANCE6

Under Rule 23(b)(3), “questions of law or fact 

common to class members [must] predominate over any 

questions affecting only individual members.” This

predominance requirement “tests whether proposed classes 

are sufficiently cohesive to warrant adjudication by 

representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 

591, 623 (1997). To assess predominance, a court at the 

certification stage must examine each element of a legal claim 

“through the prism” of Rule 23(b)(3). In re DVI, Inc. Sec. 

 6 Neither BMW nor Bridgestone challenge on appeal the 

District Court’s findings that a class action is the superior 

method for adjudication.
30

Litig., 639 F.3d 623, 630 (3d Cir. 2011). A plaintiff must 

“demonstrate that the element of [the legal claim] is capable 

of proof at trial through evidence that is common to the class 

rather than individual to its members.” Hydrogen Peroxide, 

552 F.3d at 311. “Because the nature of the evidence that 

will suffice to resolve a question determines whether the 

question is common or individual, a district court must 

formulate some prediction as to how specific issues will play 

out in order to determine whether common or individual 

issues predominate in a given case.” Id. (quotation marks 

omitted).

Marcus asserts four claims on behalf of the New Jersey 

class against BMW and Bridgestone: (1) violations of the 

NJCFA; (2) breach of the implied warranty of 

merchantability; (3) breach of contract; and (4) breach of the 

implied covenant of good faith and fair dealing. He also 

asserts a claim for breach of express warranty against BMW. 

We consider the elements of these claims through the prism 

of the predominance requirement to determine whether they 

are capable of proof with common, class-wide evidence.

A. The Common Law Claims7

The essence of each of Marcus’s common law claims 

(at least for purposes of our predominance analysis) is that he 

 7 Like the District Court, we refer to Marcus’s breach of 

warranty, breach of contract, and breach of the implied 

covenant of good faith and fair dealing claims as his 

“common law” claims, even though the breach of implied 

warranty claims now derive from New Jersey statutes. See

N.J. Stat. Ann. § 12A:2-314.
31

purchased a defective product that caused him damage.8

 8 “To state a claim for breach of the implied warranty of 

merchantability . . . , a plaintiff must allege (1) that a 

merchant sold goods, (2) which were not ‘merchantable’ at 

the time of sale, (3) injury and damages to the plaintiff or its 

property, (4) which were was caused proximately and in fact 

by the defective nature of the goods, and (5) notice to the 

seller of injury.” In re Ford Motor Co. E-350 Van Prods. 

Liab. Litig. (No. II), No. 03-4558 (HAA), 2008 WL 4126264 

at *19 (D.N.J. Sept. 2, 2008). A claim for breach of express 

warranty similarly requires proof of proximate cause. See

Collins v. Uniroyal, Inc., 315 A.2d 16, 20 n.4 (N.J. 1974) 

(“[P]roximate cause and damages. . . . are, of course, 

necessary for a breach of express warranty verdict.”); 

Prashker v. Beech Aircraft Corp., 258 F.2d 602, 607 (3d Cir. 

1958) (“The measure of damages for a breach of warranty is, 

under New Jersey law, the loss directly and naturally 

resulting in the ordinary course of events from such breach”) 

(emphases added). To state a claim for breach of contract, a 

plaintiff must “[1] show that the parties entered into a valid 

contract, [2] that the defendant failed to perform his 

obligations under the contract and [3] that the plaintiff 

sustained damages as a result.” Murphy v. Implicito, 920 

A.2d 678, 689 (N.J. Super. Ct. App. Div. 2007) (quotation 

marks omitted). Marcus’s implied covenant of good faith and 

fair dealing claims also hinge on his purchasing a defective 

product that caused him damage. See Amended Class Action 

Complaint (J.A. 109-110) (“BMW breached those implied 

covenants by selling or leasing to Plaintiff and members of 

the Sub-Class Vehicles that were not fit for ordinary use, and 

that were equipped with Tires that were inherently defective 

 In

his complaint, Marcus alleges that Bridgestone RFTs (and, in 
32

turn, the BMW vehicles that they equip) are defective for 

several reasons: (1) Bridgestone RFTs pop or sustain bubbles 

from use under normal driving conditions, making them more 

susceptible to road hazard damage than conventional tires and 

other brands of RFTs; (2) they cannot be repaired in the event 

of even a small puncture; and (3) they are extremely 

expensive to replace. In addition, he alleges that his BMW 

vehicle is defective because it cannot be reconfigured to 

operate with conventional tires.

The District Court found that Marcus could prove 

these alleged defects at trial with common, class-wide 

evidence. BMW and Bridgestone contest the Court’s finding 

with respect to the first alleged defect.9

1. Common Proof of Susceptibility to 

Road Hazard Damage

 They also argue that

issues of proximate causation — i.e., determining why each 

class member’s tires “have gone and been replaced” — will

require individualized inquiries that will predominate over 

any common ones.

According to BMW and Bridgestone, Marcus has 

failed to identify any particular defect that supposedly makes

Bridgestone RFTs more susceptible to road hazard damage 

 

when BMW knew, or should have known, that the Tires were 

defective. . . . As a direct and proximate result of BMW’s 

breach of its implied covenants, Plaintiffs and Class members 

have been damaged.”); see id. at 111-12 (making similar 

allegations against Bridgestone).

9 Because BMW and Bridgestone do not challenge the 

District Court’s findings that, with respect to Marcus’s 

common claims, the other alleged defects are capable of 

common proof, we need not consider them.
33

than other tires. In addition, they claim that any defect —

should one exist at all — will not be evident uniformly across 

all tires, regardless of size or other specifications, included in 

the class definition. They argue that the District Court erred

by accepting without question Marcus’s expert testimony on 

these points without considering their own.

In In re Hydrogen Peroxide Antitrust Litigation, we 

clarified a district court’s duty when confronted with 

competing expert testimony about a plaintiff’s ability to prove 

a claim through evidence that is common to the class. 552 

F.3d at 307, 322-24. We held that “the court’s obligation to 

consider all relevant evidence and arguments [on a motion for 

class certification] extends to expert testimony, whether 

offered by a party seeking class certification or by a party 

opposing it.” Id. at 307. We explained that “[e]xpert opinion 

with respect to class certification, like any matter relevant to a 

Rule 23 requirement, calls for rigorous analysis.” Id. at 323. 

Therefore, “[w]eighing conflicting expert testimony at the 

certification stage is not only permissible[, but] it may be 

integral to the rigorous analysis Rule 23 demands,” especially 

when a party opposing certification offers its own competing 

expert opinion. Id. We further assured district courts that 

“[r]igorous analysis need not be hampered by a concern for 

avoiding credibility issues.” Id. at 324. In that case, we ruled 

that the district court abused its discretion because it appeared 

to have assumed that it was barred from weighing one expert 

opinion against another for the purpose of determining 

whether the requirements of Rule 23 had been met, 

specifically whether the plaintiff’s claims were susceptible to 

common proof. Id. at 322.

Like the District Court in Hydrogen Peroxide, the 

District Court here was confronted with conflicting expert 

testimony about whether the plaintiff could prove its claim

with common proof. On the one hand, Marcus’s tire expert, 
34

Charles Gold, opined on the similarity of Bridgestone RFTs. 

After “a detailed analysis of the thousands of pages of 

specifications produced,” he found that “all Bridgestone runflat tires relevant to this action, despite variations due to size, 

are substantially similar in construction.” J.A. 1978-79. He 

concluded that “a proven defect arising from construction

would manifest itself in all relevant tires.” J.A. 1979. In 

addition, Gold suggests in his expert report that not only 

would all Bridgestone RFTs have a similar defect, but in fact 

they all do have a particular defect. He explains that the 

major difference between RFTs and conventional tires is the 

inclusion of extra components added to the sidewall and 

assemblies of RFTs, allowing RFTs to be operated at zero, or 

near zero, inflation pressure. J.A. 1978. “Unfortunately,” he 

adds, these same components stiffen the tire during regular 

inflated use and “[t]he extra stiffness [in RFTs] can make the 

tire more susceptible to road hazard damages during normal 

use.” J.A. 1978-1979. 

BMW and Bridgestone counter by highlighting that 

Gold recanted his “extra stiffness” opinion during his 

deposition. He admitted he had no published testing, studies 

or scientific data to support his opinion. J.A. 2031-32. In 

fact, Gold admitted that he “cannot offer an opinion, to a 

reasonable degree of engineering certainty, that Bridgestone 

RFTs are more susceptible to road-hazard damage during 

normal use.” J.A. 2074-75. When Bridgestone and BMW 

moved to exclude Gold’s opinion, Marcus too seems to have 

changed course with respect to the “stiffness” theory. Rather 

than rely on that theory, he argued (and still argues now) that 

Bridgestone RFTs are more susceptible to road hazard 

damage because they are “low aspect ratio” tires and that 

proof of this “defect” is found in the defendants’ own 
35

documents, not in any expert report. Marcus Br. 27-28; J.A.

2138.10

Despite this apparent retreat from Gold’s “stiffness” 

theory, the District Court found that Marcus “has offered 

evidence that because run-flat tires are, universally, 

substantially stiffer than conventional tires, they are therefore 

more susceptible to road hazard damage. Such evidence 

makes it likely that common issues of proof will establish the 

class members’ claims.” Marcus, 2010 WL 4853308, at *13. 

Ultimately, however, whether Bridgestone RFTs are more 

susceptible to road hazard damage than other tires — due to 

their “extra stiffness,” their low aspect ratio, or anything else 

— is not the issue before us. Our inquiry is limited to 

whether the District Court abused its discretion when finding 

that, should a defect exist at all in Bridgestone RFTs that 

makes them more susceptible to road hazard damage, Marcus 

will be capable of proving that defect at trial through 

evidence that is common to the class rather than individual to 

its members. See Hydrogen Peroxide, 552 F.3d at 311. 

On this point, the Court discussed and apparently 

credited Gold’s similarity opinion. Marcus, 2010 WL 

4853308, at *4, *5 (noting that Marcus “will also offer Gold’s 

 10 An aspect ratio is, roughly speaking, the relationship 

between the height and width of a tire. A tire with a low 

aspect ratio, sometimes referred to as a low profile tire, is 

short and squatty and generally provides for better handling. 

J.A. 421. Bridgestone argues that a low aspect ratio is not a 

defect. It is simply a design trade-off that allows for better 

handling at the cost of a softer ride, among other things. 

Bridgestone Reply Br. 8-10. To repeat, see supra note 5, 

whether Marcus has alleged actionable “defects” or nonactionable design trade-offs is not before us.
36

expert testimony that all Bridgestone run-flat tires, regardless 

of model, are substantially similar” and that “Gold’s expert 

testimony opines that all of Bridgestone’s run-flat tires are 

substantially similar, irrespective of model”). Bridgestone 

offered its own expert evidence (reports and deposition 

testimony from its experts, Brian Queiser and James Gardner) 

that the different tires and sizes in the class are not 

substantially similar given the differences in design, 

components and materials in different tires specified as 

standard and optional equipment for different BMW vehicles. 

J.A. 399; 401-06; 413-15; 424-26; 452-53. The District Court 

did not explicitly discuss these expert opinions, which 

challenge the similarity opinion of Marcus’s expert.

Although we would prefer a more explicit discussion 

and comparison of Bridgestone’s competing expert testimony 

from the District Court to aid our appellate review, we cannot 

conclude that the Court abused its discretion in violation of

Hydrogen Peroxide. Unlike the District Court’s opinion in 

Hydrogen Peroxide, nothing in the District Court’s opinion in 

our case suggests that it assumed it was barred from weighing 

the credibility of the expert opinions. Instead, it appears that 

the Court — consistent with Hydrogen Peroxide — simply 

found Gold’s opinion about the similarity of Bridgestone 

RFTs to be more persuasive than the opinions put forth by 

Bridgestone. This was not an abuse of discretion.

2. Common Proof of Proximate 

Causation

Having found that Marcus could show a common, 

class-wide defect, the District Court then found he could 

show, without resort to individual proofs, that this defect

caused the class members’ damages. Considering the 

damages that Marcus alleges, we believe the District Court’s 

causation finding was an abuse of discretion.
37

Recall that Marcus defines the class in terms of certain

owners and lessees of BMW vehicles with Bridgestone RFTs 

that “have gone flat and been replaced.” He claims that “[a]ll 

class members were damaged when their tires suffered a flat 

and they were forced to pay for a new Tire or when they 

purchased road hazard coverage to insulate them from 

financial hardship due to cost of the Tires.” Pl’s Am. Br. in 

Support of Class Cert. (J.A. 1255). Accordingly, he asserts

that “[e]ach Class member’s damages can be measured by the 

cost of a replacement Tire. For Class members who 

purchased road hazard coverage, the damages will be the 

greater of either the cost of replacement Tires or the cost of 

road hazard coverage.” Id. at 1253-54. 

But these damages allegations beg the question of 

what caused class members’ tires to go flat and need 

replacement. Causation is pivotal to each of Marcus’s claims. 

See, e.g., N.J. Stat. Ann. § 12A:2-314 cmt. 13 (discussing 

how, in an action based on breach of warranty, “it is of course 

necessary to show . . . that the breach of warranty was the 

proximate cause of the loss sustained,” and that “an 

affirmative showing by the seller that the loss resulted from 

some action or event following his own delivery of the goods 

can operate as a defense”). Here the District Court should 

have addressed an undisputed, fundamental point: any tire

can “go flat” for myriad reasons. See J.A. 307-308, 448. 

Even “defective” tires can go flat for reasons completely 

unrelated to their defects. Critically, to determine why a 

particular class member’s Bridgestone RFT has “gone flat 

and been replaced” requires an individual examination of that 

class member’s tire. See J.A. 305, 399, 1476-77. These

individual inquiries are incompatible with Rule 23(b)(3)’s 

predominance requirement.

In another RFT case brought against BMW and 

Goodyear involving nearly identical allegations as those 
38

Marcus makes here, Judge Holwell of the United States 

District Court for Southern District of New York denied class 

certification and aptly explained why individual issues of 

causation create irremediable predominance problems:

Even if the plaintiffs were to show that the 

Goodyear RFTs suffered from a common 

defect, they would still need to demonstrate that 

this defect caused each class member’s RFT to 

puncture. But tires can puncture for any 

number of reasons, and not all of these reasons 

will relate to the defect. As defendants properly 

note, RFTs can go flat for reasons that would 

also cause a standard radial tire to go flat, for 

example, if the driver ran over a nail, tire 

shredding device, or large pothole, or if a 

vandal slashed the tire. . . . [P]laintiff would 

have to demonstrate in each individual case that 

the tire punctured for reasons related to the 

defect, rather than for a reason that would cause 

any tire to fail.

Oscar v. BMW of N. Am., LLC, 274 F.R.D. 498, 511 

(S.D.N.Y. June 7, 2011) (“Oscar I”).

11

 11 After Judge Holwell denied Oscar’s motion for class 

certification, Judge Engelmayer denied Oscar’s second 

motion for class certification based on causation and 

predominance problems. See Oscar v. BMW of N. Am., LLC, 

No. 09 Civ.11 (PAE), 2012 WL 2359964 (S.D.N.Y. June 19, 

2012) (“Oscar II”). 

 Other federal courts 

have also recognized that suits alleging defects “involving 

motor vehicles often involve complicated issues of individual 

causation that predominate over common questions regarding 

the existence of a defect.” Id. at 510 (collecting cases); see 
39

also Chin v. Chrysler Corp., 182 F.R.D. 448, 455 (D.N.J. 

Sept. 11, 1998) (refusing to certify a class of purchasers and 

lessee of vehicles with allegedly defective anti-lock brake 

systems because, among other things, “[e]ven where the 

alleged defect has manifested itself, individual issues of 

actual cause must be adjudicated”).

Marcus’s own experience illustrates the problem. Of 

the two tires he presented for inspection in this lawsuit, one

went “flat” and was replaced because he ran over a jagged 

chunk of metal and the other because he ran over a sharp 

object that tore and gouged the tire and damaged the sidewall. 

See J.A. 300, 400, 409-10. The experts agree that the two 

tires could not have been repaired and that any tire (run-flat or 

conventional) would also have been damaged under the 

circumstances. See J.A. 309-10, 400, 412, 414, 426. In other 

words, it is undisputed that even if Marcus could prove that 

Bridgestone RFTs suffer from common, class-wide defects, 

those defects did not cause the damage he suffered for these

two tires: the need to replace them. In this sense, Marcus is 

no different than a class member who, seconds after buying 

his car, pulls off the dealership lot and runs over a bed of 

nails, as neither can claim a “defect” caused his tires to go flat 

and need replacement. Because Marcus’s common law 

claims require an individualized inquiry into why any 

particular consumer’s Bridgestone RFTs went flat and had to 

be replaced, the District Court abused its discretion in finding 

that the claims satisfy the predominance requirement.

B. The New Jersey Consumer Fraud Act Claims

Next, we turn to the District Court’s certification of 

Marcus’s NJCFA claims. At the outset, it is important to 

disentangle two fundamental questions that are at the core of 

the District Court’s analysis but that can be conflated: (1) 

Under New Jersey law, what must a plaintiff prove to succeed 
40

on an NJCFA claim and what evidence can a defendant put 

forth to rebut and defeat that claim?; and (2) When a plaintiff 

seeks to certify an NJCFA claim for class treatment under 

Rule 23(b)(3), when might common questions of fact fail to 

predominate over individual ones? 

We begin with examining the elements of a NJCFA 

claim. The NJCFA prohibits certain deceptive commercial 

behavior that it calls “unlawful practice[s].”

The act, use or employment by 

any person of any unconscionable 

commercial practice, deception, 

fraud, false pretense, false 

promise, misrepresentation, or the 

knowing, concealment, 

suppression, or omission of any 

material fact with intent that 

others rely upon such 

concealment, suppression or 

omission, in connection with the 

sale or advertisement of any 

merchandise or real estate, or with 

the subsequent performance of 

such person as aforesaid, whether 

or not any person has in fact been 

misled, deceived or damaged 

thereby, is declared to be an 

unlawful practice . . . .

N.J. Stat. Ann. § 56:8-2. The Attorney General of New 

Jersey may take action under the NJCFA to address an 

“unlawful practice” and, in doing so, “does not have to prove 

that the victim of the fraudulent conduct had ‘in fact been 

misled, deceived or damaged thereby . . . .’ ” Meshinsky v. 

Nichols Yacht Sales, Inc., 541 A.2d 1063, 1067 (N.J. 1988).
41

A private plaintiff, however, must do more than prove 

an “unlawful practice.” Another section of the NJCFA 

provides that

[a]ny person who suffers any ascertainable loss

of moneys or property, real or personal, as a 

result of the use or employment by another 

person of any method, act, or practice declared 

unlawful under this act or the act hereby 

amended and supplemented may bring an action 

or assert a counterclaim therefor in any court of 

competent jurisdiction. 

N.J. Stat. Ann. § 56:8-19 (emphases added). So, “[w]hile the 

Attorney General does not have to prove that the victim was 

damaged by the unlawful conduct, a private plaintiff must 

show that he or she suffered an ‘ascertainable loss . . . as a 

result of’ the unlawful conduct.” Meshinsky, 541 A.2d at 

1067.12

An “ascertainable loss” is “either an out-of-pocket loss 

or a demonstration of loss in value” that is “quantifiable or 

measurable.” Thiedemann v. Mercedes-Benz U.S.A., LLC,

872 A.2d 783, 792-93 (N.J. 2005). Put differently, a plaintiff 

is not required to show monetary loss, but only that he 

 12 At times, Marcus erroneously suggests that the lower 

standard of proof applicable to actions by the Attorney 

General applies to his claims as well. See Marcus Br. at 22-

23 (“Even if . . . class members had differing levels of 

knowledge, such an inquiry is irrelevant under the NJCFA 

because Defendants may be liable under the NJCFA ‘whether 

or not any person has in fact been misled, deceived or 

damaged’ by their deception.”) (quoting N.J. Stat. Ann. 

§ 56:8-2).
42

purchased something and received “less than what was

promised.” Union Ink Co., Inc. v. AT&T Corp., 801 A.2d 

361, 379 (N.J. Super. Ct. App. Div. 2002); see also In re 

Mercedes-Benz Tele Aid Contract Litig., 257 F.R.D. 46, 73 

(D.N.J. Apr. 24, 2009) (“[T]he sum of each class member’s 

loss is the amount necessary to fulfill his or her expectation of 

a functioning [product].)”.

Importantly, unlike common law fraud, the NJCFA 

does not require proof of reliance. See Gennari v. Weichert 

Co. Realtors, 691 A.2d 350, 366 (N.J. 1997). That is, it does 

not require proof that a consumer would not have purchased a 

product absent the alleged unlawful practice or even proof 

that the unlawful practice played a substantial part in his or 

her decisionmaking. Cf. Restatement (Second) of Torts 

§ 546. Nonetheless, “the CFA requires a consumer to prove 

that [his or her] loss is attributable to the conduct that the 

CFA seeks to punish by including a limitation expressed as a 

causal link.” Bosland v. Warnock Dodge, Inc., 964 A.2d 741, 

748 (N.J. 2009); see also Meshinsky, 541 A.2d at 1067 (“[A] 

plaintiff must establish ‘the extent of any ascertainable loss, 

particularly proximate to a misrepresentation or unlawful act 

of the defendant condemned by the [Act].’”) (quoting 

Ramanadham v. N.J. Mfrs. Co., 455 A.2d 1134, 1136 (N.J. 

Super. Ct. App. Div. 1982)). In other words, the alleged 

unlawful practice must be a proximate cause of the plaintiff’s 

ascertainable loss.

Here, Marcus argues that BMW and Bridgestone 

“violated the NJCFA by failing to disclose salient facts about 

the Tires that would be material to the average consumer who 

is not knowledgeable about tires.” Marcus Br. at 21. 

Specifically, he asserts that they failed to disclose the alleged 

“defects” previously discussed (i.e., susceptibility to damage, 

repairability, exorbitant price, etc.). He claims that, as a 

result of BMW’s and Bridgestone’s wrongdoing, he suffered 
43

two forms of ascertainable loss: (a) he spent money to 

replace his tires that went flat, and (b) he leased a product that 

was worth less than what he expected. See J.A. 101, 103

(alleging ascertainable loss as “monies spent to replace the 

Tires and/or in diminution in value”).

To the extent Marcus relies on the cost of replacing his 

tire as his ascertainable loss, his claims cannot meet the 

predominance requirement for the reasons related to causation 

discussed above. See Oscar I, 274 F.R.D. at 513 

(“[D]etermining whether each tire failed as a result of the 

allegedly concealed defect or as a result of unrelated issues, 

e.g., potholes or reckless driving habits, will devolve into 

numerous mini-trials.”). The District Court’s NJCFA 

analysis, however, seems to have proceeded on the 

assumption that class members’ ascertainable losses would be 

the value of the product they expected to purchase minus the 

value of the product they actually purchased. The Court 

noted that, with respect to ascertainable loss, “[t]he relevant 

issue . . . is whether the class members got less than what they 

expected.” Marcus, 2010 WL 4853308 at *11. Hence unlike 

his common law claims, Marcus’s NJCFA claims proceed on 

the theory that class members suffered a loss the instant they 

purchased or leased their cars, not when their tires went flat. 

Compare J.A. 101, 103 (alleging with respect to NJCFA 

claims ascertainable loss as “monies spent to replace the Tires 

and/or in diminution in value”), with Pl’s Am. Br. in Support 

of Class Cert. (J.A. 1255) (arguing with respect to the 

common law claims that “[a]ll class members were damaged 

when their tires suffered a flat and they were forced to pay for 

a new Tire or when they purchased road hazard coverage to 
44

insulate them from financial hardship due to cost of the 

Tires”).13

In response, BMW and Bridgestone point out that a 

person cannot succeed on an NJCFA claim against them if 

that person knew about the alleged “defects,” yet decided to 

purchase or lease a BMW anyway. In such a case, under the 

NJCFA any alleged unlawful practice by the defendants

would not have been the proximate cause of the 

knowledgeable consumer’s ascertainable loss. Turning to the 

requirements of Rule 23, they then point out that what a 

particular class member knew about Bridgestone RFTs before 

purchase or lease would require an individualized inquiry, 

making Marcus’s NJCFA claims not susceptible to proof with 

common, class-wide evidence.

The District Court concluded that a “presumption of 

causation” should apply to Marcus’s NJCFA claims, and 

therefore that common issues of fact would predominate. See

Marcus, 2010 WL 4953308 at *12. According to the Court, a

causal relationship between an alleged unlawful practice and 

a consumer’s ascertainable loss may be presumed under the 

NJCFA when a defendant is alleged to have omitted (rather 

 

13 We do not consider whether Marcus’s damages allegations 

raise another set of predominance problems on which we may 

soon receive relevant guidance from the Supreme Court. See

Comcast Corp. v. Behrend, No. 11-864, --S. Ct.-- (June 25, 

2012) (granting certiorari on the question of “[w]hether a 

district court may certify a class action without resolving 

whether the plaintiff class has introduced admissible 

evidence, including expert testimony, to show that the case is 

susceptible to awarding damages on a class-wide basis”).
45

than affirmatively misrepresented) material information in 

written representations and when a defendant’s marketing 

statements do not differ from one consumer to another. Id. If 

the Court is correct, then Marcus would be able to prove his 

NJCFA claims with nothing more than evidence of BMW’s 

and Bridgestone’s “unlawful practices” (thus common issues 

of fact would predominate).

To justify this conclusion, both New Jersey law and 

Rule 23 require factual findings that the District Court did not 

make. What a consumer knew about Bridgestone RFTs prior 

to purchasing or leasing his or her car is highly relevant to 

whether that consumer can succeed on an NJCFA claim. The 

District Court correctly noted that “[t]he relevant issue . . . is 

whether the class members got less than what they expected.” 

Marcus, 2010 WL 4853308 at *11. But what a class member 

“expected” of Bridgestone RFTs and BMWs depends on what 

information, if any, about the alleged defects was available 

during the class period and whether that class member knew 

about it. If a consumer did know about the “defects” but, 

despite that knowledge, still decided to purchase or lease a

BMW at the same price anyway — because, for example, he 

or she decided that the other safety and convenience benefits 

RFTs and BMWs offer outweigh the costs of their defects —

then the consumer would not have received something less 

than expected. If the evidence indicates that this could be 

true for a significant number of class members, then common 

questions of fact will not predominate. Instead, individual

issues about what each class member expected when 

purchasing or leasing his or her car would swamp the inquiry, 

making the NJCFA claims inappropriate for class treatment. 

Because, as we explain below, the District Court made its 

“presumption of causation” ruling without making key factual 

findings that the NJCFA and Rule 23 require, it is an “errant 

conclusion of law” and an abuse of discretion. Hydrogen 

Peroxide, 552 F.3d at 312.
46

The Supreme Court of New Jersey has addressed when 

a “presumption of causation” may apply to NJCFA claims in 

two cases: International Union of Operating Engineers Local 

No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076 (N.J. 

2007), and Lee v. Carter-Reed Co., LLC, 4 A.3d 561 (N.J. 

2010). Both cases arose in the context of class actions 

brought under the New Jersey rule that, like Rule 23(b)(3), 

requires a finding of predominance. See N.J. Ct. R. 4:32-

1(b)(3). Although we must follow a state’s highest court

when interpreting state law, see Ill. Nat’l Ins. Co. v. Wyndham

Worldwide Operations, Inc., 653 F.3d 225, 231 (3d Cir. 

2011), we decide the legal standards that Rule 23 requires as 

a matter of federal law. See Hydrogen Peroxide, 552 F.3d at 

312. Given this confluence of state and federal law, we take 

pains to isolate what the NJCFA requires and what Rule 23 

requires in this case.

International Union involved a putative NJCFA class 

action against Merck, the manufacturer and marketer of the 

pain medication Vioxx. The class consisted of “third-party 

payors,” such as corporate health insurers and union benefit 

organizations, who administer health benefit plans and make 

payments to pharmaceutical companies for medications 

prescribed to their members. Int’l Union, 929 A.2d at 1080. 

The plaintiff alleged that Merck fraudulently marketed Vioxx 

as safer and more effective than similar medications, and 

thereby caused class members to afford Vioxx preferred 

status in their “formularies,” the approved listings of drugs

third-party payors have authorized for purchase. Id. at 1080-

81.

Merck argued that class certification was inappropriate 

because class members differed greatly in how their 

formularies dealt with Vioxx, especially as new information 

about the drug became available. Id. at 1081. Initially, some 

third-party payors gave Vioxx preferred status and assigned it 
47

to a low co-payment tier. Others put it in a non-preferred tier 

with high co-payments. Critically, Merck offered evidence 

that third-party payors, when they eventually learned of the 

supposedly fraudulent misrepresentations and omissions, did 

not react uniformly. Id. Merck’s expert testified that 

decisionmakers for third-party payors “responded to ongoing 

releases of information about Vioxx in different ways, with 

some altering its placement in their formularies.” Id. Merck 

asserted that 

the essence of the claims must be that each class 

member was injured individually when it 

decided, based on defendant’s allegedly

fraudulent conduct, to include Vioxx in its 

formulary and, more to the point, when it paid 

for the drug purchased by plan members in its 

home state. . . . [B]ecause each class member 

made that evaluation at different times and 

based on different criteria and because each 

reacted differently with regard to formulary 

placement even after the facts that allegedly 

prove the fraud became known, there are 

overwhelmingly individual, rather than 

common, questions of law and fact.

Id. at 1087 (emphasis added). 

The Supreme Court of New Jersey agreed with 

Merck that certification of a NJCFA class is not proper 

when class members do not react to misrepresentations 

or omissions in a sufficiently similar manner.

Plaintiff does not suggest that each of these 

proposed class members, receiving the same 

information from defendant, reacted in a 

uniform or even similar manner. Rather, the 
48

record speaks loudly in its demonstration that 

each third-party payor . . . made individualized 

decisions concerning the benefits that would be 

available to its members for whom Vioxx was 

prescribed. The evidence about separately 

created formularies, different types of tier 

systems, and individualized requirements for 

approval or reimbursement imposed on various 

plans’ members and, to some extent, their 

prescribing physicians, are significant. That 

evidence convinces us that the commonality of 

defendant’s behavior is but a small piece of the 

required proofs. Standing alone, that evidence 

suggests that the common fact questions 

surrounding what defendant knew and what it 

did would not predominate.

Id. (emphasis added). 

As a matter of substantive New Jersey law, 

International Union instructs that when a plaintiff knows the 

truth behind a fraudulent misrepresentation or omission, that 

plaintiff may not succeed under the NJCFA. Merck presented 

evidence that some third-party payors knew about “the facts 

that allegedly prove the fraud” but did not alter the placement 

of Vioxx in their formularies. Id. at 1087. Even if other class 

members did not know that Vioxx was not a safer and more 

effective pain medication than other available products, the 

evidence “spoke loudly” that third-party payors reacted very 

differently to the available information. So from the class 

action perspective, the case also makes clear that “the 

commonality of [the] defendant’s behavior is but a small 

piece of the required proofs” if class members do not react to 

defendants’ conduct in a sufficiently “uniform or even similar 

manner.” Id. 
49

Three years later, New Jersey’s Supreme Court

decided Lee v. Carter-Reed Company, L.L.C., which the 

Court described as “fully in line” with International Union. 

Lee, 4 A.3d at 577. In Lee, a plaintiff sought to certify a class 

of purchasers of Relacore, a dietary supplement the 

defendants marketed as a weight-reduction product with the 

additional benefits of lessening anxiety and elevating mood. 

Id. at 566. According to the plaintiff, the defendants 

misrepresented the benefits of Relacore in their advertising 

and promotions. Id. The Court held that the plaintiff’s 

NJCFA claims satisfied the predominance requirement. Id. at 

579-80. It noted that “[i]f the entire marketing scheme was 

based on fictional benefits that Relacore offered, then whether 

the class member enjoyed good or impaired health or took 

other medications would hardly matter.” Id. at 580. The 

Court continued that “[w]hen all the representations about the 

product are baseless, a trier of fact may infer the causal 

relationship between the unlawful practice — the multiple 

deceptions — and the ascertainable losses, the purchases of 

the worthless product.” Id. 

Not surprisingly, the Lee Court gave no indication that 

there was evidence of any class members who could have 

known that Relacore was a “worthless product” but decided 

to purchase it anyway. Such purchasers would not have been 

able to succeed on their NJCFA claims under New Jersey 

law. Turning to the predominance requirement, the Lee Court 

noted that, “[i]n contrast to this case, International Union

involved a proposed class of diverse entities, which the 

plaintiff did not suggest ‘reacted in a uniform or even similar 

manner’ to the same information broadcast by Merck.” Id. at 

582 (quoting Int’l Union, 929 A.2d at 1076).

Read together, International Union and Lee convince 

us that, before applying a “presumption of causation” to an 

NJCFA claim, a court must consider not only the defendants’ 
50

course of conduct, but also that of the plaintiffs. Specifically, 

it must consider whether plaintiffs could have known the truth 

underlying the defendant’s fraud. See McNair v. Synapse 

Grp., Inc., No. 06-5072 (JLL), 2009 WL 1872582, at *10

(D.N.J. June 29, 2009) (“Thus, to establish causation under 

the NJCFA the New Jersey Supreme Court [in International 

Union] looked not only to the defendant’s conduct but also to 

the class members’ conduct . . . .”). 

Although not binding on us, we also find the Supreme 

Court of New Jersey’s predominance rulings to be instructive. 

In the class action context, if the truth behind alleged defects 

is knowable and if evidence suggests that class members did

not react to information about the product they purchased or 

leased in a sufficiently similar manner such that common 

issues of fact would predominate, then certification is 

improper. See Demmick v. Cellco P’ship, No. 06-2163 (JLL), 

2010 WL 3636216, at*16 (D.N.J. Sept. 8, 2010) (“[A]lleging 

a uniform course of conduct by itself is not sufficient to 

satisfy the predominance element for the causation element of 

a NJCFA claim.”).

Relying heavily on the Appellate Division of the New 

Jersey Superior Court’s decision in Varacallo v. 

Massachusetts Mutual Life Insurance, 752 A.2d 807 (N.J. 

Super. Ct. App. Div. 2000), Marcus argues nonetheless that 

we need not consider class members’ conduct here. In

Varacallo, however, the record did not indicate that the facts 

underlying the alleged fraud were knowable to class members 

or, even if they were, that a sufficient number of class 

members would have purchased the product anyway.

The case involved a putative class of New Jersey 

residents who purchased so-called “vanishing premium” 

whole life insurance policies. Id. at 808. A “vanishing 

premium” policy allows insureds to pay premiums out-of-
51

pocket for a limited number of years only, until such time as 

dividends can completely fund the purchased plan. Id. 

Plaintiffs claimed that Mass Mutual violated the NJCFA by 

intentionally inflating its advertised dividend rates and then 

concealing a plan to reduce dividends to insupportable levels. 

They contended that this information was not revealed to 

agents who used Mass Mutual’s prepared illustrations in 

selling the policies. Id. Mass Mutual countered that class 

certification would be improper because individual issues of 

causation would predominate over common issues of law and 

fact. 

The Court held that if the plaintiffs established the core 

issue of liability, then they would be entitled to a 

“presumption of reliance and/or causation.” Id. at 818. It

explained:

It is inconceivable to us, considering the

assumption that Mass Mutual’s liability is 

premised on a knowing omission of material 

information, that discovery will reveal more 

than a very small number of policyholders who 

would have purchased an N-Pay Policy, rather 

than a competitor’s policy, if the Mass Mutual 

literature stated that the illustrated dividends 

“probably will,” rather than “may,” decrease 

and that the payout period “probably will,” 

rather than “may,” be longer than projected. 

Plaintiffs are required to prove only that 

defendant’s conduct was a cause of damages. 

They need not prove that Mass Mutual’s 

conduct was the sole cause of loss. . . . . It may 

be that some extraordinary sales agent could 

overcome such negative information[,] thereby 

becoming the superceding cause of a 
52

policyholder’s loss, but we think it a small 

possibility.

Id. at 816-17. In short, unlike in International Union, there 

was no evidence that class members could have known the 

truth behind the defendant’s representations and it was 

“inconceivable” that “more than a very small number” would

have purchased their policies despite knowing the risks that 

defendants allegedly concealed.

In this case, the District Court should not have focused

exclusively on BMW’s and Bridgestone’s conduct, and 

should have made factual findings critical to the 

predominance analysis. Before certifying a class, the Court

needed to have found (among other things) either (1) that the 

alleged defects were not knowable to a significant number of 

potential class members before they purchased or leased their 

BMWs, or (2) that, even if the defects were knowable, that 

class members were nonetheless relatively uniform in their 

decisionmaking, which would indicate that, at most, only an 

insignificant number of class members actually knew of the 

alleged defects and purchased or leased their cars at the price 

they did anyway. These findings cannot be side-stepped. 

They are necessary to determine whether the predominance 

requirement is met in this case. See Hydrogen Peroxide, 552 

F.3d at 316-18. If class members could have known of the 

alleged defects and the evidence shows that they do not react 

to information about the cars and tires they purchased or 

leased in a sufficiently uniform manner, then individual 

questions related to causation will predominate. See In re 

Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), No. 

03-4558, 2012 WL 379944 at *14-*15 (D.N.J. Feb. 6, 2012) 

(denying certification because evidence showed that 

significant information about the alleged defects was in the 

public domain and, as a result, class members who knew “the 

E-350 van to have significant handling problems will have a 
53

difficult time proving causation, and in doing so, they would 

not rely on common proof”).

Marcus disputes that the drawbacks of the tires were 

knowable to class members before purchase. He claims that

“[d]efendants have not produced any evidence showing that 

that information [about the drawbacks] was or could have 

been communicated to some class members prior to 

purchase.” Marcus Br. at 36. The defendants have, however, 

shown significant evidence that the allegedly omitted 

information was available to class members from various 

sources. See, e.g., J.A. 462-554; 940-948, 961-1108; 

2308-2310, 2313. The District Court did not explicitly 

address this issue, however, and it should be the first Court to 

do so.

Furthermore, the District Court may find that class 

members did not react uniformly when presented with 

information about the cars they purchased or leased. The 

evidence might suggest that a significant number of class 

members could have known of the alleged “defects,” but 

decided to purchase or lease their cars at the same price 

anyway. This may be so because other class members may 

consider the features of Bridgestone RFTs and BMWs that 

Marcus styles as “defects” to be simply trade-offs. Some

purchasers or lessees may have found that the significant 

safety and convenience benefits RFTs offer in the event of a 

“flat” tire outweighed their downsides. See, e.g., J.A. 961 

(“Despite the disadvantages and inconveniences of run-flat 

tires for many, Consumer Reports believes that the safety 

benefits can outweigh the downsides.”). Others may simply 

have had the means to purchase or lease the luxury car of 

their choice and brush off how “exorbitantly” expensive it is 

to replace their tires and how frequently they must do that. 

“For some consumers, the RFTs may have been an important 

factor; for others, not at all; for others, somewhere in between 
54

. . . .” Oscar II, 2012 WL 2359964 at *4. If, on remand, the 

evidence shows that no more than very few class members

could have known of the alleged “defects” and — for reasons 

either related or unrelated to RFTs — would have still 

purchased or leased their cars at the same price despite that 

knowledge, then perhaps Marcus’s NJCFA claims may be 

suitable for class treatment. If not, then individual proof 

would be needed to determine whether a particular class 

member broke the causal link between defect and 

ascertainable loss by purchasing or leasing a car despite 

knowing of the alleged defects.

That would distinguish this case from Lee and 

Varacallo. Lee involved a “worthless product” for which “all 

representations . . . [were] baseless.” 4 A.3d at 580. There 

was no reason for the Lee Court to believe that a significant 

number of class members would, despite knowing that the 

product was worthless, purchase Relacore anyway. Similarly, 

in Varacallo it was “inconceivable” that “more than a very 

small number” of plaintiffs would purchase a vanishing 

premium insurance policy despite knowing that the promised 

dividend rates were inflated, making that knowledge a 

“superceding cause of a policyholder’s loss.” 752 A.2d at 

816-17. Here, if the evidence shows on remand that the 

“defects” were knowable and that more than a very small 

number of class members would have purchased or leased 

their cars despite knowing of those defects, then Jeffrey 

Marcus is destined to meet the same fate on his RFT claims 

as Gerald Oscar met on his. See Oscar I, 274 F.R.D. 498; 

Oscar II, 2012 WL 2359964. 
55

VI. CONCLUSION

With this context, we vacate the District Court’s 

certification order and remand for proceedings consistent with 

this opinion.