Carriuolo v. General Motors Co., 823 F.3d 977 (2016)

94 Fed.R.Serv.3d 957, 26 Fla. L. Weekly Fed. C 305

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KeyCite Yellow Flag - Negative Treatment

Distinguished by Broodie v. Target Corporation, M.D.Fla., June 6,

2024

823 F.3d 977

United States Court of Appeals, Eleventh Circuit.

Geri Siano CARRIUOLO, on her own

behalf and on behalf of all others similarly

situated, Peter Bracchi, Plaintiffs–Appellees,

v.

GENERAL MOTORS

COMPANY, Defendant–Appellant.

No. 15–14442

|

Non–Argument Calendar

|

May 17, 2016.

Synopsis

Background: Motor vehicle purchasers and lessees brought

putative class action against manufacturer, alleging unjust

enrichment and violations of Florida Deceptive and Unfair

Trade Practices Act (FDUTPA) based on manufacturer's

alleged misrepresentation of safety ratings given by National

Highway Traffic Safety Administration (NHTSA). The

United States District Court for the Southern District

of Florida, No. 0:14–cv–61429–JIC, James I. Cohn, J.,

granted plaintiffs' motion for class certification. Manufacturer

appealed.

Holdings: The Court of Appeals, Marcus, Circuit Judge, held

that:

[1] common questions predominated over individual ones;

[2] class action was superior method for adjudicating claims

at issue; and

[3] class representatives satisfied adequacy of representation

prerequisite.

Affirmed.

Procedural Posture(s): On Appeal.

West Headnotes (21)

[1] Federal Courts Class actions

Court of Appeals reviews a district court's grant

of class certification for abuse of discretion,

which occurs if the court applies an incorrect

legal standard, follows improper procedures in

making the determination, or makes findings

of fact that are clearly erroneous. Fed.Rules

Civ.Proc.Rule 23, 28 U.S.C.A.

[2] Federal Courts Class actions

When reviewing a district court's grant of class

certification, it is irrelevant whether the Court of

Appeals would have granted certification, and,

as long as the district court's reasoning stays

within the parameters of the applicable rule's

requirements, the decision will not be disturbed.

Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.

1 Case that cites this headnote

[3] Federal Civil Procedure Evidence; 

 pleadings and supplementary material

Burden of establishing the requirements for class

certification is on the plaintiff who seeks to

certify the class. Fed.Rules Civ.Proc.Rule 23, 28

U.S.C.A.

24 Cases that cite this headnote

[4] Federal Civil Procedure In general; 

 certification in general

Federal Civil Procedure Consideration of

merits

Class certification is proper only if the trial court

is satisfied, after a rigorous analysis, that the

prerequisites for certification have been satisfied,

and this analysis will frequently entail overlap

with the merits of the plaintiff's underlying claim.

Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.

6 Cases that cite this headnote

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[5] Antitrust and Trade Regulation Nature

and Elements

Elements comprising a consumer claim for

damages under the Florida Deceptive and

Unfair Trade Practices Act (FDUTPA) are:

(1) a deceptive act or unfair practice; (2)

causation; and (3) actual damages. West's F.S.A.

§ 501.204(1).

161 Cases that cite this headnote

[6] Antitrust and Trade Regulation Fraud; 

 deceit;  knowledge and intent

To show a deceptive act or unfair practice, and

thus satisfy the first element of a consumer

claim for damages under the Florida Deceptive

and Unfair Trade Practices Act (FDUTPA), the

plaintiff must show that the alleged practice is

likely to deceive a consumer acting reasonably

in the same circumstances. West's F.S.A. §

501.204(1).

152 Cases that cite this headnote

[7] Antitrust and Trade Regulation Fraud; 

 deceit;  knowledge and intent

Antitrust and Trade

Regulation Reliance;  causation;  injury,

loss, or damage

Courts apply an objective test to determine

whether a practice was likely to deceive a

consumer acting reasonably, as required to show

the existence of a deceptive act or unfair practice

to support a consumer claim for damages under

the Florida Deceptive and Unfair Trade Practices

Act (FDUTPA), and thus the plaintiff need not

show actual reliance on the representation or

omission at issue. West's F.S.A. § 501.204(1).

142 Cases that cite this headnote

[8] Federal Civil Procedure Identification of

class;  subclasses

Plaintiff seeking to represent a proposed class

must establish that the proposed class is

adequately defined and clearly ascertainable.

Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A.

60 Cases that cite this headnote

[9] Federal Civil Procedure Common interest

in subject matter, questions and relief;  damages

issues

Under the commonality prerequisite for class

certification, even a single common question will

do, so long as that question is of such a nature that

it is capable of classwide resolution, meaning

that a determination of its truth or falsity will

resolve an issue that is central to the validity of

each one of the claims in one stroke. Fed.Rules

Civ.Proc.Rule 23(a)(2), 28 U.S.C.A.

23 Cases that cite this headnote

[10] Federal Civil Procedure Common interest

in subject matter, questions and relief;  damages

issues

Predominance requirement for class certification

is far more demanding than the commonality

prerequisite for certification, and it tests whether

the proposed classes are sufficiently cohesive

to warrant adjudication by representation.

Fed.Rules Civ.Proc.Rule 23(a)(2), (b)(3), 28

U.S.C.A.

14 Cases that cite this headnote

[11] Federal Civil Procedure Common interest

in subject matter, questions and relief;  damages

issues

Common issues can predominate, so as to

merit class certification, only if they have a

direct impact on every class member's effort to

establish liability that is more substantial than the

impact of individualized issues in resolving the

claim or claims of each class member. Fed.Rules

Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.

37 Cases that cite this headnote

[12] Federal Civil Procedure Consumers,

purchasers, borrowers, and debtors

Common question as to whether motor

vehicle window sticker inaccurately stating that

vehicle had received perfect safety ratings in

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three categories would deceive objectivelyreasonable observer when in fact no safety

ratings had been issued predominated in motor

vehicle purchasers' and lessees' action against

manufacturer, alleging unjust enrichment and

violations of Florida Deceptive and Unfair

Trade Practices Act (FDUTPA), even if

there were differences among class members'

subjective reliance on stickers, where every

class member purchased or leased same model

vehicle with same sticker attached. Fed.Rules

Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.; West's

F.S.A. § 501.204(1).

8 Cases that cite this headnote

More cases on this issue

[13] Federal Civil Procedure Consumers,

purchasers, borrowers, and debtors

Common question existed as to calculation

of damages predominated in motor vehicle

purchasers' and lessees' action against

manufacturer, alleging unjust enrichment and

violations of Florida Deceptive and Unfair

Trade Practices Act (FDUTPA) based on

manufacturer's alleged misrepresentation of

safety ratings, where FDUTPA's “benefit of

the bargain” model provided standardized classwide damages figure rendering immaterial any

individual's out-of-pocket payment, and price

premium that plaintiffs alleged as damages

was consistent with their theory of liability.

Fed.Rules Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.;

West's F.S.A. § 501.204(1).

17 Cases that cite this headnote

More cases on this issue

[14] Antitrust and Trade Regulation Measure

and amount

Florida Deceptive and Unfair Trade Practices

Act (FDUTPA) damages are measured according

to the difference in the market value of the

product or service in the condition in which

it was delivered and its market value in the

condition in which it should have been delivered

according to the contract of the parties. West's

F.S.A. § 501.201 et seq.

37 Cases that cite this headnote

[15] Federal Civil Procedure Hearing and

determination;  decertification;  effect

Power of the district court to alter or amend class

certification orders at any time prior to a decision

on the merits is critical, because the scope and

contour of a class may change radically as

discovery progresses and more information is

gathered about the nature of the putative class

members' claims. Fed.Rules Civ.Proc.Rule 23(c)

(1)(C), 28 U.S.C.A.

9 Cases that cite this headnote

[16] Federal Civil Procedure Common interest

in subject matter, questions and relief;  damages

issues

Class certification rule does not require the

plaintiff to prove predominance separately

as to both liability and damages. Fed.Rules

Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.

4 Cases that cite this headnote

[17] Federal Civil Procedure Common interest

in subject matter, questions and relief;  damages

issues

Individual damages calculations do not

preclude class certification under the rule

provision regarding predominance. Fed.Rules

Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.

12 Cases that cite this headnote

[18] Federal Civil Procedure Consumers,

purchasers, borrowers, and debtors

Class action was superior method for

adjudicating motor vehicle purchasers' and

lessees' action against manufacturer, alleging

unjust enrichment and violations of Florida

Deceptive and Unfair Trade Practices Act

(FDUTPA) based on manufacturer's alleged

misrepresentation of safety ratings, where

manufacturer identified 1,058 potential class

vehicles in Florida, and individual damages

claims were potentially too small for separate

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actions by individual class members. Fed.Rules

Civ.Proc.Rule 23(b)(3), 28 U.S.C.A.; West's

F.S.A. § 501.204(1).

13 Cases that cite this headnote

More cases on this issue

[19] Federal Civil Procedure Representation

of class;  typicality;  standing in general

Party's claim to representative status in a class

action is defeated only if the conflict between

the representative and the class is a fundamental

one, going to the specific issues in controversy.

Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.

6 Cases that cite this headnote

[20] Federal Civil Procedure Representation

of class;  typicality;  standing in general

Under adequacy of representation prerequisite,

a class cannot be certified when its members

have opposing interests or when it consists of

members who benefit from the same acts alleged

to be harmful to other members of the class.

Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.

1 Case that cites this headnote

[21] Federal Civil Procedure Consumers,

purchasers, borrowers, and debtors

Class representatives satisfied adequacy of

representation prerequisite for class certification

in motor vehicle purchasers' and lessees'

action against manufacturer, alleging unjust

enrichment and violations of Florida Deceptive

and Unfair Trade Practices Act (FDUTPA) based

on manufacturer's alleged misrepresentation

of safety ratings, because potential for

individualized damages was insufficient to

defeat class certification under Florida law,

each class member's subjective sophistication

or knowledge was irrelevant because liability

inquiry stated objective elements, and fact of

resale was immaterial because injury occurred

when class members paid price premium

at time of lease or purchase. Fed.Rules

Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.; West's

F.S.A. § 501.204(1).

15 Cases that cite this headnote

More cases on this issue

Attorneys and Law Firms

*980 Geoffrey S. Stahl, Jeffrey M. Liggio, Liggio Benrubi

PA, Philip M. Burlington, Burlington & Rockenbach, PA,

West Palm Beach, FL, Edward F. Haber, Patrick J. Vallely,

Shapiro Haber & Urmy, LLP, Boston, MA, for Plaintiffs–

Appellees.

Laurie M. Riley, Jones Walker, LLP, Miami, FL, Thomas

Alcade Casey, Jr., David G. Radlauer, Jones, Walker,

Waechter, Poitevent, Carrere & Denegre, LLP, New Orleans,

LA, for Defendant–Appellant.

Appeal from the United States District Court for the Southern

District of Florida.

Before MARCUS, WILSON, and ROSENBAUM, Circuit

Judges.

Opinion

MARCUS, Circuit Judge:

In this interlocutory appeal, Defendant–Appellant General

Motors LLC challenges *981 a district court order granting

in part a motion for class certification proffered by Plaintiffs–

Appellees Geri Siano Carriuolo and Peter Bracchi in their

action brought pursuant to the Florida Deceptive and Unfair

Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201, et

seq. The district court certified a class consisting of all

Florida purchasers and lessees of 2014 Cadillac CTS sedans.

On appeal, General Motors argues that the district court

erroneously certified the class under Fed.R.Civ.P. 23 because:

(1) there are not questions of law or fact common to the class;

(2) any common questions of law or fact do not predominate;

(3) a class action is not superior; and (4) the representative

parties will not fairly and adequately protect the interests of

the class. After thorough review, we can discern no abuse

of discretion in the district court's class certification, and,

accordingly, affirm.

I.

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[1] [2] [3] [4] We review a district court's grant of class

certification for abuse of discretion. Vega v. T–Mobile USA,

Inc., 564 F.3d 1256, 1264 (11th Cir.2009). “A district court

abuses its discretion if it applies an incorrect legal standard,

follows improper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” Klay

v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th

Cir.2004) (quotation omitted). “It is irrelevant whether this

Court would have granted certification, and as long as the

district court's reasoning stays within the parameters of

Rule 23's requirements, [its] decision will not be disturbed.”

Babineau v. Fed. Express Corp., 576 F.3d 1183, 1189 (11th

Cir.2009) (quotation omitted and alterations adopted). The

burden of establishing the requirements of Rule 23 is on the

plaintiff who seeks to certify the class. See Heaven v. Trust

Co. Bank, 118 F.3d 735, 737 (11th Cir.1997). The Supreme

Court has repeatedly “emphasized that it may be necessary for

the court to probe behind the pleadings before coming to rest

on the certification question, and that certification is proper

only if the trial court is satisfied, after a rigorous analysis, that

the prerequisites of Rule 23(a) have been satisfied.” Comcast

Corp. v. Behrend, –––U.S. ––––, 133 S.Ct. 1426, 1432, 185

L.Ed.2d 515 (2013) (quotations omitted). “Such an analysis

will frequently entail overlap with the merits of the plaintiff's

underlying claim.” Id. (quotation omitted).

II.

The facts—as alleged in the complaint—are these. In

November 2013, Bracchi purchased a new 2014 Cadillac CTS

sedan in Brentwood, Tennessee. In December 2013, Carriuolo

purchased the same model in Sunrise, Florida. As it turns out,

when these vehicles were sold, General Motors had provided

—in the standardized “Monroney” window stickers that

appear on new vehicles—inaccurate safety information. The

stickers are intended to provide safety ratings assigned by the

National Highway Traffic Safety Administration (“NHTSA”)

on a five-star scale for six categories, including: (1) rollover

risk; (2) the risk of injury to the driver from a frontal crash; (3)

the risk of injury to the passenger in a frontal crash; (4) the risk

of injury to the driver in a side crash; (5) the risk of injury to

the passenger in a side crash; and (6) an overall safety rating.

The Monroney stickers for certain 2014 Cadillac CTS sedans

represented that each vehicle had received perfect five-star

ratings in three categories: risk of injury to the driver from

a frontal crash, risk of injury to the passenger from a frontal

crash, and risk of rollover. No ratings were provided for the

other categories. The sticker is depicted in Figure 1 below:

*982 FIGURE 1

In fact, the NHTSA had not assigned any safety ratings to the

2014 Cadillac CTS at the time of sale to class members. As

acknowledged in a May 2014 letter from General Motors to

Carriuolo, her vehicle displayed inaccurate safety data:

The purpose of this letter is to advise you about

an inadvertent error on your vehicle's window label

with respect to the National Highway Traffic Safety

Administration's (NHTSA) safety ratings for your vehicle.

Not all vehicles are tested by NHTSA every model year.

When a vehicle is tested, however, star ratings are issued by

NHTSA for frontal crash, side crash, rollover, and overall

vehicle performance. All of these ratings are then placed

on the window label. While Cadillac always strives for

excellence in safety and quality, as of the date of this

letter, the 2014 CTS Sedan has not been tested or rated by

NHTSA as to its vehicle crash performance. Therefore, the

vehicle does not have any star ratings from NHTSA in any

category.

The window label on your vehicle correctly indicated

that its overall vehicle and side crash performance were

not rated. However, due to an inadvertent computer

programming error, the label also indicated that your

vehicle had achieved a 5–star rating for frontal crash and

rollover performance. This is not correct. Enclosed is a

corrected window label accurately reflecting that your

vehicle has no NHTSA star ratings. If you have retained

the original window label with the incorrect information,

please discard it and retain the enclosed corrected label

instead.

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The appropriate sticker—without any rankings—is depicted

in Figure 2.

FIGURE 2

*983 General Motors and dealers responded to customers

expressing concern by offering “goodwill options” like

automatic OnStar extensions, XM radio service, accessory

certificates, service coupons, and vehicle repurchases. In late

May 2014, General Motors asked NHTSA to test the CTS.

NHTSA announced on August 6, 2014, that the CTS earned a

five-star rating for five of the six safety categories, but earned

a four-star rating for risk of injury to the passenger from a

frontal crash.

In this action, plaintiffs claimed violations of FDUTPA,

Fla. Stat. § 501.201, et seq., and the Tennessee Consumer

Protection Act, Tenn.Code § 47–18–101, et seq.; unjust

enrichment; and breach of express warranty. Plaintiffs also

moved for certification of four classes: (1) a Florida class,

(2) a Tennessee class, (3) a Nationwide Unjust Enrichment

Class, and (4) a Multistate Breach of Express Warranty Class.

Notably, the district court certified only one class—a class

of persons “within the State of Florida who purchased or

leased a 2014 Cadillac CTS that had affixed to it false and

deceptive information concerning the NHTSA safety ratings

for the vehicle,” designating Carriuolo as the lead plaintiff—

and denied certification of the other proposed classes. General

Motors petitioned us under Rule 23(f) 1 to review the class

certification order. We granted the petition.

III.

[5] [6] [7] FDUTPA prohibits “[u]nfair methods of

competition, unconscionable acts or practices, and unfair or

deceptive acts or practices in the conduct of any trade or

commerce.” Fla. Stat. § 501.204(1). The elements comprising

a consumer claim for damages under FDUTPA are: (1)

a deceptive act or unfair practice; (2) causation; and (3)

actual damages. City First Mortg. Corp. v. Barton, 988

So.2d 82, 86 (Fla.Dist.Ct.App.2008). To satisfy the first

element, the plaintiff must show that “the alleged practice

was likely to deceive a consumer acting reasonably *984

in the same circumstances.” State, Office of the Att'y Gen.

v. Commerce Comm. Leasing, LLC, 946 So.2d 1253, 1258

(Fla.Dist.Ct.App.2007) (quotation omitted). Under Florida

law, an objective test is employed in determining whether the

practice was likely to deceive a consumer acting reasonably.

That is, “[a] party asserting a deceptive trade practice claim

need not show actual reliance on the representation or

omission at issue.” Davis v. Powertel, Inc., 776 So.2d 971,

973 (Fla.Dist.Ct.App.2000).

[8] [9] Moreover, “a plaintiff seeking to represent a

proposed class must establish that the proposed class is

‘adequately defined and clearly ascertainable.’ ” Little v. T–

Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.2012). If

the district court determines that this requirement has been

met, it is then obliged to examine the prerequisites set forth in

Federal Rule of Civil Procedure 23(a), which provides that a

class representative may sue on behalf of its members only if:

(1) the class is so numerous that joinder of all members is

impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately

protect the interests of the class.

Fed.R.Civ.P. 23(a). “[F]or purposes of Rule 23(a)(2) even a

single common question will do.” Wal–Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2556, 180 L.Ed.2d

374 (2011) (quotations omitted). “That common contention ...

must be of such a nature that it is capable of classwide

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resolution—which means that determination of its truth or

falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Id. at 2551; see also

Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th

Cir.2009) (“Commonality requires that there be at least one

issue whose resolution will affect all or a significant number

of the putative class members.” (quotation omitted)).

In addition to meeting the requirements found in Rule 23(a), a

plaintiff must establish that the proposed class satisfies at least

one of three requirements listed in Rule 23(b).

2

 Here, the

district court concluded *985 that Carriuolo satisfied Rule

23(b)(3), which allows the maintenance of a class action when

“the court finds that the questions of law or fact common to

class members predominate over any questions affecting only

individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the

controversy.” Fed.R.Civ.P. 23(b)(3). As we've explained:

Common issues of fact and law

predominate if they have a direct

impact on every class member's effort

to establish liability and on every class

member's entitlement to injunctive and

monetary relief. On the other hand,

common issues will not predominate

over individual questions if, as a

practical matter, the resolution of

an overarching common issue breaks

down into an unmanageable variety of

individual legal and factual issues.

Babineau, 576 F.3d at 1191 (quotations and citations omitted

and alterations adopted).

[10] [11] The predominance requirement in Rule 23(b)(3)

is “far more demanding” than the commonality requirement

found in Rule 23(a)(2), and “tests whether proposed

classes are sufficiently cohesive to warrant adjudication by

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

591, 623–24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

Common issues can predominate only if they have a “direct

impact on every class member's effort to establish liability that

is more substantial than the impact of individualized issues in

resolving the claim or claims of each class member.” Vega,

564 F.3d at 1270 (quotation omitted). Because plaintiffs will

necessarily satisfy the commonality requirement if they can

show predominance, we begin with the predominance test.

See id. at 1272.

[12] In this case, the district court found the predominance

requirement to be satisfied by an essential question

common to each class member: whether the inaccurate

Monroney sticker provided by General Motors constituted a

misrepresentation prohibited by FDUTPA. General Motors

claims that the liability determination will be highly

individualized because the buying and leasing experiences

of each proposed class member were not uniform. General

Motors points out that some class members may have known

that the safety ratings were inaccurate; some may not have

been aware of the Monroney sticker; and each member

negotiated the purchase or lease price individually with the

dealer from whom the member purchased or leased the

vehicle.

But these objections do not defeat the district court's

determination that common questions predominate. Because

a plaintiff asserting a FDUTPA claim “need not show actual

reliance on the representation or omission at issue,” Davis,

776 So.2d at 973, the mental state of each class member is

irrelevant. In Davis, the First District Court of Appeal of

Florida recognized that the absence of a reliance requirement

means “the impediment to class litigation that exists for

multiple intrinsic fraud claims does not exist” in FDUTPA

cases. Id. Thus, General Motors is incorrect to suggest

that the plaintiffs must prove that every class member saw

the sticker and was subjectively deceived by it. As the

district court correctly observed, these arguments simply

seek a reliance inquiry by another name. Instead, under

FDUTPA, the plaintiff must only establish three objective

*986 elements: (1) a deceptive act or unfair practice; (2)

causation; and (3) actual damages. City First Mortg. Corp.,

988 So.2d at 86. Here, the first FDUTPA element is amenable

to class-wide resolution: the factfinder must only determine

whether a Monroney sticker that inaccurately states a vehicle

had received perfect safety ratings in three categories would

deceive an objectively reasonable observer when in fact no

safety ratings had been issued.

We addressed a similar issue in Fitzpatrick v. Gen. Mills,

Inc., 635 F.3d 1279 (11th Cir.2011), where we reviewed a

FDUTPA class certification arising out of misrepresentations

made by a producer about the nutritional benefits of YoPlus

yogurt. The district court certified a class defined as “all

persons who purchased YoPlus in the State of Florida to

obtain its claimed digestive health benefit.” Id. at 1282. We

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vacated the order because “[t]he class definition limits the

class to those who purchased YoPlus ‘to obtain its claimed

digestive health benefit,’ which takes into account individual

reliance on the digestive health claims.” Id. at 1283. This

was error, we explained, because FDUTPA recovery depends

on whether plaintiffs paid a price premium, not on whether

plaintiffs actually relied on the illegal misrepresentation. Id.

at 1282–83. Because every class member here purchased

or leased the same model vehicle with the same Monroney

sticker attached, it does not matter that there may have been

differences among the class members' subjective reliance.

[13] [14] Moreover, because the injury is not determined

by the plaintiffs' subjective reliance on the alleged inaccuracy,

causation and damages may also be amenable to class-wide

resolution. FDUTPA damages are measured according to “the

difference in the market value of the product or service in the

condition in which it was delivered and its market value in the

condition in which it should have been delivered according

to the contract of the parties.” Rollins, Inc. v. Heller, 454

So.2d 580, 585 (Fla.Dist.Ct.App.1984) (quotation omitted);

see also Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 453

(5th Cir.2001) (The FDUTPA damages formula calculates

“the value of the product as promised minus the value of the

product delivered.”). Thus, the proper question is not how

much the erroneous sticker may have reduced the vehicle's

perceived value for any individual purchaser or lessee. Rather,

damages should reflect the difference between the market

value of a 2014 Cadillac CTS with perfect safety ratings for

three standardized categories and the market value of a 2014

Cadillac CTS with no safety ratings. Unlike the calculation of

an individual consumer's direct pecuniary loss, which would

limit the plaintiff to the difference of what she paid and the

actual value received, the FDUTPA “benefit of the bargain”

model provides a standardized class-wide damages figure

because the plaintiff's out-of-pocket payment is immaterial.

See Coghlan, 240 F.3d at 453 (recognizing that FDUTPA

cases apply a “benefit of the bargain” damages formula); 13

A.L.R.3d 875, §§ 3(a) and 4(a) (contrasting the “benefit of the

bargain” damages model with an “out of pocket” measure).

In Collins v. DaimlerChrysler Corp., 894 So.2d 988, 991

(Fla.Dist.Ct.App.2004), a Florida appellate court held that a

plaintiff adequately alleged actual damages under FDUTPA

when she purchased a vehicle with defective seatbelts.

Chrysler argued that the plaintiff did not suffer any out-ofpocket damages because the seatbelt never malfunctioned

during an accident. Id. at 989. The court, however, recognized

that this was the wrong metric. Id. at 990–91. *987 Because

FDUTPA allows for damages based on diminution of market

value, the court permitted the plaintiff to proceed on the

theory that she did not get what she bargained for. Id. It

concluded, “This case turns on a relatively simple question,

at least as to damages—Is a car with defective seatbelt

buckles worth less than a car with operational seatbelt

buckles? Common sense indicates that it is[.]” Id. at 991. The

similar question here is amenable to classwide resolution. The

plaintiffs may show that a vehicle presented with three perfect

safety ratings is more valuable than a vehicle presented with

no safety ratings. General Motors received the same benefit

of the bargain from the sale or lease to each class member—

even if individual class members negotiated different prices—

because a vehicle's market value can be measured objectively.

As the district court recognized here, a manufacturer's

misrepresentation may allow it to command a price premium

and to overcharge customers systematically. Even if an

individual class member subjectively valued the vehicle

equally with or without the accurate Monroney sticker, she

could have suffered a loss in negotiating leverage if a vehicle

with perfect safety ratings is worth more on the open market.

As long as a reasonable customer will pay more for a vehicle

with perfect safety ratings, the dealer can hold out for a

higher price than he would otherwise accept for a vehicle with

no safety ratings. Thus, for example, a dealer would likely

not discount a pickup truck with superior towing capacity

for a customer with only a suburban commute, since most

customers willingly pay more for that feature. Nor would a

dealer be likely to lower the price for a hearing impaired

customer who demands to pay less for a vehicle equipped with

satellite radio, even though she might value it equally to a

vehicle equipped with no audio capabilities. Obviously, prices

are determined in substantial measure according to market

demand. Thus, because a vehicle with three perfect safety

ratings may be able to attract greater market demand than a

vehicle with no safety ratings, the misleading sticker arguably

was the direct cause of actual damages for the certified class

even if members individually value safety ratings differently.

General Motors offers two other arguments about damages

that the district court rejected. First, General Motors proposes

that damages should be calculated by comparing the value

of the vehicle with the inaccurate sticker against the value of

the vehicle after the NHTSA ratings were published. It says

that because the safety ratings ultimately confirmed two of the

three five-star ratings that were prematurely included in the

stickers provided to the plaintiffs, the plaintiffs could not have

suffered any injury. But even if we ignore that General Motors

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displayed a five-star rating for the risk of injury to passengers

from frontal impact when in fact the NHTSA awarded

only four stars for that category, General Motors offers the

wrong metric. A defendant may not escape FDUTPA liability

under Florida law merely because a deceptive or misleading

statement later turns out to be true. The injury occurs at the

point of sale because the false statement allows the seller

to command a premium on the sales price. A vehicle that

the manufacturer knows to be safe is more valuable than a

vehicle that the manufacturer perhaps anticipates will later be

declared safe. Because General Motors could only anticipate

five-star safety ratings at the time of sale to class members,

it caused actual damages within the meaning of FDUTPA by

presenting those ratings as confirmed fact.

[15] Second, General Motors argues that the predominance

inquiry is not satisfied *988 because damages may vary for

some class members. Even if the damages determination does

ultimately necessitate individualized calculations, however,

reversal would be unwarranted at this stage for two reasons.

First, the certification of a class is always provisional in

nature until the final resolution of the case. See Fed.R.Civ.P.

23(c)(1)(C) (permitting amendment of a certification order

at any time prior to judgment). As we have explained, the

power of the district court to alter or amend class certification

orders at any time prior to a decision on the merits “is

critical, because the scope and contour of a class may change

radically as discovery progresses and more information is

gathered about the nature of the putative class members'

claims.” Prado–Steiman ex rel. Prado v. Bush, 221 F.3d

1266, 1273 (11th Cir.2000). The district court acknowledged

that institutional purchasers who leased 2014 Cadillac CTSs

to end-consumers may have recaptured the same price

premium enjoyed by General Motors. However, evidence

offered by General Motors says that of the approximately

9,000 CTSs with erroneous stickers sold or leased in the

United States, only “[h]undreds of those vehicles were fleet

sales” to institutional purchasers. Thus, there is no reason

to expect the predominating questions concerning liability

will be overwhelmed by intensive, individualized damages

determinations. The district court recognized that, to the

extent this becomes an issue, it may be resolved through

refinement of the Florida Class or the creation of subclasses.

The district court's determination did not amount to an abuse

of discretion.

[16] [17] Further and related, individualized damages

calculations are insufficient to foreclose the possibility of

class certification, especially when, as here, the central

liability question is so clearly common to each class member.

Rule 23 permits a class action when “the court finds that

the questions of law or fact common to class members

predominate over any questions affecting only individual

members.” Fed.R.Civ.P. 23(b)(3). Nothing in this Rule

requires plaintiffs to prove predominance separately as to both

liability and damages. General Motors argues nevertheless

that, pursuant to Comcast Corp. v. Behrend, ––– U.S. ––––,

133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), “damages [must be]

capable of measurement on a classwide basis.” Id. at 1433.

But Comcast simply requires that “any model supporting a

plaintiff's damages case must be consistent with its liability

case.” Id. (quotation omitted). In Comcast, the Supreme

Court reversed class certification when the plaintiffs sought

damages for injuries distinct from the theory of antitrust

liability that was accepted for class-action treatment. Id. Thus,

as our sister circuits have held since Comcast, “individual

damages calculations do not preclude class certification.”

Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 374–75 (3d

Cir.2015) (quotation omitted); see also Pulaski & Middleman,

LLC v. Google, Inc., 802 F.3d 979, 987 (9th Cir.2015)

(“Since Comcast ... we reaffirmed that damage calculations

alone cannot defeat class certification.”), petition for cert.

filed, No. 15–1101 (Mar. 1, 2016); Roach v. T.L. Cannon

Corp., 778 F.3d 401, 408 (2d Cir.2015) (“The Supreme Court

did not foreclose the possibility of class certification under

Rule 23(b)(3) in cases involving individualized damages

calculations.”); Butler v. Sears, Roebuck & Co., 727 F.3d 796,

801 (7th Cir.2013) (“If the issues of liability are genuinely

common issues, and the damages of individual class members

can be readily determined in individual hearings, in settlement

negotiations, or by creation of subclasses, the fact that

damages are not identical across all class members should

not preclude class certification.”). *989 Unlike in Comcast,

where the Court determined that “[q]uestions of individual

damage calculations will inevitably overwhelm questions

common to the class,” 133 S.Ct. at 1433, there is no

evidence to suggest that the class-wide adjudication of any

FDUTPA liability will be subsumed in or overwhelmed by an

individualized damages inquiry.

Besides, the price premium that plaintiffs allege as damages

is consistent with their theory of liability. By inaccurately

communicating that the 2014 Cadillac CTS had attained

three perfect safety ratings, General Motors plainly obtained

enhanced negotiating leverage that allowed it to command a

price premium. The size of that premium—“the difference in

the market value of the [vehicle] in the condition in which

it was delivered and its market value in the condition in

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which it should have been delivered,” Rollins, 454 So.2d

at 585—represents the damages attributable to that theory

of liability. Because that theory is consistent for all class

members, the predominance requirement under Rule 23(b)(3)

is satisfied. This consistency is also sufficient to establish the

commonality requirement under Rule 23(a)(2). The district

court's determination on these points does not amount to an

abuse of discretion.

[18] General Motors also suggests that a class action is not

“superior to other available methods for fairly and efficiently

adjudicating the controversy,” as required by Rule 23(b)(3).

We disagree. Among the factors relevant to the superiority

requirement are these:

(A) the class members' interests in individually controlling

the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the

controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed.R.Civ.P. 23(b)(3).

Here, General Motors has identified 1,058 potential class

vehicles in Florida. As the district court noted, individual

claims may be too small for a separate action by each

class member. Because common questions of law and

fact predominate, class-wide adjudication appropriately

conserves judicial resources and advances society's interests

in judicial efficiency. See Gen. Tel. Co. of Sw. v. Falcon, 457

U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Again,

we can discern no abuse of discretion.

[19] [20] Finally, General Motors argues that Carriuolo

failed to prove that she can fairly and adequately protect

the interests of the class as required by Rule 23(a)(4).

3

“[A] party's claim to representative status is defeated only

if the conflict between the representative and the class is a

fundamental one, going to the specific issues in controversy.”

Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280

(11th Cir.2000). “Thus, a class cannot be certified when

its members have opposing interests or when it consists

of members who benefit from the same acts alleged to be

harmful to other members of the class.” Id.

[21] General Motors has identified three potential class

conflicts: first, the damages calculation may differ for

institutional *990 purchasers who leased the vehicle to endusers; second, different class members may have had varying

levels of sophistication and access to information at the time

of lease or purchase; and finally, class interests may diverge

between those who sold their vehicle before the sticker

was corrected, those who sold their vehicle after NHTSA

completed testing, and those who still own their vehicle. As

we've already noted, the potential for individualized damages

is not sufficient to defeat class certification under Florida

law. A class member's subjective sophistication or knowledge

is irrelevant because the liability inquiry states objective

elements. And the fact of resale is immaterial because the

injury occurred when class members paid a price premium

at the time of lease or purchase. None of these factors

suffices as a fundamental conflict. Each class member is

connected by the common predominate inquiry: Did General

Motors violate FDUTPA by affixing inaccurate Monroney

stickers to 2014 Cadillac CTS sedans sold or leased in

Florida? Moreover, we again observe that the district court's

determination is a provisional one, subject to change in the

face of the development of new facts that may compel a

different process.

On this record, however, the decision to grant plaintiffs'

motion for class certification was not an abuse of discretion;

accordingly, we affirm the judgment of the district court.

AFFIRMED.

All Citations

823 F.3d 977, 94 Fed.R.Serv.3d 957, 26 Fla. L. Weekly Fed.

C 305

Footnotes

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1 “A court of appeals may permit an appeal from an order granting or denying class-action certification under

this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is

entered.” Fed.R.Civ.P. 23(f).

2 Rule 23(b) provides that:

A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish

incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive

of the interests of the other members not parties to the individual adjudications or would substantially

impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class,

so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as

a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to other available methods

for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class

members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed.R.Civ.P. 23(b).

3 “One or more members of a class may sue or be sued as representative parties on behalf of all members

only if ... the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P.

23(a)(4).

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

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