2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-2015

Joanne Neale v. Volvo Cars North America

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 14-1540

_____________

JOANNE NEALE, Individually and on behalf of all 

others similarly situated;

KERI HAY, Individually and on behalf of all others 

similarly situated; DAVID TAFT; JEFFREY KRUGER; 

KAREN COLLOPY; KELLY MCGARY; 

SVEIN A. BERG; GREGORY P. BURNS

v.

VOLVO CARS OF NORTH AMERICA, LLC; 

VOLVO CAR CORPORATION,

 Appellants 

_____________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 2-10-cv-04407

District Judge: The Honorable Dennis M. Cavanaugh 

Argued: June 2, 2015
2

Before: SMITH, CHAGARES, and HARDIMAN,

Circuit Judges

(Filed: July 22, 2015)

Paul Daly, Esq.

Hardin, Kundla, McKeon & Poletto

673 Morris Avenue

P.O. Box 730

Springfield, NJ 07081

Peter W. Herzog, III, Esq. ARGUED

Wheeler Trigg O’Donnell

211 North Broadway

Suite 1200

St. Louis, MO 63102

Counsel for Appellants

David M. Freeman, Esq.

Eric D. Katz , Esq. ARGUED

David A. Mazie, Esq.

Matthew R. Mendelsohn

Mazie Slater, Katz & Freeman

103 Eisenhower Parkway

Suite 207

Roseland, NJ 07068
3

Benjamin F. Johns, Esq.

Joseph G. Sauder, Esq.

Matthew D. Schelkopf, Esq.

Chimicles & Tikellis

361 West Lancaster Avenue

One Haverford Centre

Haverford, PA 19041

Counsel for Appellees

Daniel I. Rubin, Esq.

Andrew R. Wolf, Esq.

Henry P. Wolfe, Esq.

The Wolf Law Firm

1520 U.S. Highway 130

Suite 101

North Brunswick, NJ 08902

Counsel for Amicus Appellee

________________

OPINION

________________

SMITH, Circuit Judge.

This appeal involves a putative class action brought by 

consumers from six states alleging that AppellantsDefendants Volvo Cars of North America, LLC and Volvo 
4

Car Corporation (collectively “Volvo”) sold certain vehicles 

with defective sunroof drainage systems. Volvo challenges 

the grant of class certification by the U.S. District Court for 

the District of New Jersey. For the reasons that follow, we 

will vacate the District Court’s order and remand for further 

proceedings.

I.

Plaintiffs-Appellees Joanne Neale, Keri Hay, Kelly 

McGary, Svein Berg, Gregory Burns, David Taft, Jeffrey 

Kruger, and Karen Collopy (collectively “Plaintiffs”) filed 

suit on behalf of themselves and a nationwide class of current 

and former Volvo vehicle owners and lessees. Plaintiffs 

allege that a uniform design defect exists in the sunroof 

drainage systems in the following vehicles sold and leased to 

consumers by Volvo: S40, S60, S80, and V70 (model years 

2004 to present); XC90 (model years 2003 to present); and 

V50 (model years 2005 to present) (the “Class Vehicles”).

On August 7, 2012, Plaintiffs proposed a nationwide 

class consisting of “[a]ll persons or entities in the United 

States who are current or former owners and/or lessees of a 

Class Vehicle (the ‘Nationwide Class’).” Supplemental 

Appendix (“SA”) 19; Joint Appendix (“JA”) 140. In the 

alternative, Plaintiffs also proposed the following statewide

classes:

All persons or entities in Massachusetts who 

are current or former owners and/or lessees of 

a Class Vehicle (the “Massachusetts Class”).
5

All persons or entities in Florida who are 

current or former owners and/or lessees of a 

Class Vehicle (the “Florida Class”).

All persons or entities in Hawaii who are 

current or former owners and/or lessees of a 

Class Vehicle (the “Hawaii Class”).

All persons or entities in New Jersey who are 

current or former owners and/or lessees of a 

Class Vehicle (the “New Jersey Class”).

All persons or entities in California who are 

current or former owners and/or lessees of a 

Class Vehicle (the “California Class”).

All persons or entities in Maryland who are 

current or former owners and/or lessees of a 

Class Vehicle (the “Maryland Class”).

SA 20; see also JA 140–41 (Pls.’ Second Am. Compl. listing 

all classes except for the Maryland Class). Volvo filed a brief 

in opposition to the proposed classes and separate motions for 

summary judgment against the individual class 

representatives. 

On March 26, 2013, the District Court denied

Plaintiffs’ motion to certify a nationwide class, granted

Plaintiffs’ motion to certify six statewide classes, and denied

Volvo’s motions for summary judgment. After the Supreme 

Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 

1426 (2013), Volvo moved for reconsideration of the District 
6

Court’s order granting class certification, which the District 

Court also denied. Volvo filed this timely appeal.

II.

The District Court had jurisdiction over this case 

pursuant to 28 U.S.C. §§ 1332(d)(2) and (d)(6) and 

supplemental jurisdiction over the state law claims pursuant 

to 28 U.S.C. § 1367.1 We have jurisdiction pursuant to 28 

 

1 Plaintiffs asserted federal jurisdiction under the Class 

Action Fairness Act of 2005 (“CAFA”). Pub. L. No. 109–2, 

119 Stat. 4 (codified in scattered sections of 28 U.S.C.). 

CAFA confers on district courts original jurisdiction where: 

(1) the amount in controversy exceeds $5,000,000, as 

aggregated across all individual claims; (2) there are 

minimally diverse parties; and (3) the class consists of at least 

100 or more members. 28 U.S.C. § 1332(d)(2), (5)(B), (6); 

Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1348

(2013). 

Although the parties do not dispute CAFA jurisdiction, 

“[w]e must nevertheless satisfy ourselves that federal subject 

matter jurisdiction exists in the first instance.” Kaufman v. 

Allstate N.J. Ins. Co., 561 F.3d 144, 151 (3d Cir. 2009). “In 

order to determine whether the CAFA jurisdictional

requirements are satisfied, a court evaluates allegations in the 

complaint.” Judon v. Travelers Prop. Cas. Co. of Am., 773 

F.3d 495, 500 (3d Cir. 2014). Plaintiffs contend that there 

were over 100 class members because there were “tens of 

thousands” of Class Vehicles sold in the United States. JA 
7

 

107, 141–42, Second Am. Compl. ¶¶ 5, 127. As to the 

amount in controversy, Plaintiffs allege that class members 

“suffered economic damages including but not limited to 

costly repairs, loss of vehicle use, substantial loss in value 

and resale value of the vehicles, and other related damages,” 

JA 148, ¶ 148, that they are seeking punitive damages and 

attorney’s fees and costs, and that this exceeds $5,000,000. 

Finally, because one plaintiff and one defendant are citizens 

of different states, Plaintiffs contend that there is minimal 

diversity. Volvo answered that the jurisdictional allegations 

stated “a legal conclusion to which no response [was] 

necessary,” but to the extent “a response is deemed required, 

Volvo admits the allegations in this paragraph.” JA 170, Am. 

Answer ¶ 5.

Because Volvo did not contest these jurisdictional 

facts, we ask “whether it is clear to a legal certainty that the 

plaintiff cannot recover the amount claimed.” Judon, 773

F.3d at 505. As in Frederico v. Home Depot, we have an idea 

of each class representative’s damages but not the total 

number of class members. 507 F.3d 188, 199 (3d Cir. 2007). 

Using class representative Gregory Burns as an example, he 

was charged $252.82 to repair his damaged vehicle. As a 

citizen of New Jersey, he can seek punitive damages of up to 

five times the compensatory damages, N.J. Stat. Ann. 

§ 2A:15-5.14(b). Thus, an estimate of his total damages 

amounts to $1,516.92. A median recovery range for 

attorney’s fees is approximately 30 percent, which would be 

$455.08 for Burns’ claim. Burns’ damages plus attorney’s 

fees would equal $1,972. The $5,000,000 CAFA amount-incontroversy requirement divided by $1,972 equals 
8

U.S.C. § 1292(e) and Rule 23(f) of the Federal Rules of Civil 

Procedure. 

“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.” Grandalski 

v. Quest Diagnostics Inc., 767 F.3d 175, 179 (3d Cir. 2014) 

(quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 354 

(3d Cir. 2013)) (internal quotation marks omitted). We 

review de novo a legal standard applied by a district court. 

Carrera v. Bayer Corp., 727 F.3d 300, 305 (3d Cir. 2013).

III.

Volvo argues on appeal that: (1) putative members of 

the class have not suffered an injury and therefore lack

Article III standing; (2) the District Court failed to identify 

the class claims and defenses in its certification order; (3) the 

District Court erred in its analysis of the Rule 23(b)(3) 

predominance requirement; and (4) the Supreme Court’s 

decision in Comcast Corp. v. Behrend means that Plaintiffs 

 

approximately 2,536 class members. Because 2,536 is well 

under the number of Class Vehicles identified in the Second 

Amended Complaint (“tens of thousands”), we are satisfied 

that the “legal certainty test is met: as it does not appear to a 

legal certainty that [Plaintiffs] cannot recover the 

jurisdictional amount, the case need not be remanded and we 

may proceed to the substantive merits of this appeal.” See 

Frederico, 507 F.3d at 199. 
9

must have class-wide proof of damages in order for the class 

to be certified. We address each issue in turn. 

A.

Volvo argues that all putative class members must 

have Article III standing. We begin with this argument 

because “[w]e have ‘an obligation to assure ourselves’ of 

litigants’ standing under Article III.” DaimlerChrysler Corp. 

v. Cuno, 547 U.S. 332, 340 (2006) (quoting Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 

167, 180 (2000)); see also In re Deepwater Horizon, 739 F.3d 

790, 798 (5th Cir. 2014). We exercise plenary review over a 

threshold question of law, such as that presented by an Article 

III standing challenge. McNair v. Synapse Grp. Inc., 672 

F.3d 213, 222 n.9 (3d Cir. 2012).

1.

Article III governs constitutional standing and limits 

our jurisdiction to actual “cases or controversies.” U.S. 

Const. art. III, § 2. Article III requires a plaintiff to 

demonstrate “(1) an ‘injury in fact,’ (2) a sufficient ‘causal 

connection between the injury and the conduct complained 

of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed 

by a favorable decision.’” Susan B. Anthony List v. Driehaus, 

134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1991)). 

Constitutional standing ensures that litigants are truly adverse 

to one another and are not merely “suitors in the courts of the 

United States.” Valley Forge Christian Coll. v. Ams. United 

for Separation of Church and State, Inc., 454 U.S. 464, 476
10

(1982); Warth v. Seldin, 422 U.S. 490, 498 (1975) (“In 

essence the question of standing is whether the litigant is 

entitled to have the court decide the merits of the dispute or of 

particular issues.”). “The law of Article III standing, which is 

built on separation-of-powers principles, serves to prevent the 

judicial process from being used to usurp the powers of the 

political branches.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 

1138, 1146 (2013); see also William A. Fletcher, The 

Structure of Standing, 98 Yale L.J. 221, 222 (1988) 

(explaining that a concrete dispute “informs the court of the 

consequences of its decisions” and prevents “the antimajoritarian federal judiciary from usurping the policymaking functions of the popularly elected branches”).

The case before us concerns the injury-in-fact 

requirement. The requisite injury-in-fact is an “invasion of a 

legally protected interest.” Lujan, 504 U.S. at 560. That 

injury must be “particularized,” id., and “concrete in both a 

qualitative and temporal sense,” Whitmore v. Arkansas, 495 

U.S. 149, 155 (1990). That injury must also be “actual or 

imminent, not conjectural or hypothetical.” Lujan, 504 U.S. 

at 560 (quoting Whitmore, 495 U.S. at 155) (internal 

quotation marks omitted). A risk of future injury may support 

standing if the threatened harm is “certainly impending,” or 

there is a “‘substantial risk’” that the harm will occur. 

Clapper, 133 S. Ct. at 1148, 1150 n.5 (quoting Monsanto Co. 

v. Geertson Seed Farms, 561 U.S. 139, 153 (2010)).

Standing requires that the party seeking to invoke 

federal jurisdiction “demonstrate standing for each claim he 

seeks to press.” DaimlerChrysler, 547 U.S. at 352. Thus, we 

do not exercise jurisdiction over one claim simply because it
11

arose “from the same ‘nucleus of operative fact’” as another 

claim. Id. Accordingly, 

[S]tanding is not a “mere pleading 

requiremen[t] but rather an indispensable part of 

the plaintiff’s case, each element must be 

supported in the same way as any other matter 

on which the plaintiff bears the burden of proof, 

i.e., with the manner and degree of evidence 

required at the successive stages of the 

litigation.” 

Ala. Legis. Black Caucus v. Alabama, 135 S. Ct. 1257, 1276 

(2015) (alteration in original) (quoting Lujan, 504 U.S. at 

561). 

In the context of a class action, Article III must be 

satisfied “by at least one named plaintiff.” McNair, 672 F.3d 

at 223; see also O’Shea v. Littleton, 414 U.S. 488, 494 (1974)

(“[I]f none of the named plaintiffs purporting to represent a 

class establishes the requisite of a case or controversy with 

the defendants, none may seek relief on behalf of himself or 

any other member of the class.”). The Supreme Court has yet 

to comment on what Article III requires of putative, unnamed

class members during a Rule 23 motion for class 

certification.2

 

2 The Supreme Court granted the petition for certiorari 

in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, 2015 WL 

1278593, at *1 (U.S. June 8, 2015). The second question 

presented is: “Whether a class action may be certified or 
12

In Amchem Products, Inc. v. Windsor, the Supreme 

Court declined to address the argument that asbestos 

exposure-only class members had no standing to pursue their 

class claims and instead began its analysis with Rule 23. 521 

U.S. 591, 612–13 (1997). The Supreme Court agreed with 

our analysis that the settlement class’s standing issues 

“‘would not exist but for the [class-action] certification’” and 

that those issues were dispositive “because their resolution 

[was] logically antecedent to the existence of any Article III 

issues.” Id. at 612 (first alteration in original) (quoting 

Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623 (3d Cir. 

1996)); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 831

(1999) (reasoning that the question of whether certification of 

a settlement class under Rule 23(b)(1)(B) on a limited fund 

rationale presented, as in Amchem, an issue of “statutory 

standing” that “should be treated first”).

Yet considerations under Rule 23 are themselves 

procedural rules, and thus rarely can be antecedent to the 

question of whether a federal court has jurisdiction to hear a 

claim at all. See 28 U.S.C. § 2072(a), (b) (authorizing the 

Supreme Court to prescribe “general rules of practice and 

procedure,” but providing that those rules “shall not abridge, 

 

maintained under Rule 23(b)(3), or a collective action 

certified or maintained under the Fair Labor Standards Act, 

when the class contains hundreds of members who were not 

injured and have no legal right to any damages.” Pet. for 

Writ of Cert, Tyson Foods, Inc. v. Bouaphakeo, 2015 WL 

1285369, at *i (Mar. 19, 2015). The Supreme Court may, 

therefore, answer this question during its October 2015 term. 
13

enlarge or modify any substantive right”); Fed. R. Civ. P. 82 

(stating that the Federal Rules of Civil Procedure “do not 

extend or limit the jurisdiction of the district courts”); 1

William B. Rubenstein, Newberg on Class Actions § 1:1 (5th 

ed. 2012) (“Rule 23 is, therefore, fundamentally a procedural

device: it cannot ordinarily be construed to extend or limit the 

jurisdiction and venue of federal courts.”). What is more, the 

Supreme Court has recently explained that “statutory 

standing” is “misleading, since ‘the absence of a valid (as 

opposed to arguable) cause of action does not implicate 

subject-matter jurisdiction.’” Lexmark Int’l, Inc. v. Static 

Control Components, Inc., 134 S. Ct. 1377, 1387 n.4 (2014) 

(quoting Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 

U.S. 635, 642–43 (2002)). Because a federal court has a 

“bedrock obligation to examine both [its] own subject matter 

jurisdiction and that of the district courts,” Pub. Interest 

Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 

F.3d 111, 117 & n.5 (3d Cir. 1997), it is improper to “resolve 

contested questions of law when its jurisdiction is in doubt.” 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 

(1998).

The Supreme Court has candidly recognized the 

tension in its standing precedent: “We need not mince words 

when we say that the concept of ‘Art. III standing’ has not 

been defined with complete consistency in all of the various 

cases decided by this Court.” Valley Forge Christian Coll., 

454 U.S. at 475. One could say that Amchem stands for the 

proposition that when a federal court would deny a class 

certification motion, that court need not reach the question of 

jurisdiction. See 521 U.S. at 612–13. Yet that logic could 
14

result in a federal court, in many cases, reaching Rule 23 

questions before assuring itself of jurisdiction. Even more 

problematic for this application of Amchem is the extensive 

discussion in Steel Co. v. Citizens for a Better Environment

that read cases that “ha[d] diluted the absolute purity of the 

rule that Article III jurisdiction is always an antecedent 

question” in a very limited manner. 523 U.S. at 101. The 

Supreme Court reasoned that “[f]or a court to pronounce upon 

the meaning or the constitutionality of a state or federal law 

when it has no jurisdiction to do so is, by very definition, for 

a court to act ultra vires.” Id. at 101–02. And because 

determining the answer to a Rule 23 certification motion 

involves “rigorous analysis” that may overlap with meritsbased questions, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 

2541, 2551–52 (2011), a federal court’s analysis will rarely 

be an obvious, foregone conclusion. Indeed, Amchem

cautioned that “[i]f certification issues were genuinely in 

doubt . . . the jurisdictional issues would loom larger.” 521 

U.S. at 613 n.15.

In this case, certification issues are genuinely in doubt. 

And because we will remand this matter to the District Court 

as described herein, that court may well be presented with the 

very same arguments regarding standing. For these reasons, 

we address Volvo’s standing argument.

2.

In In re Prudential Insurance Co. America Sales 

Practice Litigation Agent Actions, we addressed the 

applicability of Article III to a putative class. The case 

involved a settlement class alleging improper sales and 
15

marketing practices by the life insurer Prudential. 148 F.3d 

283, 290–92 (3d Cir. 1998). We held that once Article III 

standing “is determined vis-a-vis the named parties . . . there 

remains no further separate class standing requirement in the 

constitutional sense.” Id. at 306–07 (quoting 1 William B. 

Rubenstein, Newberg on Class Actions § 2.05 (3d ed. 1992)) 

(citing In re Prudential Ins. Co. of Am. Sales Practices Litig., 

962 F. Supp. 450, 505–06 (D.N.J. 1997) and Allee v. 

Medrano, 416 U.S. 802, 828 (1974)).3 We further explained 

that “absentee class members are not required to make a 

 

3 The latest version of Newberg on Class Actions 

provides that “[a] class action can be maintained by one class 

representative with proper standing,” and cites to Rule 23(a) 

as authority. 2 William B. Rubenstein, Newberg on Class 

Actions § 2:8 (5th ed. 2012); id. § 2:1 (“Once threshold 

individual standing by the class representative is met, a 

proper party to raise a particular issue is before the court; 

there is no further, separate ‘class action standing’ 

requirement.”); see also 5 Jerold S. Solovy et al., Moore’s 

Federal Practice - Civil § 23.63 (3d ed. 1997) (“The named 

plaintiff in a class action must meet all the jurisdictional 

requirements to bring an individual suit asserting the same 

claims, including standing.”); 1 McLaughlin on Class Actions

§ 4:28 (11th ed. 2014) (“In the class action context, including 

cases seeking prospective injunctive relief, as an Article III 

justiciability matter only the named plaintiff must 

demonstrate standing to assert the claims (including injury in 

fact), not the absent class members. Individual class 

members do not need to submit evidence of personal 

standing.” (footnotes omitted)).
16

similar showing, because once the named parties have 

demonstrated they are properly before the court, ‘the issue 

[becomes] one of compliance with the provisions of Rule 23, 

not one of Article III standing.’” Id. at 307 (alteration in 

original) (quoting Goodman v. Lukens Steel Co., 777 F.2d 

113, 122 (3d Cir. 1985), aff’d, 482 U.S. 656 (1987)); see also 

Hayes, 725 F.3d at 361 & n.11–12 (explaining that at the 

class certification stage when a named plaintiff’s Article III 

standing is in question, a district court must determine 

whether that named plaintiff “falls within the amended class 

definition and sustained an injury”). Because In re 

Prudential involved a settlement class, we did not have 

occasion expressly to address whether unnamed class 

members in a litigation class must have Article III standing.4

 

4 Volvo also asks us to treat the certification of a 

settlement class in In re Prudential as distinguishable from 

that of a litigation class. Nothing in In re Prudential, 

however, limited its reach to that of absent settlement class 

members. See 148 F.3d at 306–07. Nor has our application 

of In re Prudential been limited solely to settlement classes. 

See McCray v. Fidelity Nat’l Title Ins. Co., 682 F.3d 229, 243 

& n.13 (3d Cir. 2012) (“In the context of class actions, Article 

III standing ‘is determined vis-a-vis the named parties.’” 

(quoting In re Prudential, 148 F.3d at 306)). Indeed, 

Rule 23’s rigors are not relaxed as to a settlement class; we 

simply do not weigh issues of trial management as they are 

irrelevant in such a situation. Sullivan v. DB Investments, Inc. 

(Sullivan II), 667 F.3d 273, 303 (3d Cir. 2011) (en banc)

(“[A] district court ‘[c]onfronted with a request for 

settlement-only class certification’ need not inquire whether 
17

We now squarely hold that unnamed, putative class 

members need not establish Article III standing. Instead, the

“cases or controversies” requirement is satisfied so long as a 

class representative has standing, whether in the context of a

settlement or litigation class. This rule is compelled by In re 

Prudential and buttressed by a historical review of 

representative actions. 

It is well-established that “history and tradition offer a 

meaningful guide to the types of cases that Article III 

empowers federal courts to consider.” Sprint Commc’ns Co., 

L.P. v. APCC Servs., Inc., 554 U.S. 269, 274 (2008). 

“[G]roup litigation has a remarkably deep history” dating 

back to medieval times. Stephen C. Yeazell, The Past and 

Future of Defendant and Settlement Classes in Collective 

Litigation, 39 Ariz. L. Rev. 687, 687 (1997); Stephen C. 

Yeazell, From Medieval Group Litigation to the Modern 

Class Action 21 (1987) (explaining that representative group 

litigation in medieval times was attributable to “societ[ies] 

pervasively organized in groups,” such as “villages, parishes, 

[and] guilds”). As societies evolved, so did the characteristics 

and treatment of group litigation. One example is the English 

Chancery practice of the “necessary parties” rule of the 

seventeenth and eighteenth centuries, which “required that 

any person with an interest in the object of a suit be joined as 

 

the case ‘would present intractable management problems.’” 

(second alteration in original) (quoting Amchem, 521 U.S. 

at 620)). Given that standing is a threshold jurisdictional 

question, there is no reason to alter its application for a 

litigation class.
18

a party.” Geoffrey C. Hazard, Jr. et al., An Historical 

Analysis of the Binding Effect of Class Suits, 146 U. Pa. L. 

Rev. 1849, 1858 (1998). The necessary parties rule had 

several exceptions, including the “impossibility exception,”

which covered “situations in which interested parties were so 

numerous that it was practically impossible to join them all.” 

Id. at 1860; see also Ortiz, 527 U.S. at 832–33. The

impossibility exception permitted representative suits, such as 

“bills of peace involving a common benefit to or burden upon 

the members of the group, . . . cases involving a group having 

creditor claims against a debtor or legatee claims against an 

estate, and cases involving unincorporated associations.” 

Hazard, Jr. et al., 146 U. Pa. L. Rev. at 1861; see also W. S. 

Holdsworth, The History of the Treatment of Choses in Action 

by the Common Law, 33 Harv. L. Rev. 997, 1003 (1920) 

(discussing the gradual and partial allowance of personal 

rights of action to be asserted by representatives). Such

representative actions, including the most widely-recognized 

bill of peace, were post-medieval developments in the long 

history of representative litigation. Yeazell, From Medieval 

Group Litigation to the Modern Class Action, at 24–25. 

The history of representative actions under English law 

and how they crossed the pond to nineteenth-century America 

is marked by complexity. Yeazell, From Medieval Group 

Litigation to the Modern Class Action, at 213–37. Scholars 

mostly agree that representative actions under the law of this 

country can be traced back at least as far as Justice Joseph 

Story’s Commentaries on Equity Pleadings. Id. at 216–20; 

Hazard, Jr. et al., 146 U. Pa. L. Rev. at 1878 (citing Joseph 

Story, Commentaries on Equity Pleadings, §§ 94–97, at 93–
19

98 (2d ed. 1840)). In Smith v. Swormstedt, the Supreme 

Court recognized an exception discussed by Justice Story to 

the well-established rule that litigation is typically conducted 

on behalf of named parties. Smith v. Swormstedt, 57 U.S. (16 

How.) 288, 298 (1853). The Court explained:

[W]here the parties interested are numerous, 

and the suit is for an object common to them all, 

some of the body may maintain a bill on behalf 

of themselves and of the others; and a bill may 

also be maintained against a portion of a 

numerous body of defendants, representing a 

common interest.

Id. There was no mention of Article III, § 2—the Supreme 

Court focused on the propriety of the representative action 

itself and not whether there was truly a controversy (in the 

constitutional sense) between the feuding northern and 

southern wings of the Methodist Episcopal Church. Id. at 303 

(“The legal and equitable rights and liabilities of all being 

before the court by representation, . . . there can be very little 

danger but that the interest of all will be properly protected 

and maintained.”). 

Before the enactment of Rule 23 in 1937, federal 

courts were not consistent in their application of the equity 

rules governing representative actions. See Equity Rule 38 

(1912); Equity Rule 48 (1842); Smith, 57 U.S. (16 How.) 

at 298 (failing to reference and contradicting the thengoverning Equity Rule 48); Trustees v. Greenough, 105 U.S. 

527, 533 (1881) (making no reference to the basis for a 

representative suit but recognizing the ability of a plaintiff to 
20

utilize a common fund to pay attorney’s fees); Hazard, Jr. et

al., 146 U. Pa. L. Rev. at 1902–10 (summarizing cases);

Yeazell, From Medieval Group Litigation to the Modern 

Class Action, at 219 (The legitimacy of representative actions 

“could scarcely be questioned once an authority so eminent as 

Story had recognized it, though his confusion was reflected in 

the cases.”). Yet during this time period it was never 

suggested that putative class members were required to have 

standing or that representative actions could not present a 

proper case or controversy. 

In 1937, the Supreme Court promulgated the first 

version of Rule 23 along with the Federal Rules of Civil 

Procedure, which took effect in 1938. See John G. Harkins, 

Jr., Federal Rule 23—The Early Years, 39 Ariz. L. Rev. 705, 

705–09 (1997). Rule 23 was drastically revised in 1966. 

Although the 1938 version of Rule 23 was meant to 

“encourage more frequent use of class actions,” Charles A. 

Wright, Class Actions, 47 F.R.D. 169, 170 (1970), in 1966 the 

Advisory Committee reworked Rule 23 and “sought to 

catalogue in ‘functional’ terms ‘those recurrent life patterns 

which call for mass litigation through representative parties,’”

Ortiz, 527 U.S. at 833 (quoting Benjamin Kaplan, A Prefatory 

Note, 10 B.C. Indus. & Com. L. Rev. 497, 497 (1969)).

A review of the foregoing history reveals that the class 

action device treats individuals falling within a class 

definition as members of a group rather than as legally 

distinct persons. Sosna v. Iowa, 419 U.S. 393, 399 (1975) 

(reasoning that the “class of unnamed persons described in 

the certification acquired a legal status separate from the 

interest asserted by the [plaintiff]” (emphasis added)); see 
21

also Hazard, Jr. et al., 146 U. Pa. L. Rev. at 1852–53

(analyzing the group treatment of members of a class as it 

relates to the doctrine of res judicata). Indeed, in In re 

Prudential we reasoned that the Supreme Court’s decision in 

Allee v. Medrano was instructive in providing that “standing 

must be personal to and satisfied by ‘those who seek to 

invoke the power of federal courts.’” In re Prudential, 148 

F.3d at 306 (citing to Allee, 416 U.S. at 828 (quoting O’Shea, 

414 U.S. at 493)). 

Herein lies the key: a class action is a representative

action brought by a named plaintiff or plaintiffs. Named 

plaintiffs are the individuals who seek to invoke the court’s 

jurisdiction and they are held accountable for satisfying 

jurisdiction. See Ortiz, 527 U.S. at 832. Thus, a class action 

is permissible so long as at least one named plaintiff has 

standing. See Horne v. Flores, 557 U.S. 433, 446 & n.2

(2009); Arlington Heights v. Metro. Hous. Dev. Corp., 429 

U.S. 252, 264 & n.9 (1977) (“[W]e have at least one 

individual plaintiff who has demonstrated standing . . . . 

Because of the presence of this plaintiff, we need not consider 

whether the other individual and corporate plaintiffs have 

standing to maintain the suit.”); Simon v. E. Ky. Welfare 

Rights Org., 426 U.S. 26, 40 n.20 (1976) (class action does 

not eliminate a class representative’s burden of establishing 

standing). Requiring individual standing of all class members 

would eviscerate the representative nature of the class action. 

It would also fail to recognize that the certified class is treated 

as a legally distinct entity even though the outcome of such an 

action is binding on the class. See Fed. R. Civ. P. 23(c)(3).
22

What Volvo asks of this Court is arguably in conflict 

with Supreme Court precedent permitting a representative 

action to persist despite a named plaintiff’s claim becoming 

moot after certification. In the context of the doctrine of 

mootness, the Supreme Court has already recognized the 

representative nature of the class. For example in Sosna v. 

Iowa, the Supreme Court held a class action is not dismissed 

as moot if the named plaintiff had a live controversy when the 

suit was filed, a properly certified class action was pending, 

and there are members of the class whose claims are not 

moot. 419 U.S. at 399, 402–03. The Court did not require 

that all members have live claims and, instead, focused on 

there needing to be a “controversy” between at least “a 

named defendant and a member of the class.” Id. at 402; see 

also Franks v. Bowman Transp. Co., 424 U.S. 747, 755 

(1976) (a properly certified class action “‘clearly presented’ 

the District Court and the Court of Appeals ‘with a case or 

controversy in every sense contemplated by Art. III of the 

Constitution’” (quoting Sosna, 419 U.S. at 398)); Holmes v. 

Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 

(3d Cir. 2000) (“So long as a class representative has a live 

claim at the time he moves for class certification, neither a 

pending motion nor a certified class action need be dismissed 

if his individual claim subsequently becomes moot.”).

The Supreme Court has also permitted representative 

standing of sorts in a variety of other contexts. Horne, 557 

U.S. at 446 (“Because the superintendent clearly has standing 

to challenge the lower courts’ decisions, we need not consider 

whether the Legislators also have standing to do so.”); 

Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 
23

547 U.S. 47, 52 n.2 (2006) (declining to decide whether the 

individually named plaintiffs had standing because “the 

presence of one party with standing is sufficient to satisfy 

Article III’s case-or-controversy requirement”). A 

particularly apt example of this includes associational

standing, whereby an organization may assert the rights of its 

members, provided: “(a) its members would otherwise have 

standing to sue in their own right; (b) the interests it seeks to 

protect are germane to the organization’s purpose; and 

(c) neither the claim asserted nor the relief requested requires 

the participation of individual members in the lawsuit.” Hunt

v. Wa. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). 

As to the first prong of the organizational standing test, the

Supreme Court in Hunt required only that “some Washington 

apple growers” had suffered injuries. Id. (emphasis added); 

see also Laidlaw, 528 U.S. at 181–83 (reasoning that 

affidavits from some organization members were sufficient to 

establish that the association’s “members would otherwise 

have standing to sue in their own right”). The clear import of 

that requirement is that in the associational standing context, 

the test ensures there is an actual case and controversy

without inquiring into the standing of every member of an 

organization. Along this same line, the Supreme Court 

openly recognizes the ability of a State to bring suit in a 

parens patriae action. See Alfred L. Snapp & Son, Inc. v. 

Puerto Rico, 458 U.S. 592, 607 (1982) (permitting a State to 

bring suit on behalf of its citizens where the State expresses a 

quasi-sovereign interest). The focus in a parens patriae 

action is on the State, “independent of the benefits that might 

accrue to any particular individual.” Id. at 608.
24

Volvo urges this Court to adopt the approach taken by

some of our sister courts that require all class members to 

possess standing. The Second and Eighth Circuits

purportedly require absent class members to have Article III 

standing. The Ninth and D.C. Circuits potentially do too. We 

are not persuaded.

In Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 

2006), the Second Circuit affirmed the district court’s 

certification of a Rule 23(b)(3) class in a suit against 

professional tax advisors for improper and fraudulent tax 

counseling. Id. at 259. Two class objectors challenged 

certification on the grounds that the class contained members 

who had not yet been assessed tax penalties and therefore 

lacked Article III or statutory standing. Id. As to the 

standing challenge, the Court explained that “[w]e do not 

require that each member of a class submit evidence of 

personal standing. At the same time, no class may be 

certified that contains members lacking Article III standing. 

The class must therefore be defined in such a way that anyone 

within it would have standing.” Id. at 263–64 (citations 

omitted). The Second Circuit has not expanded upon this 

declaration.

The Eighth Circuit in Avritt v. Reliastar Life Insurance 

Co. held that a California law that permitted a single injured 

plaintiff to bring a class action on behalf of a group of 

uninjured individuals was “inconsistent with the doctrine of 

standing as applied by federal courts.” 615 F.3d 1023, 1034 

(8th Cir. 2010). Yet the Court explained that “federal courts 

‘do not require that each member of a class submit evidence 

of personal standing.’” Id. (quoting Denney, 443 F.3d at 
25

263–64). Reconciling this tension, the Court reasoned that 

“[a] class ‘must therefore be defined in such a way that 

anyone within it would have standing.’” Id. (emphasis added) 

(quoting Denney, 443 F.3d at 264). More recently in 

Halvorson v. Auto-Owners Insurance Co., the Court 

referenced these same general principles and explained that 

the lack of an individualized injury would impact 

predominance and mean that “individual questions necessary 

to determine breach of contract and bad faith” would include 

“individual inquiries” that would “predominate over” whether 

the defendant’s processes were reasonable. 718 F.3d 773, 

779 (8th Cir. 2013). It is, thus, not clear to us whether the 

Eighth Circuit’s standing analysis rests on Article III or Rule 

23.

The D.C. Circuit has similarly discussed predominance 

as requiring that plaintiffs “show that they can prove, through 

common evidence, that all class members were in fact injured 

by [an] alleged conspiracy.” In re Rail Freight Fuel 

Surcharge Antitrust Litig., 725 F.3d 244, 252 (D.C. Cir. 

2013) (emphasis added) (reasoning that “common evidence 

[must] show all class members suffered some injury” but not 

saying that this was required pursuant to Article III). And the 

Ninth Circuit in Mazza v. American Honda Motor Co., Inc.

quoted the rule discussed in Denney. 666 F.3d 581, 594–95 

(9th Cir. 2012). But it did so within the context of a 

predominance challenge and without detailed discussion. Id. 

Further, the Mazza court did not expressly overrule the Ninth 

Circuit’s previous declaration that “our law keys on the 

representative party, not all of the class members.” Stearns v. 

Ticketmaster Corp., 655 F.3d 1013, 1020–21 (9th Cir. 2011) 
26

(analyzing a defendant’s Article III injury-in-fact argument 

while evaluating the district court’s predominance ruling). 

We decline Volvo’s invitation to impose a requirement 

that all class members possess standing. Class actions are

“exception[s] to the rule that litigation is usually conducted 

by and on behalf of the individual named parties only.” Byrd 

v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015) (quoting 

Comcast, 133 S. Ct. at 1432) (internal quotation marks 

omitted), as amended (Apr. 28, 2015). A Rule 23(b)(3) class 

“is an ‘adventuresome innovation’ of the 1966 amendments” 

to Rule 23, Wal-Mart, 131 S. Ct. at 2558 (quoting Amchem, 

521 U.S. at 614), that allows named plaintiffs to bring suit 

when the procedural protections of Rule 23 are satisfied. The 

goal is to permit a class action that “would achieve economies 

of time, effort, and expense, and promote uniformity of 

decision as to persons similarly situated, without sacrificing 

procedural fairness or bringing about other undesirable 

results.” Rule 23(b)(3), 1966 Amendment advisory 

committee note (emphasis added). 

Before even getting to the point of class certification, 

however, class representatives need to present a justiciable 

claim. As we explained in Holmes v. Pension Plan of 

Bethlehem Steel Corp., “a plaintiff who lacks the 

personalized, redressable injury required for standing to assert 

claims on his own behalf would also lack standing to assert 

similar claims on behalf of a class.” 213 F.3d at 135; see also 

Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) 

(“While the proof required to establish standing increases as 

the suit proceeds, the standing inquiry remains focused on 

whether the party invoking jurisdiction had the requisite stake 
27

in the outcome when the suit was filed.” (emphasis added) 

(citing Lujan, 504 U.S. at 561)). Combined with the Supreme 

Court’s guidance on mootness as applied to a class, we know 

that at all times during the course of a class action, there must 

be a live “case or controversy” for Article III purposes. See 

Sosna, 419 U.S. at 399, 402–03; Franks, 424 U.S. at 755.

Quite simply, requiring Article III standing of absent 

class members is inconsistent with the nature of an action 

under Rule 23.5 When a Rule 23(b)(3) class-action complaint 

 

5 Similar reasoning has been used by our sister circuits 

that have also concluded that unnamed class members need 

not establish Article III standing. See, e.g., In re Nexium 

Antitrust Litig., 777 F.3d 9, 25, 30–31 (1st Cir. 2015) 

(concluding “that the presence of a de minimis number of 

uninjured class members is permissible at class certification”

and would not defeat commonality or predominance); 

Stearns, 655 F.3d at 1020–21 (“‘In a class action, standing is 

satisfied if at least one named plaintiff meets the requirements 

[of Article III]. . . . Thus, we consider only whether at least 

one named plaintiff satisfies the standing requirements.’”

(quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 

(9th Cir. 2007) (en banc))); DG ex rel. Stricklin v. Devaughn, 

594 F.3d 1188, 1198 (10th Cir. 2010) (“Rule 23’s 

certification requirements neither require all class members to 

suffer harm or threat of immediate harm nor Named Plaintiffs 

to prove class members have suffered such harm.”); Mims v. 

Stewart Title Guar. Co., 590 F.3d 298, 308 (5th Cir. 2009) 

(“Class certification is not precluded simply because a class 

may include persons who have not been injured by the 

defendant’s conduct.”).
28

is filed, the unnamed class members are generally unknown. 

As the Seventh Circuit aptly explained:

[A] class will often include persons who have 

not been injured by the defendant’s conduct; 

indeed this is almost inevitable because at the 

outset of the case many of the members of the 

class may be unknown, or if they are known 

still the facts bearing on their claims may be 

unknown.

Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th 

Cir. 2009). Only after discovery (which may be limited by a 

district court at its discretion to issues related solely to class 

certification), will the court have before it specific facts 

bearing on the class and the relevant claims. Indeed, class 

discovery may itself focus on named representatives such that 

facts bearing on the Article III requirements for putative, 

unnamed class members never come to light. And after class 

certification, at least for a (b)(3) class, the class members 

cannot be identified until the opt-out period pursuant to 

Rule 23(c)(2)(B) has expired. In light of this, we do not 

expect a plaintiff to be “able to identify all class members at 

class certification.” Byrd, 784 F.3d at 163. Yet class 

representatives must meet Article III standing requirements 

the moment a complaint is filed. Lewis v. Casey, 518 U.S. 

343, 358 (1996); Lujan, 504 U.S. at 561. 

Volvo’s proposed requirement is likewise inconsistent 

with a Rule 23(b)(2) action. For a Rule 23(b)(2) class, 

“certification is appropriate even if the defendant’s action or 

inaction ‘has taken effect or is threatened only as to one or a 
29

few members of the class, provided it is based on grounds 

which have general application to the class.’” Devaughn, 594 

F.3d at 1201 (quoting Fed. R. Civ. P. 23(b)(2), 1966 

Amendment advisory committee note). Technically 

speaking, those (b)(2) class members may not have suffered a 

legal injury and, at best, may only have standing in light of a 

threatened future injury. See Clapper, 133 S. Ct. at 1148, 

1150 n.5.

Additionally, a properly formulated Rule 23 class 

should not raise standing issues. This point goes to the very 

purpose of the class action device—to save “the resources of 

both the courts and the parties by permitting an issue 

potentially affecting every [class member] to be litigated in an 

economical fashion under Rule 23.” Califano v. Yamasaki, 

442 U.S. 682, 701 (1979). For those economies to work, it is 

axiomatic that “a class representative must be part of the class 

and possess the same interest and suffer the same injury as the 

class members.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 

147, 156 (1982) (quoting E. Tex. Motor Freight Sys. Inc. v. 

Rodriguez, 431 U.S. 395, 403 (1977) (internal quotation 

marks omitted)). These “interests” or “injuries” are tested by 

the requirements of Rule 23. These separate requirements 

establish the propriety of granting class-wide relief. See 

Lewis, 518 U.S. at 395 (Souter, Ginsburg, Breyer, JJ., 

concurring in part, dissenting in part, and concurring in the 

judgment) (“More specifically, the propriety of awarding 

classwide relief (in this case, affecting the entire prison 

system) does not require a demonstration that some or all of 

the unnamed class could themselves satisfy the standing

requirements for named plaintiffs.”). 
30

Volvo’s arguments related to the differences between 

claims among the separate statewide classes, which confuse

distinct Rule 23 requirements, demonstrate that Volvo may 

have legitimate Rule 23 challenges.6 Rather than shoehorn 

these questions into an Article III analysis, we will continue 

to employ Rule 23 to ensure that classes are properly 

certified. In this case, certification requires the District Court 

to determine what differing factual and legal circumstances 

might mean for the class: Can the named plaintiffs adequately 

represent the class if they owned or leased vehicles that did 

not suffer water damage pursuant Fed. R. Civ. P. 23(a)(4)? 

Are the claims of the representatives typical of the class

pursuant to Fed. R. Civ. P. 23(a)(3)? And do any relevant 

distinctions affect the commonality and predominance 

analyses pursuant to Fed. R. Civ. P. 23(a)(2) and (b)(3)? See 

7AA Charles A. Wright et al., Fed. Prac. & Proc. Civ. 

§ 1785.1 (3d ed. 2014) (“[T]he question whether [a class 

representative] may be allowed to present claims on behalf of 

others who have similar, but not identical, interests depends 

 

6 Volvo’s standing argument dispatches a profusion of 

class-action buzzwords including overbreadth, class 

definition, commonality, ascertainability, as well as citation 

to the injury-in-fact required to establish Article III standing, 

the Rules Enabling Act’s dictate that federal rules may not 

“abridge, enlarge or modify any substantive right,” 28 U.S.C. 

§ 2072(b), and a defendant’s “due process right to raise 

individual challenges and defenses to claims,” Carrera, 727 

F.3d at 307. Volvo Br. 34–41. At oral argument, it became 

apparent that Volvo was focused on the issue of standing. 
31

not on standing, but on an assessment of typicality and 

adequacy of representation.”).

Focusing on certification questions is not only 

necessary to the rigorous analysis we demand in class 

certification decisions, it is also buttressed by a close analysis 

of the “circuit split” on this issue. Many courts are in fact 

dealing with Article III standing questions within the confines 

of Rule 23, which raises serious doubts as to whether they 

really mean to impose Article III standing as separate and 

distinct analyses in these cases. See In re Nexium Antitrust 

Litig., 777 F.3d at 25, 30–31 (discussing uninjured class 

members in terms of the class definition, ascertainability, 

commonality, and predominance); In re Rail Freight Fuel 

Surcharge Antitrust Litig., 725 F.3d at 252 (predominance); 

Stearns, 655 F.3d at 1020–21 (predominance); Avritt, 615 

F.3d at 1034 (class definition); Kohen, 571 F.3d at 677 

(summarizing cases on class definition); Denney, 443 F.3d at 

264 (class definition).

In sum, so long as a named class representative has 

standing, a class action presents a valid “case or controversy”

under Article III. 

B.

Although Volvo’s standing argument fails, we will 

nevertheless remand. Volvo mentions in a footnote that the 

District Court’s certification order “did not specifically 

identify the claims certified, as required by Wachtel v. 

Guardian Life Insurance Co. of America, 453 F.3d 179, 184

(3d Cir. 2006).” Volvo Br. 4 n.2. We agree that this is a 
32

problem requiring remand. The District Court’s class 

certification opinion rejected Plaintiffs’ proposal of a 

nationwide class and the application of New Jersey law to all 

Plaintiffs’ claims. And although the District Court directed 

that “the law of the state of each subclass should be applied to 

the subclass’s claims,” JA 77, the District Court did not 

identify which claims would be subject to class treatment. 

Volvo noted this lack of specificity and it assumed that the 

District Court meant “to certify all claims alleged in the 

[Second Amended Complaint] when it granted the alternative 

motion to certify six statewide classes.” Volvo Br. 4 n.2. 

Plaintiffs argue that the District Court was sufficiently 

specific, citing to the District Court’s commonality analysis 

(which also did not identify specific state-law claims subject 

to class treatment), the District Court’s general reference to 

disputes of fact that justified denying Volvo’s motions for 

summary judgment, and the class certification order that 

defined the classes and class representatives.

In Wachtel we held that “Rule 23(c)(1)(B) requires 

district courts to include in class certification orders a clear 

and complete summary of those claims, issues, or defenses 

subject to class treatment.” 453 F.3d at 184. We rejected the 

practice of issuing “memorandum opinions discussing the 

allegations in the complaint, the facts of the case, and some 

combination of the substantive requirements for class 

certification found in Rule 23(a) and (b)” that then go on to 

“treat the parameters of the class itself much more clearly and 

deliberately than the class claims, issues, or defenses.” Id. 

We stated that Rule 23(c) “requires more specific and more 

deliberate treatment of the class issues, claims, and defenses 
33

than the practice described above.” Id. at 185. Thus a classcertification 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.” Id.

at 187–88.

Although a motion for class certification presents a 

discretionary question for a district court, the court “must 

clearly articulate its reasons, in part, so we can adequately 

review the certification decision on appeal under Rule 23(f).” 

Beck v. Maximus, Inc., 457 F.3d 291, 297 (3d Cir. 2006) 

(remanding because of difficulty discerning the district 

court’s analysis on typicality and adequacy). For example, in 

Marcus v. BMW of North America, LLC, we rejected the 

district court’s certification order and accompanying opinion 

because although the opinion did address “Marcus’s claims 

and the issues presented,” there was no “‘readily discernible, 

clear, and complete list’” of the claims and issues subject to 

class treatment. 687 F.3d 583, 592 (3d Cir. 2012) (quoting 

Wachtel, 453 F.3d at 187). We are not required to comb 

through the District Court’s opinion and layers of briefing in 

order to “cobble together the various statements . . . and reach 

a general inference as to some categories of issues that the 

District Court believes are appropriate for class treatment.” 

See Wachtel, 453 F.3d at 189. 

Here Plaintiffs’ proposed classes and claims in the 

Second Amended Complaint were different from those in the 

motion for class certification. Plaintiffs also conceded at oral 

argument that they intended for the Class Vehicles to include 
34

only those which actually have a sunroof. This lack of 

clarity, combined with the District Court’s failure to address 

in detail or list the precise claims subject to class treatment, 

means that we would be required to engage in some level of 

guesswork were we to try to piece together the class claims. 

We will not attempt to do so. We will vacate and remand to 

the District Court so that it can provide a complete list of the 

class claims, defenses and issues for each of the six statewide

classes in accordance with what Wachtel requires.

C.

Volvo disputes whether Plaintiffs satisfied 

Rule 23(b)(3)’s predominance requirement. Volvo argues 

that the District Court erred by certifying six statewide classes 

without analyzing those classes’ claims and whether those 

claims were subject to common proof. Although precise 

analysis of the predominance question is “best conducted 

with the benefit of a clear initial definition of the claims, 

issues, and defenses to be treated on a class basis,” see 

Wachtel, 453 F.3d at 181 n.1, the District Court erred in 

making a fundamental assumption about predominance. That 

assumption was that our decision in Sullivan v. DB 

Investments, Inc. (Sullivan II) governed the outcome of this 

case.

“[T]he party proposing class-action certification bears 

the burden of affirmatively demonstrating by a preponderance 

of the evidence her compliance with the requirements of 

Rule 23.” Byrd, 784 F.3d at 163. A district court must 

rigorously analyze the evidence used to establish class 

certification in order to ensure compliance with Rule 23(a) 
35

and at least one of the subsections of Rule 23(b). Comcast, 

133 S. Ct. at 1432. This rigorous analysis may require a 

district court to address, at least in part, the merits of a 

plaintiff’s underlying claim because “class determination 

generally involves considerations that are enmeshed in the 

factual and legal issues comprising the plaintiff’s cause of 

action.” Id. (quoting Wal-Mart, 131 S. Ct. at 2552) (internal 

quotation marks omitted).

Before certifying a Rule 23(b)(3) class, a district court 

must evaluate whether, inter alia, “questions of law or fact 

common to class members predominate over any questions 

affecting only individual members.” Fed. R. Civ. P. 23(b)(3). 

This predominance test asks whether common issues of law 

or fact in the case predominate over non-common, 

individualized issues of law or fact. See Marcus, 687 F.3d at 

604. Predominance “begins, of course, with the elements of 

the underlying cause of action.” Erica P. John Fund, Inc. v. 

Halliburton Co., 131 S. Ct. 2179, 2184 (2011); see also WalMart, 131 S. Ct. at 2552 (analyzing commonality in light of 

the elements of the plaintiff’s Title VII discrimination 

claims); Marcus, 687 F.3d at 600 (“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).” 

(quoting In re DVI, Inc. Sec. Litig., 639 F.3d 623, 630 (3d 

Cir. 2011))); Malak v. BDO Seidman, LLP, 617 F.3d 743, 746 

(3d Cir. 2010) (explaining that each element of a legal claim 

is relevant to assessing predominance). That is “[b]ecause the 

nature of the evidence that will suffice to resolve a question 

determines whether the question is common or individual” 

and that means that “a district court must formulate some 
36

prediction as to how specific issues will play out.” In re 

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d 

Cir. 2008) (quoting Blades v. Monsanto Co., 400 F.3d 562, 

566 (8th Cir. 2005) and In re New Motor Vehicles Canadian

Exp. Antitrust Litig., 522 F.3d 6, 20 (1st Cir. 2008)) (internal 

quotation marks omitted), as amended (Jan. 16, 2009); see 

also Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 133 S. 

Ct. 1184, 1191–92 (2013) (beginning the Rule 23 analysis 

with the elements of a private securities-fraud action under § 

10(b) of the Securities Exchange Act of 1934). 

“[T]he presence of individual questions does not per se 

rule out a finding of predominance.” In re Prudential, 148 

F.3d at 315. If issues common to the class overwhelm 

individual issues, predominance should be satisfied. Amgen, 

133 S. Ct. at 1196 (explaining that predominance involves a 

qualitative assessment of common versus individualized 

questions); Butler v. Sears, Roebuck and Co., 727 F.3d 796, 

801 (7th Cir. 2013) (explaining that predominance is not 

determined “simply by counting noses: that is, determining 

whether there are more common issues or more individual 

issues”). Further, predominance does not require that 

common “questions will be answered, on the merits, in favor 

of the class.” Amgen, 133 S. Ct. at 1191. “What the rule does 

require is that common questions ‘predominate over any 

questions affecting only individual [class] members.’” Id. at 

1196 (alteration in original) (quoting Fed. R. Civ. P. 

23(b)(3)).

The District Court’s predominance analysis relied on 

Sullivan II for the proposition that “for consumer fraud 

claims, the predominance inquiry focuses on whether the
37

defendant’s conduct was common to all class members, 

which predominates over minor individual differences 

between plaintiffs.” JA 83 (citing Sullivan II, 667 F.3d at 

297–98). Because “[a]ll of the claims asserted by Plaintiffs in 

the [Second Amended Complaint] are based upon defectively 

designed sound traps contained in the sunroof drainage 

systems in Class Vehicles designed and/or manufactured by 

Defendants, and Defendant[s’] uniform omissions about the 

same,” the District Court concluded that predominance was

satisfied. Id. In doing so, the District Court made no 

distinction between the six statewide classes or the relevant 

claims brought by those putative classes.7

 

7 The District Court also said the predominance 

requirement was “readily met” “as discussed supra.” JA 83. 

The only relevant previous discussion was the District 

Court’s evaluation of commonality. The District Court stated 

that the common questions included whether: (1) “the sunroof 

drainage systems in the Class Vehicles are defective”; 

(2) “Defendants knew of the defect but failed to disclose it to 

the Class”; and (3) “the maintenance instructions were 

inadequate and/or uniformly deficient.” JA 78. Rejecting 

Volvo’s commonality challenge, the District Court stated that 

the “issue is whether the design of the sunroof drainage 

system was defective, not whether the existence of the alleged 

defect resulted in a clogged drain tube causing water to spill

into the vehicle.” JA 79. 

The District Court’s commonality analysis was of 

limited import for the question of predominance. We have 

previously noted that the Rule 23(b)(3) predominance
38

Volvo argues that the District Court’s reliance on 

Sullivan II was in error because that decision involved a 

settlement class. One cannot read Sullivan II as a wholesale 

departure from precedent that requires a district court to 

evaluate predominance in light of the claims asserted and 

relevant evidence. See Rodriguez v. Nat’l City Bank, 726 

F.3d 372, 379 (3d Cir. 2013) (Sullivan II did not “lessen[] the 

burden required to demonstrate that putative class members 

share a common question of law or fact.”). Indeed, Sullivan 

II cited to In re Hydrogen Peroxide Antitrust Litigation for 

the proposition that “an examination of the elements of 

plaintiffs’ claim is sometimes necessary . . . to determine 

whether the requirements of Rule 23—namely, that the 

elements of the claim can be proved ‘through evidence 

common to the class rather than individual to its members’—

are met.” 667 F.3d at 306 (emphasis added) (quoting 

Hydrogen Peroxide, 552 F.3d at 311–12). Sullivan II thus 

applied the Hydrogen Peroxide test to fit the circumstances of 

that particular case. Id. at 302–04. In Sullivan II, looking at 

the class claims was “particularly unwarranted in the 

settlement context since a district court need not ‘envision the 

form that a trial’ would take, nor consider ‘the available 

evidence and the method or methods by which plaintiffs 

propose to use the evidence to prove’ the disputed element at 

 

requirement incorporates the Rule 23(a)(2) commonality

requirement. In re Warfarin Sodium Antitrust Litig., 391 F.3d 

516, 528 (3d Cir. 2004). The inverse of this proposition, that 

the commonality requirement satisfies predominance, is not 

true because the “predominance criterion is far more 

demanding.” Amchem, 521 U.S. at 624.
39

trial.” Id. (quoting Newton v. Merrill Lynch, Pierce, Fenner 

& Smith, Inc., 259 F.3d 154, 167 (3d Cir. 2001) and 

Hydrogen Peroxide, 552 F.3d at 312). Sullivan II is not 

sufficiently analogous to the case at bar, nor did it obviate the 

need to evaluate the claims and evidence asserted in order to 

evaluate predominance for a litigation class.8 See 

Halliburton, 131 S. Ct. at 2184; Hydrogen Peroxide, 552 F.3d 

at 311. The District Court erred, therefore, by failing to 

analyze predominance in the context of Plaintiffs’ actual 

claims.

Plaintiffs make several arguments in support of the 

District Court’s opinion, none of which are persuasive. 

Plaintiffs first argue that the District Court considered over 

1,000 pages of briefing on the motions for summary 

judgment, and that therefore, the District Court must have 

considered the individual elements of the various state-law 

claims. Yet relying on such briefing alone hardly amounts to 

the “rigorous consideration of all the evidence and arguments 

offered by the parties” required by Rule 23. See Hydrogen 

Peroxide, 552 F.3d at 321. Quite simply, what Plaintiffs ask 

us to do is speculate as to what the District Court must have 

 

8 Volvo also argues that even if Sullivan II applies to 

Plaintiffs’ consumer fraud claims, the District Court ignored 

the predominance inquiry for the common law fraud, breach 

of implied warranty, breach of express warranty, and breach 

of the implied covenant of good faith and fair dealing claims. 

For the reasons explained above, Sullivan II does not obviate 

the need for Plaintiffs to establish by a preponderance of the 

evidence that the predominance requirement is satisfied.
40

intended. We cannot just assume the District Court

conducted the appropriate analysis under Rule 23. “Rigorous 

analysis” requires more of the District Court than that, and we 

would be abdicating our role as a reviewing court were we to 

engage in the speculation Plaintiffs ask for. 

Plaintiffs also argue that Volvo’s specific examples 

related to the statewide classes do not defeat predominance. 

Like the common law claims raised by the plaintiffs in 

Marcus, 687 F.3d at 600–05, Plaintiffs assert class claims 

based on breach of express warranty (Count 2), breach of the 

implied warranty of merchantability (Count 3), and breach of 

the duty of good faith and fair dealing (Count 5). In addition, 

Plaintiffs assert claims based on the New Jersey Consumer 

Fraud Act (“NJCFA”), as was the case in Marcus, 687 F.3d at

605–11, as well as state-specific consumer fraud claims under 

Massachusetts, New Jersey, Florida, California, and Hawaii 

law.

Volvo points to, as examples of why the District Court 

erred in not evaluating the elements of each asserted claim, 

the following potential predominance problems: 

(1) individualized proof is needed to establish a causal 

relationship between the unlawful conduct and ascertainable 

loss as required under New Jersey and Massachusetts law; 

(2) the California claims require a plaintiff to establish a duty 

to disclose an alleged defect, proof of which would vary 

based on whether a vehicle contained a yaw sensor and 

whether such disclosure would be material; (3) the implied 

warranty claims cannot satisfy predominance for reasons 

similar to those we addressed in Marcus relating to causation; 

(4) claims for a violation of an express warranty require that 
41

the warranty be in place when a plaintiff experienced a water 

leak, which is only established by individualized proof; and 

(5) uniform evidence cannot be used to establish 

predominance as to both new and used owners of Class 

Vehicles because the applicable warranties between the 

groups may vary.

Evaluating these arguments in the detail that is 

required goes beyond what was briefed before the District 

Court, beyond the District Court’s reasoning in its 

certification opinion, and beyond the briefing the panel has 

received from the parties. We will not engage in an analysis 

of predominance in the first instance, and will therefore

remand these questions to the District Court. Consistent with 

Marcus, 687 F.3d at 600–11, the District Court should 

evaluate the relevant claims (grouping them where logical

and appropriate) and rule on the predominance question in 

light of the claims asserted and the available evidence.9 

 

9

In Marcus, a New Jersey class asserted four claims 

against BMW and Bridgestone relating to the NJCFA, breach 

of the implied warranty of merchantability, breach of 

contract, and breach of the implied covenant of good faith and 

fair dealing. 687 F.3d at 600. Like the trial court, we 

analyzed Marcus’s common law claims together and noted 

the shared elements between the claims. Id. at 600 & n.8. 

Despite concluding that Marcus supplied sufficient evidence 

to establish predominance as to a defect in the Bridgestone 

run-flat tires, we concluded that the individualized evidence 

required to prove proximate causation meant that the common 

law claims could not be tried on a class-wide basis. Id. at 
42

D.

Volvo’s final argument is that the District Court erred 

in denying the motion to reconsider the class certification 

decision in light of Comcast. Because Comcast was 

distinguishable and the “damages issue [in this case was] 

 

605. We explained that Marcus’s damages allegations “beg 

the question of what caused class members’ tires to go flat 

and need replacement.” Id. at 604. 

As to Marcus’s claim under the NJCFA, we noted that 

the statute required a plaintiff to establish ascertainable loss. 

Id. at 605–06. We explained that “ascertainable loss” based 

on “the cost of replacing [a] tire” could not meet the 

predominance requirement and went on to analyze loss based 

on “the value of the product [a class member] expected to 

purchase minus the value of the product they actually 

purchased.” Id. at 606. We explained that under that theory 

of “ascertainable loss,” a court could not apply a 

“presumption of causation” without considering both “the 

defendants’ course of conduct . . . [and] also that of the 

plaintiffs.” Id. at 606–10. Specifically, we held that the 

district court needed to have found “(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.” Id. at 611. We directed the district court to 

conduct this analysis in the first instance. Id. 
43

much more straightforward,” JA 91, the District Court 

declined to revisit its ruling, see id. at 90–92. 

Comcast is inapposite to the case before us. Comcast

held that an antitrust litigation class could not be certified 

because the plaintiffs’ damages model did not demonstrate

the theory of antitrust impact that the district court accepted 

for class-action treatment. 133 S. Ct. at 1433. Because the 

antitrust claim was so limited, the Supreme Court explained:

It follows that a model purporting to serve as 

evidence of damages in this class action must 

measure only those damages attributable to that 

theory. If the model does not even attempt to 

do that, it cannot possibly establish that 

damages are susceptible of measurement across 

the entire class for purposes of Rule 23(b)(3). 

Calculations need not be exact, see Story 

Parchment Co. v. Paterson Parchment Paper 

Co., 282 U.S. 555, 563 (1931), but at the classcertification stage (as at trial), any model 

supporting a “plaintiff’s damages case must be 

consistent with its liability case, particularly 

with respect to the alleged anticompetitive 

effect of the violation.” ABA Section of 

Antitrust Law, Proving Antitrust Damages: 

Legal and Economic Issues 57, 62 (2d ed. 

2010); see, e.g., Image Tech. Servs. v. Eastman 

Kodak Co., 125 F.3d 1195, 1224 [9th Cir. 

1997]. And for purposes of Rule 23, courts 

must conduct a “‘rigorous analysis’” to 
44

determine whether that is so. Wal-Mart, [131 S. 

Ct. at 2551–52].

Id. Comcast went on to analyze the evidence of damages 

resulting from antitrust impact, and noted that the expert 

testimony “assumed the validity of all four theories of 

antitrust impact initially advanced by [the plaintiffs].” Id. at 

1434. Because the evidence could not translate the relevant 

“‘legal theory of the harmful event into an analysis of the 

economic impact of that event,’” the Court determined that 

common questions could not predominate over individual 

ones. Id. at 1435 (quoting Federal Judicial Center, Reference 

Manual on Scientific Evidence 432 (3d ed. 2011)).

Volvo relies on Comcast for the proposition that 

Plaintiffs must show that “‘damages are susceptible of 

measurement across the entire class for purposes of 

Rule 23(b)(3).’” Volvo Br. 44 (quoting Comcast, 133 S. 

Ct. at 1433). In so doing, Volvo selectively quotes from 

Comcast as though the Court were creating a broad-based rule 

applicable to Rule 23(b)(3). Yet the Supreme Court 

specifically noted that it was not breaking any new ground by 

stating at the beginning of its opinion: “This case thus turns 

on the straightforward application of class-certification 

principles.” Comcast, 133 S. Ct. at 1433. A close reading of 

the text above makes it clear that the predominance analysis 

was specific to the antitrust claim at issue. That is eminently 

sensible. Every question of class certification will depend on 

the nature of the claims and evidence presented by the 

plaintiffs. What we know for sure is that whatever 

“Comcast’s ramifications for antitrust damages models or 

proving antitrust impact,” a trial court must “‘consider 
45

carefully all relevant evidence and make a definitive 

determination that the requirements of Rule 23 have been met 

before certifying a class.’” In re Blood Reagents Antitrust 

Litig., 783 F.3d 183, 186–87 (3d Cir. 2015) (quoting 

Hydrogen Peroxide, 552 F.3d at 320).

Our reading of Comcast is consistent with decisions by 

several of our sister courts.10 That is because “[r]ecognition 

 

10 See, e.g., Roach v. T.L. Cannon Corp., 778 F.3d 401,

402 (2d Cir. 2015) (“We hold that Comcast does not mandate 

that certification pursuant to Rule 23(b)(3) requires a finding 

that damages are capable of measurement on a classwide 

basis.”); In re Nexium Antitrust Litig., 777 F.3d at 23 

(“Comcast did not require that plaintiffs show that all 

members of the putative class had suffered injury at the class 

certification stage—simply that at class certification, the 

damages calculation must reflect the liability theory.”); In re 

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 

722 F.3d 838, 860 (6th Cir. 2013) (explaining that Comcast 

did not impact the ability of a trial court to certify a liability 

class and then later consider class damages under Fed. R. Civ. 

P. 23(c)(4)), cert. denied sub nom. Whirlpool Corp. v. Glazer, 

134 S. Ct. 1277 (2014); Butler, 727 F.3d at 800–01 

(emphasizing that Comcast focused on “the requirement of 

predominance and on its having to be satisfied by proof 

presented at the class certification stage rather than deferred 

to later stages of the litigation” (citing Comcast, 133 S. Ct. at 

1432–33)); Wallace B. Roderick Revocable Living Trust v. 

XTO Energy, Inc., 725 F.3d 1213, 1220 (10th Cir. 2013) 

(vacating and remanding a district court’s certification 

decision to more fully consider the predominance 
46

that individual damages calculations do not preclude class 

certification under Rule 23(b)(3) is well nigh universal.” 

Comcast, 133 S. Ct. at 1437 (Ginsburg, J. & Breyer, J., 

dissenting) (citing 2 William B. Rubenstein, Newberg on 

Class Actions § 4:54 (5th ed. 2012)). Had the District Court 

ruled as Volvo requested, denying certification on that basis 

 

requirement, but noting that even after Comcast “there are 

ways to preserve the class action model in the face of 

individualized damages”); Leyva v. Medline Indus. Inc., 716 

F.3d 510, 514 (9th Cir. 2013) (interpreting Comcast as 

requiring that “the plaintiffs must be able to show that their 

damages stemmed from the defendant’s actions that created 

the legal liability” and that rule is satisfied where “damages 

will be calculated based on the wages each employee lost due 

to Medline’s unlawful practices”).

The D.C. Circuit has interpreted Comcast as requiring 

proof of class-wide damages in the context of an antitrust 

class, explaining: “It is now indisputably the role of the 

district court to scrutinize the evidence before granting 

certification, even when doing so ‘requires inquiry into the 

merits of the claim.’” In re Rail Freight Fuel Surcharge 

Antitrust Litig., 725 F.3d at 253 (quoting Comcast, 133 S. Ct. 

at 1433). The Court went on to summarize that the specific 

proffered expert models were essential to the plaintiffs’ 

evidence of class-wide injury, concluding “[n]o damages 

model, no predominance, no class certification.” Id. One 

could read this analysis out of context as saying that all 

classes require a damages model; however, like Comcast, the 

analysis as to class-wide damages was specific to that 

antitrust claim. 
47

alone would have amounted to an abuse of discretion. See 

Roach, 778 F.3d at 409. In sum, and as explained by the Fifth 

Circuit, it is “a misreading of Comcast” to interpret it as 

“preclud[ing] certification under Rule 23(b)(3) in any case 

where the class members’ damages are not susceptible to a 

formula for classwide measurement.” In re Deepwater 

Horizon, 739 F.3d at 815 & n.104. 

IV.

The difficult questions raised in this appeal are

resolved by a return to the basics of Rule 23. We will vacate 

and remand the District Court’s class certification decision to 

allow the District Court to define the class membership, 

claims, and defenses, and so that it may rigorously analyze 

predominance in the first instance.