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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, Individuall y 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, 20152 

### 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
Su ite 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 070683 

### 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 Appell ee s

Daniel I. Rubin , Esq. Andrew R. Wolf , Esq. Henry P. Wolf

e , 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 Appellants

D efendants Volvo Cars of North America, LLC and Volvo4 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 Joan n e Neale, Keri Hay, Kelly McGary, Svein Berg, Gregory Burns, David Taft, Jeffrey Kruger, and Karen Collopy (col lectively “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 V7 0 (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 o f “[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 f ollowing state wide
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
Cla ss 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 Ve hicle (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
Clas s 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 class es and separate motions for summary judgment against the indivi dual class representatives.

On March 26, 2013, the District Court denied Plaintiffs’ motion to certify a nationwide class, grant ed Plaintiffs’ motion to certify six state wide classes, and den ied 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 District6 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 acr oss all individual claims; (2) there are minimally diverse parties; and (3) the class consist s 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. JA7 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 veh icle 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 exceed s $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 r equired, 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. S tat

. A nn

. § 2A:15

- 5.14(b). Thus, an estimate of his total damages

amount s to $1,516.92. A median recovery rang e for attorney’s fees is approximately 30 percent, which would be $455.08 for Burns’ claim. Burns’ damages plus attor ney’s fees would equal $1,972 . The $5,000,000 CAFA amount

- in

controversy requirement divided by $1,972 equals8 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.” Gra ndalski 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
Distri ct Court erred in it s 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 m embers. 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 f or 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 pl enary 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 a ctual “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 ensure s that lit igants are truly adve rse 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, 47610 (1982) ; Warth v. Seldin , 422 U.S. 490, 498 (19 75) (“In essence the question of standing is whether the litigant is
entitled to have the court decide the merits of the dispute or of particula r issues.”)

. “ The law of Article III standing, which is built on separation

- of

- powers principles, serves to pre vent 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 th e consequences of its decisions ” and prevent s “the anti

majoritarian federal judiciary from usurping the policy

making functions of the popularly elected branches ” )

.

Th e case before us concerns the injury

- in

- fact

r equirement. 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, 15 5 (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. 13 9, 15 3 (2010)).

Standing requires that the party seeking to invoke
feder al 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 it11 arose “from the same ‘ nucleus of operative fact ’ ” as another
claim. Id. Ac cordingly,

[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 manne r 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 mu st 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 or12 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, 61 2

– 13 (1997)

. The Supreme Co urt 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 Articl e 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 se ttlement 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 th ose 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 durin g its October 2015 term.13 enl arge 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, Newb e rg on Class Actions § 1: 1 (5th ed. 2012) (“ Rule 2 3 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 Cou rt has recently explained that “statutory standing” is “misleading, sinc e ‘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 1 11, 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 standin g 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

, th a t court need not reach the question of jurisdiction. See 521 U.S. at 612

– 13. Yet that logic could14 result in a federal court

, in many cases

, reach ing 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
rul e 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 ju risdiction 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 merits

based questions, Wal

- Mart Stores, I nc. v. Dukes , 131 S. Ct. 2541, 255 1

– 5 2 (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 thes e 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 improp er sales and15 marketing practices by the life insurer Prudential. 148 F.3d 283, 290

– 92 (3d Cir. 1998). We held that once Article I II 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, 82 8 (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 Clas s Actions § 2:8 (5th ed. 201 2 ); 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 als o 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 McLaug hlin 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 in jury 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 provisi ons 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

c lass 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 s ettlement 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. N o r has our application
of In re Prudential been limited solely to settlement classes.
See McCr ay 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 n ot 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

) , 66 7 F.3d 273, 303 (3d Cir. 2011) (en banc) (“ [A] district court ‘ [c]onfronte d with a request for
settlement

- only class certification’ need not inquire whether17 We now squarely hold that unnamed, putative class
members need not establish Article III s tanding. Instea d, 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

repres entative 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] ro up 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 Lit igation to the Modern Class Action 2 1 (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 th e characteristics and treatment of group litigation. One example is t he 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 join ed 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 jurisdicti onal 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 t he “ 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 development s 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 r epresentative 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, a t 93

–19 98 (2d ed. 1840)). In Smith v. Swormstedt

, t he 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. ) 28 8, 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, r epresenting 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

co nstitutional 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 t hat the interest of all will be properly protected and maintained.”).

B efore the enactment of Rule 23 in 1937 , f ederal courts were not consistent in their application of the equity
rules governing representative actions

. See Equity Rule 38 (1912); Equi ty Rule 48 (1842); Smith , 57 U.S. (16 How. )

at 298 (failing to reference and contradicting the then

governing 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 a bility of a plaintiff to20 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 acti ons “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

.

I n 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., Feder al 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 Pr efatory
Note , 10 B.C. Ind us . & 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)); see21 also Hazard, Jr. et al., 146 U. Pa. L. Re v. 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

mu st 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 permissibl e 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 st anding .

. . . 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 treate d 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 pers ist despite a named plaintiff’s claim becoming
moot after certification. In the context of t he doctrine of
mootness, the Supreme Court has already recognize d the representative nature of the class. For example in Sosna v. Iowa , the Supreme Court held a c lass 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 di d 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 pro perly 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 S teel 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 bec omes 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
wh ether 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 wit h 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 otherwi se 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 Lai dlaw , 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. Th e Second and Eighth Circuits purportedly requir e absent class membe rs to have Article III standing. T he 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 distri ct 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

sta nding as applied by federal courts.” 615 F.3d 1023, 1034 (8th Cir. 2010). Yet t he 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 at25 263

– 64). Reconci ling 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. , t he Court
referenced th e s e same general principle s 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 inqui r i es” that would “predominate over” whether the defendant’s processes were reasonable. 718 F.3d 773, 779 (8th Cir. 2013). I t 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 si milarly 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) . A nd 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 decla ration 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

. C lass action s are “exception [s] to the r ule 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 ‘adventur esome 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 expen se, and promote uniformity of
decisi on 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 t o 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 t o 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 stake27 in the outcome when the suit was filed.” (emphasis added) (citing Lujan , 504 U.S. at 561)). Combined with the Supreme Court’s guidance o n 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, r equiring Art icle 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 Nexiu m 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

– 2 1 (“‘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 t he Seventh Circuit aptly explained:

[A] clas s 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 cla ims may be
unknown.

Kohen v. Pa c . 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 speci fic 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

cer tification, 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 certificat ion.” 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 inconsisten t 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 a29 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 s tanding 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 re sources 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). F or those economies to work, it is
axiom atic 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, 40 3 (1977) (internal quotation marks omitted)). These “interests” or “injuries” are tested by the requirements of Rule 23. T hese 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, demonstrat e that Volvo may have legitimate Rule 23 challenges. 6 Rather than shoehorn these questions into a n Article III analysis , we will continue to employ Rule 23 to ensure that classes are properly certified. In this case, certification requires the District C ourt

to determ in e what differing factual and legal circumstances might mean for the class: C an the named plaintiffs adequately represent the class i f they owned or leased vehicles that did not suffer water damage pursuant Fed. R. Civ. P. 23(a)(4) ?
A re 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 Rule s 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. 3 4

– 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 typicalit y and adequacy of representation.”)

.

F ocus ing 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 court s 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 Antitrus t 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 presen ts 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 cert ified, 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 a32 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
ide ntify 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 si x 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 Distric t 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 c ourts 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 comp laint, the facts of the case, and some combination of the substantive requirements for cl ass 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, i ssues, or defenses.” Id.
We stated that Rule 23(c) “requires more specific and more deliberate treatment of the class issues, claims

, and defenses33 than the practice described above.” Id. at 185. Thus a class

certification order or an incorporated opini on “must include (1) a readily discernible, clear, and precise statement of the parameters defining the class or class es to be certified, and (2) a readily discernible, clear, and complete list of the claims, issues or defenses to be treated on a class bas is.” 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 certi fication 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. P laintiffs also conceded at oral argument that they intended for the Class Vehicles to include34 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 subjec t 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 state wide
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 err ed by certifying six state wide 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 requir e 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
af fect ing only individual members.” Fed. R. Civ. P. 23(b)(3).
Th is 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, o f 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 Wal

Mart , 131 S. Ct. at 2552 (analyzing commonality in light of the elements of the plaintiff’s Title VII d iscrimination 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. 2 011)) ) ; 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 whe ther the question is common or individual”
and that means that “a district court must formulate some36 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. Monsant o Co., 400 F.3d 562, 566 (8th Cir. 2005) and In re New Motor Vehicles Can adian 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 , 1 33 S. Ct. 1184, 119 1

– 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 pred ominance.” 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 individ ualized questions); Butler v. Sears, Roebuck and Co. , 727 F.3d 796,
8 01 (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”). Furth er, 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 [c lass] 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 the37 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 Com plaint] 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 predomina nce was satisfied. Id. In doing so, t he 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 Distri ct Court’s evaluation of commonality. The District Court stated that the common questions included whether: (1) “the sunroof drainage systems in the Cla ss 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 Ru le 23(b)(3) predominance38 Volvo argues that the District Court’s reliance on
Sullivan II was in error because th at 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 pro position 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 individu al to its members’

— are met.” 66 7 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 e vidence 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 predominanc e, 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 t o 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 b riefing 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 amount s to the “rigorous consideration of all the e vidence 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 comm on 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 prepond erance of the evidence that the predominance requirement is satisfied.40 intended. We cannot just assume the District Court conducted the app ropriate 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 state wide 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), b reach of the implied warrant y 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 N ew J ersey C onsumer F raud A ct (“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 di sclosure would be material; (3) the implied warranty claims cannot satisfy predominance for reasons
similar to t hose we addressed in Marcus relating to causation; (4) claims for a violation of an express warranty require that41 the warranty be in place when a plaintiff experienced a water leak, which is only established by individualized proof; and (5) uniform evidenc e 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 Dis trict 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 ques tions 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 ava ilable 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. at42 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 estab lish 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 lease d 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 m ore 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

ev idence 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 purpose s 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 class

certification 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
K odak Co., 125 F.3d 1195, 1224 [ 9th Cir.
1997 ] . And for purposes of Rule 23, courts must conduct a “‘rigorous analysis’” to4 4 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 ha rmful 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. 2 011)).

Volvo relies on Comcast for the proposition that Plaintiffs must show that “‘damages are susceptible of
measurement across the en tire class for purposes of
Rule 23(b)(3).’” Volvo Br. 44 (quoting Comcast , 133 S.
Ct. at 1433). In so doing, Volvo se lectively quotes from
Comcast as though the Court w ere 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 tu rns 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
sensi ble . 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 tria l court must “‘consider45 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. , 78 3 F.3d 183, 186

– 87 (3d Cir. 2015) (quoting Hyd rogen 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 Li tig. , 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 certifi cation 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 c ertification decision to more fully consider the predominance46 that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well ni gh universal.”
Comcast , 133 S. Ct. at 1437 (Ginsburg, J. & Breyer, J., dissenting) (citing 2 W illiam B . Rubenstein, Newberg on Class Actions § 4 :54 (5th ed. 2012)). H ad 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 f ace of individualized damages”); Leyva v. Medline Indus. Inc.

, 716 F.3d 510, 514 (9th C ir. 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 scruti nize 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 summariz e 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
clas ses require a damages model; however, like Comcast , the analysis as to class

- wide damages was specific to that
antitrust claim.47 alon e 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 mem

bers’ damages are not susceptible to a formula for class wide 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.