PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 22-3449

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SHERRY LEWIS; DAVID V. LEWIS,

individually and on behalf of all others similarly situated

v. 

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

 Appellant

________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1-18-cv-05111)

District Judge: Honorable Robert B. Kugler

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Argued on December 12, 2023 

Before: BIBAS, PORTER, and FREEMAN, Circuit Judges

(Opinion filed: April 2, 2024)

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2

Alexander Fuchs

Kymberly Kochis [ARGUED]

Eversheds Sutherland

1114 Avenue of the Americas

The Grace Building, 40th Floor

New York, NY 10036

Counsel for Appellant

Samir Deger-Sen [ARGUED]

Latham & Watkins

1271 Avenue of the Americas

New York, NY 10020

Cherish A. Drain

Raymond Gans

Gregory G. Garre

Marguerite M. Sullivan

Latham & Watkins

555 11th Street NW

Suite 1000

Washington, DC 20004

Counsel for Amicus CCC Intelligent Solutions Inc. 

John M. DeStefano, III [ARGUED]

Hagens Berman Sobol Shapiro

11 W Jefferson Street

Suite 1000

Phoenix, AZ 85003

Counsel for Appellees
3

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OPINION OF THE COURT

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FREEMAN, Circuit Judge.

Sherry and David Lewis sued their auto insurer, 

GEICO, for breaching their insurance contract when their car 

was totaled. They claim that GEICO undercompensated them 

in two ways: (1) by applying a “condition adjustment” that 

artificially reduced its valuation of their car; and (2) by failing

to reimburse them for taxes and fees necessary to replace the 

car. For each instance of underpayment, they sought to certify 

a class of similarly underpaid insureds.

The District Court certified both classes under Federal

Rule of Civil Procedure 23. We will affirm the order certifying 

the class for the taxes-and-fees claim. But the Lewises (the 

only named plaintiffs) failed to show that GEICO caused them 

concrete harm when it applied the condition adjustment. They 

therefore lack standing to bring the condition-adjustment 

claim, so we will vacate the District Court’s order in part and 

remand with instructions to dismiss that claim.

I

A

When an insured’s car is totaled, GEICO agrees to pay 

the Actual Cash Value (“ACV”) of the totaled car—effectively 

its fair market value before the accident, plus certain 
4

replacement costs.

1

 But determining a car’s ACV is 

challenging. It involves valuing the insured’s specific car in 

its pre-accident condition, which no longer exists. And many 

factors influence a car’s value, including its trim level, options, 

after-market alterations, and condition.

Because of these challenges, GEICO uses a multi-step 

process to determine ACV. First, an adjuster inspects the 

totaled car and assesses its condition. GEICO then sends the 

assessment results to a vendor, CCC Intelligent Solutions Inc. 

(“CCC”), which maintains data on cars for sale across the 

country. From this data, CCC identifies a set of comparable 

cars and uses that set to extrapolate a value for the totaled car.

During that extrapolation process, CCC makes two 

adjustments to account for differences between the totaled car 

and the set of comparable cars. First, CCC assumes that the 

average privately owned car is in worse condition than the 

1 GEICO’s New Jersey insurance policy says that “[t]he limit 

of our liability for loss . . . [i]s the actual cash value of the 

property at the time of loss,” and that the “[a]ctual cash value 

of property will be determined at the time of the loss and will 

include an adjustment for depreciation and/or betterment and 

for the physical condition of the property.” App. 151

(emphases omitted). The policy defines ACV as “the 

replacement cost of the auto . . . less depreciation and/or 

betterment.” App. 149 (emphases omitted). And it defines 

“depreciation” as “a decrease or loss in value to the 

auto . . . because of use, disuse, physical wear and tear, age, 

outdatedness, or other causes” and “betterment” as 

“improvement of the auto . . . to a value greater than its preloss condition.” Id.
5

average car on a dealership lot. So CCC applies a downward 

adjustment—known as a “condition adjustment”—to the value 

of the comparable cars, which in turn reduces the extrapolated 

value of the totaled car. Second, CCC adjusts the value of the 

totaled car upward if any of its components are in aboveaverage condition according to the GEICO adjuster’s postaccident assessment.

CCC compiles this information into a Market Valuation 

Report (“MVR”), which it provides to GEICO. GEICO then 

uses the MVR’s valuation as a starting point for settlement 

negotiations with the insured. In some circumstances, 

GEICO’s adjusters also look at other sources and review any 

information the insured provides before making a settlement 

offer. And its adjusters may settle claims for more than the 

MVR’s valuation.

In recent years, GEICO has compensated insureds for 

the taxes and fees they must pay to replace their totaled car. 

But before 2020, it took a different approach. If an insured 

owned her car, GEICO would pay sales taxes based on the 

value of the car when it was totaled. But if an insured leased 

her car, it would only pay a portion of the taxes. And it 

declined to pay title or license plate transfer fees to both owners 

and lessees.

B

Named plaintiffs Sherry and David Lewis are a married 

couple who insured their leased Volkswagen Jetta through 

GEICO. Their daughter, a covered driver under their insurance 

policy, crashed their car in January 2018.
6

After the accident, GEICO followed its standard 

process to calculate the Lewises’ payout. It determined that 

the car was totaled.

2 It obtained an MVR, which identified a 

set of comparable vehicles valued at $17,325, $18,879, and 

$17,770. The MVR applied a condition adjustment that 

reduced the value of each of the comparable vehicles—and, by 

extension, the extrapolated value of the Lewises’ car—by

$1,006.3

 Next, the MVR increased the extrapolated value by 

$886 because some components of the Lewises’ car were in 

above-average condition. This second adjustment partially 

offset the condition adjustment, resulting in a final valuation of 

$17,058.

Working from that valuation, GEICO made an initial

settlement offer of $17,058.

4

 On January 18, 2018, the 

Lewises emailed their GEICO agent to object to the offer. 

They attached information about several comparable cars with 

an average value of $21,870 and asserted that their car was 

worth $19,096. They also engaged in negotiations with 

GEICO over the phone. On February 13, GEICO sent a revised 

settlement offer of $18,258. The difference between the 

revised offer and the valuation in the MVR reflects a $1,200 

2 A car is totaled if the cost of repairs exceeds a certain 

percentage of the car’s value.

3 The MVR also applied a mileage adjustment to the 

comparable vehicles. The Lewises do not challenge that 

adjustment. 

4 When discussing GEICO’s settlement offers, we refer to the 

amount before subtracting the Lewises’ $1,000 deductible, 

because that figure better reflects GEICO’s assessment of the 

car’s ACV. 
7

“adjustment to settle.” App. 896. That amount, minus the 

Lewises’ $1,000 deductible, was what GEICO ultimately paid 

to the Lewises’ auto lender, Volkswagen Credit. GEICO did 

not compensate them for any portion of the taxes and fees.

C

The Lewises sued GEICO for breach of contract.

5

 Their 

claim asserted two distinct theories: (1) that GEICO

mechanically applied CCC’s condition adjustment to 

artificially lower its valuation of their car,

6 and (2) that GEICO

failed to compensate them for taxes and fees as required by 

their contract and New Jersey law.

The Lewises sought certification of two classes of 

GEICO insureds in New Jersey: (1) those who received a 

settlement offer on their totaled car that did not include taxes 

and fees (“the taxes-and-fees class”); and (2) those who

received a settlement offer on their totaled car that was “based 

in whole or in part on the price of comparable vehicles reduced 

5 The Lewises brought other claims in their complaint, but the 

District Court dismissed all but the breach of contract claim, 

and the Lewises did not appeal the dismissal. 

6 This theory is based primarily on a New Jersey insurance

regulation, N.J. Admin. Code § 11:3-10.4(a). The Lewises 

argue that the condition adjustments violate this provision 

because they are arbitrary and insufficiently itemized. And 

they argue that their insurance policy incorporates this 

provision, so a violation of the provision is a violation of their 

policy.
8

by a condition adjustment” (“the condition-adjustment 

class”).7

 App. 120–21, 616 (internal quotation marks omitted).

The District Court certified both classes, holding that 

each met the threshold requirements of Federal Rule of Civil

Procedure 23(a) and the predominance and superiority 

requirements of Rule 23(b)(3). It then denied GEICO’s motion 

for reconsideration. GEICO timely sought and obtained leave 

to file this interlocutory appeal.

II

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

§ 1332(d). We have jurisdiction under 28 U.S.C. § 1292(e) 

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

“[a] court of appeals may permit an appeal from an order 

granting or denying class-action certification.”

We “review a class certification order for abuse of 

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

upon a clearly erroneous finding of fact, an errant conclusion 

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

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

2008) (internal quotation marks omitted). “We exercise 

plenary review over a threshold question of law, such as that 

presented by an Article III standing challenge.” Neale v. Volvo 

Cars of N. Am., LLC, 794 F.3d 353, 358 (3d Cir. 2015).

7 The parties agreed at oral argument that the conditionadjustment class and the taxes-and-fees class are two classes. 

Oral Arg. Tr. at 3:15-23, 4:22-6:6, 25:7-20.
9

III

Article III of the Constitution empowers federal courts 

to hear “[c]ases” and “[c]ontroversies.” U.S. Const. art. III,

§ 2. “For there to be a case or controversy under Article III, 

the plaintiff must have a personal stake in the case—in other 

words, standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 

423 (2021) (internal quotation marks omitted). The standing 

requirement ensures that “federal courts exercise their proper 

function in a limited and separated government”—resolving 

“real controvers[ies] with real impact on real persons.” Id. at 

423–24 (internal quotation marks omitted).

To satisfy the standing requirement, “[t]he plaintiff 

must have (1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and 

(3) that is likely to be redressed by a favorable judicial 

decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 

“To show an injury in fact, the first and foremost of standing’s 

three elements, a plaintiff must show an invasion of a legally 

protected interest that is both concrete and particularized, and 

actual or imminent, not conjectural or hypothetical.” Yaw v. 

Del. River Basin Comm’n, 49 F.4th 302, 310–11 (3d Cir. 2022)

(cleaned up).

In a class action, the class’s standing turns on the named 

plaintiffs’ standing. Neale, 794 F.3d at 369 (“[S]o long as a 

named class representative has standing, a class action presents 

a valid case or controversy under Article III.” (internal 

quotation marks omitted)).8

 So we evaluate whether the 

8 GEICO argues that the Supreme Court’s holding in 

TransUnion that “[e]very class member must have Article III 
10

Lewises meet these requirements. And because “standing is 

not dispensed in gross,” we assess standing for each claim they 

bring. Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 439

(2017) (internal quotation marks omitted).

9

A

We begin with the condition-adjustment claim. GEICO 

argues that the Lewises lack standing to bring this claim 

because they suffered no concrete harm from its application of 

the condition adjustment. See TransUnion, 594 U.S. at 417

(“No concrete harm, no standing.”). We agree.

To be concrete enough to confer standing, an injury 

must be “real, and not abstract.” Spokeo, 578 U.S. at 340

(cleaned up). In other words, the asserted harm must “ha[ve]

a close relationship to a harm traditionally recognized as 

providing a basis for a lawsuit in American courts.” 

TransUnion, 594 U.S. at 417 (internal quotation marks 

omitted).

standing in order to recover individual damages,” 594 U.S. at 

431, abrogated our holding in Neale. We recently rejected that 

argument. Huber v. Simon’s Agency, Inc., 84 F.4th 132, 154–

55 (3d Cir. 2023) (discussing the limited scope of 

TransUnion’s holding and “abid[ing] by Neale’s precept” that 

the named plaintiffs determine standing for class actions).

9 While plaintiffs combine the condition-adjustment claim and 

the taxes-and-fees claim in one count of the complaint, we may 

separately assess aggregated claims for standing. See Boley v. 

Universal Health Servs., Inc., 36 F.4th 124, 131 (3d Cir. 2022).
11

Financial harm is among “[t]he most obvious” concrete 

injuries. Id. at 425; see also Cottrell v. Alcon Lab’ys, 874 F.3d 

154, 163 (3d Cir. 2017) (“[F]inancial harm is a classic and 

paradigmatic form of injury in fact.” (cleaned up)). “If a 

defendant has caused . . . monetary injury to the plaintiff, the 

plaintiff has suffered a concrete injury in fact under Article 

III.” TransUnion, 594 U.S. at 425. “[A] loss of even a small 

amount of money is ordinarily” sufficient. Czyzewski v. Jevic 

Holding Corp., 580 U.S. 451, 464 (2017).

The Lewises allege that GEICO financially harmed 

them when it valued their car based on the condition 

adjustment. Specifically, they claim that CCC applied a 

$1,006 downward adjustment to each of the comparable cars 

in the MVR it prepared, that this adjustment reduced CCC’s

extrapolated valuation of their car by the same amount, and that 

GEICO used this depressed valuation to determine how much 

it would pay to resolve their insurance claim. As a result, they 

assert, GEICO paid them less than their car was worth—a 

quintessential financial injury.

Ordinarily, our standing inquiry would end there. See 

Cottrell, 874 F.3d at 163 (“[W]here a plaintiff alleges financial 

harm, standing is often assumed without discussion.” (internal 

quotation marks omitted)). Here, however, both the complaint 

and the record undercut the Lewises’ claim of financial harm.

10 

10 Article III standing “may be challenged facially or 

factually.” Thorne v. Pep Boys Manny Moe & Jack Inc., 980 

F.3d 879, 885 (3d Cir. 2020). Facial challenges “contest[] the 

sufficiency of the pleadings,” meaning that “the court must 

only consider the allegations of the complaint and documents 
12

True, CCC applied a condition adjustment that reduced its 

valuation of the comparable cars—and, by extension, the

Lewises’ car—by $1,006. But this adjustment was not the end 

of CCC’s or GEICO’s valuation process. After applying the 

downward adjustment, CCC boosted its valuation of the 

Lewises’ car by $886 to account for its condition. With that 

valuation in hand, GEICO then negotiated with the Lewises, 

eventually applying a $1,200 upward “adjustment to settle” 

before paying their claim. App. 896. Even if the condition 

adjustment harmed the Lewises by $1,006, as they allege, these

other adjustments more than offset it. The Lewises stake their 

claim on an isolated intermediate step within GEICO’s 

valuation process, but they ultimately avoided any financial 

injury.

The Lewises urge us to ignore these later steps and treat 

the condition adjustment alone as a harm. But doing that would

impermissibly divorce their standing to sue from any realworld financial injury. Under their theory, they would still 

have suffered financial harm even if GEICO had applied a 

$12,000 (or a $12,000,000) upward adjustment before settling

their claim. This approach conflicts with our obligation to 

referenced therein and attached thereto, in the light most 

favorable to the plaintiff.” In re Schering Plough Corp. 

Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 

(3d Cir. 2012) (internal quotation marks omitted). Factual 

challenges contest standing based on “the facts of the case,” 

meaning the court “may look beyond the pleadings to ascertain 

the facts.” Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 

(3d Cir. 2014). The District Court treated GEICO’s challenge 

to the Lewises’ standing as a factual attack, but the complaint 

and the record support the same conclusion.
13

assess the Lewises’ standing as of when they filed suit, Davis 

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

point GEICO had applied the countervailing adjustments and 

paid the claim.

Although the Lewises argue that GEICO might have 

paid them even more if CCC had not applied the condition 

adjustment, this theory is too speculative to confer standing. In 

re Johnson & Johnson Talcum Powder Prods. Mktg., Sales 

Pracs. & Liab. Litig., 903 F.3d 278, 285 (3d Cir. 2018)

(holding that a plaintiff “must allege facts that would permit a 

factfinder to value the purported injury at something more than 

zero dollars without resorting to mere conjecture”). Instead, 

“[w]e can only speculate—and speculation is not enough to 

sustain Article III standing.” Finkelman v. Nat’l Football 

League, 810 F.3d 187, 200 (3d Cir. 2016). Conjecture about 

how a negotiation might have played out, without more, is not 

enough to support the Lewises’ allegations of financial injury.

Lacking any financial harm, the Lewises’ only 

remaining injury is a bare violation of New Jersey insurance 

rules, which they claim forbade GEICO’s method of 

calculating ACV. But “bare procedural violations, divorced 

from any concrete harm . . . do[] not suffice for Article III 

standing.” TransUnion, 594 U.S. at 440 (cleaned up); cf. Lara 

v. First Nat’l Ins. Co. of Am., 25 F.4th 1134, 1140 (9th Cir. 

2022) (“[C]alling Defendants’ adjustments ‘illegal’ . . . [is] an 

argument for the [state] insurance commissioner . . . .”).

11

11 In the alternative, the Lewises claim that they suffered an 

informational injury. But they failed to make this argument in 
14

We cannot consider whether other insureds in New 

Jersey suffered a financial injury from GEICO’s application of 

the condition adjustment. The standing inquiry 

“focus[es] . . . on whether the plaintiff is the proper party to 

bring [a] claim[].” Cottrell, 874 F.3d at 162. Here, the Lewises 

are not the proper parties. Therefore, we will remand with 

instructions for the District Court to dismiss the conditionadjustment claim for lack of standing. See Boley v. Universal 

Health Servs., Inc., 36 F.4th 124, 130 (3d Cir. 2022) (“[A] lack 

of standing necessitates dismissal of claims, whether brought 

in a class action or in any other kind of suit.”).

B

The taxes-and-fees claim fares better. The Lewises 

allege—and the record supports—that GEICO failed to

compensate them for the taxes and fees necessary to replace 

their totaled car. They claim that their contract entitled them 

to more, and that GEICO’s failure to live up to it cost them 

money. This financial harm satisfies the injury-in-fact 

requirement. See Weichsel v. JP Morgan Chase Bank, N.A., 

65 F.4th 105, 111 (3d Cir. 2023).

The Lewises also meet the causation and redressability 

requirements for Article III standing. The causation 

requirement demands a “connection between the injury-in-fact 

and a defendant’s conduct.” Lutter v. JNESO, 86 F.4th 111, 

127 (3d Cir. 2023). And “[t]he redressability requirement 

ensures that the asserted injury-in-fact is capable of resolution 

in a manner consistent with the traditional understanding of the 

the District Court, so they forfeited it. See Holland v. Warden 

Canaan USP, 998 F.3d 70, 75 (3d Cir. 2021).
15

judicial process.” Id. at 128. The Lewises have shown that 

their alleged financial injury stems from GEICO’s pre-2020 

practice of declining to pay taxes and fees to lessee insureds, 

and they ask for damages, which “are a recognized form of 

judicial redress for past injuries.” Id. They therefore have 

standing to bring their taxes-and-fees claim.

IV

Because the Lewises have standing to bring their taxesand-fees claim, we must next decide whether the District Court 

abused its discretion in certifying a class based on that claim. 

We conclude that it did not.

GEICO challenges the District Court’s certification of 

the taxes-and-fees class on only one ground: that the class is 

not sufficiently ascertainable.12 “A plaintiff seeking 

certification of a Rule 23(b)(3) class must prove by a 

preponderance of the evidence that the class is ascertainable.” 

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

also In re Niaspan Antitrust Litig., 67 F.4th 118, 133 (3d Cir. 

2023) (“Rule 23(b)(3) has an implicit requirement that class 

members be ascertainable.”). To prove ascertainability, the 

Lewises must show that “(1) the class is defined with reference 

to objective criteria; and (2) there is a reliable and 

administratively feasible mechanism for determining whether 

putative class members fall within the class definition.” Byrd, 

784 F.3d at 163 (cleaned up).

12 GEICO raises no other arguments about the taxes-and-fees 

class in its opening brief and acknowledged at oral argument

that its challenge is limited to ascertainability.
16

The District Court did not abuse its discretion in holding 

that the Lewises met these requirements. Objective criteria 

define the class, which covers GEICO insureds in New Jersey 

whose settlement “did not include applicable sales tax, title 

fees, or license plate fees.” App. 65. As to administrative 

feasibility, the Lewises presented evidence that GEICO 

systematically underpaid taxes and fees before 2020 and that a 

review of claim files and other sources could identify insureds 

whose settlements did not include taxes and fees.

GEICO protests that it can only determine which 

insureds were affected by the taxes and fees underpayment

“through a file-by-file review” of the class members. App. 

677. But “matching of records is precisely the sort of exercise 

we have found sufficiently administrable to satisfy 

ascertainability in other cases.” Kelly v. RealPage Inc., 47 

F.4th 202, 223 (3d Cir. 2022). Indeed, we have held that “a 

straightforward ‘yes-or-no’ review of existing records to 

identify class members is administratively feasible even if it 

requires review of individual records with cross-referencing of 

voluminous data from multiple sources.” Id. at 224. That type 

of review is what plaintiffs proposed and the District Court 

endorsed.13 The District Court therefore did not abuse its 

13 The District Court relied on Hargrove v. Sleepy’s LLC, 974 

F.3d 467 (3d Cir. 2020), to hold that defects in GEICO’s 

records requiring individualized review did not preclude 

certification because they “are of GEICO’s own making.” 

App. 81. GEICO argues that this was error because the holding 

in Hargrove is limited to employment cases where the 

defendant failed to keep records as required by law. But 

GEICO reads that case too narrowly. We have relied on 
17

discretion when it found that the taxes-and-fees class was 

ascertainable.

* * *

For the reasons stated above, we will affirm the part of 

the District Court’s order certifying the taxes-and-fees class, 

but we will vacate the part of the District Court’s order 

certifying the condition-adjustment class and remand with 

instructions to dismiss that claim.

Hargrove outside of the employment context for the 

proposition that a defendant’s faulty recordkeeping will not 

preclude certification of an otherwise ascertainable class. See 

RealPage, 47 F.4th at 223.