PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 20-1540

_____________

VICKIE THORNE,

INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILARLY SITUATED,

 Appellant 

v.

PEP BOYS MANNY MOE & JACK INC.

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:19-cv-00393)

District Judge: Honorable J. Curtis Joyner 

_____________ 

Argued September 22, 2020

Before: SMITH, Chief Judge, McKEE, and JORDAN,

Circuit Judges

(Filed: November 20, 2020)
2

Yifei Li

Brenden S. Thompson

Alexandra C. Warren

Cuneo Gilbert & LaDuca

4725 Wisconsin Avenue, NW

Suite 200

Washington, DC 20016

Robert K. Shelquist [ARGUED]

Lockridge Grindal Nauen

100 Washington Avenue South

Suite 2200

Minneapolis, MN 55401

Counsel for Appellant

Kristen E. Dennison

C. Scott Toomey [ARGUED]

Littleton Park Joyce Ughetta & Kelly

201 King of Prussia Road

Suite 220

Radnor, PA 19087

Counsel for Appellee

________________

OPINION OF THE COURT

________________

SMITH, Chief Judge.

However appropriate may have been Virginia Woolf’s 

comparison of the unhappy Mrs. Dalloway to “a wheel without 

a tyre,” Plaintiff Vickie Thorne considers herself aggrieved 
3

despite having equipped her car with two new tires.1 Wheels 

are not an issue. What is at issue is a federal regulation that 

requires a tire dealer to help customers register their new tires 

with the manufacturer. That regulation was promulgated under

the National Traffic and Motor Vehicle Safety Act of 1966, 49 

U.S.C. § 30101, et seq. (“the Act”), and the Act’s stated purpose is to reduce traffic accidents and their consequent human 

toll. Thorne’s appeal turns on whether she can sue her tire 

dealer for ignoring its regulatory tire registration obligation. 

The regulation prescribes three methods for tire dealers 

like Pep Boys Manny Moe & Jack Inc. to help register a 

buyer’s tires. According to Thorne, Pep Boys failed to pursue 

any of the three when, or after, it sold her the tires. So she sued 

on behalf of a class of Pep Boys customers who similarly 

received no tire registration assistance. But Thorne’s suit skidded to a halt when the District Court dismissed her complaint 

without leave to amend. The Court held that a dealer’s failure 

to help register a buyer’s tires in one of the three prescribed 

ways does not, by itself, create an injury in fact for purposes of 

Article III standing. We agree with that ratio decidendi but, 

because a district court has no jurisdiction to rule on the merits 

when a plaintiff lacks standing, we will vacate and remand for 

the District Court to dismiss Thorne’s operative complaint 

without prejudice. 

I. BACKGROUND

Congress passed the Act to “reduce traffic accidents and 

deaths and injuries resulting from traffic accidents.” 49 U.S.C. 

§ 30101; 80 Stat. 718. Congress later amended the Act to 

1 Virginia Woolf, Mrs Dalloway 112 (Hogarth Press 1925). 
4

require that every tire dealer unaffiliated with a tire manufacturer “give a registration form (containing the tire identification number) to the first purchaser of a tire.”2

 49 U.S.C. 

§ 30117(b)(2)(B). It also required a rulemaking to obligate 

dealers to keep certain records on tire sales, including each

buyer’s name and address and tire identification information. 

Id. § 30117(b)(3). Rulemaking merged these two requirements, providing three options for tire dealers to comply with 

their registration obligations: 

(1) Give each buyer a registration form listing the tire 

identification number (“TIN”) of each tire he or she 

bought and certain contact information of the dealer, 

for the buyer to then submit to the tire manufacturer; 

(2) Record each buyer’s name and address, the TIN of 

each tire he or she bought, and certain contact information for the dealer on a registration form, and mail

it to the tire manufacturer at no charge to the buyer

within 30 days; or

(3) Electronically submit to the tire manufacturer, by 

methods it has authorized, the same information in 

(2) at no charge to the buyer within 30 days.

See 49 C.F.R. § 574.8(a)(1)(i)–(iii). 

Widening the lens, the Act states how it interacts with 

other laws and is enforced. It preserves common-law causes 

2 We refer in this opinion to such unaffiliated dealers as simply 

“dealers.” For purposes not relevant here, the statute distinguishes between “independent dealers” such as Pep Boys and 

those affiliated with tire manufacturers. 
5

of action, 49 U.S.C. § 30103(e), but does not confer an express 

private right of action. See, e.g., Ayres v. Gen. Motors Corp., 

234 F.3d 514, 522–24 (11th Cir. 2000); Mulholland v. Subaru 

of Am., Inc., 620 F. Supp. 2d 1261, 1265–66 (D. Colo. 2009). 

For administrative enforcement, the Act authorizes the Secretary of Transportation to decide whether a vehicle or vehicle 

equipment contains a safety-related defect or does not comply 

with minimum performance standards. See 49 U.S.C. 

§§ 30102(a)(10), 30118(a). Manufacturers must notify vehicle 

owners and dealers of any such defect or non-compliance, and 

the Secretary may sua sponte or on petition of an “interested 

person” hold a hearing on the sufficiency of notice. Id. § 

30118(b), (e). “Interested person[s]” may participate in these 

hearings. Id. The Attorney General may also enforce the Act 

through a federal civil lawsuit to enjoin “a violation of this 

chapter or a regulation prescribed . . . under this chapter.” Id. 

§ 30163(a). One who violates the Act, including the tire registration statute (§ 30117) “or a regulation prescribed thereunder, 

is liable to the United States Government for a civil penalty of 

not more than $21,000 for each violation.” Id. § 30165(a)(1). 

Penalties for “a related series of violations” can reach $105 

million. Id. 

II. FACTS AND PROCEDURAL HISTORY

Thorne bought two tires from a Pep Boys store in Richmond, Virginia, in January of 2017. She claims that Pep Boys 

did not help register her tires with the manufacturer using any 

of the three prescribed methods.3

 

3 Thorne did not specifically allege in her complaint that Pep 

Boys disregarded Option 2, under which the dealer mails a 

buyer’s completed registration form to the manufacturer. She
6

Thorne filed a class action complaint against Pep Boys 

in the Eastern District of Pennsylvania, alleging that Pep Boys 

violated its registration obligations under 49 C.F.R. § 574.8 

and thus was liable to her on federal and state-law causes of 

action. Pep Boys moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The 

District Court determined that Thorne failed to allege a concrete injury in fact, dismissing her complaint without prejudice 

for lack of Article III standing. 

Thorne then filed an amended class action complaint, 

bringing eight causes of action under federal warranty and state 

law.4

 She sought money damages, restitution, injunctive relief, 

and attorneys’ fees. Pep Boys, she alleged, deprived her of the 

benefit of the bargain when it sold her tires without helping to 

register them because unregistered tires are worth less than 

registered tires. Thorne alternatively alleged intangible harm 

because her unregistered tires increase the risk to her person or 

property if she is unreachable upon her tires’ recall. She did 

alleged that she “was not handed a tire-registration form by Pep 

Boys,” and her “invoice [did not] indicate that Pep Boys transmitted the federally-required information directly to the tire 

manufacturer.” Am. Class Act. Compl. ¶ 53. She generally 

alleged that Pep Boys violated its registration obligations and 

that her tires went unregistered, so we take her to be claiming

that Pep Boys did not perform Option 2 either. For purposes 

of this appeal, Pep Boys does not claim to practice any of the 

three tire registration methods.

 

4 Thorne’s operative complaint seems to implicate Federal 

Rules of Civil Procedure 23(b)(2) or 23(b)(3), though it cites 

neither. 
7

not allege any performance problems, physical defects, or 

recall associated with her tires.

After Pep Boys again moved to dismiss, the District 

Court dismissed Thorne’s amended complaint on Article III 

standing grounds. The District Court held that Thorne failed 

to sufficiently plead tangible financial harm because, as a 

matter of law, she did not bargain for compliance with the 

registration regulation. It also concluded that her alleged

intangible harm was speculative and insufficiently concrete 

absent a recall of her tires. Citing Kamal v. J. Crew Grp., Inc., 

918 F.3d 102 (3d Cir. 2019), the District Court held that 

violation of 49 C.F.R. § 574.8’s record-keeping requirement

alone does not produce an injury in fact. This time, dismissal 

did not provide leave to amend. 

III. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review 

the dismissal of Thorne’s amended complaint. A North Carolina resident, Thorne invoked 28 U.S.C. § 1332(d) to ground

the District Court’s exercise of diversity jurisdiction over her 

putative class action against Philadelphia-based Pep Boys. 

But the District Court lacked jurisdiction if Thorne 

couldn’t establish Article III standing. See In re Schering 

Plough Corp. Intron/Temodar Cons. Class Act., 678 F.3d 235, 

243 (3d Cir. 2012). Constitutional standing, which is properly

tested under Rule 12(b)(1), may be challenged facially or factually. A facial challenge argues that the plaintiff’s factual 

allegations cannot meet the elements of standing. Schering 

Plough, 678 F.3d at 243; see also In re Horizon Healthcare 

Servs. Inc. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 

2017). Because that was the nub of Pep Boys’s Rule 12(b)(1) 
8

motion, we take Thorne’s factual allegations as true, view them 

in her favor, and perform a plenary review of the dismissal. 

See Horizon, 846 F.3d at 632. 

IV. ANALYSIS

Derived from separation-of-powers principles, the law 

of standing “serves to prevent the judicial process from being 

used to usurp the powers of the political branches.” Clapper v. 

Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Article III of 

our Constitution vests “[t]he judicial Power of the United 

States” in both the Supreme Court and “such inferior Courts as 

the Congress may from time to time ordain and establish.” 

U.S. Const. art. III, § 1. This “judicial [p]ower” extends only 

to “Cases” and “Controversies.” Id. art. III, § 2; see also 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To assure 

that judges avoid rendering impermissible advisory opinions, 

parties seeking to invoke federal judicial power must first 

establish their standing to do so. Spokeo, 136 S. Ct. at 1547. 

The familiar elements of Article III standing require a 

plaintiff to 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.” 

Id. at 1547. Injury in fact is the “‘foremost’ of standing’s three 

elements”—and the one element at issue in this appeal. Id. 

(quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 

83, 103 (1998)). To plead an injury in fact, the party invoking 

federal jurisdiction must establish three sub-elements: first, the 

invasion of a legally protected interest; second, that the injury 

is both “concrete and particularized”; and third, that the injury 

is “actual or imminent, not conjectural or hypothetical.” 

Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560 (1992)); see also Mielo v. Steak ’n 
9

Shake Ops., 897 F.3d 467, 479 n.11 (3d Cir. 2018). The parties 

do not dispute that Thorne has suffered invasion of a legally 

protected interest, so our injury-in-fact analysis focuses on the

latter sub-elements. 

As the party invoking federal jurisdiction, Thorne has 

the burden to establish standing “for each type of relief 

sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493

(2009); see Finkelman v. Nat’l Football League, 810 F.3d 187, 

194 (3d Cir. 2016). Her arguments do not differentiate

between the remedies she seeks. Still, we will consider her 

standing as to each remedy alleged, mindful of our task to 

“examine the allegations in the complaint from a number of 

different angles to see if [Thorne’s] purported injury can be 

framed in a way that satisfies Article III.” See Mielo, 897 F.3d 

at 479 (quoting Finkelman, 810 F.3d at 197).

A. Tangible Economic Injury

A “paradigmatic form[]” of injury in fact is economic 

injury. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 

286, 291 (3d Cir. 2005) (Alito, J.). “Standing always should 

exist to claim damages, unless perhaps the theory of damages 

is totally fanciful.” Id. (quoting WRIGHT & MILLER, FEDERAL 

PRACTICE AND PROCEDURE, § 3531.4, at 847 n.7 (2005 

Supp.)). Little surprise, then, that Thorne characterizes her tire

purchase as an economic injury. But Thorne nowhere 

“allege[s] facts that would permit a factfinder to value the 

purported injury at something more than zero dollars without 

resorting to mere conjecture,” In re Johnson & Johnson 

Talcum Powder Prods. Litig., 903 F.3d 278, 285 (3d Cir. 

2018), so she fails to plead a theory of economic harm sufficient to support standing. 
10

The gravamen of Thorne’s alleged economic injury is 

that she did not receive the benefit of her bargain when she 

bought tires from Pep Boys that then went unregistered. She 

alleged that “Class Members not only pay for the tires, but also 

pay the cost of Defendant’s compliance with federal law.” Am. 

Class Act. Compl. ¶ 9. And on appeal, she argues that “she 

paid Pep Boys for nondefective tires, and it instead provided 

her tires that were unregistered (because Pep Boys used none 

of the three mandated methods at the point of sale), and 

therefore the tires were defective, which is a tangible financial 

injury.” Appellant’s Br. 16. Thorne’s benefit-of-the-bargain 

allegations do not support a viable theory of economic injury, 

and her product-defect argument blows right by the statute’s 

defined terms. 

1. Unregistered tires not worth less than Thorne paid. 

Thorne’s benefit-of-the-bargain theory runs headlong into our 

case law. We start with Johnson & Johnson. There, the plaintiff claimed that when she bought baby powder, she was denied 

the benefit of her bargain because certain uses of the product 

“can lead” to an elevated risk of ovarian cancer. 903 F.3d at 

281–82. Though the plaintiff might have expected “safe” baby 

powder, missing were allegations that the product was unsafe 

as to her, that she developed ovarian cancer, or that she was at 

risk of developing it as a result of using the baby powder. Id. 

at 289. We thus rejected the plaintiff’s benefit-of-the-bargain 

theory of injury because she “failed to allege that the economic 

benefit she received from that powder was anything less than 

the price she paid.” Id. at 290 (emphasis in original). 

The same can be said for Thorne. Though she “pair[s] 

a conclusory assertion of money lost with a request that a 

defendant pay up,” Johnson & Johnson, 903 F.3d at 288, that 
11

doesn’t suffice. Her pleadings concede that the tires she 

bought from Pep Boys are functioning as intended and haven’t 

been recalled. Unalleged, uncertain future events do not make 

her Pep Boys tires worth less at the time of purchase than 

equivalent registered tires. See id. at 289–90. And Thorne’s

thin allegation that Pep Boys prices the cost of complying with 

the registration obligation into its tires is undermined elsewhere in her complaint. For example, she formulates a supposedly common class question as: “[w]hether Defendant 

includes the cost of tire-registration compliance in the price of 

its tires.” Am. Class Act. Compl. ¶ 65(d). Given her mixed 

messages on compliance costs, Thorne fails to intelligibly 

allege that she paid for more than she received.5

 

Thorne’s theory of economic harm also treads on

Finkelman. As relevant here, Finkelman bought tickets to the 

Super Bowl in the resale market and then sued the NFL, alleging that he paid a higher price due to the NFL’s practice of 

reserving nearly all tickets for teams and League insiders. 810 

F.3d at 190–91, 199. We held that Finkelman’s theory of economic injury stood on “nothing more than supposition” 

because we “ha[d] no way of knowing whether the NFL’s 

withholding of tickets would have had the effect of increasing 

or decreasing prices on the secondary market.” Id. at 200–01. 

5 As bedrock for her requested injunction, Thorne alleged that 

she “and the Class members will likely purchase tires from 

Defendant again . . . and still not receive the required tireregistration services.” Am. Class Act. Compl. ¶ 134. We 

return to Johnson & Johnson: Thorne’s desire to keep buying 

Pep Boys tires at prevailing prices makes it difficult to presume 

that she would pay more for registered tires. See 903 F.3d at 

288–89. 
12

For example, League insiders—who received their tickets for 

free—“might have been especially eager to resell their tickets,” 

meaning that the NFL’s practices may have effectively 

increased the supply and decreased the price of tickets in the 

resale market relative to a scenario in which the NFL sold more 

tickets to the public. Id. at 200.

 

Like Finkelman, Thorne propounds an economic injury 

that requires speculation about market or firm-level effects. 

Were Pep Boys to comply with its registration obligations, 

market factors might lead it to increase its tire prices accordingly. As Thorne recognizes, the submission-by-buyer method 

of compliance (Option 1) does not prohibit dealers from passing on registration costs to tire buyers. On the other hand, 

demand might be too elastic for Pep Boys to do so. We simply 

have no way of knowing. Rather than “application of basic 

economic logic,” Thorne’s theory of economic harm relies on 

“pure conjecture” about what Pep Boys’s prices would be if it 

“sold its [tires] differently.” See Finkelman, 810 F.3d at 201 

(quotation omitted). 

We recognize that one out-of-Circuit district court decision goes the other way. In Exum v. National Tire & Battery, 

437 F. Supp. 3d 1141 (S.D. Fla. Jan. 28, 2020), a federal magistrate judge reasoned that purchasers of unregistered tires 

“have arguably purchased a less valuable product” and “can 

reasonably expect that the purchase price for those tires 

includes proper tire registration.”6

 Id. at 1151–52. Exum is 

6 The judge in Exum declined to follow the District Court’s dismissal of Thorne’s original complaint based on “the specific 

allegations raised” in Exum’s complaint. 437 F. Supp. 3d at 

1152. But the judge noted that the cases are “similar.” Id. 
13

more properly considered an intangible harm case, and we will 

treat it as such. But it suffices here to note that Exum assigns 

economic value through mere conjecture, contrary to our Circuit’s law. See, e.g., Johnson & Johnson, 903 F.3d at 285; 

Finkelman, 810 F.3d at 201. At all events, Thorne alleges only 

that she generally expected, when buying the tires, to be 

“reachable” upon a recall, Am. Class Act. Compl. ¶ 55, not that 

she kicked the tires on the applicable regulations or was told at 

the point of sale that Pep Boys would take steps to help register

the tires.

7

 Lack of awareness of an affirmation at the time of 

purchase generally dooms a benefit-of-the-bargain theory of 

liability. See, e.g., Cipollone v. Liggett Grp., Inc., 893 F.2d 

541, 566–68 (3d Cir. 1990) (applying New Jersey law), rev’d 

on other grounds, 505 U.S. 504 (1992); Gross v. Stryker Corp., 

858 F. Supp. 2d 466, 501–02 (W.D. Pa. 2012) (applying Pennsylvania law). We decline to adopt Exum’s economic harm 

analysis here. 

2. Unregistered tires not defective. Thorne also contends that we should presume suitable economic injury because 

an unregistered tire is per se defective under the Act. Interpreting the Act requires us to examine “the language itself, the 

specific context in which that language is used, and the broader 

context of the statute as a whole.” Nken v. Holder, 556 U.S. 

418, 426 (2009) (quotation omitted). Bearing these factors in 

mind, we conclude that Thorne’s construction of the statute

falls flat because it offends the statutory definition of “defect,”

relies on grammatically flawed readings of related definitions, 

and would create illogical results. 

7 Thorne has not alleged that Pep Boys lacks access to her contact information. 
14

First, the Act’s definition of “defect” cannot bear the 

weight Thorne places on it. When a statute defines a term, we 

must follow that definition and “exclude[] unstated meanings 

of that term.” Meese v. Keene, 481 U.S. 465, 484 (1987) (citation omitted). The Act defines “defect” to mean “any defect in 

performance, construction, a component, or material of a motor 

vehicle or motor vehicle equipment.” 49 U.S.C. § 30102(a)(3). 

The definition by its terms embraces faulty physical characteristics, not registration (i.e., paperwork) deficiencies. Besides, 

other provisions of the Act suggest that non-compliance is not 

synonymous with defect. See, e.g., 49 U.S.C. § 30118(b)(1) 

(“Secretary [of Transportation] may make a final decision that 

a motor vehicle or replacement equipment contains a defect 

related to motor vehicle safety or does not comply with an 

applicable motor vehicle safety standard prescribed [hereunder].”) (emphases added); id. § 30116(a) (“If . . . it is decided 

that the vehicle or equipment contains a defect related to motor 

vehicle safety or does not comply with applicable motor 

vehicle safety standards . . . .”) (emphases added). The definition of “defect” and other provisions’ contemplation of that

term seriously undermine Thorne’s reading. 

Second, we decline Thorne’s invitation to contort other 

related definitions in the Act. According to Thorne, noncompliance can amount to a defect because: 

[A] defect in original equipment or noncompliance of original equipment with a motor 

vehicle safety standard prescribed under this 

chapter, is deemed to be a defect or noncompliance of the motor vehicle in or on which 

the equipment was installed at the time of 

delivery to the first purchaser. 
15

49 U.S.C. § 30102(b)(1)(F); Appellant’s Br. 18. “[O]riginal 

equipment means motor vehicle equipment (including a tire) 

installed in or on a motor vehicle at the time of delivery to the 

first purchaser.” Id. § 30102(b)(1)(C). For one thing, the 

defined term “motor vehicle safety standard” means “a 

minimum standard for motor vehicle or motor vehicle 

equipment performance.” Id. § 30102(a)(10). Thorne never 

explains how deficient registration amounts to a performance 

issue. For another, Thorne’s contention that the “first 

purchaser” of original equipment can be the first purchaser of 

a tire violates the last-antecedent rule. See, e.g., Jama v. 

Immigr. & Customs Enf’t, 543 U.S. 335, 343 (2005) (confirming that “a limiting clause or phrase . . . should ordinarily be 

read as modifying only the noun or phrase that it immediately 

follows” (citation omitted)). In the definition of “original 

equipment,” the term “first purchaser” immediately follows “a 

motor vehicle,” not “a tire.” 

Third, Thorne’s argument would create illogical results. 

Consider that the Act sometimes regards the maker of a new 

car as the manufacturer of the car’s stock tires. It crafts the 

following limited definition applicable to, among others, the 

tire registration subsection: “[A] manufacturer of a motor 

vehicle in or on which original equipment was installed when 

delivered to the first purchaser is deemed to be the 

manufacturer of the equipment.” 49 U.S.C. § 30102(b)(1)(G). 

But Thorne’s interpretation of “original equipment” and “first 

purchaser” would mean that the manufacturer of a tire buyer’s 

vehicle is considered the manufacturer of her replacement tires. 

Intuitively, and considered against the balance of the statute, 

such a result is absurd. “A basic principle of statutory 

construction is that we should avoid a statutory interpretation 

that leads to absurd results.” In re Kaiser Aluminum Corp., 
16

456 F.3d 328, 330 (3d Cir. 2006). We read the Act to more 

sensibly treat aftermarket tires as “replacement equipment”—

“motor vehicle equipment (including a tire) that is not original 

equipment.” 49 U.S.C. § 30102(b)(1)(D).8

 

* * *

We conclude that Thorne has not alleged a tangible, 

economic injury that is sufficient for standing purposes. She 

has supported her benefit-of-the-bargain theory of injury with 

only speculative allegations that the tires she received from Pep 

Boys were worth less than what she paid for them. And her 

argument that unregistered tires are defective such that we may

presume standing-worthy economic harm rests on a flawed

reading of the Act. Because we reach this conclusion on de 

novo review, Thorne’s argument that the District Court made 

erroneous factual findings is of no consequence.

9

 We next 

8 Betraying her arguments on appeal, Thorne pleaded that “44 

million original equipment tires for new passenger vehicles 

and 201.6 million replacement tires for passenger vehicles” 

were sold in 2013. Am. Class Act. Compl. ¶ 20 (emphases 

added). 

9 Thorne also argues that the District Court should not have 

required her to “‘allege any additional harm beyond the one 

Congress has identified.’” Appellant’s Br. 37 (quoting Spokeo,

136 S. Ct. at 1549). That’s true as far as it goes. But the 

“additional harm” admonition “clearly presumes that the 

putative plaintiff had already suffered a de facto injury 

resulting from the procedural violation.” Owner-Operator 

Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 879 F.3d 339, 
17

analyze Thorne’s standing under the Spokeo framework governing intangible injuries. 

B. Intangible Yet Concrete Injury

Intangible injuries sometimes qualify as concrete. To 

determine whether that’s the case here, we analyze Thorne’s 

claim to standing by searching for evidence (a) of a close relationship between the lack of tire registration and a harm historically recognized as a basis for common-law suits and (b) that 

Congress elevated the lack of tire registration to a legally cognizable, concrete injury. See Spokeo, 136 S. Ct. at 1549. Our 

Court has yet to decide whether a plaintiff must prevail on both 

inquiries, or if demonstrating just one is sufficient. See, e.g.,

Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 

2017) (declining to decide whether intangible injury that does 

not satisfy both congressional and historical inquiries can be 

concrete); Horizon, 846 F.3d at 637 (suggesting that satisfaction of historical inquiry alone “is likely to be sufficient to 

satisfy the injury-in-fact element of standing”). Yet we need 

not reach that question today. Thorne does not have the better 

of either argument. 

1. No historical analogue. Thorne alleges two forms 

of intangible harm: the denial of tire registration assistance in 

itself, and the materially increased risk of an accident were she 

unreachable due to the lack of registration upon a recall of her 

tires. Though precedent does not require us to identify an exact 

historical analogue that could remedy the alleged harm, “we 

343 (D.C. Cir. 2018). As we explain below, because the regulatory violation Thorne alleges is not itself a concrete injury, 

the language from Spokeo gets no traction here. See Kamal, 

918 F.3d at 115. 
18

still require [that] the harm be ‘of the same character of 

previously existing “legally cognizable injuries.”’” Kamal, 

918 F.3d at 114 (quoting Susinno, 862 F.3d at 352). Thorne 

suggests two historical analogues as remedies for her alleged 

harms: negligence per se and products liability.10 Neither suggestion is persuasive.

11

10 Although Thorne tries to draw a historical line to statutory 

consumer protection actions, statutory actions ipso facto fall 

outside common law. 

11 Thorne contends that she “argued below that her alleged 

harms bear a close relationship to traditional torts allowing 

consumers to sue over their purchase of defective products.” 

Appellant’s Br. 22 (citing ECF No. 29 at 10–11). But her 

argument to the District Court was cursory, contending only 

that “exposure to and harm from dangerous products” was traditionally a basis for suit in English and American courts. ECF 

No. 29 at 11. Her historical arguments are so fleeting that we 

could consider them forfeited. See, e.g., Pa. Dep’t of Public 

Welfare v. U.S. Dep’t of Health & Human Servs., 101 F.3d 939, 

945 (3d Cir. 1996) (holding that argument supported only by 

“conclusory assertions” in opening and reply brief was 

waived); Laborers’ Int’l Union of N. Am. v. Foster Wheeler 

Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived 

unless a party raises it in its opening brief, and for those 

purposes ‘a passing reference to an issue . . . will not suffice . . 

. .’”) (quotation omitted). But we perceive no prejudice to Pep 

Boys from engaging with the merits of Thorne’s undeveloped 

arguments and, given the countervailing authority, we choose 

to address them on the merits. AstenJohnson, Inc. v. Columbia 

Cas. Co., 562 F.3d 213, 223 n.3 (3d Cir. 2009). 
19

As for negligence per se, that doctrine is not a historical 

recognition of either of Thorne’s alleged harms. It merely 

“establishes, by reference to a statutory scheme, the standard 

of care appropriate to the underlying tort.” In re Orthopedic 

Bone Screw Prods. Liab. Litig., 193 F.3d 781, 790 (3d Cir. 

1999) (citation omitted) (emphasis added). It permits a factfinder to consider the violation of a statute or ordinance as 

evidence of negligence. Rolick v. Collins Pine Co., 975 F.2d 

1009, 1015 (3d Cir. 1992), cert denied, 507 U.S. 973 (1993). 

But a plaintiff cannot invoke the doctrine to transform statutory 

violations into proof of “liability for a separate underlying 

tort.” Bone Screw, 193 F.3d at 791 (rejecting argument that 

“violations themselves form a cause of action”). Nor does negligence per se obviate the need to show proximate causation or 

damages. See Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 

990, 998 (11th Cir. 2020) (Katsas, J., sitting by designation) 

(concluding that proffered historical tort analogues had “no 

relationship to harms traditionally remediable in American or 

English courts” because plaintiffs “jettison[ed] the bedrock 

elements of reliance and damages”). Negligence per se might 

help Thorne prove Pep Boys’s breach of a standard of care if a 

tort action would otherwise lie at common law. But it says 

nothing about that standing-critical “if” question: whether any 

alleged harm caused by the breach could be remedied at common law. 

Nor does Thorne’s products-liability analogue resonate 

with us. Though she cites no specific regime, strict liability for 

defective products (at least in Pennsylvania, where Pep Boys 

is headquartered and Thorne sued) requires that “physical harm 

[be] caused to the ultimate user or consumer, or to his 

property.” RESTATEMENT (2D) OF TORTS § 402A, as adopted 
20

in Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966). Without physical harm, neither of Thorne’s alleged injuries bears a close 

relationship to harms that products-liability torts have historically remedied. Compare Kamal, 918 F.3d at 114 (determining that FACTA violation did not share close relationship with 

tort suits for unreasonable publicity or breach of confidence 

absent “disclosure to a third party”), with Susinno, 862 F.3d at 

351–52 (noting that Congress “squarely identified” the harm 

of pre-recorded calls to cell phones and that such harm is

“closely relate[d]” to common-law claim for intrusion upon 

seclusion). 

2. No evidence of Congress elevating either alleged 

harm. Congress is “well positioned to identify intangible 

harms that meet minimum Article III requirements,” Spokeo, 

136 S. Ct. at 1549, so we also consider whether it “expressed 

an intent to make [the] injury redressable.” Horizon, 846 F.3d 

at 637. Thorne maintains that the Act’s purpose of preventing 

accidents and injuries on the roadways validates private actions 

to enforce the tire registration requirements. The tire registration provisions for independent dealers do not identify their 

purpose. But what we glean from those provisions and from 

the statutory regime as a whole persuades us that Congress did 

not intend to give private attorneys general standing to redress 

the “injury” of unregistered tires. 

First, the titles given to sections of the tire registration 

regulation and the relevant provision of the Act suggest that 

their purpose is information-gathering for recordkeeping. The 

title of a statute and the heading of a section are “tools available 

for the resolution of [] doubt” about the meaning of a statute. 

Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) 

(quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 419, 
21

528–29 (1947)). Here, the title of the tire registration regulation is “information requirements,” 49 C.F.R. § 574.8, and the 

enabling statute is titled “[p]roviding information to, and 

maintaining records on, purchasers.” 49 U.S.C. § 30117. 

Thorne impugns the District Court’s characterization of the 

regulation as a “procedural record-keeping statute,” Appellant’s Br. 23, but that description is apt. Facially, these laws 

bear no direct relation to the Act’s safety purposes. 

Second, by connecting its safety goals to vehicle performance, the Act as a whole suggests no congressional intent to 

transmogrify the lack of registered tires into a concrete injury. 

In Chapter 301 of Title 49, entitled “Motor Vehicle Safety,” 

Congress recognized the need “to prescribe motor vehicle 

safety standards” in an effort “to reduce traffic accidents and 

deaths and injuries resulting from traffic accidents.” 49 U.S.C. 

§ 30101; accord Buzzard v. Roadrunner Trucking, Inc., 966 

F.2d 777, 781–82 (3d Cir. 1992). We emphasize that the Act 

defines “motor vehicle safety standard” as a minimum 

“performance” standard. 49 U.S.C. § 30102(a)(10). The definition of “motor vehicle safety” is likewise performancefocused, referring to “design, construction, or performance” of 

a motor vehicle or motor vehicle equipment. Id. § 30102(a)(9). 

Tires that suffer from no performance problems but are simply 

unregistered do not implicate the Act’s purpose. 

Third, the Act appears to favor public over private 

enforcement, both generally and as relevant to tire registration. 

It authorizes the Attorney General to sue in federal court to

enjoin violations and levy civil penalties ranging from $21,000 

to $105 million on those who violate the tire registration section “or a regulation prescribed thereunder.” See 49 U.S.C. §§ 
22

30163(a), 30165(a)(1). The Act also contains an administrative enforcement scheme under which the Secretary of Transportation “require[s]” dealers to register tires, and may conduct 

hearings on certain notice-related compliance issues in which 

“interested person[s]” may participate. Id. §§ 30117(b)(2)(B), 

30118(e). By contrast, the Act is silent on private enforcement 

of the tire registration regime, only broadly preserving 

common-law liability for non-compliance with (performancebased) motor vehicle safety standards.12 Id. § 30103(e). In 

fact, this silence may have been purposeful; elsewhere the Act 

contemplates private-party vindication of rights. See, e.g.,

Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here 

Congress includes particular language in one section of a 

statute but omits it in another . . . , it is generally presumed that 

Congress acts intentionally and purposely in the disparate 

inclusion or exclusion.”) (quotation omitted). For example, in 

the section immediately preceding the tire registration provision, the Act does set forth a private cause of action for a distributor or dealer to sue a manufacturer in federal district court 

over the value of certain parts or equipment. Id. § 30116(c) 

(establishing statute of limitations and remedies). If the Act 

reveals any relevant congressional judgment, it is to prioritize 

public enforcement over private redress for the “injury” of

unregistered tires. 

12 The lack of an express private right of action to sue for deficient tire registration, alone, is not what drives our standing 

analysis. Even when a plaintiff leverages a duty created by one 

statute to sue under other laws, an express private right of 

action in the duty-generating statute is neither necessary nor 

sufficient for standing. See, e.g., Steel Co., 523 U.S. at 96 

(“[T]he nonexistence of a cause of action was no proper basis 

for a jurisdictional dismissal.”). 
23

Thorne argues that committee reports and a consumer 

advocate’s Congressional testimony exhibit a connection 

between tire registration and vehicle safety. But those nonstatutory data points fail to show that the congressional inquiry 

favors standing. Viewed at a high level of generality, every 

provision in a statute will relate to its overarching purpose. The 

real question is whether the alleged statutory violation is 

among the concrete harms Congress enacted the law to remedy. See, e.g., Trichell, 964 F.3d at 999 (“[T]he harms against 

which the statute is directed [abusive debt collection] . . . . are 

a far cry from whatever injury one may suffer from receiving 

in the mail a misleading communication that fails to mislead.”)

(internal quotation omitted); Kamal, 918 F.3d at 115 (“[T]he

FACTA provision [violation of which did not confer standing] 

was part of Congress’s effort to prevent the concrete harm of 

identity theft.”). Congress may have adopted tire registration 

procedures to decrease the risk of harm to concrete safety 

interests, but “[a] violation of one of th[ose] procedural 

requirements may result in no [such concrete] harm.” Spokeo, 

136 S. Ct. at 1550; see also Kamal, 918 F.3d at 117. The Act 

gives us no reason to conclude—but does provide reason to 

doubt—that Congress elevated the lack of tire registration into 

an injury that is concrete for Article III purposes. 

* * *

Given the attenuation between lack of tire registration 

and the Act’s purpose of reducing accidents, deaths, and injuries, only a definitive congressional judgment to elevate the 

former into a concrete injury would favor Article III standing

under Spokeo’s congressional inquiry. Thorne points to nothing that would aid her cause. In fact, the statute’s titles, defined 

terms, and enforcement provisions suggest the opposite. 
24

C. Speculative Injury

Even were we to assume that Thorne’s alleged injury is

sufficiently concrete, we must still address the third prong of 

injury-in-fact analysis—whether an alleged harm, even if concrete, is hypothetical or conjectural. Spokeo, 136 S. Ct. at 

1548; Johnson & Johnson, 903 F.3d at 284. This element is 

intended to weed out claims that are nothing “more than an 

ingenious academic exercise in the conceivable.” United 

States v. Students Challenging Reg. Agency Procs. (SCRAP), 

412 U.S. 669, 688–89 (1973); see also Cottrell v. Alcon Labs., 

874 F.3d 154, 168 (3d Cir. 2017). 

Only Thorne’s second alleged injury—an increased risk 

of harm to property or person if her unregistered tires are 

recalled—fits within this framework. To be sure, a “risk of real 

harm” may “satisfy the requirement of concreteness.” Spokeo, 

136 S. Ct. at 1549. But the “threatened injury must be certainly 

impending to constitute injury in fact.” Clapper, 568 U.S. at 

409. And there must be at least a “‘substantial risk’ that the 

harm will occur.” Id. at 414 n.5 (quoting Monsanto Co. v. 

Geertson Seed Farms, 561 U.S. 139, 153–54 (2010)). Thorne 

posits only an infinitesimal increase in her chances of being 

injured because of Pep Boys’s failure to register her tires, so 

any risk of harm—even if concrete—is no more than speculative. 

In Thorne’s telling, Pep Boys’s failure to register her 

tires increased her risk of harm because, if the tire manufacturer recalls her tires, it will be unable to contact her. That, she 

contends, could lead to her continuing to drive on the recalled 

tires and having an accident attributable to the defect that 

prompted the recall. But, as in Kamal, this threat consists of a 
25

highly speculative chain of future events that does not constitute a material risk of harm. 918 F.3d at 116. For the threatened harm to transpire, the following independent events 

would need to occur:

1) The manufacturer discovers that a collection of tires, a subset of which Thorne 

bought from Pep Boys, contains a defect 

able to cause property damage or personal 

injury.

2) The manufacturer recalls the tires. 

3) Thorne is still driving on the tires at the 

time of recall. 

4) Thorne is otherwise still reachable from 

the information that should have been recorded on the registration form at the time 

of purchase. 

5) Pep Boys, upon learning of the recall,

does not supply the manufacturer with 

Thorne’s contact information. 

6) Thorne does not learn of the recall 

through other channels, such as media or 

consumer reports. 

7) The defect prompting the recall causes 

Thorne to have an accident. 

 
26

This threatened injury is not “certainly impending,” nor 

does it present a “substantial risk.” Clapper, 568 U.S. at 409, 

414 n.5. This chain of conceivable events poses some new 

non-zero risk to Thorne, but her absolute chances of harm are 

miniscule. See Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621

(2020) (citing Clapper for proposition that challenged act must 

have “substantially increased the risk” of harm to plaintiff). In 

other words, relative increase cannot be the measuring stick 

because whenever the plaintiff was at zero risk before the 

defendant acted, the percentage increase in her chances of 

harm is “infinite.” Trichell, 964 F.3d at 1001 n.4. Without 

announcing where in the logical chain a concrete injury 

becomes too attenuated, we conclude that Thorne’s alleged 

“‘at-risk’ . . . status” is too speculative to support standing. 

Perelman v. Perelman, 793 F.3d 368, 375 (3d Cir. 2015) (no 

standing to sue over risk of default on retirement obligations 

where plan’s assets exceeded liabilities under accepted 

accounting method). 

The authority Thorne musters does not compel a different conclusion. In DiNaples v. MRS BPO, LLC, 934 F.3d 275 

(3d Cir. 2019), the defendant allegedly violated the Fair Debt 

Collection Practices Act (FDCPA) by printing on the outside 

of a debt collection letter a Quick Response code that, when 

scanned, revealed the plaintiff’s account number. Id. at 278. 

We rejected the argument that a third party would first have to 

access and understand the disclosed information before the 

plaintiff could have standing. The FDCPA takes aim at the 

harm of privacy violations, and the chain of future events that 

would produce that harm only required one step: a third party 

scanning the code. For Thorne’s future injury to occur, by contrast, up to seven steps must be daisy chained. 

 
27

Nor do our data breach and privacy cases assist Thorne. 

Horizon dealt with the plaintiffs’ standing to sue Horizon under 

the Fair Credit Reporting Act (FCRA) after unencrypted laptops containing their personal information were stolen from 

one of the company’s facilities. 846 F.3d at 632. Congress in 

the FCRA identified as a cognizable injury unauthorized dissemination of personal information—harm closely related to 

invasion of privacy, which traditionally was a basis for a 

common-law suit.13 Id. at 639–40. Rejecting the argument 

that the harm was too speculative, the Horizon court noted that 

“[t]he theft appears to have been directed towards the 

acquisition of such personal information,” the laptops were unencrypted, and one plaintiff had been a victim of identity theft 

as a result of the breach. Id. at 639 n.19. Horizon, in which a 

malicious actor accessed the plaintiffs’ protected personal 

information and committed identity theft, is a far cry from the

case before us. 

Similarly unavailing is Long v. Se. Penn. Transp. Auth., 

903 F.3d 312 (3d Cir. 2018). The Long plaintiffs alleged that 

the defendant, first, did not send them copies of their background checks before deciding not to hire them based on those 

background checks and, second, did not send them notices of 

their rights under the FCRA. Id. at 317. We held that the first

13 St. Pierre v. Retrieval-Masters Creditors Bureau, Inc., 898 

F.3d 351 (3d Cir. 2018), which Thorne’s counsel cited at oral 

argument, has no purchase here for similar reasons. See id. at 

357–58 (holding that exposure of plaintiff’s credit account 

number through envelope window of debt collection letter 

“‘implicate[d] a core concern animating the FDCPA—the 

invasion of privacy’—and thus [wa]s closely related to” a traditional harm). 
28

alleged harm was sufficiently concrete: Suffering adverse 

employment action without the required consumer report was 

the very harm that Congress sought to prevent, and interference 

with the plaintiffs’ ability to control their personal information 

was analogous to common-law invasion of privacy. Id. at 323–

24. But the second alleged injury—lack of FCRA-required 

notice—was a bare procedural violation for which there was 

no standing. Id. at 325. We rejected the argument that the 

violation increased the risk that the plaintiffs’ claims would 

lapse before they could sue. Id. Thorne’s alleged harm from 

unregistered tires resembles the Long plaintiffs’ second 

claimed injury much more than their first. 

Finally, we acknowledge Exum’s decision that tire purchasers had Article III standing to sue for a dealer’s failure to 

comply with the tire registration requirement. But the Exum 

opinion does not consider the level of attenuation in the logical 

chain from the lack of tire registration to property damage or a 

human toll. Instead, the judge’s analysis ended with the determination that lack of tire registration increased the risk that a

manufacturer would be unable to contact the owner of an 

unregistered tire about a recall. 437 F. Supp. 3d at 1151. But 

nothing in the Act suggests that the relevant congressional 

interest is contact with a tire owner. Instead, Congress was 

concerned with safe design, operation, and performance of 

motor vehicles. Exum’s rationale is unpersuasive. 

* * *

If Pep Boys shirked its tire registration obligations, it

committed only a “bare procedural violation” that caused neither actual harm nor a concrete material risk of harm. Even if 

Thorne’s alleged harm associated with a future recall of her 
29

tires were concrete, her risk of actual injury is too speculative 

for Article III standing purposes. Thorne’s allegations fail to 

establish an injury in fact, and so the District Court lacked 

jurisdiction over her claims for money damages. 

D. Other Remedies 

Thorne also sought “equitable relief including restitution and/or disgorgement” of revenues and profits Pep Boys 

obtained through its conduct. Am. Class Act. Compl. ¶ 113. 

And she requested injunctive relief to “prevent[] Defendant 

from selling unregistered tires or tires without registering those 

tires with the manufacturer or providing registration cards to 

consumers.” Am. Class Act. Compl. ¶ 136. Thorne arguably 

forfeited her standing to seek those remedies because she presented only arguments in support of money damages. See 

supra note 11. Yet her operative complaint does allege facts 

targeted at restitution and injunctive relief, so we will consider 

her standing vel non for these remedies on the merits. Mielo, 

897 F.3d at 479. Because Johnson & Johnson is instructive,

and we see no need to reinvent the wheel, we conclude that 

Thorne again lacks standing.

1. No standing to seek restitution or disgorgement. 

Assuming Thorne can seek these remedies when she herself 

suffered no financial loss, the allegations supporting her 

request for restitution are conclusory and hinge on mere conjecture. She alleges that Pep Boys ignores its tire registration 

obligations to spend more time selling tires and is unjustly 

enriched by sales made during “the time it would have taken to 

register Class Members’ tires.” Am. Class Act. Compl. ¶ 8; 

accord id. ¶¶ 46, 103, 108–13. But standing doesn’t flow from
30

mere suspicion that a defendant made more money by allegedly shirking a legal obligation. To take just one example, the 

Johnson & Johnson plaintiff premised her restitution claim on 

allegations that the defendant managed to sell more baby powder than it would have had it properly informed consumers 

about the safety risks. 903 F.3d at 291. We saw no standing 

for two reasons that obtain here as well. First, the plaintiff 

failed to allege facts that would permit the conclusion that 

Johnson & Johnson made more sales than it would have. 903 

F.3d at 292. That’s also true of Thorne’s allegations insofar as

they offer nothing to ground her suspicion of ill-gotten gains, 

such as how long it would take Pep Boys to provide the 

required tire registration service relative to the total time 

required to consummate a tire sale. Second, both there and 

here, the plaintiff’s theory of restitution belies her willingness, 

or the willingness of others, to buy the product despite awareness of the alleged risks. Id. at 291 & n.18; see Am. Class Act. 

Compl. ¶ 134 (“Plaintiff and the Class members will likely 

purchase tires from Defendant again or have the tires serviced, 

and still not receive the required tire-registration services.”). 

We determine that Thorne lacks standing to seek restitution or 

disgorgement. 

2. No standing to seek injunctive relief. Thorne premised her plea for injunctive relief on her allegation that she and 

other putative class members will purchase tires at Pep Boys 

again without receiving the required tire registration assistance. But we must “afford[] [Thorne] the dignity of assuming 

that she acts rationally, and that she will not act in such a way 

that she will again suffer the same alleged ‘injury.’” See 

Johnson & Johnson, 903 F.3d at 293. “Pleading a lack of selfrestraint may elicit sympathy but it will not typically invoke 

the jurisdiction of a federal court.” McNair v. Synapse Grp. 
31

Inc., 672 F.3d 213, 225 n.13 (3d Cir. 2012). Because her allegations reveal that she knows of Pep Boys’s practices, 

Thorne’s request for injunctive relief amounts to a “‘stop me 

before I buy again’ claim” that precludes Article III standing. 

Johnson & Johnson, 903 F.3d at 292–93. We thus conclude 

that Thorne lacks standing to seek injunctive relief. 

E. Dismissal

One final matter warrants our attention. The District 

Court dismissed Thorne’s original complaint without prejudice, while dismissing her amended complaint “without leave 

to amend.” JA16 & n.2. That disposition was incorrect. Dismissal for lack of standing reflects a lack of jurisdiction, so 

dismissal of Thorne’s amended complaint should have been 

without prejudice. See, e.g., Kamal, 918 F.3d at 119 (vacating 

with-prejudice dismissal of amended complaint and remanding 

for without-prejudice dismissal); Cottrell, 874 F.3d at 164 n.7 

(“Because the absence of standing leaves the court without 

subject matter jurisdiction to reach a decision on the merits, 

dismissals ‘with prejudice’ for lack of standing are generally 

improper.”) (citing Korvettes, Inc. v. Brous, 617 F.2d 1021, 

1024 (3d Cir. 1980). 

Pep Boys is wary of Thorne filing more standing-free

complaints, but we have no reason to question the professionalism or good faith of Thorne’s counsel. And, of course, 

Federal Rule of Civil Procedure 11 always serves as a check 

against abuse of the litigation process. The specter of serial 

litigation cannot imbue the District Court with jurisdiction it 

otherwise lacks. 
32

V. CONCLUSION

Thorne has no tangible, concrete injury because she 

hasn’t specified how to value her alleged harm, why the tires 

she received were worth less than she paid for them, or how 

non-compliant tires are defective under the Act. Nor has she 

met the Article III standing requirements for intangible, concrete harms. Thorne hasn’t shown a common-law analogue to

either of her alleged harms. And neither the Act nor applicable 

standing caselaw suggests that Congress intended to repose 

authority in private attorneys general to enforce the tire registration regime. Even if Thorne could show an intangible but 

concrete injury, the chain of events necessary for any harm to 

materialize is speculative. 

While we uphold the reasoning of the District Court in 

dismissing Thorne’s operative complaint, we will vacate and 

remand for a without-prejudice dismissal.