PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 20

- 1540

_____________ VICKIE THORNE, INDIVIDUALLY AND ON BEHALF OF ALL OTHER S 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. W arren 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 Appell ant

Kristen E. Dennison C. Scott Toomey [ARGUED] Littleton Park Joyce Ughetta & Kelly 201 King of Prussia Road Suite 220 Radnor, PA 19087 Counsel for Appell ee

________________
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 t y re, ” Plaintiff Vickie Thorne considers herself aggrieved3 despite having equipped her car with two new tires. 1 Wheels are not an issue. What is at issue is a f ederal regulation that requires a tire dealer to help customers register their new tires with the manufacturer. Th at regulation was promulgated under the Na tional Traffic and Motor Vehicle Safety Act of 1966 , 49 U.S.C. § 30101

, et seq

. (“the Act”) , and the Act’s stated pur

pose is to reduce traffic accidents and the ir consequent human toll. Thorne’s appeal turns on whether she can sue her tire dealer for ignoring its regulatory tire registration obligation.

The regu lation prescribes three methods for tire dealers like Pep Boys Manny Moe & Jack Inc. to help register a buyer’s tires

. A ccording 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 cust omers who similarly received no tire regis tration assistance. But Thorne’s suit skid

ded to a halt when t he District Court dismissed her com plaint without leave to amend

. The Court held t hat 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 stand ing. We agree with th at ratio decidendi but, because a district court has no jurisdiction to rule on the merits when a pla intiff lacks standing, we will vacate and remand for the District Court to dismiss Thorne’s operative complaint without prejudice.

I. B ACKGROUND
Congress passed the Act to “ reduce traffic accidents and deaths and injuries result ing 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 manufac

turer “give a registration form (containing the tire identifica

tion 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 require

ments , 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 t o the tire manufacturer ;

(2) Record each buyer’s name and address, the TIN of each tire he or she bought

, and certain contact infor

mation 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, t he 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, t he Act states how it interacts with other laws and is enforced

. It preserves common

- law causes

2 W e refer in this opinion to such unaffiliated dealers as simply “dealers

. ” For purposes not relevant here, t he statute distin

guishes between “independent dealers” such as Pep Boys and those affiliated wit h tire manufacturers

.5 of action, 49 U.S.C. § 30103(e), but does not confer an express private right of action. S ee, e.g. , Ayres v. Gen. Motors Corp.

, 234 F.3d 514, 522

– 24 (11th Cir. 20 00); Mulholland v. Subaru of Am., Inc. , 620 F. Supp. 2d 1261, 1265

– 66 (D. Colo. 2009)

. For administrative enforcement, the Act authorizes the Secre

tary 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). M anufacturers 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. T he 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 regis

tra tion statute (§ 30117) “or a regulation prescribed thereunder, is liable to the United States Govern ment 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. F ACTS AND P ROCEDURAL H ISTORY

Thorne bought two tires from a Pep Boys store in Rich

mond, Virginia

, in January of 2017

. She claims that Pep Boys did not help register h er 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. S he6 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 Fed

eral R ules of Civ il P rocedure 12(b)(1) and 12(b)(6). The District Court determined that Thorne failed to allege a con

crete injury in fact, dismissing her com plaint 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 attorne ys’ fees. Pep Boys, she alleged, deprived her of the benefit of the bargain when it sold her tires without helping to register them because u nregistered tires are worth less than registered tires. Thorne alternatively alleged intan gible 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

- registra tion form by Pep Boys,” and her “invoice [did not] indicate that Pep Boys trans

mitted the federally

- required information directly to the tire manufacturer.” Am. Class Act. Compl. ¶ 53. She generally allege d that Pep Boys violated its registration obliga tions and that her tires went unregistered, so we take her t o 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 c omplaint seems to implicate Fed eral R ules of Civ il P rocedure 23(b)(2) or 23(b)(3) , though it cites neither

.7 not allege any performance prob lems, physical defects, or recall asso ciated with her tires.

After Pep Boys again moved to dismiss, the District Court d ismiss ed 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 con cluded that her alleged intangible harm was speculative and insuffi ciently 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 vio lation of 49 C.F.R. § 574.8’s record

- keeping require ment alone does not produce an injury in fact. This time, dismissal did not provide leave to amend.

III. J URISDICTION AND S TANDARD OF R EVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review the dismissal of Thorne’s amended complaint. A North Caro

lina 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 Distric t 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 b e challenged facially or fac

tually. A facial challenge argues that the plain tiff’s factual allegations cannot meet the elements of standing. S chering 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 t hat was the nub of Pep Boys’ s Rule 12(b)(1)8 motion

, w e take Thorne’s factual allegations as true, view them in her favor, and perform a plenary review of the dismissal. See H orizon , 846 F.3d at 632.

IV. A NALYSIS

Deriv ed from separation

- of

- powers principles, the law of standing “serves to pre vent 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 P ower of the United States” in both the Supreme Court and “such inferior C ourts 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,
p arties seeking to invoke federal judicial power must f irst 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 t he “‘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 pro tected interest; second, that the injury is both “concrete and particularize d”; 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 ’n9 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 stand ing “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] pur ported 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 E conomic I njury
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 W RIGHT & M ILLER , F EDERAL P RACTICE AND P ROCEDURE , § 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 suffi

cient 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 B oys that then went un registered. 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.” Ap pellant’s Br. 16. Thorne’s benefit

- of

- the

- bargain allega tions do not support a viable theory of economic injury, and her product

- defect argument blows right by the statut e ’s defined terms

.
1. Unregistered t ires not worth less than Thorne paid

. Thorne’s benefit

- of

- the

- bargain theory runs headlong into our case law. We s tart with Johnson & Johnson . There, the plain

tiff claimed that when she bought baby powder, she was denied the benefit of her bargain be cause certain uses of the product “can l ead” to an elevated risk of ovarian cancer. 903 F.3d at 281

– 82. Though the plaintiff might have expected “safe” baby powder, missing were allegation s 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 benef it 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, that11 doesn’t suf fice. Her pleadings concede that t he 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 i d. at 289

– 90. And Thorne’s thin allegation that Pep Boys prices the cost of complying with the registration obligation i nto its tires i s undermined else

where in her complaint. For example , she formulates a sup

posedly common class question as: “[w]hether Defendant includes the cost of tire

- registration compliance in the price of its tires.” Am. Class Act. Com pl. ¶ 65(d). Given her mixed messages on compliance costs, Thorne fails to intelligibly allege that she paid for more than she received. 5

T horne ’s theory of economic harm also treads on Finkelman

. As relevant here , Finkel man bought tickets to the Super Bowl in the resale market and then sued the NFL

, alleg

ing 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 Finkelma n’s theory of eco

nomic 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 increas ing or decreasing prices on the secondary market.” Id. at 200

– 01

.

5 As bedrock for her requested injunction, Thorne allege d that she “and the Class members will likely purchase tires from Defendant again . . . and still not receive the required tire

registration services.” Am. Class Act. Compl. ¶ 134. We
return to Johnson & Johnson : Thorne’s desire to keep buying Pep Boys ti res at prevailing prices makes it difficult to presume that she would pay more for registered tires. See 903 F.3d at 288

– 89

.12 Fo r example, League insiders

— who received their tickets for free

— “might have been especially eager to resell their tickets,” meaning t hat the NFL’s practices may have effectively increas ed the supply and decreas ed the price of tickets in the resale market re lative 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 obliga tions, market factors might lead it to increase its tire price s accord

ingly

. As Thorne recog nizes, th e submission

- by

- buyer method of compliance (Optio n 1) does not prohibit dealers from pass

ing on registration cost s 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 deci

sion goes the other way. In Exum v. Nat ional Tire & Battery

, 437 F. Supp. 3d 1141 (S.D. Fla. Jan. 28, 2020)

, a federal m ag

istrate j udge 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 dis

missal of Thorne’s original complaint based on “the specific alle gations 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 suffice s here to note that Exum assigns

econom ic value through mere conjecture

, contrary to our Cir

cuit’s law. See, e.g.

, Johnson & Johnson , 903 F.3d at 285 ; Finkelman , 810 F.3d at 201

. At all event s , 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 regula tions 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 Penn

sylvania law)

. We decline to adopt Exum ’s economic harm analysis here

.

2. Unregistered tires not defective

. Thorne also con

tends that we should pre sume suitable economic injury because an unregistered tire is per se defective under the Act. Interpret

ing 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.” N ken v. Holder , 556 U.S. 418, 426 (2009) (quot ation omitted)

. Bearing these factors in mind, we conclude that T horne’s construction of the statute falls flat because it offends the statutory definition of “defect

, ” relies on gram matically flawed readings of related definitions, and would create illogical results

.

7 Thorne has not alleged that Pep Boys lacks access to her con

tact 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) (cita

tion omitted) . The Act defines “defect” to mean “any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipme nt.” 49 U.S.C. § 30102(a)(3). The definition by its terms embraces faulty physical character

istics, not registration ( i.e., paperwork) defi ciencies

. Besides,

o ther provisions of the Act suggest that non

- compliance is not
synony mous 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 [hereun

der].” ) (emphases added) ; id. § 30116(a) (“If . . . it is decided that the vehicle or equipment con tains a defect related to motor vehicle safety or does not comply wit h applicable motor vehicle safety standards . . . .” ) (emphas e s added)

. The def ini

tion of “defect” and other provisions’ contemplation of th at term seriously undermine Thorne’s reading.

Second, we decline Thorne’s invitation to contort other related definitions in the Act

. According to Thorne, noncom

pliance can amount to a defect because :
[A] defect in original equipment or non

compliance of original equipment with a motor vehicle safety stand ard prescribed under this chapter, is deemed to be a defect or non

compliance 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 ) ; A p p ellant’s Br. 18 . “[O]riginal
equ ipment 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, t he defined term “motor vehicle safety standard” means “a minimum standard fo r motor vehicle or motor vehicle equipment performance.” Id. § 30102(a)(10). Thorne never explains how deficient registration amounts to a perfor mance issue. For another, Thorne’s contention that the “first purchaser” of original equip ment 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) (confirm

ing that “a limiting clause or phrase . . . should ordinarily be read as mod ifying only the noun or phrase that it immediately follows” (citation omitted)). In the definition of “original equipment,” t he 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 other s, the tire registration sub section: “[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 e quip ment” 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 princip le of statutory
construc tion 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

sen sibly treat aftermarket tires as “replacement equip ment”

— “motor vehicle equipment (in clud ing 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 suffi cient 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 w orth 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

errone ous 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 (emphas e s 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.’” Ap pellant’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 puta tive 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 gov

erning intangible injuries

.
B. Intangible Y et C oncrete I njury
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 rela

tion ship between the lack of tire registration and a harm histor

ically recognized as a basis for common

- law suits and (b) that Congress elevated the lack of tire registration to a legally cog

nizable, concrete injury. See Spokeo

, 136 S. Ct. at 1549. Our C ou rt 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 s atisfy both congressional and historical inquiries can be concrete); Horizon , 846 F.3d at 637 ( suggesting that satisfac

tion 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, b ecause the regu

latory violation Thorn e alleges is not itself a concrete injury, the language from Spokeo gets no traction here. See Kamal

, 918 F.3d at 115.18 still r equire [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 harm s : negli gence pe r se and products liability. 10 Neither sug

gestion is persua sive

. 11

10 Although Thorne tries to draw a historical line to statutory consumer protection actions, statutory actions ipso facto fall
outs ide c ommon 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.” Ap pellan t ’s Br. 22 (citing ECF No. 29 at 10

– 11). But her argument to the D istrict Court was cursory , contending only that “exposure to and harm from dangerous products” was tra

ditionally 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 forf eited

. 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 n egligence per se , t hat doctrine is not a historical recognition of either of Thorne’s alleged harms

. It m erely “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 per mits a fact

finder t o consider the violation of a statute or ordinance as evidence of negli gence. 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 neg

li gence 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 des ignation) (concluding that proffered historical tort ana logues had “no relationship to harms traditionally remediable in American or English courts” bec ause plaintiffs “jetti son[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

- c ritical “if” question: w hether any alleged harm caused by the breach could be remedied at com

mon law.

Nor does Thorne’s products

- liability analogue resonate with us. T hough 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.” R ESTATEMENT (2 D ) OF T ORTS § 402A, as adopted20 in Webb v. Zern , 220 A.2d 853, 854 (Pa. 19 66). Without phys

ical harm, neither of Thorne’s alleged injuries bears a close relationship to harms that products

- liability torts have histori

cally remedied. Compare Kamal , 918 F.3d at 114 (determin

ing that FACTA violation did not share close relatio nship 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 C ongress 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 pur pose of preventing accidents and injuries on the roadways validates private actions
t o enfor ce the tire registration requirements. The tire reg istra

tion 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 me aning 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 regula

tion is “infor mation 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. Tho r ne impugns the District Court’s charac ter ization of the regulation as a “procedural record

- keeping statute,” Ap pel

lant’s Br. 23, but that description is apt. Facially , the se laws bear no direct relation to the Act’s safety pur poses

.
Second, by connecting its safety goals to vehicle perfor

mance , the Act as a whole suggests no c ongressional 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 acci dents and deaths and injurie s 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 empha size that the Act defines “motor vehicle safety standard” as a minimum “performance” standard. 49 U.S.C. § 30102(a)(10). The defi

nition of “motor vehicle safety” is likewise performance

focused, referring to “design, construction, or performance” of
a motor vehicle or motor vehicle equipment. Id. § 30102(a)(9). Tires that suffer from no perfor mance prob lems but are simply unregistered do not implicate the Act’s purpose.

Third

, the Act appears to favor public over private enforcement , both general ly 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 sec

tio n “or a regulation prescribed there under.” See 49 U.S.C. §§22 30163(a), 30165(a)(1). The Act also contains a n administra

tive enforcement scheme under which the Secretary of Trans

portation “require [s] ” dealers to register tires

, and may conduct hearings on certa in notice

- related compliance issues in which “interested person [ s ] ” may participate. Id. § § 3011 7(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 (performance

based) motor vehicle safety stand ards. 12 Id. § 30103(e). In fact, t his silence may have been purposeful ; elsewhere the Act contemplate s 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 inclusi on or exclusion

. ” ) (quotation omitted). For example, i n the section immediately preceding the tire registration provi

sion, the Act does set forth a private cause of action for a dis

tributor or dealer to sue a manufacturer in federal district court over the value of certain parts or equip ment. Id. § 30116(c) ( establishing statute of limitations and remedies). If the Act reveals any relevant c ongressional judgment, it is to prioritize public enforcement over private redress for the “injury” of

unre gistered tires

.

12 Th e lack of a n express private right of action to sue for defi

cient 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 actio n 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 tes timony exhibit a connection between tire registration and vehicle safety. But those non

statutory data points fail to show that the congressional inquiry favors stand ing

. Viewed at a high level of generality

, every provision in a statute will relate to its overarch ing pur pose. The real question is whether the alleged statutory viola tion is among the concrete harms Congress enact ed the law to rem

edy. 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 mis leading commu nication tha t fails to mislead.” ) (internal quotation omitted ); Kamal , 918 F.3d at 115 (“[T]h e 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

r equirements 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 ele vate d the lack of tire registration into

a n injury that is concrete for Article III purposes

.

* * *

Given t h e attenuation between lack of tire registration and the Act’s purpose of re ducing accident s , death s , and inju

ries

, only a definitive congressional judgment to ele vate the former into a concrete injury would favor Article III standing under Spokeo ’s congres sional inquiry

. Thorne points to noth

ing that would aid her cause . In fact, the statute’s titles, defined
term s, and enforcement provisions suggest the opposite

.24 C. Speculative I njury

Even were we to a ssume that Thorne’s alleged injury is sufficiently concrete , we must still address the third prong of injury

- in

- fact analysis

— whether a n alleged harm , even if con

crete, 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 Proc s. (SCRAP)

, 412 U.S. 669, 688

– 89 (1973); see also Cottrell v. Alcon Labs.

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

Only Th or ne’s second alleged injury

— an increased risk of harm to property or per son 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. B ut 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 specula

tive

. In Thorne’s telling, Pep Boys’ s failure to register her tires increased her risk of harm because, if the tire manufac

turer 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 acci dent attri butable to the defect that prompted the recall. But , as in Kamal

, this threat consists of a25 highly speculative chain of future events that does not consti

tute a material risk of harm. 918 F.3d at 116. For the threat

ened harm to transpire, t he followin g inde pendent events would need to occur:

1) The manufacturer discovers that a collec

tion of tires, a subset of which Thorne bought from Pep Boys

, contain s a defect able to cause prop erty damage or personal injury.

2) The manufacturer recall s 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 rec

orded 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 in formation.

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 “substan tial risk

. ” Clapper , 568 U.S. at 409, 414 n.5. T his 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 chal lenged act must have “substantially increased the risk” of harm to plaintiff). In other words, r elative 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 acce pted accounting method).

The authority Thorne muster s does not compel a differ

ent conclusion. In DiNaples v. MRS BPO, LLC , 934 F.3d 275 (3d Cir. 2019)

, the defendant allegedly violate d the Fair Debt Collection Practices Act (FDCPA) by printing on the outside of a debt collection letter a Q uick R esponse 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 dis closed 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 pro duce that harm only required one step: a third party

sc anning the code. For Thorne’s future injury to occur, by con

trast, 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 un encrypted lap

tops containing their personal information were stolen from one of the com pany ’s facilit ies . 846 F.3d at 632. Congress in the FCRA identified as a cognizable injury unauthorized dis

semination of personal information

— harm closely related to in vasion of pri vacy, 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 infor mation,” the laptops were un

encrypted, and one plaintiff had been a victim of iden ti t y theft as a result of the breach. Id. at 639 n.19. Horizon , in which a malicious actor ac cessed the plaintiffs’ protected personal information and committed identi t y theft, is a far cry from th e

case before us

. Similarly unavailing is Long v. S e. Penn. Transp. Auth.

, 903 F.3d 312 (3d Cir. 2018) . T he Long plaintiffs alleged that the defendant, first, did not send them copies of their back

ground checks before deciding not to hire them based on those background checks and, second, did not send them notice s 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 tra

ditional harm).28 alleged har m was sufficiently concrete : Suffering adverse employment action with out the required consumer report was the very harm that Congress sought to prevent, and in terfer ence 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 stand ing. Id. at 325. We rejected the argument that the violation increased the risk t hat 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 the ir first.

Finally, we acknowledge Exum ’s decision that tire pur

ch asers had Article III stand ing to sue for a dealer’s fail ure to comply with the tire registration requirement. But th e 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 deter

mina tion 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 con tact with a tire owner . Instead, Congress was concerned with safe design, operation, and performance of
motor vehicles. Exum ’s rationale is unpersuasive.

* * *

I f Pep Boys shirked its tire registration obligations, it committed only a “bare procedural vi olation” that cause d nei

ther actual harm nor a concrete material risk of harm. Even if Thorne’s alleged harm associated with a future recall of her29 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 h er claims for money damages.

D. Other R emedies

Thorne also sought “equitable relief including restitu

tion 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 forfeit ed her standing to seek th o se remedies because she pre

sented only argu ments 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 i s i nstructive

, and we see no need to reinvent the wheel, we co nclude 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 con

jecture. 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 s tanding doesn’t flow from30 mere suspicion that a defendant made more money by alleg

edly shirking a legal obligation. T o take just one example, the Johnson & Johnson p laintiff p remised her resti tution claim on allegations that the defendant managed to sell more baby pow

der 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 gai ns, 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 t here and here, the plaintiff’s theory of restitution belies her willingness

, or the willingness of others, to buy the product despite aware

ness 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 n ot 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 prem

ised her plea for injunctive relief on her allegation that she and oth er putative class members will purchase tires at Pep Boys again without receiv ing the required tire registration assis

tance. 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 self

restraint may elicit sympathy but it will not typ ically invoke the jurisdic tion of a federal court.” McNair v. Synapse Grp.31 Inc. , 672 F.3d 213, 225 n.13 (3d Cir. 2012). Because her alle

gations 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 injunc tive relief.

E. Dismissal

One final matter warrants our attention. The District Court dismissed Thorne’s original complaint without preju

dice , while dismissing her amended complaint “without leave to amend.” JA16 & n.2. That disposition was incorrect. Dis

missal for lack of standing reflects a lack of jurisdiction, so dismissal of Thorne’s amended complai nt should have been without preju dice. 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 filin g more standing

- free complaints, but we have no reason to question the profession

alism or good faith of Thorne’s counsel. And, of course, Fed eral Rule of Civil Procedure 11 always serves as a check against a buse of the litigation process. The specter of serial litigation cannot imbue the District Court with jurisdiction it otherwise lacks

.32 V. C ONCLUSION

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 A rticle III stand ing requirements for intangible, con

crete 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 regis

tration re gime. Even if Thorne could show an intangible but concrete injury, the chain of events necessary for a ny 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

.