Dennis Speerly v. General Motors, LLC ( 2024 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0204p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DENNIS SPEERLY; JOSEPH SIERCHIO; DARRIN DEGRAND;
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DANIEL DRAIN; WAVERS SMITH; RICHARD FREEMAN;
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CHRISTOPHER GILES; LOUIS RAY; RICHARD SULLIVAN;
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JAMES NORVELL; MICHAEL BANKS; GUY CLARK; MARIA
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BARALLARDOS; CARY SHERROW; JASON KEVIN SINCLAIR; >
KIMBERLY COULSON; TROY COULSON; ANDRE MCQUADE; │ No. 23-1940
DONALD DYKSHORN; TAIT THOMAS; JAMES PAUL BROWNE; │
WILLIAM FREDO; JON ELLARD; RHIANNA MEYERS; │
RANDALL JACOBS; MICHAEL PONDER; PHILIP WEEKS; │
KATRINA FREDO; JIMMY FLOWERS; STEVEN BRACK; KEVIN │
WESLEY; BRIAN LLOYD; GREGORY BUTSCHA; JERRY │
CARROLL; KIMBERLY CARROLL; DOMINIC EATHERTON; │
THOMAS EDMONDSON; RICHARD FILIAGGI; ROBERT │
HIGGINS; DAVID THOMPSON, DONALD SICURA, │
Plaintiffs-Appellees, │
│
│
v. │
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GENERAL MOTORS, LLC, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
Nos. 2:19-cv-11044; 2:19-cv-11802; 2:19-cv-11808; 2:19-cv-11875; 2:19-cv-1237;
David M. Lawson, District Judge.
Argued: July 25, 2024
Decided and Filed: August 28, 2024
Before: MOORE, COLE, and MATHIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Richard C. Godfrey, QUINN, EMANUEL, URQUHART & SULLIVAN, LLP,
Chicago, Illinois, for Appellant. Douglas J. McNamara, COHEN MILSTEIN SELLERS &
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 2
TOLL, PLLC, Washington, D.C., for Appellees. ON BRIEF: Richard C. Godfrey, R. Allan
Pixton, QUINN, EMANUEL, URQUHART & SULLIVAN, LLP, Chicago, Illinois, Stephanie
A. Douglas, Susan McKeever, BUSH SEYFERTH PLLC, Troy, Michigan, Renee D. Smith,
KIRKLAND & ELLIS LLP, Chicago, Illinois, Jason M. Wilcox, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellant. Douglas J. McNamara, Karina Puttieva Madelyn Petersen,
COHEN MILSTEIN SELLERS & TOLL, PLLC, Washington, D.C., Theodore J. Leopold,
COHEN MILSTEIN SELLERS & TOLL PLLC, Palm Beach Gardens, Florida, for Appellees.
Brian D. Schmalzbach, MCGUIREWOODS LLP, Richmond, Virginia, John M. Thomas,
DYKEMA GOSSETT PLLC, Ann Arbor, Michigan, Kyle M. Asher, DYKEMA GOSSETT
PLLC, Lansing, Michigan, Wendy Liu, PUBLIC CITIZEN LITIGATION GROUP, Washington,
D.C., Jeffrey R. White, AMERICAN ASSOCIATION FOR JUSTICE, Washington, D.C., for
Amici Curiae.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiffs from twenty-six states seek class
certification in their suit against General Motors, LLC (“GM”), for alleged defects present in the
8L45 and 8L90 transmissions of vehicles purchased from GM between 2015 and 2019.
According to the Plaintiffs, they experienced “shudder” and shift quality issues when driving
these vehicles that persisted even if and when they brought the car in to be repaired. GM claims
that the putative class lacks standing and that there exist a number of individualized issues
between both the Plaintiffs and state laws that would predominate over any common issues of
law or fact in the Plaintiffs’ putative class-action suit. The district court determined that the
Plaintiffs have standing and can satisfy Federal Rule of Civil Procedure 23 and certified the
class. GM appeals the decision and claims that the district court abused its discretion in
certifying the class. We hold that the Plaintiffs have standing and that the district court did not
abuse its discretion in certifying the class action and AFFIRM the class certification.
I. BACKGROUND
A. Factual Background
At issue in this case are two purported defects “related to the 8L transmissions in GM
vehicles that were manufactured between 2015 and 2019.” R. 272 (Mot. Hr’g for Class Cert. at
6) (Page ID #20262). The Plaintiffs have alleged that their transmissions cause their vehicles to
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 3
“slip, buck, kick, jerk and harshly engage,” as well as exhibit other issues. R. 41 (Consolidated
Am. Class Action Compl. ¶ 4) (“CACAC”) (Page ID #2251). According to a press release by
GM, the 8L90 transmission “enhance[d] performance and efficiency,” R. 41-4 (Aug. 2014 GM
Press Release at 1) (Page ID #3098), and the smaller 8L45 transmission similarly “offer[ed] an
estimated 5-percent fuel economy benefit over comparable six-speed automatic transmissions,”
R. 41-6 (May 2015 GM Press Release at 4) (Page ID #3111).
In 2019, GM’s quality organization issued “a speak up for safety . . . for a warranty issue
of a shudder in the 8-Speed transmissions.” R. 177-3 (Torque Converter Shudder at 1) (Page ID
#7167). Drivers of cars with the “shudder” “experience[d] a shake / shudder feeling that may be
described as driving over rumble strips or rough pavement.” Id. Additionally, consumers
experienced issues with shift quality, including “‘[h]esitation’ during [their] first shift of the day
[] or garage maneuver” and “‘[l]urch,’ ‘lunge’ or ‘jerk’ during the first shift of the day [], coast
down deceleration [] or garage shift maneuver.” R. 204-16 (Transmission Surge at 1) (Page ID
#11767). Complaints by Plaintiffs regarding vehicles manufactured from 2015 to 2019 with the
8L transmission included reports that that their “car ha[d] been having a lot of vibrations,
sputtering, rumbling while driving,” R. 41 (CACAC at 58) (Page ID #2307); that “the vehicle
was extremely slow to accelerate,” id. at 62 (Page ID #2311); and that the “8 speed transmission
clunk[ed] when shifting” and “at times fe[lt] like you got rear ended,” id. at 67 (Page ID #2316).
GM reports from 2015 to 2019 demonstrate that the 8L transmission program was experiencing
shift quality and shudder issues. R. 177-7 (8RWD Transmission Summs.) (Page ID #7338–47).
At the onset of this case, the Plaintiffs viewed their complaints about the shudder and shift
quality to be “two manifestations of a common problem” but now characterize these issues as
“two distinct defects” that both stem from the 8L transmissions. R. 272 (Motion Hr’g at 7) (Page
ID #20263).
Consumers began to submit warranty claims for the shudder, leading GM to shift from
attempting to “diagnose and confirm” the problem to deciding that they should change the fluid
that the transmissions used. R. 224-1 (Gonzalez Dep. at 196–97) (Page ID #15485–86); R. 215-
1 (Radecki Dep. at 315) (Page ID #14058). One metric that GM uses in its warranty analysis is
called Incidents Per Thousand Vehicles (“IPTV”), which “measures the number of warranty
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 4
claims per thousand vehicles made for a given set of vehicles within a certain period of time”
(here, twelve months). R. 182-1 (Wachs Expert Rep. at 11–12) (Page ID #8778–79). During the
relevant time period, GM’s goal IPTV for “8-speed transmissions . . . ranged from 4.9 to 5.5
IPTV,” which equates to roughly 0.5%. Id. at 12 (Page ID #8779). The measured IPTVs for the
8L transmissions were significantly higher than GM’s target during the class period, R. 224-14
(Radecki Dep. at 207–08) (Page ID #15603–04), with one of their engineers estimating that the
warranty numbers “at the height of the 8-speed shudder problem” were at around 50%, R. 224-5
(Anguish Dep. at 174) (Page ID #15527).
GM also measures the IPTV rate against an issue occurrence framework when
determining whether a particular defect poses a safety risk for consumers. In a 2019 report, GM
categorized the shudder problem as occurrence #5, R. 177-3 (Torque Shudder Converter) (Page
ID #7167), which indicates that the “[i]ssue occurs at an extremely high rate,” R. 174-7 (Safety
Categorization) (Page ID #6197). William McVea (“McVea”), an engineer who served as the
Plaintiffs’ expert, evaluated GM cars with 8L transmissions, R. 180-1 (McVea Report at 4–5)
(Page ID #8297–98), and concluded that the automatic transmission fluid (“ATF”) had
“degraded prematurely over time and in the presence of water typically caused by humidity at
levels even below specifications written by GM, and well before the useful life of the vehicle,”
id. at 7 (Page ID #8300). After the relevant class period, GM nearly doubled its IPTV goals.
R. 182-1 (Wachs Expert Rep. at 12) (Page ID #8779).
Emails among GM employees indicate that they were aware of the shudder problem but
were unsure how to communicate about the issue to consumers. See R. 224-18 (2016 TCC
Emails at 1) (Page ID #15641). According to a response in Corvette Forum, Corvette’s chief
engineer in 2016 stated that if drivers were “not having a problem now, it is very unlikely to
occur later.” R. 224-19 (Corvette Forum Ask Tadge) (Page ID #15649). In a similar forum for
the Camaro 8-speed automatic transmission, an “Ask AI” round stated that, for Camaros, GM
had “developed a service . . . [that] eliminate[d] most of the shudder concerns.” R. 224-20
(Camaro Forum Ask AI) (Page ID #15651). According to a GM employee, GM did not
eliminate the shudder issue, but “the frequency went down considerably, especially [] with the
newer vehicles.” R. 224-17 (Goodrich Dep. at 221) (Page ID #15632).
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 5
At least some of the vehicles with the shudder problem have experienced other issues that
may have contributed to or caused the shudder, such as tire imbalance. See R. 245-19 (2017
Sinclair Repair Order); R. 245-20 (2019 McQuade Repair Order) (Page ID #17436–37).
McVea’s expert report similarly included a survey of thirty-six vehicles that owners claimed
experienced either the shudder or hard shift issue, which stated that not all the vehicles actually
exhibited the issue their owner claimed. R. 180-1 (McVea Report at 106–07) (Page ID #8399–
8400). However, fixes for these other issues did not resolve the initial complaint of a shudder or
shift for all of the Plaintiffs. For example, a repair order for Andre McQuade (“McQuade”) cited
that his driving with “newer tires in the front and bald tires in the rear” was the cause of his 2019
Cadillac’s issue. Appellant Br. at 11; R. 245-20 (McQuade Repair Order at 1) (Page ID #17436).
However, McQuade stated that the “rumble” he was experiencing “didn’t go away with brand-
new tires freshly mounted and balanced.” R. 225-14 (McQuade Dep. at 143) (Page ID #16079).
GM attempted to resolve the shudder problem with an ATF called “Option B,” which
helped to alleviate the shudder, but that “ultimately was not the fix based on what [GM]
determined the root cause [of the shudder] to be.” R. 245-3 (Goodrich Dep. at 41) (Page ID
#16991); see also R. 224-21 (Option B Emails at 1) (Page ID #15653). In December 2018, GM
replaced “Option B” with “Mod1a,” an ATF that “corrected the 8L TCC [torque converter
clutch] shudder problem.” R. 220-3 (Lange Expert Rep. at 29–30) (Page ID #14432–33). Both
Plaintiffs and GM agree that Mod1a resolved the shudder for new vehicles and for warranty
repairs. R. 222 (Certification Mot. at 15–16) (Page ID #15388–89). Tim Anguish, a GM
employee, suggested that the “option of flushing every 8spd [GM had] made with [the new ATF]
[was] best for [their] customers.” R. 206-11 (2018 Anguish Email) (Page ID #12487).
However, the new ATF was ultimately not made available “to all owners of affected vehicles
who [] experienced or are likely to experience the defective friction system within the 8L product
family automatic transmissions.” R. 180-1 (McVea Report at 7) (Page ID #8300). Instead, GM
opted to “[f]lush and [f]ill” unsold vehicles. R. 177-3 (Torque Converter Shudder) (Page ID
#7168).
Mod1a did not fix the shift quality issues, which were “addressed with continuous
improvements, hardware and software, some in production changes and some through service
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 6
bulletins.” R. 220-3 (Lange Expert Rep. at 30) (Page ID #14433). The “root cause” of the harsh
shift, which was given an occurrence 4 rating in 2021, was “[t]he reduced capability of purging
trapped air or overfilling clutch(es).”1 R. 177-6 (Alleged Lunge Report at 1) (Page ID #7295).
In response to the shift quality issue in 8L45 and 8L90 8-speed transmissions, GM issued ninety-
five “Technical Service Bulletins” (“TSB”) between 2014 and 2020. R. 220-3 (Lange Report at
201) (Page ID #14604).2 Thirty of these TSBs “addressed customers’ concerns related to harsh
shifts and included diagnostic steps to root [out the] cause [of] the issue and the procedures to be
performed by the technician.” Id. at 202 (Page ID #14605). However, GM’s 2021 Open
Investigative Report with regard to the harsh shift stated that “[u]ltimately, some of the issues
could not be resolved without a major redesign of the transmission, which was approved in early
2018 (8RWD Gen 2).” R. 177-6 (Root Cause) (Page ID #7314).
B. Procedural Background
In April 2019, the Plaintiffs filed a class action lawsuit against GM. R. 1 (Compl.) (Page
ID #1–197). After the district court consolidated several similar cases, the Plaintiffs filed an
amended class action complaint (“CACAC”) on September 30, 2019, R. 41 (CACAC) (Page ID
#2235–2810). The Plaintiffs proposed a 30-state class initially, as well as representatives and
causes of action for each state; after plaintiffs from certain states dismissed their claims without
prejudice, the proposed class decreased to 26 states. Id. The states and causes of action included
in the class definition that the district court eventually certified are:
(1) Alabama (Alabama Deceptive Trade Practices Act (“ADTPA”), Ala. Code
§ 8-9-1 et seq.; and breach of express warranty, Ala. Code § 7-2-313);
(2) Arizona (Arizona Consumer Fraud Act (“ACFA”), Ariz. Rev. Stat. § 44-
1521 et seq.);
1
Although the class date range is 2015-2019, this report includes cars that were built from 2018 to 2021.
R. 177-6 (Alleged Lunge Report at 1) (Page ID #7295).
2
TSBs provide guidance on how to correct certain issues. Benjamin Hunting, What’s the Difference
Between a Technical Service Bulletin vs a Recall?, CAPITALONE (Sept. 12, 2022),
https://www.capitalone.com/cars/learn/finding-the-right-car/whats-the-difference-between-a-technical-service-
bulletin-vs-a-recall/1750. Often, if the affected vehicle is still under warranty, TSB-related repairs will be covered.
Id.No. 23-1940 Speerly, et al. v. General Motors, LLC Page 7
(3) Arkansas (Arkansas Deceptive Trade Practices Act (“ADTPA”), Ark. Stat.
§ 4-88-107 et seq.; and breach of implied warranty, Ark. Stat. § 4-2-314);
(4) Colorado (breach of express warranty, Colo. Rev. Stat. § 4-2-313; and breach
of implied warranty, Colo. Rev. Stat. § 4-2-314);
(5) Delaware (Delaware Consumer Fraud Act (“DCFA”), Del. Code Ann. tit. 6,
§ 2511; breach of express warranty, Del. Code. Ann. tit. 6, § 2-313; and
breach of implied warranty, Del. Code Ann. tit. 6, § 2-314);
(6) Florida (Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla.
Stat. § 501.201 et seq.);
(7) Georgia (breach of express warranty, Ga. Code Ann. § 11-2-313; and breach
of implied warranty, Ga. Code Ann. § 11-2-314);
(8) Idaho (Idaho Consumer Protection Act (“ICPA”), Idaho Code § 48-601 et
seq.; and breach of express warranty, Idaho Code § 28-2-313);
(9) Illinois (Illinois Consumer Fraud and Deceptive Business Practices Act
(“ICFA”), 815 Ill. Comp. Stat. § 505/1 et seq.; breach of express warranty,
810 Ill. Comp. Stat. § 5/2-313; breach of implied warranty, § 5/2-314; and
fraudulent concealment);
(10) Kansas (Kansas Consumer Protection Act (“KCPA”), Kan. Stat. Ann. § 50-
623 et seq.; breach of express warranty, Kan. Stat. Ann. § 84-2-313; and
breach of implied warranty, Kan. Stat. Ann. § 84-2-314);
(11) Kentucky (Kentucky Consumer Protection Act (“KCPA”), Ky. Rev. Stat.
§ 367.110 et seq.; and breach of express warranty, Ky. Rev. Stat. § 335.2-
313);
(12) Louisiana (Louisiana Unfair Trade Practices and Consumer Protection Law
(“LUTPA”), La. Stat. Ann. § 51:1401 et seq.; and fraudulent concealment);
(13) Maine (Maine Unfair Trade Practices Act (“MUTPA”), Me. Stat. tit. 5,
§ 205-A et seq.; breach of express warranty, Me. Stat. tit. 5, § 2-313; and
breach of implied warranty, Me. Stat. tit. 5, § 2-314);
(14) Michigan (Michigan Consumer Protection Act (“MCPA”), Mich. Comp.
Laws § 445.903 et seq.; and breach of implied warranty, Mich. Comp. Laws
§ 440.2313);
(15) Minnesota (Minnesota Consumer Fraud Act (“MCFA”), Minn. Stat.
§ 325F.68 et seq.; breach of express warranty, Minn. Stat. § 336.2-313; and
breach of implied warranty, Minn. Stat. § 336.2-314);
(16) New Hampshire (New Hampshire Consumer Protection Act (“NHCPA”),
N.H. Rev. Stat. Ann. § 358-A:1 et seq.; breach of express warranty, N.H.
Rev. Stat. Ann. § 382-A:2-313; and breach of implied warranty, N.H. Rev.
Stat. Ann. § 382-A:2-314);
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 8
(17) New Jersey (New Jersey Consumer Fraud Act (“NJCFA”), N.J. Stat. Ann.
§ 56:8-1 et seq.; breach of express warranty, N.J. Stat. Ann. § 12A:2-313;
and breach of implied warranty, N.J. Stat. Ann. § 12A:2-314);
(18) New York (New York General Business Law § 349; breach of express
warranty, N.Y. U.C.C. § 2-313; breach of implied warranty, N.Y. U.C.C. § 2-
314; and fraudulent concealment);
(19) North Carolina (North Carolina Unfair and Deceptive Acts and Practices Act
(“NCUDPA”), N.C. Gen. Stat. § 75-1.1 et seq.);
(20) Oklahoma (Oklahoma Consumer Protection Act (“OCPA”), Okla. Stat. tit.
15, § 751 et seq.; breach of express warranty, Okla. Stat. tit. 12A, § 2-313;
and breach of implied warranty, Okla. Stat. tit. 12A, § 2-314);
(21) Pennsylvania (Pennsylvania Unfair Trade Practices and Consumer Protection
Law (“PUTPCPL”), 73 Pa. Stat. Ann. § 201-1 et seq.);
(22) South Carolina (breach of express warranty, S.C. Code Ann. § 36-2-313; and
breach of implied warranty, S.C. Code Ann. § 36-2-314);
(23) Tennessee (Tennessee Consumer Protection Act (“TCPA”), Tenn. Code Ann.
§ 47-18-101 et seq.; and fraudulent concealment);
(24) Texas (Texas Deceptive Trade Practices Act (“TDTPA”), Texas Bus. &
Com. Code § 17.41 et seq.; and breach of express warranty, Texas Bus. &
Com. Code § 2.313);
(25) Washington (Washington Consumer Protection Act (“WCPA”), Wash. Rev.
Code § 19.86.010 et seq.; breach of express warranty, Wash. Rev. Code
§ 62a.2-313; and fraudulent concealment); and
(26) Wisconsin (Wisconsin Deceptive Trade Practices Act (“WDTPA”), Wis.
Stat. § 100.18).
See Speerly v. Gen. Motors, LLC, 343 F.R.D. 493, 502–03 (E.D. Mich. 2023).
GM filed a motion to dismiss, R. 53 (Mot. to Dismiss) (Page ID #3197–3267), which the
district court granted in part and denied in part in November 2020, R. 92 (Order & Op.) (Page ID
#4176–4225). The November 2020 opinion dismissed “claims for class-wide money damages
under the Colorado Consumer Protection Act,” “the implied warranty claims of all plaintiffs
under the laws of Alabama, Arizona, Connecticut, Idaho, Kentucky, North Carolina,
Washington, and Wisconsin,” and one Tennessee plaintiff’s implied warranty claim, and denied
the motion to dismiss as to the rest of the claims. Id. at 50 (Page ID #4225). The parties
engaged in several rounds of stipulated dismissals of certain individual plaintiffs, see, e.g., R. 87
(Order of Partial Dismissal) (Page ID #4149–50); R. 103 (Order of Partial Dismissal) (Page ID
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 9
#4339–40); R. 151 (Stipulation of Dismissal) (Page ID #5269–74), and the court also granted a
motion to file a second addendum to add an additional plaintiff, R. 163 (Order) (Page ID #5452–
53). In February 2022, the plaintiffs moved to certify the class and appoint class representatives
and counsel. R. 223 (Mot. to Certify) (Page ID #15414–77). GM filed a response. The parties
each also filed motions to exclude certain expert witnesses, which the court denied in July 2022.
R. 267 (Order & Op.) (Page ID #20194–20240).
The district court first evaluated the Plaintiffs’ claims pursuant to Federal Rule of Civil
Procedure 23(a) and concluded that the Plaintiffs had satisfied all four of its requirements:
(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Speerly, 343
F.R.D. at 506–07. The Plaintiffs sought certification under Federal Rule of Civil Procedure
23(b)(3), which permits class certification when a “court finds that the questions of law or fact
common to class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The three common questions that the
district court identified as “crucial to the pleaded causes of action in every jurisdiction where
class certification ha[d] been sought” were: “(1) whether the 8L45 and 8L90 transmission design
has one or more defects that render the class vehicles unsuitable for the ordinary use of providing
safe and reliable transportation[;] (2) whether [GM] knew about the defects and concealed its
knowledge from buyers of class models[;] and (3) whether the information withheld would have
been material to a reasonable car buyer.” Speerly, 343 F.R.D. at 508. The district court found
that the Plaintiffs had “met their burden to demonstrate predominance of issues,” because GM’s
“general objections” were “not tied to any peculiarities of state law, but merely assert[ed] that
certain elements common to all of the various causes [were] not amenable to common proofs.”
Id. GM had a number of additional arguments against certifying the class, including standing,
manifestation, average damages, arbitration clauses, design variations, knowledge of defect, and
vehicle sales, all of which the district court rejected. Id. at 522–26.
The district court granted the motions to certify twenty-six “statewide subclasses,” and
appointed both class representatives and lead class counsel. Id. at 526–30. Each subclass was
defined as either the original purchasers or “all purchasers and current owners,” depending on
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 10
the state, of “2015-2019 [GM] vehicles with 8L transmissions, specifically: the 2015-2019
Chevrolet Silverado; 2017-2019 Chevrolet Colorado; 2015-2019 Chevrolet Corvette; 2016-2019
Chevrolet Camaro; 2015-2017 Cadillac Escalade and Escalade ESV; 2016-2019 Cadillac CTS;
2016-2018 Cadillac CT6; 2015-2019 GMC Sierra; 2015-2017 Yukon and Yukon XL; and 2017-
2019 GMC Canyon[] from authorized GM dealers before March 1, 2019.” Id. GM timely
sought and was granted permission to appeal. R. 294 (6th Cir. Order) (Page ID #20542).
II. DISCUSSION
A. Standard of Review
A certification of a class is appropriate if the district court, “after conducting a ‘rigorous
analysis,’” determines that Federal Rule of Civil Procedure 23’s requirements have been met.
Rikos v. Procter & Gamble Co., 799 F.3d 497, 504 (6th Cir. 2015) (quoting In re Whirlpool
Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 851 (6th Cir. 2013)). We review
grants of class certification for abuse of discretion. Id. “An abuse of discretion occurs when we
are left with the definite and firm conviction that the [district] court . . . committed a clear error
of judgment in the conclusion it reached upon a weighing of the relevant factors or where it
improperly applies the law or uses an erroneous legal standard.” Id. (alterations in original)
(quoting United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002)).
B. Rule 23 Class Certification
The Federal Rules of Civil Procedure require that “plaintiff[s] seeking to certify a class
must satisfy four requirements under Rule 23(a) and at least one of several requirements under
Rule 23(b).” In re Countrywide Fin. Corp. Mortg. Lending Practices Litig., 708 F.3d 704, 706
(6th Cir. 2013). Federal Rule of Civil Procedure 23(a) permits members of a class to sue “as
representative parties on behalf of all members only if: (1) the class is so numerous that joinder
of all members is impracticable; (2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a). Federal Rule of Civil Procedure 23(b) then provides that class
actions can be maintained if: “(1) prosecuting separate actions by . . . individual class members
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 11
would create a risk of” inconsistent adjudications on an individual basis or adjudications that
would be “dispositive of” or “substantially impair or impede” other class members’ interests;
“(2) the party opposing the class has acted . . . on grounds that apply generally to the class, so
that final injunctive relief or corresponding declaratory relief is appropriate” for the whole class;
or “(3) the court finds that the questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b).
C. Article III Standing
GM claims that the district court violated Article III standing principles and certain state
laws when it granted class certification to the twenty-six subclasses, because “most class
members ha[d] never had any transmission problems in their own vehicles.” Appellant Br. at
24–33. The district court rejected GM’s Article III standing argument. It reasoned that “every
named plaintiff” had testified that their vehicle experienced at least one of the alleged defects.
Speerly, 343 F.R.D. at 522. Accordingly, the district court determined that the Plaintiffs had
standing because: (1) the Plaintiffs’ evidence supported a suggestion that “the defect is caused
by a common design failure and can be expected to afflict every class vehicle sold within its
useful lifetime”; (2) whether any plaintiff had recouped any loss was “immaterial to the Rule 23
analysis” that the district court was conducting; and (3) the “appropriate opportunity to address
claims of absent class members whose vehicles never have manifested any defect is” during
summary judgment. Id. at 522–23. On appeal, the Plaintiffs argue that the alleged defects do not
have to manifest for all class members for a class to have Article III standing. Appellee Br. at
18–19.
For plaintiffs to establish that they have Article III standing to bring a claim, they must
show that they have “(1) [] suffered an ‘injury-in-fact’ that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d
576, 581 (6th Cir. 2016) (quoting Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598,
606–07 (6th Cir. 2007)).
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We have not yet concretely decided whether all class members must actually experience
an alleged defect in order to establish Article III injury-in-fact for a proposed class. GM argues
that the district court’s decision to grant the class certification “is irreconcilable with” the
Supreme Court’s ruling in TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), because “[t]he
purchase of a vehicle with alleged defects posing a potential future risk of a problem is not a
concrete injury-in-fact for every purchaser.” Appellant Br. at 27. However, the case before us
differs from TransUnion. In TransUnion, individuals were attempting to certify a class for their
claim that TransUnion had maintained misleading alerts about the purported class members in
TransUnion’s “internal credit file[s].” 594 U.S. at 433. The Court held that individuals whose
files had been distributed to “third-party businesses” had sufficiently alleged a concrete injury-
in-fact, but that the individuals whose files had not been distributed to any other parties had not
suffered “concrete harm for purposes of Article III.” Id. at 431–34. Unlike the TransUnion
plaintiffs, all of the named putative class members have bought certain GM-manufactured cars
that contain either an 8L45 or 8L90 transmission within the relevant timeframe (2015 to 2019),
have experienced one or both of the issues with the 8L transmission in their car, and claim that
they would not have bought their vehicle if they had known about these issues. R. 41 (CACAC
at 160–222) (Page ID #2409–71); R. 223 (Mot. to Certify Class at 12–14) (Page ID #15449–51);
see also Speerly, 343 F.R.D. at 501.3 The district court certified the class based on these facts.
Speerly, 343 F.R.D. at 505.
Although we have never resolved in a published case whether diminished value suffices
to establish standing, we have discussed the issue before in Loreto v. Procter & Gamble Co.,
515 F. App’x 576, 581 (6th Cir. 2013). There, we stated that “paying more . . . because of [a]
company’s misrepresentation establishes a cognizable injury.” Id. Other circuits addressing this
issue have held that diminished value, even if an alleged defect never actually manifests for some
of the class members, is sufficient to establish standing. See, e.g., In re Evenflo Co., Mktg., Sales
Pracs. & Prods. Liab. Litig., 54 F.4th 28, 35 (1st Cir. 2022) (stating that “[t]his court has
repeatedly recognized overpayment as a cognizable form of Article III injury” and concluding
3
Thirty-nine Plaintiffs appeared on the CACAC, but the Plaintiffs omitted Connecticut, Indiana, Ohio, and
Oregon from their motion to certify the class, leaving thirty-three Plaintiffs in the class certification before the
district court and before us now on appeal. R. 223 (Mot. to Certify Class at 2–8) (Page ID #15415–21).
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 13
that “overpayment for a product—even one that performs adequately and does not cause any
physical or emotional injury—may be a sufficient injury to support standing”); Remijas v.
Neiman Marcus Grp., LLC, 794 F.3d 688, 694–95 (7th Cir. 2015) (stating that “[i]n some
situations, we have held that financial injury in the form of an overcharge can support Article III
standing,” and noting that most of the relevant caselaw “involve[d] products liability claims
against defective or dangerous products”).
All named Plaintiffs in this class action have alleged that they experienced the shudder,
shift quality issues, or both in their vehicles with an 8L45 or 8L90 transmission. Before the
district court, the Plaintiffs produced evidence supporting a suggestion that even if defects had
not yet manifested in vehicles, they were likely to develop at some point. See R. 182-1 (Wachs
Expert Rep. at 51) (Page ID #8818). And certifying the class is consistent with our opinions on
the requirements of Federal Rule of Civil Procedure 23. See Whirlpool, 722 F.3d 838; Daffin v.
Ford Motor Co., 458 F.3d 549 (6th Cir. 2006). In each of these cases, in the context of
determining whether parties had satisfied Federal Rule of Civil Procedure 23, we upheld a
district court’s order granting class certification, provided that “the claims litigated by the class
are based on the presence of a defect regardless of manifestation during the warranty period.”
Daffin, 458 F.3d at 553–54; see also Whirlpool, 722 F.3d at 856 (“If defective design is
ultimately proved, all class members have experienced injury as a result of the decreased value
of the product purchased.”).
These decisions support the conclusion that alleging overpaying for a defective product
sufficiently provides the Plaintiffs with Article III standing. This outcome is consistent with
other circuits who have already ruled on the issue. And, as the district court pointed out in
reaching its decision, the appropriate time to “address claims of absent class members whose
vehicles never have manifested any defect is a Rule 56 motion for summary judgment.” Speerly,
343 F.R.D. at 522. We AFFIRM the district court’s determination that the Plaintiffs had
sufficient Article III standing.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 14
D. Manifest Defect Rules in State Law
Next, GM argues that the district court erred in concluding that the manifest defect rules
of certain class states did not preclude it from certifying this class, and that this court should
reverse the class certification with regard to claims from states that require a manifest defect.
Appellant Br. at 28–30. According to GM, at least twelve of the states have manifest defect
rules, which “bar[] economic claims where an alleged defect has not actually manifested in the
plaintiff’s own product.” Id. at 28. The Plaintiffs contend that the “‘manifest defect’ barrier
often falls where a present economic loss has been alleged” and that it was not an abuse of
discretion for the district court to determine that the manifest defect rule was not “hegemonic”
with respect to the claims that the class sought to have certified. Appellee Br. at 29–30. The
Plaintiffs also point out that the district court can revise the class if it did clearly err when
interpreting a certain state’s law. Id. at 30.
That there are different state laws involved does not automatically mean that the district
court erred in certifying the class—the relevant question is whether the district court conducted
“a rigorous analysis” of the claims under Federal Rule of Civil Procedure 23 and did not abuse
its discretion in concluding that common questions of law and fact predominated over
individualized issues. Clemons v. Norton Healthcare Inc. Ret. Plan, 890 F.3d 254, 278–79 (6th
Cir. 2018). In discussing the “existence of a defect,” the district court noted that “[t]here [was]
ample evidence already in the record from which a jury reasonably could find that (1) the alleged
defects are inherent in universal aspects of the design of the 8L transmissions, (2) the defendant
identified the ‘root causes’ of the defects early in the lifespan of the class models . . . , and (3) the
defect poses a significant safety risk to drivers of the class vehicles.” Speerly, 343 F.R.D. at 512.
It then engaged in a lengthy discussion about the Plaintiffs’ proposed expert evidence and stated
that there was ample evidence to support a finding that there were “one or more universal defects
in the 8L transmission design,” and that they were “pervasive and reasonably expected to occur
sooner or later in all class vehicles sold.” Id. at 517. With regard to the named Plaintiffs, all of
whom have actually purchased and experienced issues with the class vehicles, these issues
predominate over a manifest defect rule, which is unlikely to be relevant.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 15
GM cites a number of primarily unpublished cases to support its claim that a manifest
defect rule precludes subclasses from at least twelve states—Alabama, Arkansas, Delaware,
Florida, Illinois, Maine, Minnesota, New Jersey, New York, Oklahoma, South Carolina, Texas,
and Wisconsin—from being included in the class certification. Appellant Br. at 28–29.
However, the Plaintiffs in this case are distinguishable from the plaintiffs in that cited caselaw.
In the present case, all of the named Plaintiffs have purchased cars from GM and alleged that
they have actually experienced a shudder, shift quality issue, or both. By contrast, a number of
the cases that GM cited in its briefs involve no-injury classes that were largely unable to
demonstrate a present economic loss or were otherwise ineligible to bring a claim, independent
of the manifest defect issue. See, e.g., Wallis v. Ford Motor Co., 208 S.W.3d 153, 161–62 (Ark.
2005) (finding that, in a no-injury class action, the Arkansas Deceptive Trade Practices Act did
not provide a private cause of action “[w]here the only alleged injury is the diminution in value
of the product”); Dalton v. Ford Motor Co., No. Civ.A. 00C-09-155WCC, 2002 WL 338081, at
*6 (Del. Super. Ct. Feb. 28, 2002) (rejecting a claim when the Plaintiffs had not “allege[d] in the
Original Complaint that any member of the purported class had actually sold a vehicle at a
reduced value,” and had not “state[d] the amount of their damages”); In re Zurn Pex Plumbing
Prods. Liab. Litig., 644 F.3d 604, 617 (8th Cir. 2011) (distinguishing “no injury plaintiffs” from
plaintiffs who had alleged that the product they bought exhibited a defect and that that defect was
“already manifest in all systems” in the context of Minnesota claims); Tietsworth v. Harley-
Davidson, Inc., 677 N.W.2d 233, 236–37 (Wis. 2004) (rejecting a manifest defect claim when
“[t]he plaintiffs ha[d] not alleged any personal injury or property damage caused by the defective
engines, nor ha[d] they alleged that their motorcycle engines have actually failed or
malfunctioned in any way”). Further, the district court here concluded that the “manifest defect”
issue was more properly suited for “a Rule 56 motion for summary judgment” and did not need
to be determined at the class certification stage, which is consistent with our class action
precedent. Speerly, 343 F.R.D. at 522–23 (citing Whirlpool, 722 F.3d at 857). Accordingly, we
do not view this conclusion as an abuse of the district court’s discretion.
For similar reasons, we also reject GM’s claim that the manifest defect problem “exposes
a raft of individualized issues, including which class members had a transmission problem,
whether such problems were caused by any transmission defect . . . , and whether state laws
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 16
require manifestation to recover under the claims advanced here.” Appellant Br. at 31.
Although there will inevitably be some variation among each of the Plaintiffs’ claims, the core
issues identified by the district court are: “(1) whether the 8L45 and 8L90 transmission design
has one or more defects that render the class vehicles unsuitable for the ordinary use of providing
safe and reliable transportation[;] (2) whether the defendant knew about the defects and
concealed its knowledge from buyers of class models[;] and (3) whether the information
withheld would have been material to a reasonable car buyer.” Speerly, 343 F.R.D. at 508. The
two out-of-circuit cases that GM primarily relies on to make this argument are distinguishable
from the case before us. In Brown v. Electrolux Home Products, Inc., the Eleventh Circuit
decertified a class because it was far from clear, regarding a claim that was based on false
representations in advertisements, that the putative class members had actually seen any of the
advertisements from the company and certain of the states involved in the class action required
reliance on those advertisements as a factor in the claim. 817 F.3d 1225, 1237–38 (11th Cir.
2016). Tershakovec v. Ford Motor Co. addressed a similar issue, where the claim was again
based on false advertisements and certain state statutes required showing that consumers had
relied on those relevant advertisements. 79 F.4th 1299, 1307 (11th Cir. 2023).
Here, GM does not identify individualized issues that predominate over the common
questions of law and fact such that they would compel us to find that the district court had
abused its discretion in certifying the class. At this point in the proceedings, the district court did
not abuse its discretion in determining that a manifest defect rule did not preclude it from
certifying the class. If the manifest defect rule ultimately becomes a problem, that state’s
subclass can be culled, either via a Rule 56 motion for summary judgment or disposal after trial.
We AFFIRM the district court’s determination that the manifest defect rule of certain states does
not predominate over the common questions of law and fact involved in this class action.
E. Individualized Issues
GM also argues that the district court erred in certifying the class because numerous
individual issues predominate over the common questions of law and fact that the district court
identified and because the district court “assumed away or left for another day the most difficult
predominance problems.” Appellant Br. at 33–51.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 17
1. Defect Differences
First, GM argues that our decision in In re Ford Motor Co. supports a determination that
the district court abused its discretion because the Plaintiffs are alleging two distinct defects—the
shudder and the shift quality issues. Appellant Br. at 34–36. The Plaintiffs contend that GM’s
argument both “misstates what [the district court] did, and what is required.” Appellee Br. at 33.
In Ford, we vacated a class certification when the district court’s analysis of the claims
did “not make clear that the three certified issues can each be answered ‘in one stroke.’” In re
Ford Motor Co., 86 F.4th 723, 727 (6th Cir. 2023) (per curiam) (quoting Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350 (2011)). In reaching this conclusion, we did not reject the notion that a
class could “alleg[e] two distinct theories of design defect” but rather took issue with that district
court’s “surface-level approach” to certifying the class. Id. at 728. Here, in contrast, the district
court did not abuse its discretion because, unlike the district court in Ford, it conducted a
rigorous analysis of the two separate alleged defects. At the motion hearing for class
certification, the district court inquired into and considered arguments about whether the shudder
and shift quality issues were the result of one individual defect or two separate defects in the 8L
transmissions. R. 272 (Hr’g Tr. Mot. for Class Cert. at 7–10, 47–48) (Page ID #20263–66,
20303–04). And in its order, the district court discussed the “ample evidence” in the record that
would permit a reasonable jury to conclude that the shudder and shift quality issues were caused
by a “universal design flaw” in the class vehicle transmissions. Speerly, 343 F.R.D. at 512–17.
This discussion of the shudder and shift quality defects’ commonality considered evidence such
as depositions by GM employees, internal GM documents and emails, and expert reports. The
grant of class certification also stated that each of the named Plaintiffs had experienced one or
both of the defects. Id. at 507. If, later in the proceedings, it becomes apparent that the defects
do not both stem from the 8L transmissions, or there are other issues that arise with considering
the two defects in the same class action, the district court can divide the class into two
subclasses. At this point in the proceedings, though, the district court did not abuse its discretion
in considering the two defects stemming from the same transmissions and determining that they
could be addressed in the same class action.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 18
2. Differences in Perception
Next, GM argues that the district court abused its discretion in certifying the class
because the Plaintiffs will have different and subjective perceptions of the described shudder and
shift quality issues, which will require individualized analyses that will predominate over the
common issues that the district court identified. Appellant Br. at 36–38. In discussing the
“typical proof of ‘materiality’ of a misstated or omitted fact for fraudulent concealment and
statutory consumer fraud claims,” the district court engaged in an analysis of the relevant state
laws and concluded that the relevant inquiry “turns on consideration of the mindset of an
objectively reasonable consumer deciding whether to buy the defendant’s product.” Speerly, 343
F.R.D. at 520–21. Because it would be applying this “objectively reasonable consumer”
standard, the district court determined that the “material inquiry” was “susceptible to class-wide
proofs independent of the circumstances or preferences of individual car buyers.” Id. at 521–22.
On appeal, GM focuses on the fact that there are different makes, models, and years of
cars included in the class definition, and that “whether [the] class members notice, report, or care
about either symptom that could be caused by the alleged ‘shudder’ and ‘shift quality’ defects
rests on subjective perceptions and experiences.” Appellant Br. at 37. As to GM’s first point,
the Plaintiffs’ claims, and the confines of the class that the district court certified, rest on alleged
defects with the 8L45 and 8L90 transmissions, rather than on alleged issues with any particular
make, model, and/or year of vehicle. As to GM’s second point, and as explained in detail in the
district court’s grant of the class certification, the relevant question in resolving this issue is
whether the alleged defect would have impacted an objective consumer’s decision to purchase
the product. Speerly, 343 F.R.D. at 520–21 (reciting the standard in each of the twenty-six
states’ “relevant consumer protection statutes”). Exactly how, and to what extent, each of the
individual Plaintiffs experienced a shudder or shift quality issue is irrelevant to the inquiry that
the district court identified as central to the class action. The district court did not abuse its
discretion in determining that the subjective aspects of the claims did not predominate over the
common questions of law and fact to be resolved by the class action.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 19
F. Substantive Variations in State Laws
GM also claims that the district court abused its discretion in failing to consider the fact
that several states’ laws required consideration of additional elements that would allegedly
predominate over the questions central to resolving the class action.
1. Opportunity to Present
GM claims that seventeen of the twenty-six states included in the class definition do not
permit GM to be held liable on an express warranty claim “[i]f a class member did not seek or
give GM an opportunity to repair” their vehicle. Appellant Br. at 39. The Plaintiffs contend that
the district court had sufficiently considered this point before ultimately concluding that “the
evidence showed ‘that the problems with the 8L design cannot be fixed, or avoided for good,
absent service actions that GM deemed too costly to deploy.’” Appellee Br. at 48 (quoting
Speerly, 343 F.R.D. at 525).
GM’s own reports and other internal documents support the conclusion that both the
shudder and the shift quality issue ultimately required design changes. The shudder was
resolved by changing the ATF to Mod1a in 2019, R. 220-3 (Lange Expert Rep. at 29–30) (Page
ID #14432–33), and at least some issues with the shift quality “could not be resolved without a
major redesign of the transmission, which was approved in early 2018,” R. 177-6 (Root Cause)
(Page ID #7314). We have not yet opined on whether consumers who do not “present” a
defective product should be excused in the event that there is a futility element to their claim—
that is, it would be pointless for them to bring their product in for repair. The out-of-circuit cases
that GM cites in claiming that the statutes preclude class certification do not appear to implicate
such a futility issue. See, e.g., Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1268–71 (10th
Cir. 2020) (concluding that the plaintiffs had not shown a breach of warranty when they had
failed to present their RV for repairs after they had experienced “a loud[,] squeaky noise, an
inoperable GPS and furnace, and screens falling off the windows”).
We hold that the district court did not abuse its discretion in concluding that the
presentment issue did not preclude it from certifying the class. In reaching its conclusion that
there was not a predominance problem at the class certification stage, the district court pointed to
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 20
evidence in the record that demonstrated that the alleged defect was not resolved when the class
members brought their vehicles into a shop for repairs, but in fact required a design change by
GM. Speerly, 343 F.R.D. at 525. It then concluded that the presentment issue was irrelevant at
this point in the proceedings because it was a merits issue that was irrelevant for the purposes of
class certification. Id. We have stated before that class certification proceedings are not “a dress
rehearsal for the trial on the merits.” Whirlpool, 722 F.3d at 851–52 (quoting Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012)). It was not an abuse of the
district court’s discretion to decline to rule on the merits when the issue before it was class
certification. Because the district court “considered relevant merits issues with appropriate
reference to the evidence” before it and conducted a “rigorous analysis” of the relevant statutes,
it did not abuse its discretion when it declined to find that the presentment issue precluded it
from certifying the class. See id. at 852. Any further issues with presentment can be determined
at the merits stage.
2. Individual Reliance and/or Causation in State Laws
GM also argues that variations among the several state laws under which the Plaintiffs
bring their claims, specifically those that require a showing of “individual reliance or causation,”
will lead to individualized issues regarding each of the relevant statutes that will predominate
over common questions. Appellant Br. at 43. The Plaintiffs contend that the district court
“conducted the necessary review,” and that GM “erroneously equates causation with reliance in
discussing many of the claims.” Appellee Br. at 44. In considering the applicable state laws, the
district court engaged in a thorough examination of each of the rules and their elements and
concluded that the Plaintiffs had “demonstrated that any individualized proofs either are not
required or will not predominate over the common issues in each state.” Speerly, 343 F.R.D. at
509, 536–52. The district court responded to GM’s objection that there were individualized
issues by stating that “[t]he predominant elements of claims for consumer fraud . . . are
consistent across all jurisdictions,” and discussed both reliance and causation. Id. at 518. It
concluded that any individualized issues would not preclude class certification because there
were “[a]t least two elements . . . [that] will predominate over any individualized inquiries in this
case, which are (1) proof of intentional concealment or deception by the defendant concerning its
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 21
knowledge of the alleged defects, and (2) the significance of the information withheld to a
reasonable consumer.” Id.
In its brief on appeal, GM identifies twenty-one of the certified states whose relevant
laws require a showing of either individualized reliance or causation: Alabama; Arizona;
Arkansas; Florida; Illinois; Kansas; Kentucky; Louisiana; Maine; Michigan; Minnesota; New
Hampshire; New Jersey; New York; North Carolina; Oklahoma; Pennsylvania; Tennessee;
Texas; Washington; and Wisconsin. GM argues that these individualized inquiries will
predominate over the common questions involved in the case, citing largely unpublished or
lower court decisions to support its argument. Appellant Br. at 44. We explore each of the states
below but note that GM does not put forth any specific argument for any state as to why the
reliance and/or causation elements in that state’s statute cannot be satisfied via class-wide proof.
a. Florida, Illinois, New Hampshire, and North Carolina
We have previously determined that Florida’s, Illinois’s, New Hampshire’s, and North
Carolina’s relevant statutes do not require individualized reliance or causation in such a way that
would preclude class certification, as the district court noted in its decision. Rikos, 799 F.3d at
514–18. We hold that this is the case as to the common issues of law and fact that the district
court certified. In determining that the individualized reliance or causation factor for each of
these states could be satisfied through the common questions of law and fact, the district court
considered each of the relevant statutes: Florida’s Deceptive and Unfair Trade Practices Act;
Illinois’s Consumer Fraud and Deceptive Business Practices Act; New Hampshire’s Consumer
Protection Act; and North Carolina’s Unfair and Deceptive Acts and Practices Act. Speerly, 343
F.R.D. at 539–41, 545–46, 548. In doing so, the district court concluded that, based on precedent
and the elements involved in the present class action, these statutes either did not require
individualized reliance, or that the individualized reliance prong would not predominate over the
common questions that the class action addresses. Id. Further, in discussing what the common
elements were in consumer fraud claims, the district court identified both reliance and causation
as “consistent” elements in consumer fraud and fraudulent concealment claims. Id. at 518.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 22
GM does not advance any theory as to why the reliance and/or causation elements in
Florida, Illinois, New Hampshire, and North Carolina law would support a holding that the
district court abused its discretion with regard to these states in the particular class action before
it. Some of the cases that GM cited simply establish that there exists a reliance and/or causation
element, while others determine that in different class actions the reliance or causation element
would predominate over those particular common questions of law and fact. Appellant Br. at 44
nn. 9 & 10. We conclude that the district court did not abuse its discretion in determining that
these four jurisdictions could be certified in the class action.
b. Alabama
The district court considered the elements of Alabama’s Deceptive Trade Practices Act
and identified precedent that had “found claims under the ADTPA amenable to class
certification.” Speerly, 343 F.R.D. at 536. In Lisk v. Lumber One Wood Preserving, LLC, the
Eleventh Circuit did not express concern that Alabama’s law precluded certification of a class
action, albeit under a different set of circumstances. 792 F.3d 1331, 1334–36 (11th Cir. 2015).
GM identifies one case to support its claim that Alabama has a causation element that would
preclude the Alabama subclass from being included in the class definition, Appellant Br. at 44
n.10, citing EBSCO Industries, Inc. v. LMN Enterprises, Inc., 89 F. Supp. 2d 1248, 1265 (N.D.
Ala. 2000), but its citation does not convince us that the causation element in the Act would
predominate over common questions of law and fact identified by the district court in the present
class action. Absent an indication that the district court abused its discretion in evaluating
Alabama’s relevant statute, we AFFIRM the district court’s inclusion of the Alabama Plaintiffs.
c. Arizona
The relevant caselaw as to Arizona’s Consumer Fraud Act provides mixed guidance as to
whether the reliance element would predominate over the common questions of law and fact.
Compare Schellenbach v. GoDaddy.com, LLC, 321 F.R.D. 613, 624 (D. Ariz. 2017)
(determining that, under Arizona’s Consumer Fraud Act, reliance would have to be proven “by
each [purported] class member” because not all class members had been exposed to an “omitted
fact” on which the claim hinged), with Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 835 (D.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 23
Ariz. 2016) (suggesting that class certification may be appropriate when dealing with a material
omission about an “inherently flawed” product). Here, the district court recited the elements that
Arizona’s Consumer Fraud Act requires plaintiffs to show and pointed out that other federal
courts had found claims under the Act “amenable to class certification.” Speerly, 343 F.R.D. at
537. The common questions of law or fact involved in the class action will also involve the
district court evaluating what “intentional concealment or deception” GM undertook and what
the “significance of the information withheld [would be] to a reasonable consumer.” Id. at 518.
It does not appear, at this juncture, that there will need to be an individualized inquiry into
whether or not GM made omissions that some of the class members were exposed to that others
were not. Cf. Schellenbach, 321 F.R.D. at 624. Based on the district court’s discussion of the
common elements that it will be considering in the class action and its discussion of Arizona’s
Consumer Fraud Act, we conclude that there is no indication that the district court abused its
discretion in including the Arizona Plaintiffs in the class definition.
d. Arkansas
In evaluating the Arkansas subclass, the district court considered the Arkansas Deceptive
Trade Practices Act and concluded that “[i]ndividualized reliance need not be proved.” Speerly,
343 F.R.D. at 537. It also pointed out that other federal courts had “certified classes for both
[Arkansas’s Act] and implied warranty claims.” Id. GM cites a case that states that Arkansas
courts have not yet opined on whether the ADTPA requires reliance before suggesting that “the
better view is that reliance is an element of the claim.” Apex Oil Co. v. Jones Stephens Corp.,
881 F.3d 658, 662 (8th Cir. 2018). However, GM does not point to anything about this case that
would result in the reliance element predominating over the common questions of law and fact.
Other federal courts, as noted in the district court’s order, have determined that the reliance
prong in Arkansas’s law does not preclude class certification, provided that “putative members
can establish proof of reliance by class-wide proof.” Murphy v. Gospel for Asia, Inc., 327 F.R.D.
227, 243 (W.D. Ark. 2018). As discussed above regarding the other states’ statutes, the district
court engaged in a lengthy analysis of the common elements that the class members would need
to prove, including reliance on GM’s “concealment of a material fact.” Speerly, 343 F.R.D. at
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 24
518. The district court did not abuse its discretion in determining that Arkansas law did not pose
individualized issues that would predominate over the common questions of law and fact.
e. Kansas
The district court considered the elements of a claim under Kansas’s Consumer
Protection Act and determined that “[i]ndividualized reliance need not be proved.” Speerly, 343
F.R.D. at 541. In the unpublished case that GM cites for support that Kansas’s statute precludes
class certification because of the reliance prong, the district court had determined that
individualized reliance did not pose a predominance problem with respect to “alleged
omissions.” Delcavo v. Tour Res. Consultants, LLC, No. 21-2137-JWL, 2022 WL 1062269, at
*8–9 (D. Kan. Apr. 8, 2022). The court in Delcavo took issue with the fact that establishing
causation would “require individualized inquiries into the particular representations made by
defendant to each member.” Id. at *9. Here, though, the Plaintiffs are “postulat[ing] that all
class members were affected by the same omissions” and misrepresentations from GM,
regarding their alleged defects. Speerly, 343 F.R.D. at 523. Other caselaw addressing Kansas’s
Consumer Protection Act demonstrates that the district court here did not abuse its discretion
when determining that any individualized issues that may arise under the act would not
predominate over the common questions of law and fact. See Nieberding v. Barrette Outdoor
Living, Inc., 302 F.R.D. 600, 615 (D. Kan. 2014) (suggesting that “suits alleging omission of a
material fact present questions suited to class actions”).
f. Kentucky
There is little caselaw that firmly addresses whether Kentucky’s Consumer Protection
Act or Kentucky’s express warranty statute require reliance and/or causation elements on such an
individualized basis that they would predominate over the class questions. The district court
discussed the elements of each of the statutes, determined that they would not predominate over
the common questions of law and fact, and pointed out that other federal courts had “certified
claims under Kentucky’s Consumer Protection Act and warranty claims under [Kentucky’s]
iteration of the U.C.C.” Speerly, 343 F.R.D. at 542. GM identifies two cases that address
Kentucky law: Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286, 1290–91 (6th Cir. 1982)
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 25
(reliance in express warranty), and Corder v. Ford Motor Co., 869 F. Supp. 2d 835, 838 (W.D.
Ky. 2012) (reliance and causation in Kentucky’s Consumer Protection Act). Neither case
indicates that the elements discussed with regard to the respective statutes would preclude a court
from using class-wide proof in a class action. The district court did not abuse its discretion when
it determined, after a rigorous analysis of the relevant Kentucky statutes and caselaw, that there
was not a predominance issue.
g. Louisiana
As with Kentucky, there is little caselaw that provides conclusive guidance on whether
Louisiana’s statutes will pose predominance issues for the certified class questions. The district
court evaluated the elements under Louisiana’s Unfair Trade Practices Act and fraudulent
misrepresentation claims and determined that “[i]ndividualized reliance is not an element of
either claim.” Speerly, 343 F.R.D. at 542. The one case that GM cites in support of its claim
that reliance prohibits certification does not include anything that would indicate to us that the
district court abused its discretion in determining that Louisiana’s statute did not prohibit it from
including Louisiana Plaintiffs in the class certification. See In re Ford Motor Co. Vehicle Paint
Litig., No. MDL 1063, 1997 WL 539665, at *2 (E.D. La. Aug. 27, 1997) (stating that “plaintiffs
must at least be able to say that had they known of [] concealed information, they would not have
acted as they did to their detriment” without clarifying whether this element goes to reliance or
causation, but providing no indication that this element cannot be proven by class-wide proof).
Given the district court’s in-depth discussion here of the elements that it determined can be
shown through class-wide proof, including both causation and reliance, we conclude that the
district court did not abuse its discretion in including the Louisiana Plaintiffs in the class.
h. Maine
The district court also determined that Maine’s Unfair Trade Practices Act did not require
a showing of individualized reliance. Speerly, 343 F.R.D. at 542–43. Although there is
precedent indicating that individualized reliance may become an issue in class actions under
certain circumstances, this imposes a predominance problem only when there is an insufficient
showing that there is “common class-wide proof.” Sanford v. Nat’l Ass’n for the Self-Employed,
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 26
Inc., 264 F.R.D. 11, 14–16 (D. Me. 2010) (determining that the Unfair Trade Practices Act
precluded class certification when the plaintiffs were unable to advance a uniform theory of
misrepresentation but leaving open the possibility that class members could show reliance
provided the “deceptive or misleading statements” were made on a sufficiently class-wide basis).
As the district court here noted in its order, the “proof of intentional concealment or deception”
by GM regarding the alleged defects is a central element that will predominate over
individualized issues. Speerly, 343 F.R.D. at 518. The district court did not abuse its discretion
in determining that Maine’s law does not present individualized issues that will predominate
over the common questions of law and fact in this class action.
i. Michigan
After evaluating Michigan’s Consumer Protection Act, the district court concluded that a
claim brought under this Act that was “premised on a failure to disclose material facts does not
require a consumer to prove reliance or a duty to disclose.” Speerly, 343 F.R.D. at 543 (quoting
Flynn v. FCA US LLC, 327 F.R.D. 206, 220 (S.D. Ill. 2018)). On appeal, GM argues that
Michigan’s Consumer Protection Act “require[s] proof of causation,” citing In re OnStar
Contract Litigation, 278 F.R.D. 352, 377 (E.D. Mich. 2011). Appellant Br. at 44. The
discussion in OnStar revolves around reliance rather than causation and concludes that the
statute does not preclude class certification on predominance grounds, provided that the “alleged
misrepresentations that form[] the basis of [a Michigan Consumer Protection Act] count . . . [are]
‘all substantially similar.’” Id. (quoting Dix v. Am. Bankers Life Assurance Co. of Fla., 415
N.W.2d 206, 210 (Mich. 1987)). Here, the district court determined that one of the central
questions that would predominate in this class action was the “proof of intentional concealment
or deception by” GM. Speerly, 343 F.R.D. at 518. There is thus nothing that would compel us
to conclude that the district court abused its discretion in including the Michigan Plaintiffs in the
class.
j. Minnesota
The district court analyzed Minnesota’s Consumer Fraud Act and concluded that its
causation requirement “is subject to common proof where all purchasers allegedly were exposed
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 27
to the same misrepresentations.” Speerly, 343 F.R.D. at 544–45. As discussed above, it appears
at this point in the litigation that the Plaintiffs will seek to introduce class-wide proof against GM
with regard to the misrepresentations or concealments that the company made. In the case that
GM cites as support for its claim that predominance issues preclude the Minnesota Plaintiffs
from inclusion in the class, the court in fact stated that the “Minnesota Supreme Court . . . [has]
reiterated that ‘direct proof of reliance is not required to establish a causal nexus.’”
Johannessohn v. Polaris Indus., Inc., 450 F. Supp. 3d 931, 951–52 (D. Minn. 2020) (quoting
State v. Minn. Sch. of Bus., Inc., 935 N.W.2d 124, 137 (Minn. 2019)). See also Taqueria El
Primo LLC v. Ill. Farmers Ins. Co., 577 F. Supp. 3d 970, 998 (D. Minn. 2021) (“[A]lthough
plaintiffs must still prove a causal nexus between the allegedly wrongful conduct of the
defendants and their damages, this proof need not include direct evidence of reliance by
individual consumers of defendants’ products.” (emphasis omitted) (quoting In re St. Jude Med.,
Inc., 522 F.3d 836, 839 (8th Cir. 2008))). On that basis, there is nothing to indicate that the
district court here abused its discretion in concluding that any individualized issues that may
arise under Minnesota’s Consumer Fraud Act do not pose a predominance issue over the
common questions of law and fact.
k. New Jersey
In evaluating New Jersey’s Consumer Fraud Act (“NJCFA”), the district court concluded
that “[f]ederal courts have endorsed the certification of class claims under the NJCFA where it is
alleged that all class members overpaid for defective goods.” Speerly, 343 F.R.D. at 546. Other
federal courts evaluating New Jersey’s statute have determined that it does not preclude a class
action on a “benefits of the bargain” theory—that is, a claim that a “consumer was misled into
buying a product that was ultimately worth less to the consumer than the product he was
promised.” Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 99 (D.N.J. 2011). In the case
that GM cites in support of its contention that the district court erred in granting the class
certification, the Third Circuit concluded that a district court abused its discretion when it made a
“‘presumption of causation’ ruling without making key factual findings that the NJCFA and Rule
23 require.” Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 608 (3d Cir. 2012). Here, the
district court engaged in a rigorous analysis of the relevant law as well as the Rule 23
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 28
requirements before concluding that the common questions of law and fact predominated over
the individualized issues with regard to what information the Plaintiffs had and how they would
have reacted to it. Speerly, 343 F.R.D. at 518; cf. Marcus, 687 F.3d at 610. The district court
did not abuse its discretion when it included the New Jersey Plaintiffs in the class certification.
l. New York
On appeal, GM argues that New York’s express warranty and General Business Laws
require individualized findings of reliance and causation, respectively. Appellant Br. at 43–44.
The district court evaluated each of the laws and concluded that New York General Business
Law § 349 did not require “[p]roof of individualized reliance on deceptive omissions,” and that
other federal courts had certified claims brought under the express warranty law. Speerly, 343
F.R.D. at 547–48. As to the express warranty claim that the Plaintiffs have brought, “New York
courts have held that a plaintiff need not demonstrate reliance when an express warranty has
been given, since the terms of the warranty are the basis of the bargain upon which the purchaser
presumably relied.” Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 547 (C.D. Cal. 2012)
(citing CBS Inc. v. Ziff-Davis Pub. Co., 553 N.E.2d 997 (N.Y. 1990)). GM mentions a case that
identifies reliance as an element in a New York express warranty claim but does not explain
why, in the case before us, the district court erred in concluding that the common questions of
law and fact would predominate over the need to show that the Plaintiffs had relied on the
express warranty on an individualized basis. Appellant Br. at 44 n.9; see Speerly, 343 F.R.D. at
509 (discussing the common elements of the express warranty claims and concluding that they
were “subject to universal proofs in each of the subclasses”). The district court did not abuse its
discretion in determining that the express warranty claim under New York law did not present a
predominance issue.
Similarly, GM does not identify why the district court’s determination that the causation
issue presented by New York General Business Law § 349 would pose a predominance issue.
The case that they point to, In re Ford Motor Co. E-350 Van Products Liability Litigation (No.
II), No. 03-4558, 2012 WL 379944, at *14 (D.N.J. 2012), states that New York’s law requires a
showing of causation. However, in that case, the district court determined that there was a
predominance issue with regard to causation because there was “no uniform misrepresentation.”
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 29
Id. Here, the district court identified the “proof of intentional concealment or deception” by GM
with respect to the alleged defects as one of the central, class-wide questions. There is no
indication at this point that it abused its discretion in determining that this was sufficiently
uniform to predominate over individualized issues posed by New York’s General Business Law
§ 349.
m. Oklahoma
There is little caselaw regarding the proof of causation in Oklahoma’s Consumer
Protection Act that GM claims on appeal will predominate over the common issues of law and
fact. In concluding that there was not a predominance issue, the district court identified the four
elements of a “private action under the [Oklahoma Consumer Protection Act],” including the
requirement that a “challenged practice cause[] plaintiff’s injury.” Speerly, 343 F.R.D. at 548
(quoting Watson v. Vici Cmty. Dev. Corp., No. CIV-20-1011-F, 2021 WL 1394477, at *12 (W.D.
Okla. Apr. 12, 2021)). Other federal courts have determined that nothing in the Act precludes
class actions, provided that the claims and proof are sufficiently uniform across the class. See
Est. of Pilgrim v. Gen. Motors LLC, 344 F.R.D. 381, 409 (E.D. Mich. 2023) (pointing out that
“Oklahoma courts have previously certified claims under the [Oklahoma Consumer Protection]
Act”). Although GM points to a case to support its argument that Oklahoma’s statute requires a
showing of causation, it does not advance any specific argument as to why that causation would
predominate over the common issues that the district court identified as uniform across the class.
Appellant Br. at 44 n.10 (citing Patterson v. Beall, 19 P.3d 839, 847 (Okla. 2000)). Nothing in
the available caselaw demonstrates that the district court abused its discretion in determining that
the Oklahoma Plaintiffs’ claims could be demonstrated through class-wide proof and that any
individualized issues would not predominate over the common questions of law and fact.
n. Pennsylvania
The district court evaluated the Plaintiffs’ claims under the Pennsylvania Unfair Trade
Practices and Consumer Protection Law and concluded that “[p]roof of individual reliance is not
required.” Speerly, 343 F.R.D. at 549. Under Pennsylvania law, Plaintiffs must show that there
was “justifiable reliance” when bringing a claim. Hunt v. U.S. Tobacco Co., 538 F.3d 217, 221–
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 30
23 (3d Cir. 2008). However, there is no indication that this justifiable reliance must be made on
an individualized basis such that it would predominate over the common questions of law and
fact, nor does GM advance an argument that, in this particular class action, the requisite
justifiable reliance showing would come to predominate over the common questions of law and
fact. The district court engaged in a lengthy discussion about the various elements that could be
demonstrated by class-wide proof. Speerly, 343 F.R.D. at 518–20. At this point, there is nothing
that would compel us to determine that the district court abused its discretion in determining that
the justifiable reliance requirement could be satisfied by the common questions of law and fact in
this case.
o. Tennessee
On appeal, GM points to the Eleventh Circuit’s recent decision in Tershakovec to argue
that Tennessee law does not permit reliance to be proved on a class-wide basis. Appellant Br. at
44–45. Tershakovec appears to be addressing only common-law claims brought by the
Tennessee plaintiffs. 79 F.4th at 1314. To the extent that the Plaintiffs in this case have brought
their claims under the Tennessee Consumer Protection Act, we do not view Tershakovec as a
guiding authority. Although the Act does require a showing of causation, as identified by the
district court here in its discussion of Tennessee law, there is no indication that this causation
cannot be shown on a class-wide basis. Therefore, as to the claims that the Tennessee Plaintiffs
brought under the Tennessee Consumer Protection Act, we conclude that the district court did
not abuse its discretion in including them in the class certification.
The fraudulent concealment claim is a closer call. The Eleventh Circuit has determined
that the reliance requirement in Tennessee common law poses individualized issues that can pose
predominance problems because plaintiffs must show that they “acted reasonably in relying on
the representation.” Tershakovec, 79 F.4th at 1314 (quoting City State Bank v. Dean Witter
Reynolds, Inc., 948 S.W.2d 729, 738 (Tenn. Ct. App. 1996)). The Tershakovec court stated that
because reliance under Tennessee common law “turn[s] on individualized facts about the
plaintiff, the defendant, and the specifics of their relationship,” the claims were inappropriate.
Id. With regard to the case in front of us, at least at this stage in the process, we do not view the
individualized reliance requirement as predominating over the common questions of law and fact
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 31
that the district court identified. Here, the district court is addressing a uniform
misrepresentation (the intentional concealment or deception that GM made regarding the alleged
8L transmission defects) that is unlikely to vary much, if at all, for individuals, as well as a
uniform inquiry into how a “reasonable consumer” would view the “significance of the
information withheld.” Speerly, 343 F.R.D. at 518; cf. Boynton v. Headwaters, Inc., 737 F.
Supp. 2d 925, 931 (W.D. Tenn. 2010) (listing the factors that the Tershakovec court identified as
too individualized for the class action in front of it, including many that could be answered by
the common questions of law and fact in this present case, including the “relative availability of
[] information,” the “fiduciary relationship” between the parties, “whether there was
concealment of the fraud,” whether the Plaintiffs “had an opportunity to discover the fraud,” and
“the specificity of the statements”). The district court here did not abuse its discretion when it
concluded that the individualized issues in Tennessee law would not predominate over the
common questions that it would be addressing.
p. Texas
GM also points to Tershakovec when arguing that the Texas Plaintiffs are similarly
precluded from the class certification on the basis of individualized reliance. Appellant Br. at
44–45. The Tershakovec court determined that plaintiffs must show “actual reliance” when
bringing claims under the Texas Deceptive Trade Practices-Consumer Protect Act, and that the
Act thus precluded the Texas Plaintiffs’ inclusion in the class action. 79 F.4th at 1313.
However, the Supreme Court of Texas has held before that when a class is seeking certification
and can advance “class-wide evidence of reliance” through proof such as a uniform
misrepresentation made to all members, the Act’s reliance requirement does not defeat class
certification. Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d 909, 923 (Tex. 2010). Here,
the district court has identified such a uniform misrepresentation as one of the core common
questions that the class action will seek to address. Speerly, 343 F.R.D. at 518. Accordingly, we
conclude that the district court did not abuse its discretion in determining that reliance under
Texas law did not pose such an individualized problem as to preclude the Texas Plaintiffs from
the class action.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 32
q. Washington
The district court concluded that the Washington Consumer Protection Act did not
require a showing of individualized reliance. Speerly, 343 F.R.D. at 551. The Washington
Supreme Court has clarified that “reliance is [not] necessarily an element of [a] plaintiff’s CPA
claim.” Thornell v. Seattle Serv. Bur., Inc., 363 P.3d 587, 592 (Wash. 2015). In fact, in the case
that GM points to in support of its argument that Washington requires a showing of reliance, the
court concluded that “[w]hen a plaintiff alleges deception through omission of a material fact, a
rebuttable presumption of reliance applies.” Eng v. Specialized Loan Servicing, 500 P.3d 171,
181 (Wash. Ct. App. 2021). The district court did not abuse its discretion in determining that
any reliance issue would not predominate over the common questions of law and fact in this
class action with regard to the Washington Plaintiffs.
r. Wisconsin
In evaluating Wisconsin’s Deceptive Trade Practices Act, the district court determined
that “class-wide common proof of reliance may be offered where a defendant’s deceptive
conduct allegedly affected all class members in a uniform manner.” Speerly, 343 F.R.D. at 552.
GM argues that Wisconsin’s Act does not permit claims that are based on omissions. Appellant
Br. at 44 n.10 (citing Tietsworth, 677 N.W.2d at 245). However, the district court did not certify
the class on that basis, but instead focused on whether GM had engaged in deceptive conduct and
made a “false, deceptive, or misleading representation[],” and pointed out that other federal
courts had found Wisconsin’s Deceptive Trade Practices Act amenable to class action. Speerly,
343 F.R.D. at 518, 551–52 (citing In re Dollar Gen. Corp. Motor Oil Mktg. & Sales Pracs.
Litig., No. 16-02709-MD-W-GAF, 2019 WL 1418292, at *26 (W.D. Mo. Mar. 21, 2019)). We
conclude that the district court did not abuse its discretion in including the Wisconsin Plaintiffs
in the class definition.
The district court correctly pointed out that, in the event that individualized issues arise in
the course of the class action that do come to predominate over the common questions of law and
fact, the district court can cull the class later on. The class certification stage is not to be used as
“a dress rehearsal for the trial on the merits.” Whirlpool, 722 F.3d at 851–52 (quotation
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 33
omitted). The relevant question before us at this point in the proceedings is whether the district
court sufficiently and rigorously analyzed the claims and relevant caselaw in determining that the
common questions of law and fact predominated over any individualized issues that may arise.
As the case comes to us, there is no indication that the district court abused its discretion in
evaluating each state’s laws and relevant precedent before concluding that individualized issues
from each state would not predominate over the common questions that it had identified as
central to the class action. Should, in the course of further proceedings, individualized issues
predominate over the common questions of law and fact that the district court identified, it may
cull the class as required.
3. Merchantability
GM also argues that the district court erred when it found that merchantability was “an
‘entirely objective inquiry’” across all of the certified states, because certain states “reject
individual implied warranty claims where a vehicle has been driven extensively without issue or
with issues that do not render the vehicle inoperable.” Appellant Br. at 45–46. Specifically,
GM’s brief identifies Florida, Georgia, Maine, Minnesota, and New Jersey as such states. Id. at
45. The Plaintiffs contend that the district court engaged in a sufficiently thorough consideration
of the merchantability issue, but “rejected GM’s minimization of the defects.” Appellee Br. at
52.
In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court stated that predominance
inquiries hinge on whether “the issue is susceptible to generalized, class-wide proof.” 577 U.S.
442, 453 (2016) (quotation omitted). When the district court considered whether the claims had
sufficient common elements, such that class certification was appropriate, it discussed the
implied warranty causes of action that several states have that “require[] the plaintiffs to prove
that a product is not ‘merchantable.’” Speerly, 343 F.R.D. at 510. After this analysis, the district
court concluded that its review of the “numerous jurisdictions hew[ed] consistently to the view
that ‘merchantability’ of an automobile requires a showing that the vehicle operates in a ‘safe
condition’ or provides ‘safe transportation.’” Id. at 511. Further, whether the errors posed by the
8L transmissions impacted the consumers’ safety or the vehicles’ intended use is a class-wide
question, regardless of which way the decision maker eventually goes. GM’s brief does not
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 34
provide much reasoning as to why the district court would have abused its discretion in
determining that an inquiry into the alleged defects in the 8L transmissions would satisfy the
merchantability requirements of certain states. For example, GM cites the unpublished decision
Tellinghuisen v. Chrysler Group, LLC, No. A13-2194, 2014 WL 4289014, at *3 (Minn. Ct. App.
Sept. 2, 2014), for the premise that Minnesota has rejected individual implied warranty claims
when a vehicle has been driven without issue. Appellant Br. at 46 n.11. However, GM does not
explain why the safe-and-reliable transportation standard for merchantability would not be
sufficiently addressed by a class-wide inquiry into the safety of the 8L transmissions. See
Speerly, 343 F.R.D. at 511–12 (discussing the merchantability element with regard to each state
involved in the class action). There is no indication that the merchantability issues would
predominate over the common questions of law and fact in this case, and we hold that the district
court did not abuse its discretion in determining that the merchantability issue did not bar it from
certifying the class.
4. State Substantive Bars
GM also claims that four states—Alabama, Arkansas, Louisiana, and Tennessee—have a
“substantive state law” in place that “prohibits private class actions within the same statutory
provision creating a private right of action for individual consumers.” Appellant Br. at 47. The
Plaintiffs respond that GM’s motion to dismiss discussed only Louisiana’s and Tennessee’s
statutes, but that the district court nevertheless analyzed the relevant statutes for all four states
and determined that despite this prohibition, federal courts routinely certified classes from these
states. Appellee Br. at 52–53.
In Albright v. Christensen, we determined that Justice Stevens’s concurrence in Shady
Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 421–25 (2010),
controlled when determining whether a federal rule governs if it “collides” with state law. 24
F.4th 1039, 1044–45 (6th Cir. 2022). Justice Stevens’s concurrence stated that federal rules, like
Federal Rules of Civil Procedure 23, “cannot govern a particular case in which the rule would
displace a state law that is procedural in the ordinary use of the term but is so intertwined with a
state right or remedy that it functions to define the scope of the state-created right.” Shady
Grove, 559 U.S. at 423 (Stevens, J., concurring). Statutes that prohibit class actions like the one
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 35
before us do not “abridge[], enlarge[], or modif[y] a substantive right” in their respective states.
See, e.g., Lisk, 792 F.3d at 1336–37 (concluding that Alabama’s class action prohibition did not
expand or impact substantive rights, because the seller’s “substantive obligation was to comply
with the ADTPA,” and the buyers’ “substantive right . . . was to obtain [a product] that complied
with [the seller’s] representations”). Likewise, the Plaintiffs’ claims in this case against GM do
not change whether Plaintiffs bring them individually or as a class. None of the four states
identified by GM appear to have statutes containing any aspects that would impact the Plaintiffs’
substantive rights, such that the district court abused its discretion in including them in the
certified class, nor does GM identify any such elements in its brief on appeal.
5. Individualized Differences in Current and Former Owners
GM also contends that the district court overlooked the fact that some GM vehicle
owners had been able to recoup their losses already, because they sold their cars and therefore
“pass[ed] any purported economic injury and damages to the next buyer.” Appellant Br. at 48.
However, as the Plaintiffs pointed out, the district court accepted and considered a “Diminished
Value Model that showed those who resold could have done better had GM not sold a defective
product.” Appellee Br. at 54; see also R. 267 (Order & Op. Den. Various Mots. at 14) (Page ID
#20207). Further, we have stated that “[w]hether some Plaintiffs are unable to prove damages
because they eventually recouped the withheld depreciation . . . is a merits question, and the
district court has the power to amend the class definition at any time before judgment.” Hicks v.
State Farm Fire & Cas. Co., 965 F.3d 452, 463 (6th Cir. 2020) (emphasis added) (quoting Stuart
v. State Farm Fire & Cas. Co., 910 F.3d 371, 377 (8th Cir. 2018)). The district court did not
abuse its discretion when it accounted for the fact that the Plaintiffs have some evidence that may
show that even resellers experienced loss and by declining to consider this issue in full before it
reached the merits stage.
G. Class-wide Damages Models
GM also claims that the district court abused its discretion when it “rel[ied] on [the
Plaintiffs’] proffered expert opinions and models both to (i) try to establish an overpayment
injury and (ii) to create a metric to pay everyone in the class.” Appellant Br. at 51.
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 36
The Plaintiffs argue that the proffered statisticians and damages experts did not rely on or
assume “‘a unitary common flaw’ or single defect” when reaching their conclusions. Appellee
Br. at 55.
“[M]odel[s] purporting to serve as evidence of damages in [] class action [suits] must
measure only those damages attributable to” the theory advanced by the Plaintiffs. Comcast
Corp. v. Behrend, 569 U.S. 27, 35 (2013). GM alleges that the Plaintiffs have a Comcast
problem because their experts “operated under the obsolete single-defect assumption.”
Appellant Br. at 51–52. All three of the Plaintiffs’ experts discussed the shudder and shift
quality issues as distinct, and none of them appear to have opined on what caused either issue
(although they do discuss the steps that GM took to address the shudder and shift quality issues).
See R. 170-5 (Iyengar Rep. at 7, 18) (Page ID #5578–79, 5590); R. 179-2 (Eichmann Rep. at 5–
8) (Page ID #8174–77); R. 182-1 (Wachs Rep. at 26) (Page ID #8793). Further, even if the
experts had been operating under a theory that both the shudder and the shift quality issues were
caused by the same defect, it would not change the fact that the Plaintiffs’ theory is that GM sold
vehicles that did not operate as an objective consumer would expect them to. See Comcast, 569
U.S. at 35. The district court said as much, stating that Dr. Wach’s testimony “amply
suggest[ed] that the defect is caused by a common design failure,” rather than pinpointing
precisely what the alleged defect was. Speerly, 343 F.R.D. at 522. We conclude that the district
court did not abuse its discretion when it relied on these reports in certifying the class.
Next, GM claims that the Supreme Court’s decision in Tyson Foods “requires exclusion
of Eichmann’s average injury-and-damages opinions.” Appellant Br. at 52. It argues that the
Plaintiffs cannot show injury “by ‘simply relying on assumptions about the general population,’”
id. (quoting Rowe v. E.I. duPont de Nemours & Co., 2008 WL 5412912, at *14 (D.N.J. Dec. 23,
2008)), and that the model violates GM’s due process rights by “stripping GM of its substantive
rights to defend against persons whose vehicles have performed as bargained-for, or have been
repaired under warranty, or will yet be repaired under warranty if a defect manifests, or who did
not overpay, or who otherwise suffered no damages,” id. at 53.
In Tyson Foods, the Supreme Court stated that “[i]n many cases, a representative sample
is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 37
liability.” 577 U.S. at 455 (quoting Manual of Complex Litigation § 11.493, p. 102 (4th Ed.
2004)). Here, there is nothing to indicate that the samples and averages that the Plaintiffs’
experts provided and that the district court referenced in certifying the class “could [not]
sustain[] a reasonable jury finding as to” the damages suffered by the purchasers of the affected
GM vehicles. Id. GM also claims that the approach that the district court took will sweep in
individuals whose vehicles never manifested one or both defects. We hold that the district court
did not abuse its discretion when it found that this issue could be resolved in—and in fact, was
better suited for—the merits stage, a conclusion that is consistent with our precedent. See Hicks,
965 F.3d 452.
H. Potential Arbitration Proceedings
Finally, GM contends that the district court erred in determining that GM had “waived
any arbitration rights it might have as to all 800,000+ absent members in the putative classes.”
Appellant Br. at 54. GM argues that certification was precluded because “an unidentified but
substantial minority of absent class members” may be subject to arbitration agreements. Speerly,
343 F.R.D. at 524. The district court, however, found that GM had waived this argument “by
[GM’s] engaging in this litigation and seeking dispositive rulings from the Court on the
plaintiffs’ claims.” Id.
We have held that “although ‘we will not lightly infer a party’s waiver of its right to
arbitration,’” we may conclude that a party has waived that right if it “(1) ‘tak[es] actions that are
completely inconsistent with any reliance on an arbitration agreement; and (2) “delay[s] its
assertion to such an extent that the opposing party incurs actual prejudice.”’” Solo v. United
Parcel Serv. Co., 947 F.3d 968, 975 (6th Cir. 2020) (alterations in original) (quoting Hurley v.
Deutsche Bank Tr. Co. Ams., 610 F.3d 334, 338 (6th Cir. 2010)). Not every motion to dismiss
that a party files constitutes a waiver of arbitration, and the relevant question before us when
determining whether GM waived its arbitration argument is how “enmeshed in the merits” the
motion to dismiss is. Id. For example, motions to dismiss based on “‘jurisdictional and quasi-
jurisdictional grounds’ but [that seek] ‘no action with respect to the merits of the case’” are not
so enmeshed in the merits as to be deemed “inconsistent with later seeking arbitration.” Id.(quoting Dumont v. Sask. Gov’t Ins., 258 F.3d 880, 886–87 (8th Cir. 2001)).
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 38
Here, we hold that the district court did not abuse its discretion when it determined that
GM had acted inconsistently with, and therefore waived, its right to arbitrate various of the
Plaintiffs’ claims. As the district court pointed out, the initial motion to dismiss contains both
jurisdictional claims (which would not, on their own, necessarily lead to a conclusion that GM
had waived its arbitration rights), and a number of arguments on the merits of the claims.
Speerly, 343 F.R.D. at 524. The motion to dismiss also seeks “dispositive rulings from the Court
on the plaintiffs’ claims.” Id.; see also R. 12 (Mot. to Dismiss) (Page ID #227–65). For
example, in its initial motion to dismiss, GM asserted that the Plaintiffs’ claims failed on a
number of grounds, including merchantability, R. 12 (Mot. to Dismiss at 9) (Page ID #251);
privity, id. at 11 (Page ID #253); GM’s specific knowledge of the defect, id. at 14 (Page ID
#256); and various issues with specific state laws, see, e.g., id. at 19–22 (Page ID #261–64).
Seeking to remedy these objections on the merits in federal court is “entirely inconsistent with
later requesting that those same merits questions be resolved in arbitration.” Solo, 947 F.3d at
975. The district court did not err here in viewing GM’s myriad filings, which were thoroughly
enmeshed with the merits of the case, as inconsistent with its claim now that certifying the class
impedes on its right to arbitration.
After the Plaintiffs filed their CACAC on September 30, 2019, GM again filed a motion
to dismiss that challenged various of the Plaintiffs’ arguments on the merits on November 29,
2019. See R. 53 (Mot. to Dismiss CACAC) (Page ID #3197–3267). Although doing so, on its
own, would not defeat a claim of waiver, see Solo, 947 F.3d at 975–76, it is notable that GM did
not raise an arbitration issue in its initial motion to dismiss, filed on June 14, 2019, nor in its
motion to dismiss the CACAC, filed on November 29, 2019. Instead, GM engaged in over two
years of litigation after it filed both motions to dismiss. The first time that GM raised an
arbitration issue was during a hearing on a motion for leave to file a second supplemental
complaint on December 16, 2021, when GM claimed that it had “learned during the discovery
process that many of the plaintiffs have arbitration agreements.” R. 167 (Hr’g Tr. for Mot. for
Leave to File at 10) (Page ID #5476).
GM went on to argue in a terse paragraph in its Opposition to the Plaintiffs’ Motion for
Class Certification, filed on March 7, 2022, that arbitration clauses serve as a bar to class
No. 23-1940 Speerly, et al. v. General Motors, LLC Page 39
certification. R. 245 (Opp’n to Pls.’ Mot. for Class Cert. at 21) (Page ID #16947). In this filing,
GM included a compilation of Plaintiffs’ agreements from the relevant timeframe (2015 to
2019), all of which appear to be boilerplate agreements. R. 245-58 (Comp. of Pls.’ Arbitration
Clauses) (Page ID #19073–19134). Of the nineteen Plaintiffs that GM identifies as subject to
arbitration clauses, only four were not named Plaintiffs on the September 30, 2019 CACAC. See
R. 41 (CACAC at 1) (Page ID #2250); R. 245-58 (Comp. of Pls.’ Arbitration Clauses at 1) (Page
ID #19073). Three of those Plaintiffs were even named in the original April 10, 2019 complaint.
R. 1 (Compl. at 1) (Page ID #1). Given this reality, along with the ubiquitousness of arbitration
agreements in transactions such as that of a sale of a vehicle, we find it difficult to believe that
the first time GM was aware that at least some Plaintiffs may be subject to arbitration agreements
was two-and-a-half years after the Plaintiffs filed their original complaint. Yet GM did not make
any reference to arbitration clauses until a bare mention, at the earliest, in December 2021. R.
167 (Hr’g Tr. for Mot. for Leave to File at 10) (Page ID #5476). Nothing in GM’s argument
before the district court indicates that GM was unable to access the Plaintiffs’ agreements prior
to 2021, was unaware prior to 2021 that a number of the Plaintiffs might be subject to arbitration
clauses, or faced any other obstacle to making an argument earlier that the Plaintiffs who were
subject to arbitration clauses could not go forth with this litigation. We hold that the district
court did not abuse its discretion in determining that GM had waived its right to arbitration
because it knew of its asserted right to arbitrate but acted inconsistently with that right by
“seeking dispositive rulings from the Court . . . some of which were forthcoming in its favor.”
Speerly, 343 F.R.D. at 524–25 (citing Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022)).
III. CONCLUSION
We AFFIRM the district court’s grant of class certification.