FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN J. WOLIN, on behalf of
himself and all others similarly
situated, No. 09-55104
Plaintiff-Appellant,
v. D.C. No.
8:07-cv-00627-AG-
JAGUAR LAND ROVER NORTH RNB
AMERICA, LLC,
Defendant-Appellee.
KENNETH GABLE, on behalf of
himself and all others similarly No. 09-55105
situated,
Plaintiff-Appellant, D.C. No.
v. 8:07-cv-00376-AG-
RNB
JAGUAR LAND ROVER NORTH
AMERICA, LLC, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
June 11, 2010—Pasadena, California
Filed August 17, 2010
11983
11984 WOLIN v. JAGUAR LAND ROVER
Before: Dorothy W. Nelson and Ronald M. Gould,
Circuit Judges, and James S. Gwin, District Judge.*
Opinion by Judge D.W. Nelson
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
WOLIN v. JAGUAR LAND ROVER 11987
COUNSEL
James C. Shah (argued), Nathan Zipperian, Shepherd, Finkel-
man, Miller & Shah, LLP, Media, Pennsylvania; James E.
Miller, Laurie Rubinow, Shepherd, Finkelman, Miller &
Shah, LLP, Chester, Connecticut, for the plaintiffs-appellants.
Christopher T. Handman (argued), Martin A. Price, Paul A.
Werner, Erica M. Knievel, Hogan & Hartson, LLP, Washing-
ton, D.C., for the defendant-appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Kenneth Gable and Brian Wolin appeal the district court’s
denial of their respective motions for class certification. Gable
and Wolin each brought a class action lawsuit against Jaguar
Land Rover North America, LLC (“Land Rover”) alleging
that Land Rover’s LR3 vehicles suffer from an alignment
geometry defect that causes tires to wear prematurely. We
must decide whether the district court erred as a matter of law
when it declined to certify a class because Gable and Wolin
were unable to prove that a majority of potential class mem-
bers suffered from the consequences of the alleged alignment
defect. We have jurisdiction pursuant to 28 U.S.C. § 1292,
and we reverse.
I. Background
Kenneth Gable and Brian Wolin each bought a 2005 Land
Rover LR3. Gable purchased his vehicle in 2004 in Michigan.
11988 WOLIN v. JAGUAR LAND ROVER
Wolin made his purchase in 2006 in Florida. Both vehicles
came factory equipped with Goodyear Wrangler tires.
Gable and Wolin both allege that their vehicles are defec-
tive. The defect, characterized by the plaintiffs as a geometry
defect in the vehicles’ alignment, allegedly caused uneven
and premature tire wear and gave their vehicles a rough ride.
According to Gable and Wolin, LR3 drivers must replace
their tires prematurely, in many cases after just 15,000 miles.
The LR3 came with a four-year, 50,000 mile factory war-
ranty (the “Limited Warranty”). This warranty covered “re-
pairs required to correct defects in factory-supplied materials
or factory workmanship . . . with the exception of tires.” Land
Rover also provided a separate warranty (the “Tire Warran-
ty”) covering tire replacement of tires and/or vehicle re-
alignment in the event the tires exhibit “[e]xcessive wear that
is inconsistent with normal use” and “caused by a manufac-
turing defect elsewhere on the vehicle.”
On October 3, 2006, Land Rover issued a Technical Ser-
vice Bulletin indicating that the tires on certain vehicles may
wear prematurely and unevenly due to the vehicles’ steering
alignment geometry. Land Rover then began to cover the
costs of temporarily fixing the defect on a pro rata basis. Land
Rover did not offer owners full reimbursement as provided in
the warranty. Gable complained to his Land Rover dealer, and
the Land Rover service manager covered part of Gable’s bill
for the replacement of his tires. Wolin complained multiple
times and, ultimately, Land Rover’s dealer covered part of
Wolin’s bill for the replacement of his tires.
Gable filed a class action complaint on behalf of all those
who purchased or leased 2005 and 2006 Land Rover LR3s in
Michigan. Wolin filed a class action complaint on behalf of
all those who purchased or leased a 2004, 2005, or 2006 Land
Rover LR3 in Florida. The lawsuits were filed pursuant to the
Class Action Fairness Act, 28 U.S.C. § 1332(d). According to
WOLIN v. JAGUAR LAND ROVER 11989
the appellants, Land Rover knew of the defect and continued
to sell the vehicles without disclosing the existence of the
defect. Appellants also allege that Land Rover breached its
warranties by failing to cover the entire cost of repairing the
defect and replacing the tires. Gable asserts claims under the
Michigan Consumer Protection Act (MCPA), Mich. Comp.
Laws § 445.901, et seq., as well as for breach of express and
implied warranties, and for unjust enrichment. Wolin asserts
claims under the Florida Deceptive and Unfair Trade Prac-
tices Act (FDUTPA), Fla. Stat. § 501.201, et seq., and for
breach of express warranties and unjust enrichment.
On September 29, 2008, the district court denied each of
the appellants’ respective motions for class certification. The
court concluded that neither could meet his burden of show-
ing that common issues predominate. The court indicated that
the number of people in the class who have experienced the
alignment defect is an important factor in the Rule 23 analy-
sis, and concluded that neither Gable nor Wolin produced suf-
ficient evidence of the rate of the defect. After first stating
that the plaintiffs in Samuel-Bassett v. Kia Motors America,
Inc. showed that up to 85% of the vehicles were defective, the
court held that both Gable and Wolin failed to meet their
respective burdens because neither could estimate the percent
of prospective class members whose vehicles manifested the
defect, let alone show credibly that even a majority of class
members’ vehicles experienced premature tire wear. 212
F.R.D. 271, 282 (E.D. Pa. 2002), vacated on other grounds,
357 F.3d 392 (3d Cir. 2004). Gable and Wolin timely filed
their appeals.
II. Standard of Review
We review a district court’s denial of class certification for
abuse of discretion. Zinser v. Accufix Research Inst., Inc., 253
F.3d 1180, 1186 (9th Cir. 2001); see also In re Salomon Ana-
lyst Metromedia Litig., 544 F.3d 474, 480 (2d Cir. 2008)
(“When reviewing a grant of class certification, we accord the
11990 WOLIN v. JAGUAR LAND ROVER
district court noticeably more deference than when we review
a denial of class certification.”). “Our review is limited to
whether the district court correctly selected and applied Rule
23 criteria.” Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571,
580 (9th Cir. 2010) (en banc). “An abuse of discretion occurs
when the district court, in making a discretionary ruling, relies
upon an improper factor, omits consideration of a factor enti-
tled to substantial weight, or mulls the correct mix of factors
but makes a clear error of judgment in assaying them.” Parra
v. Bashas’, Inc., 536 F.3d 975, 977-78 (9th Cir. 2008) (inter-
nal quotation marks omitted). “To the extent that a ruling on
a Rule 23 requirement is supported by a finding of fact,” we
review that finding for clear error. In re Salomon Analyst, 544
F.3d at 480.
III. Discussion
According to Federal Rule of Civil Procedure 23(a), a
plaintiff hoping to certify a class must demonstrate that “(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.” The parties do not seriously dispute
that the proposed class satisfies the numerosity and adequacy
requirements. The plaintiff must also meet one of the require-
ments of Federal Rule of Civil Procedure 23(b). Only one
such requirement is at issue in this litigation: “that the ques-
tions 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). We will first address commonality, predomi-
nance and typicality under Rule 23(a), followed by superiority
under Rule 23(b).
WOLIN v. JAGUAR LAND ROVER 11991
A. Commonality and Predominance
Gable and Wolin assert that the district court abused its dis-
cretion when it concluded that the proposed class could not
show that common issues predominate. We agree.
[1] Federal Rule of Civil Procedure 23(a)(2) provides that
“questions of law or fact common to the class” are a prerequi-
site to class certification. Commonality exists where class
members’ “situations share a common issue of law or fact,
and are sufficiently parallel to insure a vigorous and full pre-
sentation of all claims for relief.” Cal. Rural Legal Assistance,
Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir.
1990) (internal quotation marks and citation omitted). “The
existence of shared legal issues with divergent factual predi-
cates is sufficient, as is a common core of salient facts cou-
pled with disparate legal remedies within the class.” Hanlon
v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).
[2] Appellants easily satisfy the commonality requirement.
The claims of all prospective class members involve the same
alleged defect, covered by the same warranty, and found in
vehicles of the same make and model. Appellants’ complaints
set forth more than one issue that is common to the class,
including: 1) whether the LR3’s alignment geometry was
defective; 2) whether Land Rover was aware of this defect; 3)
whether Land Rover concealed the nature of the defect; 4)
whether Land Rover’s conduct violated the Michigan Con-
sumer Protection Act or the Florida Deceptive and Unfair
Trade Practices Act; and 5) whether Land Rover was obli-
gated to pay for or repair the alleged defect pursuant to the
express or implied terms of its warranties. These common
core questions are sufficient to satisfy the commonality test.
See Hanlon, 150 F.3d at 1019-20.
We next consider whether these common questions pre-
dominate. While Rule 23(a)(2) asks whether there are issues
common to the class, Rule 23(b)(3) asks whether these com-
11992 WOLIN v. JAGUAR LAND ROVER
mon questions predominate. Though there is substantial over-
lap between the two tests, the 23(b)(3) test is “far more
demanding,” see Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 623-24 (1997), and asks “whether proposed classes are
sufficiently cohesive to warrant adjudication by representa-
tion,” id. at 623.
i. Existence of Defect and Violation of Consumer Protec-
tion Laws
[3] The district court erred when it concluded, without dis-
cussion, that certification is inappropriate because Gable and
Wolin did not prove that the defect manifested in a majority
of the class’s vehicles. The appellants allege a violation of the
Michigan Consumer Protection Act and the Florida Deceptive
and Unfair Trade Practices Act, because, for example, Land
Rover represented that the vehicles had particular characteris-
tics or were of a particular standard when they were of
another, and Land Rover failed to reveal material facts about
the vehicles. Gable alleges breach of implied warranty
because the vehicles were defective and not of merchantable
quality at the time they left Land Rover’s possession. Com-
mon issues predominate such as whether Land Rover was
aware of the existence of the alleged defect, whether Land
Rover had a duty to disclose its knowledge and whether it
violated consumer protection laws when it failed to do so. See
Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir.
2005) (per curiam).
[4] Land Rover argues that the evidence will demonstrate
that the prospective class members’ vehicles do not suffer
from a common defect, but rather, from tire wear due to indi-
vidual factors such as driving habits and weather. Thus,
according to Land Rover, the district court correctly decided
not to certify a class because appellants failed to prove that
their tires wore prematurely due to a defect. However, we
have held that proof of the manifestation of a defect is not a
prerequisite to class certification. Blackie v. Barrack, 524
WOLIN v. JAGUAR LAND ROVER 11993
F.2d 891, 901 (9th Cir. 1975) (“[N]either the possibility that
a plaintiff will be unable to prove his allegations, nor the pos-
sibility that the later course of the suit might unforeseeably
prove the original decision to certify the class wrong, is a
basis for declining to certify a class which apparently satisfies
the Rule.”). What Land Rover argues is whether class mem-
bers can win on the merits. For appellants’ claims regarding
the existence of the defect and the defendant’s alleged viola-
tion of consumer protection laws, this inquiry does not over-
lap with the predominance test.
[5] Although early tire wear cases may be particularly
problematic for plaintiffs seeking class certification, we reject
Land Rover’s suggestion that automobile defect cases can cat-
egorically never be certified as a class. Gable and Wolin
assert that the defect exists in the alignment geometry, not in
the tires, that Land Rover failed to reveal material facts in vio-
lation of consumer protection laws, and that Land Rover was
unjustly enriched when it sold a defective vehicle. All of these
allegations are susceptible to proof by generalized evidence.
Although individual factors may affect premature tire wear,
they do not affect whether the vehicles were sold with an
alignment defect.
ii. Warranty
Appellants also allege breach of express warranty because
Land Rover refused to repair the tires and the geometry defect
pursuant to the terms of the Limited Warranty and the Tire
Warranty.
[6] Although we have not considered whether common
issues related to such a warranty might predominate, we note
that the Sixth Circuit reached a similar issue in Daffin v. Ford
Motor Co., 458 F.3d 549 (6th Cir. 2006). In Daffin, an owner
of a van sued for a defective throttle body assembly that
caused the accelerator to stick. 458 F.3d at 550. All proposed
class members were covered by a standard warranty providing
11994 WOLIN v. JAGUAR LAND ROVER
for the repair or replacement of defective products. The court
concluded that the following common issues predominated:
“(1) whether the throttle body assembly is defective, (2)
whether the defect reduces the value of the car, and (3)
whether Ford’s express ‘repair or replace’ warranty covers the
latent defect at issue in this case.” Id. at 554. The court distin-
guished the case from instances where “different class mem-
bers were exposed to different products such that the
uncommon issue of causation predominated over the lesser
shared issues.” Id. All plaintiffs received the same allegedly
defective product, and all had the same express warranty
claim that the car did not conform to the written warranty.
[7] As in Daffin, all of the proposed class members here
are covered by a Limited Warranty that provides for the repair
or replacement of defects, and all of the proposed class mem-
bers allege that their vehicles suffer from the same defect.
These claims require common proof of the existence of the
defect and a determination whether Land Rover violated the
terms of its Limited Warranty. Accordingly, we conclude that
common issues predominate regarding Land Rover’s obliga-
tions under its Limited Warranty.
[8] Land Rover’s other warranty, the Tire Warranty, pro-
vides that when tire wear is caused by a defect in the vehicles,
Land Rover will replace the tires and/or pay for realignment.
Claims for breach of the Tire Warranty do not easily satisfy
the predominance test. A determination whether the defective
alignment caused a given class member’s tires to wear prema-
turely requires proof specific to that individual litigant. See
Zinser, 253 F.3d at 1189 (although there may be common lia-
bility issues regarding a pacemaker defect, “to determine cau-
sation and damages for each of the three claims asserted here,
it is inescapable that many triable individualized issues may
be presented”). Tires deteriorate at different rates depending
on where and how they are driven. Whether each proposed
class member’s tires wore out, and whether they wore out pre-
maturely and as a result of the alleged alignment defect, are
WOLIN v. JAGUAR LAND ROVER 11995
individual causation and injury issues that could make class-
wide adjudication inappropriate. See In re Bridge-
stone/Firestone, Inc., 288 F.3d 1012, 1018-21 (7th Cir. 2002)
(reversing certification where plaintiffs alleged defective tire
design because a class action would not be manageable: tires
were recalled at different times, they may have differed in
their propensity to fail, some vehicles were re-sold, some
owners alleged they were advised to underinflate their tires,
and there were six tire models representing sixty-seven differ-
ent designs).
[9] As to the existence of a defect in the vehicles, failure
to disclose the defect, recovery pursuant to state consumer
protection laws, and breach of the Limited Warranty, we hold
that the district court erred when it required Gable and Wolin
to show that a majority of proposed class members’ vehicles
manifested the results of the defect. We reverse on this basis,
and remand for the district court to address the remaining
class issues. For example, appellants have set forth a proposed
plan for a trial bifurcated with a liability phase and a damages
phase, which the district court has not addressed. As to the
breach of the Tire Warranty claim, while we observe that this
claim may not be amenable to class treatment, the district
court still must address this issue on remand because it did not
previously address it in light of the threshold manifestation
requirement it imposed.
B. Typicality
[10] Land Rover argues that in any event class certification
is unwarranted because the proposed class fails to satisfy the
typicality requirement of Rule 23(a)(3). “The purpose of the
typicality requirement is to assure that the interest of the
named representative aligns with the interests of the class.”
Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.
1992). “The test of typicality is whether other members have
the same or similar injury, whether the action is based on con-
duct which is not unique to the named plaintiffs, and whether
11996 WOLIN v. JAGUAR LAND ROVER
other class members have been injured by the same course of
conduct.” Id. (internal quotation marks omitted).
Land Rover asserts that Gable’s and Wolin’s claims are not
typical because their tires indicate wear that is not the kind
attributable to vehicle alignment. However, Gable and Wolin
allege that they, like all prospective class members, were
injured by a defective alignment geometry in the vehicles.
Gable and Wolin and the class seek to recover pursuant to the
same legal theories: violation of consumer protection laws,
breach of warranty, and unjust enrichment. Land Rover has
identified no defenses that are unique to Gable and Wolin that
would make class certification inappropriate.
[11] Whether they experienced premature tire wear at six
months, nine months, or later goes to the extent of their dam-
ages and not whether named appellants “possess the same
interest and suffer[ed] the same injury as the class members.”
E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395,
403 (1977) (internal quotation marks omitted). Typicality can
be satisfied despite different factual circumstances surround-
ing the manifestation of the defect. See Daffin, 458 F.3d at
553. Gable and Wolin, like the rest of the class, may have a
viable claim regardless of the manifestation of the defect. The
fact that Gable and Wolin already received discounts and
some free services also does not defeat typicality. See Lym-
burner v. U.S. Fin. Funds, Inc., 263 F.R.D. 534, 540 (N.D.
Cal. 2010) (finding named plaintiff typical of class despite
availability of plaintiff-specific remedy and finding “no
authority for the argument that typicality is defeated because
the remedies may be different for class members or that the
availability of rescission as a remedy will monopolize this
case”). Gable’s and Wolin’s claims are typical of the class.
C. Superiority
[12] Finally, Land Rover argues that the district court’s
error was harmless because Gable and Wolin cannot demon-
WOLIN v. JAGUAR LAND ROVER 11997
strate that a class action is “superior to other available meth-
ods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). Generally, the factors relevant to
assessing superiority include “(A) the class members’ inter-
ests in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation
concerning the controversy already begun by or against class
members; (C) the desirability or undesirability of concentrat-
ing the litigation of the claims in the particular forum; and (D)
the likely difficulties in managing a class action.” Fed. R. Civ.
P. 23(b)(3)(A-D). This list is not exhaustive and other factors
may be considered.
“[T]he purpose of the superiority requirement is to assure
that the class action is the most efficient and effective means
of resolving the controversy.” 7AA Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Pro-
cedure § 1779 at 174 (3d ed. 2005). Where recovery on an
individual basis would be dwarfed by the cost of litigating on
an individual basis, this factor weighs in favor of class certifi-
cation. See Zinser, 253 F.3d at 1189; Hanlon, 150 F.3d at
1023. Rule 23(b)(3)’s superiority test requires the court to
determine whether maintenance of this litigation as a class
action is efficient and whether it is fair. This analysis is
related to the commonality test. Underlying both tests is a
concern for judicial economy.
[13] Gable and Wolin have identified 2100 and 1183 vehi-
cles at issue in their class actions, respectively, that would be
at issue in litigation in the same forum and that are subject to
the same consumer protection laws. Appellants aver that no
other prospective class members have filed other related
actions, and Land Rover does not dispute this point. The
amount of damages suffered by each class member is not
large. Forcing individual vehicle owners to litigate their cases,
particularly where common issues predominate for the pro-
posed class, is an inferior method of adjudication. Accord-
ingly, although alternative means of recovery are available,
11998 WOLIN v. JAGUAR LAND ROVER
e.g., small claims court, we conclude that class-wide adjudica-
tion “of common issues will reduce litigation costs and pro-
mote greater efficiency.” Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227, 1234 (9th Cir. 1996).
[14] Land Rover suggests that automobile-wear cases
involve inherently individualized determinations such that
classwide litigation would be inefficient and unmanageable.
Instead of pursuing a class action, Land Rover argues, pro-
posed class members should litigate separately the issues of
liability and causation. However, as discussed above, appel-
lants allege that their injury results not from bad tires, but
from a single, defective alignment geometry. It is far more
efficient to litigate this — the basis for their claim — on a
classwide basis rather than in thousands of individual and
overlapping lawsuits. Whether the alignment geometry was
defective, whether Land Rover violated its Limited Warranty
for defects within the vehicle, and whether Land Rover was
unjustly enriched because consumers’ vehicles are worth less
due to the defect are issues common to all class members and
can be litigated together. Proposed class members face the
option of participating in this class action, or filing hundreds
of individual lawsuits that could involve duplicating discov-
ery and costs that exceed the extent of proposed class mem-
bers’ individual injuries. Thus, classwide adjudication of
appellants’ claims is superior to other means of adjudicating
this case.
IV. Conclusion
For the reasons stated above, we reverse the district court’s
order denying Gable’s and Wolin’s motions for class certifi-
cation and remand for further proceedings not inconsistent
with this opinion.
REVERSED and REMANDED.