In determining whether common questions of law or fact predominate as required by Federal Rule of Civil Procedure 23(b)(3), the Ninth Circuit Court of Appeals recently clarified that the manifestation of a product defect is not required to certify a class action, but merely the existence of a common defect. Requiring proof of a manifestation of the defect is actually a question relating to whether class members will win on the merits at trial, which is not required at the class certification stage.

In Wolin v. Jaguar Land Rover North America LLC, the plaintiffs contended that an alignment geometry defect caused the tires on their Land Rover LR3s to wear prematurely in violation of state consumer protection laws. The district court had denied class certification because the plaintiffs could not demonstrate that other prospective class members had experienced the same manifestation of the defect, i.e. premature tire wear. The appellate court reversed the district court even though individualized factors might affect tire wear, because proof of a defect in the alignment geometry was susceptible to generalized evidence.

Plaintiffs further argued that Land Rover's failure to repair the defect and replace the tires was a breach of its limited factory warranty and its separate tire warranty. As to the limited warranty, the court found that all class members were covered by the warranty, they all alleged that their vehicles suffered from the same alignment defect, and that the warranty provides for the repair or replacement of all defects. Certification of the breach of warranty claim was therefore appropriate as to the limited factory warranty.

The cause of action alleging breach of the tire warranty, on the other hand, was not certified as a class action because the warranty only provided for the replacement of tires if the premature wear was due to a defect in the vehicles. The individual issues predominated over the common issues because the tires could have worn prematurely due to the alignment defect or based on factors such as where and how they were driven.

Note: The Ninth Circuit appeared to use an analysis similar to the one used by the California Second Appellate District, Division One in Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286. In Jaimez the court said in order to properly analyze predominance Courts must look to the theory of recovery advanced by the plaintiff. Mere factual disputes about the validity of the claims were merit disputes.