On May 29, the District of New Jersey denied a motion for class certification filed by two named plaintiffs seeking to represent two classes of current or former owners of certain models of BMWs. The court found that the plaintiffs could not satisfy Rule 23’s numerosity, typicality, or ascertainability requirements in various respects.

• Plaintiffs David Afzal and Angkhana Dechartivong filed their putative class action against BMW, claiming that their vehicles and other 2008–2013 BMW M3 vehicles were designed with insufficient clearance between the rod and the bearing, resulting in premature wear and engine damage.
• The plaintiffs brought claims for breach of warranty and violations of various California consumer protection statutes and proposed two classes: (i) a warranty class consisting of consumers who resided in California and purchased a class vehicle that was covered by warranty, and (ii) a dealership class consisting of California consumers who purchased a class vehicle from an authorized BMW dealership in California and either currently owned a vehicle with fewer than 120,000 miles or incurred out-of-pocket costs to replace the rod bearings while owning the vehicle when it had fewer than 120,000 miles.
• The court denied certification as to both classes. With respect to the warranty class, the court found that neither named plaintiff’s claim was typical of the warranty class because there were unique defenses as to each.
  • Specifically, Plaintiff Afzal had modified his BMW’s software and transmission system and installed a supercharger, and Plaintiff Dechartivong’s vehicle had been used in competitive motorsports. These actions arguably voided their respective warranties, which contained express exclusions for equipment modifications and participation in competitive events.
• As for the dealership class, the court first found that the plaintiffs failed to show numerosity because their expert only provided estimates of the number of class vehicles still in use (5,829). While this number would be sufficient to warrant class treatment, it was necessarily overinclusive because:
  • The expert did not supply evidence of (i) how many persons owned vehicles purchased from authorized dealers with fewer than 120,000 miles or (ii) how many persons had purchased vehicles from authorized dealers and then incurred costs for replacing the rod bearings before the vehicles reached 120,000 miles.
  • Moreover, since only one of the two named plaintiffs was a member of the class (the other did not purchase his vehicle from an authorized dealer), “all the Court can determine is that the number of Dealership Class members is somewhere between 5,829 and one. But within that range, all the Court can do is speculate.” Thus, the plaintiffs failed to meet their burden of demonstrating numerosity.
• Additionally, the dealership class did not comport with the Third Circuit’s watershed ascertainability ruling in Carrera v. Bayer Corp., 727 F.2d 300 (3d Cir. 2013), because Plaintiffs failed to propose any method to ascertain whether a putative class member incurred out-of-pocket costs to repair their rod bearings. This was particularly true with respect to former owners, as nothing in the record suggested that such class members routinely retain service records of vehicles they no longer own.
• This case illustrates three important principles when challenging Rule 23 requirements:
  • First, a defendant should hold plaintiffs to their burden of demonstrating with affirmative proof that the numerosity requirement has been met with respect to all classes. Courts may not speculate based on membership estimates of the largest class, or a differently defined subclass.
  • Second, a named plaintiff’s deposition is a vital means to suss out weaknesses in claims that could subject them to unique defenses, rendering them atypical.
  • Third, a class definition must be rigorously scrutinized for potential record-keeping issues that may preclude plaintiffs from showing a reliable and administratively feasible method to determine whether an individual meets the class criteria.
• Read the District of New Jersey’s decision here.