Dennis Speerly v. General Motors, LLC (143 F.4th 306, 2025)

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 25a0170p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ DENNIS SPEERLY; JOSEPH SIERCHIO; DARRIN │ DEGRAND; DANIEL DRAIN; WAVERS SMITH; RICHARD │ FREEMAN; CHRISTOPHER GILES; LOUIS RAY; RICHARD │ SULLIVAN; JAMES NORVELL; MICHAEL BANKS; GUY │ CLARK; MARIA BARALLARDOS; CARY SHERROW; > JASON KEVIN SINCLAIR; KIMBERLY COULSON; TROY │ No. 23-1940 COULSON; ANDRE MCQUADE; 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. │ │ GENERAL MOTORS, LLC, │ Defendant-Appellant. │ ┘ On Petition for Rehearing En Banc.

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-12371—David M. Lawson, District Judge. Argued En Banc: March 19, 2025 Decided and Filed: June 27, 2025 Before: SUTTON, Chief Judge; MOORE, COLE, CLAY, GRIFFIN, KETHLEDGE, STRANCH, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, MURPHY, MATHIS, BLOOMEKATZ, and RITZ, Circuit Judges. No. 23-1940 Speerly et al. v. General Motors, LLC Page 2 _________________ COUNSEL ARGUED EN BANC: Richard C. Godfrey, QUINN, EMANUEL, URQUHART & SULLIVAN, LLP, Chicago, Illinois, for Appellant. Douglas J. McNamara, COHEN MILSTEIN SELLERS & TOLL, PLLC, Washington, D.C., for Appellees. ON SUPPLEMENTAL BRIEF: Richard C. Godfrey, R. Allan Pixton, QUINN, EMANUEL, URQUHART & SULLIVAN, LLP, Chicago, Illinois, John F. Bash, QUINN, EMANUEL, URQUHART & SULLIVAN, LLP, Austin, Texas, Stephanie A.

Douglas, BUSH SEYFERTH PLLC, Troy, Michigan, Renee D. Smith, Cole T. Carter, 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. ON AMICI BRIEFS: John M. Thomas, DYKEMA GOSSETT PLLC, Ann Arbor, Michigan, Kyle M. Asher, DYKEMA GOSSETT PLLC, Lansing, Michigan, Aaron D. Van Oort, John L. Rockenbach, FAEGRE DRINKER BIDDLE & REATH LLP, Minneapolis, Minnesota, Brian D. Schmalzbach, MCGUIRE WOODS LLP, Richmond, Virginia, Philip S. Goldberg, SHOOK, HARDY & BACON L.L.P., Washington, D.C., Stephen A. D’Aunoy, KLEIN THOMAS LEE & FRESARD, St. Louis, Missouri, Brandon L. Boxler, KLEIN THOMAS LEE & FRESARD, Richmond, Virginia, Wendy Liu, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., William Alvarado Rivera, AARP FOUNDATION, Washington, D.C., David J.

Shea, SHEA LAW, PLLC, Southfield, Michigan, Adam J. Levitt, John E. Tangren, DICELLO LEVITT LLP, Chicago, Illinois, Jason L. Lichtman, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, New York, New York, for Amici Curiae. SUTTON, C.J., delivered the opinion of the court in which GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, JJ., concurred. THAPAR, J. (pp. 38–52), delivered a separate concurring opinion in which KETHLEDGE and MURPHY, JJ., concurred. NALBANDIAN, J. (pp. 53–65), delivered a separate concurring opinion in which GRIFFIN, J., concurred. MOORE, J. (pp. 66–112), delivered a separate dissenting opinion in which COLE, CLAY, STRANCH, MATHIS, BLOOMEKATZ, and RITZ, JJ., concurred. _________________ OPINION _________________ SUTTON, Chief Judge. With the introduction of automatic transmissions in cars, clutch pedals became obsolete for drivers who do not enjoy using a stick shift.

General Motors’ Hydra- Matic became the first readily accessible automatic transmission on the market in 1939. It had four gears. From 2015 to 2018, GM offered an eight-gear Hydra-Matic transmission. No. 23-1940 Speerly et al. v. General Motors, LLC Page 3 That version had two alleged problems. It led some GM cars occasionally to shudder, and it led some GM cars occasionally to lurch. The two problems had nothing to do with operator error, even if some of the symptoms called to mind the experience of getting a ride from a novice stick- shift driver. A group of car buyers filed a class action against GM to answer for the two defects under a range of state common law and statutory theories: express warranty, implied warranty, consumer protection laws, and fraudulent omission. The district court certified 26 state-wide subclasses with a total of 59 state-law claims on behalf of roughly 800,000 individual car buyers.

Because the subclasses do not meet the rigorous requirements for handling all of these cases in one district court, whether as one case or as 26 cases, we vacate the class-certification order. I. A transmission translates power into movement. The engine ignites gasoline, converting the chemical energy stored in fuel into the mechanical energy of a rotating crankshaft. The transmission prompts a range of gears to control how much of the crankshaft’s torque reaches the wheels, all by selecting an appropriate gear depending on the car’s speed. When used effectively, the gears use the engine’s torque efficiently and protect the crankshaft from wearing down. In 2015, GM released the “Hydra-Matic 8-Speed Transmission” as an upgrade to its prior models. R.220-3 at 138. Compared to their 6-speed predecessors, the “8L” transmissions offered “8 gear ratios,” which created two more refinements when it comes to engaging the most efficient gear “for performance, fuel economy and general drivability.” R.224-17 at 13, 15.

It did so, better yet, while taking up the same space and less weight than the six-speed transmissions. As GM tells it, the 8L’s hardware brought together “unique algorithms” that delivered “world-class shift-response times” with “performance that rival[ed] the” “transmissions found in many supercars—but with the smoothness and refinement that comes with a conventional automatic” transmission. R.41-5 at 3. As the class-action representatives tell it, GM knew about problems with the 8L transmission before the first car rolled off the lot. No. 23-1940 Speerly et al. v. General Motors, LLC Page 4 The class identifies two problems with the transmission. The first turns on the 8L’s transmission fluid, a lubricant that protects the gears and valves as the transmission operates. As customers drive, especially in humid climates, the fluid absorbs moisture “introduced via the vent system.” R.177-2 at 18–19, 63–64.

The moisture changes the fluid’s viscosity, which is calibrated to prevent the gears from slipping. When the gears lose traction and slip, the transmission vibrates. Some customers, especially those driving in high gears, feel a “shake/shudder feeling” akin to “driving over rumble strips or rough pavement.” R.177-3 at 2. A GM engineer noted as early as 2013 that the “shudder is terrible” on test cars. R.224-9 at 2. The problem led to a rash of warranty claims. After testing an “Option B” fluid that “did not address the sensitivity to water,” R.245-5 at 6, GM developed a “Mod1a” moisture-resistant fluid in December 2018, R.177-3 at 9–10. The company did not conduct a “field action”— similar to a recall—to notify customers that they could receive the new fluid. R.221-1 at 266. But it instructed dealers to resolve shudder complaints by flushing customer transmissions with the new fluid.

Most of the customers who received the replacement never complained about the shudder problem again. The second problem is “unrelated” and concerns how the transmission shifts gears. R.220-3 at 91. What makes a transmission automatic is its ability to monitor a vehicle’s speed and decide on its own which gear to apply. The 8L is no exception. Its “Transmission Control Module” first analyzes input from sensors across the vehicle. R.220-3 at 140. When the module software detects the need for a gear change, it instructs the hardware to manipulate the “pressure” and “direction” of transmission fluid to create hydraulic pressure, forcing the gears to change. R.220-3 at 140. The 8L transmissions, as it happens, sometimes add too much pressure and sometimes fail to “purg[e] trapped air” leaking into the valves. R.177-6 at 2. That design issue has a range of impacts.

Some customers feel nothing at all. Some customers who shift their vehicle gears from park to drive in the mornings feel a “[h]esitation” for one to five minutes, as if they remain in neutral, before they can drive their cars. R.177-6 at 2; R.225-3 at 10–11. Other customers feel the vehicles “jerk forward” when the transmission moves from higher to lower gears, as if they have been “rear-ended.” R.225-1 at 10, 15. The lunge forces customers to slam the brakes No. 23-1940 Speerly et al. v. General Motors, LLC Page 5 to stop. Still other customers feel the same “violent[] jerk[]” but only when shifting the transmission from lower to higher gears. R.225-7 at 10–11. After customers complained about this problem, GM tried to fix it. The company sent its dealerships 60 “Technical Service Bulletins”—what amount to warranty-covered hardware and software fixes—to resolve the issue.

R.220-3 at 262; R.177-6 at 23. While some of the workarounds “[i]mproved drive quality,” R.206-15 at 5, the underlying issues “could not be resolved without a major redesign of the transmission,” R.177-6 at 21. The company instructed dealers to tell customers that harsh shifting was “[c]haracteristic” of GM cars, R.206-15 at 5, while internally noting that “[r]eplacing transmission components or complete assemblies w[ould] not improve” harsh shift conditions, R.177-6 at 40. A full redesign solved the problem when GM released a second generation of eight-speed transmissions for the 2022 model-year (and later) vehicles. A group of customers who purchased the old vehicles filed this lawsuit on behalf of a putative class. Seventy-four plaintiffs from 32 states brought 104 claims against GM for breach of express warranty, breach of implied warranty, violation of state consumer protection statutes, and fraudulent omission.

The district court certified 26 statewide subclasses led by 33 named plaintiffs who purchased selected GM cars from model year 2015 to model year 2019, all with the 8L transmissions. The class, as certified, represents roughly 800,000 individuals. GM appeals. II. We start by stopping to consider whether we have jurisdiction over this case. Article III permits us to decide only “Cases” and “Controversies.” U.S. Const. art. III, § 2. That “irreducible constitutional minimum” requires that the plaintiff have suffered an “injury in fact,” “trace[able]” to the defendant’s actions, and “redress[able]” by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (quotation omitted). What gives pause is the first prong, injury in fact. It requires that a plaintiff suffer a “concrete” invasion that is “real, and not abstract.” TransUnion LLC v.

Ramirez, 594 U.S. 413, 424 (2021) (quotation omitted). “[T]raditional tangible harms” such as “monetary harms” count. No. 23-1940 Speerly et al. v. General Motors, LLC Page 6 Id. at 425. But the “mere risk of future harm, standing alone,” does not suffice for money- damages actions. Id. at 436. How does this test apply to a consumer who arguably overpays for a product because it allegedly has a hidden defect? Is that a sufficiently tangible and concrete harm to cross the Article III threshold? Most of our sister circuits say yes. If someone pays “more for [something] than they would have, had they known of the risks,” these courts have concluded, they suffer a concrete injury. In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 750–51 (7th Cir. 2011); In re Evenflo Co., Mktg., Sales Pracs. & Prods. Liab. Litig., 54 F.4th 28, 37–38 (1st Cir. 2022); Cole v.

Gen. Motors Corp., 484 F.3d 717, 722–23 (5th Cir. 2007); Nguyen v. Nissan N. Am., Inc., 932 F.3d 811, 815–16 (9th Cir. 2019); Debernardis v. IQ Formulations, LLC, 942 F.3d 1076, 1086– 87 (11th Cir. 2019). That company includes us, at least if we include an unpublished and non- binding decision. Loreto v. Procter & Gamble Co., 515 F. App’x 576, 581 (6th Cir. 2013). Two features of this case complicate the issue. First is the fact that some courts forbid, as a matter of standing, “purchasers without manifest defects” from “piggyback[ing] on the injury caused to those with manifest defects.” Johannessohn v. Polaris Indus. Inc., 9 F.4th 981, 988 (8th Cir. 2021). The Seventh Circuit likewise recently cabined overpayment-based injuries to exclude products containing only a “potential risk of harm.” In re Recalled Abbott Infant Formula Prods. Liab.

Litig., 97 F.4th 525, 530 (7th Cir. 2024). Second is the class-action posture of this case. The Supreme Court has not decided whether an unnamed class member’s lack of standing poses an Article III problem. See Gratz v. Bollinger, 539 U.S. 244, 262–63 (2003) (finding the matter unsettled); Sosna v. Iowa, 419 U.S. 393, 402–03 (1975) (suggesting that only the named plaintiffs need standing). No matter how the Court resolves the point, all agree that the class representatives at a minimum must show an injury. Sosna, 419 U.S. at 402–03; U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404 (1980). The parties and we agree that the class representatives in today’s case own cars that experienced these defects. “[E]very named plaintiff,” the district court found, “testified that their vehicles ‘manifested’ one or both alleged defects, repeatedly and continuously, despite multiple presentments and failed repairs.” R.284 at 46, 61–74.

The named plaintiffs suffered an injury in No. 23-1940 Speerly et al. v. General Motors, LLC Page 7 fact if their cars shuddered and shifted, even if their alleged overpayment for the cars may or may not suffice. The standing of absent class members becomes immaterial once a court, as here, vacates a certification order. Because “class members are not parties before class certification,” “a court need not worry about their standing until it certifies the class.” Fox v. Saginaw County, 67 F.4th 284, 296 (6th Cir. 2023). That is why a “class-certification denial will make a[n absent] class member’s standing problem irrelevant.” Id. at 297. Unless and until the district court certifies the class on remand, the absent class members’ standing makes no difference. We need to verify only that the named plaintiffs, who are parties from the start, have standing to pursue their claims.

They do on this record. III. We review the court’s decision to certify a class for abuse of discretion. In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013). The court must exercise that discretion “within the framework of Rule 23.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). A district court abuses its discretion if it misstates the law, relies on clearly erroneous facts, or makes a “clear error of judgment.” In re Ford Motor Co., 86 F.4th 723, 727 (6th Cir. 2023) (per curiam); In re Nissan N. Am., Inc. Litig., 122 F.4th 239, 245 (6th Cir. 2024). Class certification makes mountains out of molehills—sometimes fairly so, sometimes not. In this case, the named plaintiffs ask us to turn their 33 individual lawsuits involving dozens of cars into one lawsuit involving over 800,000 cars.

Because this “exponential aggregation” of parties “magnifies the stakes of litigation,” Ford, 86 F.4th at 726, bypasses our tradition of litigation by “individual named parties only,” Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979), and must steer clear of violations of the Seventh Amendment, see Ortiz v. Fibreboard Corp., 527 U.S. 815, 845–46 (1999), Civil Rule 23 imposes stringent requirements before permitting the aggregation of so many claims by so many people in one court. To these ends, the class must show that it is “so numerous” that joinder is impracticable. Fed. R. Civ. P. 23(a)(1). It must find “questions of law or fact common” to the class. Fed. R. Civ. P. 23(a)(2). The No. 23-1940 Speerly et al. v. General Motors, LLC Page 8 named plaintiffs’ claims or defenses must be “typical” of those of the unnamed class members. Fed. R.

Civ. P. 23(a)(3). And they must show that they will “fairly and adequately protect” class interests. Fed. R. Civ. P. 23(a)(4). For classes certified under Civil Rule 23(b)(3), like this one, the plaintiffs must show that common questions “predominate” and that litigation as a class is “superior to other available methods” of adjudication. This is not merely a pleading standard. The plaintiffs must affirmatively “prove” that the class meets the prerequisites for certification. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011); cf. id. at 369–72 (Ginsburg, J., dissenting). And they must do so with “significant proof.” Id. at 353 (majority op.) (quotation omitted). The trial court, for its part, must “probe behind the pleadings” and conduct a “rigorous” examination to ensure that the class satisfies Rule 23 before transforming the retail disposition of claims into the wholesale disposition of them.

See id. at 350–51. “[R]igorous” as in substance and process, we emphasize, not as in effort. Id. at 351. No one doubts the district court’s effort in this massive case. A glance at this docket confirms that a trial court facing a multi-state class action like this one deserves considerable respect and gratitude. In fact, at this stage, we have no reason to dwell on many of the district court’s class- action determinations: numerosity, typicality, adequacy of representation, and superiority. No one challenges the district court’s handling of them in this interlocutory appeal. More complicated are the commonality and predominance inquiries, where we train our attention. Rule 23 demands that the court conduct a structured two-step approach to assess commonality and predominance. Step one: check to see that the plaintiffs have identified a “common question of law or fact.” Fed.

R. Civ. P. 23(a)(2). To be common, a question must (1) yield a common answer with common evidence and (2) meaningfully progress the lawsuit. The decisionmaker must be able to resolve the question with “a yes-or-no answer for the class in one stroke.” Doster v. Kendall, 54 F.4th 398, 430–31 (6th Cir. 2022), vacated as moot, 144 S. Ct. 481 (2023) (quotation omitted). The district court must actually decide whether the questions are common, Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676–77 (7th Cir. 2001), meaning that it cannot “accept [allegations] as true or construe [evidence] in anyone’s favor,” Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1234 (11th Cir. 2016). If a reasonable No. 23-1940 Speerly et al. v. General Motors, LLC Page 9 decisionmaker left with the evidence may answer “yes” to a question for some class members and “no” for others, the class has not shown that it is common.

Doster, 54 F.4th at 430–31; Nissan, 122 F.4th at 252. Even then, not every question with a common answer meets Rule 23(a). Else, the fact that every customer sued GM about a GM car would create a common question suitable for class certification. The plaintiffs must also show that the question “affect[s] at least one” disputed “element” of the class’s claims. Doster, 54 F.4th at 430. To conduct a rigorous analysis, the court must “walk through each cause of action, identify the relevant elements, and evaluate which elements, if any, submit to common answers.” Nissan, 122 F.4th at 246–47. That leads to step two: ensure that the common questions “predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). The court must “put the common issues on one side, the individual issues on the other, then qualitatively evaluate which side predominates.” Nissan, 122 F.4th at 252 (quotation omitted).

If adding or subtracting plaintiffs from the class substantially varies the “substance or quantity of evidence offered” and the cost of doing so, see Fed. R. Civ. P. 23(b)(3), the individualized questions likely overwhelm the common ones. Brown, 817 F.3d at 1235. In conducting a Rule 23 analysis, the district court will inevitably address issues that overlap with the merits inquiry. It “cannot be helped” that commonality and predominance’s element-by-element, claim-by-claim inquiry implicates the merits of each claim. Dukes, 564 U.S. at 351; Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 465–66 (2013). How else could the court assess the elements of Rule 23? While a free-ranging merits prediction—do the claimants have a weak or strong product liability case?—is “not properly part of the certification decision,” the district court may—indeed, must—answer merits questions that bear on Rule 23’s demands.

Fed. R. Civ. P. 23 advisory committee’s note to 2003 amendment. The district court, as a result, must not defer merits questions bearing on commonality and predominance until summary judgment. That kind of deferral concept is nowhere in Rule 23’s text, which tells the court to refuse certification until it is assured that certification is proper. Fed. R. Civ. P. 23(a)–(b). The history of the Rules points in the same direction. The deferral No. 23-1940 Speerly et al. v. General Motors, LLC Page 10 possibility apparently grew out of a previous regime in which a district court could conditionally certify a class and prune the non-common, non-predominant issues later. But under the Rules Enabling Act, the Judicial Conference and the Supreme Court considerably narrowed, if not eliminated, that option in 2003 when it barred conditional certification and mandated that a district court “refuse certification” until it is “satisfied that the requirements of Rule 23 have been met.” See Fed.

R. Civ. P. 23 advisory committee’s note to 2003 amendment. Postponing Rule 23 inquiries until everyone has joined the class runs the risk of avoiding an issue for 33 plaintiffs today in order to decide it for 800,000 tomorrow. GM challenges the district court’s analysis at both steps of the process. That requires us to address two questions: Did the district court properly identify common questions of fact or law? And did the court properly find that those questions predominated over individual ones? IV. Commonality. A common question must “resolve an issue that is central to the validity of each one of the claims.” Dukes, 564 U.S. at 350. To ensure the questions, whether factual or legal, are central, a court must ensure that they “affect at least one element” of all 59 claims. Doster, 54 F.4th at 430. The court “must walk through each cause of action” and “identify the relevant elements.” Nissan, 122 F.4th at 246.

Because an issue is not “central” unless it affects at least one contested element in each cause of action, it flows from Wal-Mart that only an element-oriented analysis permits the court to identify which questions meaningfully move the lawsuit forward. 564 U.S. at 350. Only after identifying the relevant elements of each cause of action may it decide whether a “yes-or-no answer” would resolve an element “for the class in one stroke.” Doster, 54 F.4th at 431 (quotation omitted). A question is not common if the answer requires “evidence that varies from member to member.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quotation omitted). In assessing whether common issues predominate under Rule 23(b)(3), Tyson Foods clarified that a common question was one “where the same evidence will suffice for each member” to answer it. Id.

(quotation omitted). No. 23-1940 Speerly et al. v. General Motors, LLC Page 11 The district court reasoned that “three readily discernible common questions that are crucial to the pleaded causes of action” exist: whether the transmissions have shift and shudder defects; whether GM knew about them; and whether the defects are material. R.284 at 17. Every claim, it pointed out, “demand[s] proof of a defect in the vehicles’ transmission design.” R.284 at 13. Because the court determined that these questions lend themselves to a common answer and feature “prominently in the disposition of the case,” it found commonality satisfied. R.284 at 13, 17. With respect, that does not suffice. A court may not simply ask whether generalized questions yield a common answer. That would undermine the bedrock principle that courts must identify common questions with respect to concrete elements of each claim.

By hitching all 59 claims to a question about “defect” in the abstract, the court overlooked how significant differences across each cause of action raise serious commonality concerns. The plaintiffs, to illustrate the point, claim that the court may answer whether a “defect” exists in each transmission in one stroke. But that is not necessarily so in the context of the relevant elements of each claim. Do the plaintiffs mean “defect” in the products-liability sense because it is “unreasonably dangerous”? Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444 (Tex. 1989). Or do they mean “defect in an implied warranty” sense, as in unfit for the “ordinary purposes for which” the accused products “are used”? Id. Or do they mean defect in the sense of a consumer-protection statute, which asks if the feature “diminished” the “value of the product”?

Schiffner v. Motorola, Inc., 697 N.E.2d 868, 874 (Ill. App. Ct. 1998). That also means we can’t tell which claims the defect question might not be central to. The district court, for example, reasoned that the plaintiffs must identify a defect that is “covered by the express warranty to repair or renders the class vehicles unfit for their ordinary or intended purpose.” R.284 at 20. And it observed that, without “proof of a defect making the vehicles unsuitable for ordinary use,” “the plaintiffs cannot prevail on any implied warranty claims.” R.284 at 25. But these two claims ask different things of the class, confirming the imperative of an element-driven analysis. A court might find that the element of breach in an express-warranty claim asks a common question: Does a problem exist in each transmission that GM promised to fix? But the element of breach in an implied-warranty claim asks a different question: Does a No. 23-1940 Speerly et al. v.

General Motors, LLC Page 12 problem in each transmission amount to a defect that makes the car unfit for its ordinary purpose? The second question might not be common because some class members’ transmission problems might not seriously disrupt the safety and comfort of each class vehicle, especially for those customers who merely felt a “light punch” while upshifting while others felt a “lurch[].” R.225-22 at 18; R.225-26 at 4. The same goes for knowledge. Is the right question whether GM knew that the transmissions had problems with harsh shifting in 2015, as relevant to a consumer-protection claim? That might lend itself to a common answer to the extent test drivers knew about it. Or is the relevant question that GM knew that it couldn’t fix buyer vehicles and kept selling them anyway, as relevant to an express-warranty claim? That might not lend itself to a common answer because GM repaired the shudder defect in 252,059 8L transmissions, most of which GM presumably covered with its free warranties.

All of this suggests that, without an element-by- element commonality analysis, this court cannot effectively review which questions are truly central to which claims. We vacate and remand for the district court to conduct an element-by- element analysis that assesses how each question is common by fitting it into each claim. The dissent objects to this analysis on several grounds. It worries that this approach requires a “rote explication of every element for every cause of action” at the commonality stage. Dissent at 83. Not necessarily and not likely. As the Court said in response to the same critique in Wal-Mart, the plaintiffs need to identify only one question suitable for common proof with respect to each cause of action. 546 U.S. at 359. But that question must be central to the claim at hand; it can’t relate to a non-material point, such as whether the plaintiffs bought a GM car during the relevant period.

The plaintiffs must tie that debated question to “the relevant elements” of that claim; they cannot simply ask whether a “defect” exists in the abstract. And the plaintiffs must prove that common evidence would yield a common answer; they cannot ignore the individualized inquiries that might occur with respect to the allegedly “common” question. Nissan, 122 F.4th at 246–47; Doster, 54 F.4th at 432; see Dukes, 564 U.S. at 350–51. Because commonality’s one-question inquiry is less onerous than predominance’s all-questions- considered inquiry, this approach does not “transform[] Rule 23(a)(2) into a miniature Rule 23(b)(3) analysis.” Dissent at 106. No. 23-1940 Speerly et al. v. General Motors, LLC Page 13 The dissent insists that an “issue central to a claim does not necessarily mean an element of that claim,” Dissent at 82, because a “generalized question[], even if not directly tied to an element of a claim, can suffice to yield a common answer that drives the litigation forward,” id. at 84.

That may be true in some settings. A vital factual question may well turn a case. But an engineer alone, to put the point in the context of a product liability case, cannot resolve the commonality inquiry. It takes a lawyer, too. The class must trace the question to a legally salient element in each cause of action and show that common proof will provide yes-or-no answers to that factual/legal question. Doster, 54 F.4th at 430–31. Without this analysis, the district court cannot prove that a common defect drives all 59 claims forward, even if every plaintiff can prove that they had the same transmission. The dissent contends that Wal-Mart permits a district court to “craft a common contention subject to generalized proof.” Dissent at 85. That was possible in Wal-Mart because the claimants filed a “pattern or practice” claim under Title VII, in which the proof theoretically could be generalized and theoretically could lead to common yes-or-no answers for the entire class.

Wal-Mart, 564 U.S. at 353 (noting that a “general policy of discrimination conceivably could justify a class” bringing a Title VII claim if “the discrimination manifested itself in hiring and promotion practices in the same general fashion”) (quotation omitted). But even that possibility did not become a reality in Wal-Mart, as the Court rejected certification on commonality grounds. See id. at 359–60. If Wal-Mart is a refuge for this class-certification motion, it thus is not a very habitable one. The Court found commonality wanting even in the setting of a “pattern or practice” claim. Id. at 352. And today’s case does not involve a “pattern or practice” claim. Quite to the contrary, it involves a swath of distinct state-law claims in which it is difficult to see any generalized proof that would permit the yes-or-no answers that Wal-Mart requires.

See Doster, 54 F.4th at 430–31; Nissan, 122 F.4th at 246–47, 252; see also Dukes, 564 U.S. at 350–51. The dissent’s fourth point—that the plaintiffs have identified “the 8L transmissions’ two universal defects” as “one common contention that is capable of resolution,” Dissent at 75— illustrates why this analysis matters. Because “defect” bears different legal meanings for different causes of action, the class needs to explain how and why class-wide proof of each No. 23-1940 Speerly et al. v. General Motors, LLC Page 14 alleged fault in the transmission resolves a material component of each cause of action. Otherwise, the word “defect” becomes a chameleon for every cause of action, no matter how differently state law gauges the point, no matter how differently each alleged fault manifests. Put another way, we do not object to the district court’s commonality analysis because it was one page long.

The problem is one of process. By choosing to resolve the commonality question at the level of generality of a “defect,” the court did not measure the question’s impact on each cause of action. District courts can still efficiently conduct the one-question commonality analysis by identifying precisely how each common question advances each claim. To the extent that analysis remains “labored” in this instance, Dissent at 82, that turns on plaintiffs’ decision to bring 59 claims in one class action, not the imperatives of Rule 23(a). V. Predominance. This inquiry requires a district court to make a claim-by-claim comparison of the common and non-common questions to see which ones, if any, predominate. Before undertaking that review, two threshold challenges of bringing these 800,000 claims together deserve attention. First, there are high costs to a legal system that asks one district court to understand and apply nearly 60 causes of action across 26 states.

In taking on that task, the court must “follow the decisions of the state’s highest court when that court has addressed the relevant issue.” See Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008) (quotation omitted). But not all high courts have addressed all of the relevant claims as they apply to this action. In that setting, the court must “anticipate” through an educated guess “how the relevant state’s highest court would rule.” Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2013) (quotation omitted). That’s no mean feat. In certifying a class under Rule 23(b)(3), efficiency offers a good reason, sometimes an overriding reason. But, in making that call, it’s well to remember what concerns are being overridden. One is the “undesirability of concentrating the litigation of the claims in the particular forum” and “the likely difficulties in managing a class,” Fed.

R. Civ. P. 23(b)(3)(C)–(D), as opposed to “allowing the claims to be litigated separately in forums to which they would ordinarily be brought,” Fed. R. Civ. P. 23 advisory committee’s note to 1966 No. 23-1940 Speerly et al. v. General Motors, LLC Page 15 amendment. A bulky multi-state class action forces a federal court to play “central planner” to 26 state economies under “one case, one court, one set of rules,” and “one settlement price for all involved.” In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002). And it forces one federal judge to guess, sometimes in the first instance, the contours of local business norms. Id. The central-planner model also asks a lot of trial courts and juries. Would the court use hundreds of citizens to form 26 juries, one for each state? If it did, how would it demarcate subtle differences in state laws to comply with the Seventh Amendment’s command that “no fact tried by a jury, shall be otherwise reexamined”?

More complicated still, would the court empanel one jury to crown the winner, what amounts to empowering six Michigan citizens to predict 59 rules of the road for 26 state commercial and consumer norms? If the court took this approach, must it face head-on the “impossible task of instructing a jury on the relevant law” and provide 59 pages of verdict forms? Am. Med. Sys., 75 F.3d at 1085. Or would the trial court issue a central-planning “Esperanto” jury instruction that “merg[es] the negligence standards of the 50 states and the District of Columbia,” letting six people “hold the fate of an industry in the palm of its hand”? In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1300 (7th Cir. 1995). First principles of class-action law—Rule 23(b)(3)’s mandate that we consider “the likely difficulties in managing a class action” in assessing predominance, and the reality that “federal class action[s] based on state law” “undermine federalism,” Thorogood v.

Sears, Roebuck & Co., 547 F.3d 742, 745 (7th Cir. 2008)—deserve serious consideration before certifying such a large class. Second, this class action presents two theories of defect, each with multiple moving parts, exponentially increasing these challenges. In asking whether certification will “achieve economies of time, effort,” “expense,” and “uniformity of decision,” Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, courts should be wary about whether two different theories will both achieve these economies of scale. If just one theory for four causes of action in as many as 26 states presents daunting challenges, one should be wary about underwriting those risks for two theories. Many of our sister circuits recognize the perils that multi-state, multi-defect, multi-claim classes pose. They look skeptically on plaintiffs who “aggregate a plethora of discrete claims” No. 23-1940 Speerly et al. v.

General Motors, LLC Page 16 “into one super-claim” because doing so increases “the complexity of performing the required rigorous analysis” for certification, let alone trial. M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 848 (5th Cir. 2012) (quotation omitted); see Marisol A. v. Giuliani, 126 F.3d 372, 378–79 (2d Cir. 1997) (per curiam). Filing “a complex class action complaint alleging differing theories of recovery,” some of which are common and some not, typically reveals a “failure to demonstrate that the common issues predominate” across each theory. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 462–64 (4th Cir. 2003). That makes sense. Class actions “economiz[e] on the expense of litigation” by resolving key issues in one stroke. Thorogood, 547 F.3d at 744. Certifying multiple theories of liability turns a bet that resolving one set of claims will save time into a multi-leg parlay that resolving every set of claims will save time.

The class responds to this second concern with a citation to a Seventh Circuit case permitting certification in a case involving two theories of defect. Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013). But Butler underscores our point. The plaintiffs brought “two class actions” for two defects, prompting the district court to certify one class but not the other. Id. at 797–98. By contrast, the plaintiffs today ask us to certify both theories. While some courts have considered multiple-defect classes, see, e.g., Bridgestone, 288 F.3d at 1019 (refusing to certify on other grounds), we approach them with the caution commensurate with their risk. For like reasons, we cannot agree with the dissent that the union of two distinct theories, viewed through the prisms of 59 claims, poses only a “superficial difference.” Dissent at 93. The dissent claims that we should review only whether the district court’s analysis “was careful, thorough, and rigorous.” Dissent at 89.

But because the plaintiffs “must affirmatively demonstrate” compliance with Rule 23, Dukes, 564 U.S. at 350, because we don’t defer to district court readings of state law, Leavitt v. Jane L., 518 U.S. 137, 145 (1996) (per curiam), and because even one individualized issue risks dramatically increasing the costs of class litigation, a “rigorous analysis” demands that we confirm that the district court addressed each individualized concern. Dukes, 564 U.S. at 351. In addressing these concerns, the district court may not ignore “slight variations across state law.” Dissent at 89. The inquiry evaluates predominance within, not across, each of the 26 No. 23-1940 Speerly et al. v. General Motors, LLC Page 17 subclasses because they “are each treated as a class.” Fed. R. Civ. P. 23(c)(5). And even a slight variation in state law—say, a reliance requirement—might markedly increase the “difficulties in managing [the] class.” Fed.

R. Civ. P. 23(b)(3)(C). That helps to explain why the district court may not certify 26 subclasses on the ground that some of them do not have defect-manifestation requirements. Dissent at 98. Because a court must treat each subclass “as a class,” Fed. R. Civ. P. 23(c)(5), “each subclass must independently meet the requirements of Rule 23,” 7AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1790 (3d ed. 2005). A subclass with highly individualized issues may not ride the coattails of another subclass without them. Moving from the general to the specific, we turn to gauge whether any common questions for each of these four causes of action predominate over the non-common ones. A. Breach of Express Warranty Subclasses for 17 of the states—Alabama, Colorado, Delaware, Georgia, Idaho, Illinois, Kansas, Kentucky, Maine, Minnesota, New Hampshire, New Jersey, New York, Oklahoma, South Carolina, Texas, and Washington—bring express warranty claims.

Common questions do not appear to predominate in any of them. Alabama shows why. It offers a typical approach by handling express warranty claims under general contract principles. Ex parte Miller, 693 So. 2d 1372, 1376 (Ala. 1997). Under that state’s law, the claim requires the plaintiff to show a (1) valid contract, (2) performance by the plaintiff, (3) non-performance by the defendant, and (4) damages. Childs v. Pommer, 348 So. 3d 379, 387 (Ala. 2021). An examination of the first and third elements, as applied to this class action, reveals the problem. At one level, the first and third elements lend themselves to some common proof. A valid warranty consists of an “affirmation of fact” relating to the goods, forming part of the bargain. Ala. Code § 7-2-313(1)(a). And the record suggests that each member of this subclass received the same warranty or at least one that was materially the same.

With the presentation of a warranty, GM promised to cover “any vehicle defect” and pay for “repairs, including towing, No. 23-1940 Speerly et al. v. General Motors, LLC Page 18 parts, and labor” “at no charge.” R.41-2 at 9; R.41-3 at 10; R.245-60 at 10. The third element— breach—requires a court to answer what looks like one common question: Did GM originally install defective transmissions in each vehicle? But the breach inquiry also presents an individualized question that overwhelms the efficiency gains of the common questions. Because the contract makes “repairs” the “exclusive remedy” for defect problems, R.245-60 at 17–18; R.41-2 at 17; R.41-3 at 19, GM fails to perform only if it refuses to repair the buyers’ cars or does so ineffectively. Am. Suzuki Motor Corp. v. Burns, 81 So. 3d 320, 325 (Ala. 2011). Whether the class members brought their vehicles in for repair is deeply individualized.

Some people brought their cars in for repair during the warranty period, and some did not. Some buyers received software repairs, and some received hardware repairs. Some repairs fixed shudder and shift problems, and some did not. Some technicians could replicate customer concerns, and some could not. Some customers received “[s]ervice [c]alibrations” that improved shift quality, and some did not. R.206-15 at 5. All of this means that the “substance or quantity of evidence offered” varies among unnamed class members. Brown, 817 F.3d at 1235 (quotation omitted). That is a problem. Worse, that problem pervades every individual express-warranty claim. By our reading, every one of the seventeen states provides that a seller breaches a repair warranty only when he fails to repair something, not when the defect manifests. Cooley v. Big Horn Harvestore Sys., Inc., 813 P.2d 736, 744–45 (Colo. 1991); Gutridge v.

Iffland, 889 A.2d 283, at *1, *4 n.11 (Del. 2005) (unpublished table decision); Feinour v. Ricker Co., 566 S.E.2d 396, 398 (Ga. Ct. App. 2002); Clark v. Int’l Harvester Co., 581 P.2d 784, 801 (Idaho 1978); Mydlach v. DaimlerChrysler Corp., 875 N.E.2d 1047, 1059 (Ill. 2007); Voth v. Chrysler Motor Corp., 545 P.2d 371, 378 (Kan. 1976); Moore v. Mack Trucks, Inc., 40 S.W.3d 888, 891 (Ky. Ct. App. 2001); Inniss v. Methot Buick-Opel, Inc., 506 A.2d 212, 216 (Me. 1986); Anderson v. Crestliner, Inc., 564 N.W.2d 218, 222 (Minn. Ct. App. 1997); Welch v. Fitzgerald-Hicks Dodge, Inc., 430 A.2d 144, 148 (N.H. 1981); Kearney & Trecker Corp. v. Master Engraving Co., 527 A.2d 429, 434–35 (N.J. 1987); Solomon v. Canon USA, Inc., 920 N.Y.S.2d 565, 566 (N.Y. App. Term 2010) (per curiam); Osburn v. Bendix Home Sys., Inc., 613 P.2d 445, 449–50 (Okla. 1980); No. 23-1940 Speerly et al. v.

General Motors, LLC Page 19 Cannon v. Pulliam Motor Co., 94 S.E.2d 397, 400 (S.C. 1956); Northland Indus., Inc. v. Kouba, 620 S.W.3d 411, 417 (Tex. 2020); Schroeder v. Fageol Motors, Inc., 544 P.2d 20, 25 (Wash. 1975). That is not surprising. Alabama, like the other 16 states with express warranty claims, follows Article 2 of the Uniform Commercial Code, which permits merchants to limit the remedies for warranty breaches to the “repair and replacement of non-conforming goods or parts.” U.C.C. § 2-719(1)(a) (Am. L. Inst. & Unif. L. Comm’n 2022). Because that framework requires a district court to differentiate those who received a successful repair from those who did not, a claim-by-claim, element-by-element analysis should have revealed that presentment poses an individualized task, one unsuitable for class relief. The class and the dissent seek to fend off this conclusion by noting that the plaintiffs need not present their vehicles for repair if GM could not fix them.

Some states, true enough, do not require a buyer to seek a futile repair. See, e.g., Nissan, 122 F.4th at 250. But any warranty- covered Mod1A flushes would have fixed the shudder problems. And some of GM’s software and hardware calibrations materially improved shift quality. That all suggests that some of the warranty repairs would not “fail of [their] essential purpose.” Ga. Code Ann. § 11-2-712(2); Dissent at 94. Because the district court never conducted that analysis state by state, it left unclear whether this is an abstract problem or a real one. The court instead dismissed GM’s objections as “merits issues that are irrelevant at this stage.” R.284 at 52. In fairness to the district court, the case law in this area is riddled with loose language along these lines—either language that reserves some merits inquiries for trial or reserves the right to revisit class definitions and certification orders if problems emerge down the road.

In one sense, these cautions are understandable. No one can predict the future, and some humility is in order about the handling of a years-away trial. But if the predominance inquiry is to serve its critical function, it cannot be answered by “maybe,” “perhaps,” and other “what ifs” that leave the hard questions for later or, worse, that ignore the questions that cut against certification. The arc of a properly handled class action puts the difficulty of answering individualized legal and factual questions together at No. 23-1940 Speerly et al. v. General Motors, LLC Page 20 its apex during the class-certification inquiry—and most especially during the predominance inquiry. It is not a merits question that can be sloughed off until a “later” that may never come. That makes sense, given what’s at stake during class certification. “While the benefits to the individual class members are usually miniscule, the possible consequences of a judgment to the defendant are so horrendous that these actions are almost always settled,” making the class- certification order too often the main event.

See Henry J. Friendly, Federal Jurisdiction: A General View 119–20 (1973). “[I]ncorrectly certified classes . . . coerce businesses into costly settlements that they sometimes must reluctantly swallow rather than betting the company on the uncertainties of trial.” Lab’y Corp. of Am. Holdings v. Davis, 145 S. Ct. 1608, 1612 (2025) (Kavanaugh, J., dissenting). These “coerced settlements substantially raise the costs of doing business” for companies, which “in turn pass on those costs to consumers,” investors, and workers. Id. Properly applied, the predominance inquiry (and sometimes the superiority inquiry too) avoids that risk by focusing on whether the class action would lead to a fair and efficient trial, not a settlement. An element-by-element comparison of a cause of action to determine whether common questions do, or do not, predominate requires a consideration of all of the elements of each legal claim at the outset.

Any other approach does not come to grips with the central point of the predominance inquiry and subverts the fairness and efficiency considerations underlying Rule 23. All in all, we are doubtful that the common questions predominate over the non-common ones with respect to this cause of action. But we leave it to the district court to apply these principles in the first instance. B. Breach of Implied Warranty Subclasses for 14 states—Arkansas, Colorado, Delaware, Georgia, Illinois, Kansas, Maine, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oklahoma, and South Carolina—raise implied warranty claims. Here, too, a predominance problem emerges. Georgia, as an exemplar of this cause of action, illustrates why. In the Peach State, breach of the implied warranty of merchantability requires a plaintiff to prove four elements: (1) the goods were subject to a warranty, (2) the goods were defective, (3) the defect No. 23-1940 Speerly et al. v.

General Motors, LLC Page 21 caused an injury, and (4) that injury caused damages. Mitchell v. BBB Servs. Co., 582 S.E.2d 470, 471–72 (Ga. Ct. App. 2003). Defectiveness bears a technical meaning in the implied- warranty context. Cf. Nissan, 122 F.4th at 248–49. A car is merchantable if it “pass[es] without objection in the trade under the contract description,” is of “fair average quality,” and is “fit for the ordinary purposes for which” it is used. Ga. Code Ann. § 11-2-314(2). The first and second elements appear to implicate some questions yielding common answers, though the court should re-assess whether they are central to each claim on remand. The court must know whether GM’s transmission was defective before it can tell whether that defect rendered GM cars unmerchantable. And GM can supply a single answer to identify the “ordinary purpose[]” for which reasonable consumers use cars: driving.

Id. But the second element also has individualized features that rebalance the ledger. Determining whether the alleged common defects made the cars unmerchantable compels individualized inquiries twice over. First, different environmental conditions led to different presentations of the alleged defect—and sometimes meant the defect never appeared. Drivers in dry climates experienced fewer instances of shudder because less moisture polluted the automatic transmission fluid. The defendants have attached a compilation of class members who “never experienced shudder” or “no longer” do. R.245-59 at 2. Under Georgia law, a car may have “minor problems” that “never render[] the vehicle unusable,” and that’s especially so if the dealer resolves them “in [a] timely fashion.” Soto v. CarMax Auto Superstores, Inc., 611 S.E.2d 108, 110 (Ga. Ct. App. 2005).

Second, the defects that did manifest did so in different ways. Take the alleged shifting defect. Some customers felt a “light punch in the arm” while upshifting. R.225-22 at 18. Others felt a “hesitat[ion]” while accelerating. R.225-16 at 4–5. Still others found their cars “lurch[ing] forward” when entering second gear. R.225-5 at 8. These individualized inquiries, which require assessing the presence and extent of the defect, vary from class member to class member. See Brown, 817 F.3d at 1235. Such variations make it difficult to conclude that the common questions predominate. No. 23-1940 Speerly et al. v. General Motors, LLC Page 22 Every other state at issue agrees. Their positions reflect the commercial norm that a “product is merchantable” if a defective “feature does not make the product as a whole unfit.” 2 Hawkland Uniform Commercial Code Series § 2-314:3 (database updated 2024).

And each state under which the plaintiffs have brought implied-warranty claims has concluded that unmerchantability does not turn alone on whether there is a defect in a component part. The class must prove that the defect made the entire product unfit for ordinary use. See, e.g., H.A.S. of Fort Smith, LLC v. J.V. Mfg., Inc., No. CA03-1445, 2004 WL 2102009, at *3 (Ark. Ct. App. Sept. 22, 2004); Anderson v. M.W. Kellogg Co., 766 P.2d 637, 643 (Colo. 1988) (en banc), Freedman v. Chrysler Corp., 564 A.2d 691, 697–99 (Del. Super. Ct. 1989); Malawy v. Richards Mfg. Co., 501 N.E.2d 376, 383–84 (Ill. App. Ct. 1986); Hodges v. Johnson, 199 P.3d 1251, 1260 (Kan. 2009); Suminski v. Me. Appliance Warehouse, Inc., 602 A.2d 1173, 1175 (Me. 1992); Rosenbaum v. Toyota Motor Sales, USA, Inc., No. 16-CV-12645, 2016 WL 9775018, at *2 (E.D. Mich. Oct. 21, 2016), aff’d, 708 F.

App’x 242 (6th Cir. 2017) (applying Michigan’s definition of merchantability to suggest that the Toyota Prius’s poor performance in “electric mode” does not make it unmerchantable in general); Tellinghuisen v. Chrysler Grp., LLC, No. A13-2194, 2014 WL 4289014, at *3 (Minn. Ct. App. Sept. 2, 2014); Ferrari v. Am. Honda Motor Co., Inc., No. L-4296-06, 2009 WL 211702, at *3–4 (N.J. Super. Ct. App. Div. Jan. 30, 2009) (per curiam); see Welch, 430 A.2d at 147–49 (New Hampshire law); Wojcik v. Empire Forklift, Inc., 14 A.D.3d 63, 66 (N.Y. App. Div. 2004); Perry v. Lawson Ford Tractor Co., 613 P.2d 458, 463 (Okla. 1980); Seaside Resorts, Inc. v. Club Car, Inc., 416 S.E.2d 655, 662 (S.C. Ct. App. 1992). Even if the class may answer with one voice whether the 8L transmissions were defective, the class must answer with many voices whether their specific cars became unmerchantable given how their specific transmissions revealed the alleged defect.

(As a sidenote, the GM express warranty contracts say that repair is the only remedy for implied-warranty claims. If so, the presentment issues identified under the express-warranty claims may apply here as well.) The proposed class is not analogous to certifying “a class of people sick with a cold because some sniffled” and “others coughed.” Dissent at 93. At issue are two distinct engineering diagnoses involving two different transmission components that GM fixed in No. 23-1940 Speerly et al. v. General Motors, LLC Page 23 different ways under different repair schedules. These are hardly “superficial differences,” Dissent at 93, in the context of an implied-warranty claim, to use one example. How the 8L transmission problems manifest is precisely what matters for merchantability in showing how bad the driving experience becomes for each consumer.

To the extent healthcare offers a useful analogy to this case, it would be to a class of hospital patients in which some patients had scurvy and others had gout—different diagnoses and different symptoms. As with the class’s express-warranty claims, we doubt that the common questions predominate over the non-common ones with respect to the implied-warranty claims. But we leave it to the district court to apply these principles in the first instance. C. Consumer Protection Statutes Subclasses for 23 states—Alabama, Arizona, Arkansas, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, Washington, and Wisconsin—bring claims under their consumer-protection statutes. These claims face two general hurdles. The first is a requirement in some states that a product defect must manifest before a consumer may bring such a lawsuit.

The second is a requirement in some states that a consumer must show he actually relied on a merchant’s misrepresentation or omission. Only the state regimes that impose neither requirement avoid these predominance pitfalls. Manifest Defect. States have options when a car company sells a product with a risk of injury. They may compensate with remedies that sound in tort, allowing recovery only to those physically injured by a manifest defect. Bridgestone, 288 F.3d at 1017 n.1. But because tort remedies usually don’t countenance “purely economic losses,” 2000 Watermark Ass’n, Inc. v. Celotex Corp., 784 F.2d 1183, 1185 (4th Cir. 1986), they may choose remedies that sound in contract and allow every buyer to recover for the decreased value of a risky product, even if the risk does not manifest, Bridgestone, 288 F.3d at 1017 n.1. Because the tort-like approach poses an individualized query, the district court must identify which statutes follow which model.

Texas shows how a manifest-defect requirement overwhelms any common questions. In the Lone Star State, a plaintiff must show that “(1) he is a consumer, (2) the defendant engaged No. 23-1940 Speerly et al. v. General Motors, LLC Page 24 in a false, misleading, or deceptive act, and (3) the act constituted a producing cause of economic damages.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 857 (Tex. App. 2005). To address the second element, the court must assess whether GM’s 8L transmissions were prone to shudders and harsh shifts, a matter that might lend itself to common proof. But the third element, causation and injury, hampers a class-wide yes-or-no answer. Under Texas law, economic loss “from a defect that has not manifested” is “too remote in time to constitute an ‘injury.’” Id. at 858. That brings to the surface highly individualized questions, doubly so in view of the plaintiffs’ two theories of defect: identifying which customers actually experienced shudders and which customers actually experienced harsh shifts.

In addition, the court must understand which consumers’ shudders and harsh shifts arose from the transmissions rather than, say, their tires, as worn tires may create a shudder as well. Just as with the implied warranty claims, those questions appear to overwhelm the common ones. Texas is not alone. Arkansas, New Hampshire, New York, Oklahoma, and Wisconsin take the same approach. Wallis v. Ford Motor Co., 208 S.W.3d 153, 161 (Ark. 2005) (“Where the only alleged injury is the diminution in value of the product, a private cause of action is not cognizable under the ADTPA.”); Parnell v. FanDuel, Inc., 591 S.W.3d 315, 319–20 (Ark. 2019); Nichols v. Gen. Motors Corp., No. 99-C-566, 1999 WL 33292839, at *3–5 (N.H. Super. Ct. Dec. 13, 1999) (barring a consumer claim for failure to allege that “the unreasonably [un]safe condition . . . has manifested itself”); Frank v.

DaimlerChrysler Corp., 292 A.D.2d 118, 121–28 (N.Y. App. Div. 2002); Tietsworth v. Harley-Davidson, Inc., 677 N.W.2d 233, 236–37 (Wis. 2004); see Walls v. Am. Tobacco Co., 11 P.3d 626, 629 (Okla. 2000). Although the Alabama Supreme Court has not directly spoken on this issue, we understand Alabama law to bar consumer claims generally when a defect doesn’t manifest. Ford Motor Co. v. Rice, 726 So. 2d 626, 628–29 (Ala. 1998). The same is true of Minnesota, which rejects “allegation[s] of diminished value due to a propensity to fail” as too “conjectural” and “speculative.” Carey v. Select Comfort Corp., No. 27CV 04-015451, 2006 WL 871619, at *3 (Minn. Dist. Ct. Jan. 30, 2006); see O’Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009). By contrast, 12 states—Arizona, Delaware, Florida, Illinois, Kansas, Kentucky, Maine, Michigan, New Jersey, Pennsylvania, Tennessee, and Washington—appear not to require a No. 23-1940 Speerly et al. v.

General Motors, LLC Page 25 defect to manifest. Consumer statutes in those states, as we read them, support a price-premium theory of harm, where someone who purchases a car expecting a defect-free transmission but receives a defective transmission has suffered a cognizable harm. See Pena v. Opic, No. 1 CA- CV 09-0401, 2010 WL 1998152, at *5–7 (Ariz. Ct. App. May 18, 2010); Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1076 (Del. 1983); Collins v. DaimlerChrysler Corp., 894 So. 2d 988, 990 (Fla. Dist. Ct. App. 2004);