## Facts

- Jeffrey Marcus leased a BMW convertible equipped with Bridgestone run-flat tires (RFTs) and experienced four flat tires during the lease term.
- Each time, the RFTs permitted continued driving to a BMW dealer for replacement, consistent with run-flat design.
- Marcus alleged the RFTs were defective because they were unusually prone to flats, punctures, and bubbles; could not be repaired after small punctures; and were expensive to replace.
- Marcus also alleged BMW vehicles equipped with the RFTs could not be retrofitted with conventional tires and that defendants did not disclose these alleged drawbacks at the point of sale or lease.
- Marcus filed a putative Rule 23(b)(3) damages class action in the District of New Jersey asserting New Jersey Consumer Fraud Act (NJCFA) claims and common-law breach of warranty and contract claims.
- He sought to certify a class of New Jersey residents who purchased or leased certain BMW vehicles equipped with Bridgestone RFTs and whose RFTs “have gone flat and been replaced.”
- The district court certified the class, and BMW and Bridgestone obtained interlocutory review under Rule 23(f).

## Issues

1. Whether the proposed class was sufficiently definite and ascertainable, including whether there was a reliable and administratively feasible method to identify class members.
2. Whether the plaintiff produced evidence establishing numerosity under Rule 23(a)(1).
3. Whether common issues predominated under Rule 23(b)(3), particularly as to defect, causation, and consumer knowledge/disclosures relevant to NJCFA causation and loss.

## Decision

- The Third Circuit vacated the class-certification order and remanded.
- The court held the district court abused its discretion by certifying without the required rigorous analysis of Rule 23.
- The court faulted the certification ruling for inadequate treatment of ascertainability, insufficient evidentiary support for numerosity, and failure to address individualized issues undermining predominance.

## Legal Principles

- A Rule 23(b)(3) class must be ascertainable as a threshold matter; the class definition must permit identification of members through objective criteria.
- If class membership cannot be determined from a defendant’s records, the proponent must show a reliable and administratively feasible alternative method; certification should not rest on unverified self-identification.
- The party seeking certification bears the burden to affirmatively demonstrate Rule 23 compliance with evidence, not speculation or generalized assertions, including as to numerosity.
- Predominance requires that liability elements be provable with common evidence; where causation turns on individualized reasons for each injury, individualized issues may predominate.
- For consumer-fraud omission theories, variations in what consumers knew or were told can create individualized causation questions that defeat predominance.
- Rule 23 requires a rigorous, evidence-based inquiry that may overlap with merits issues when necessary to decide certification prerequisites.

## Conclusion

The Third Circuit set aside certification of a New Jersey damages class challenging Bridgestone run-flat tires because the record did not show a workable, objective way to identify members, did not support numerosity with evidence, and did not establish that common proof would predominate over individualized causation and disclosure questions.


Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012)