Caitlin Ahearn v. Hyundai Motor America

judgmеnt son; We vacate court’s Fanthorpe; Erin L. Eric Hadesh; P. Keeth; instructions to the Michael and remand with return John Kirk Mac Donald; Mandahl; Security Michael Nicholas case the Social Administration McDaniel; Mary Moran-Spicuzza; J. step-five a new determination.

Gary Pincas; Potter; Brandon Thom Purdy; Renghini; Rocco Michelle Singlteon; Smiley; Gregory Ken M. Sonstein; Starno; Gayle Roman A. Stephenson; Villicana; Andres Williams; Hirsch; Richard L. Bradford Cephas; Ashley Hill; E. David Chad McKinney; Schiffer; Mordechai Lisa IN RE HYUNDAI AND KIA FUEL Sands; Kendig; Gobel; Donald Kevin LITIGATION, ECONOMY Larson; McKinney; Eric Ryan Lin Cross; Hoffman; Phillip Debra Sim Espinosa; Kehlie R. Nicole Marie Hunt mons; Morales; Abelardo Peter Blu er; Wilton; Kaylene Jeremy Brady; P. Carolyn mer; Hammond; Leg Melissa Krauth; Graewingholt; Gunther Eric Kelly gett; Moffett; Grogan; Evan Thomson; Philip Reece Alex Matura Medina; Dominguez; Carlos Alberto ni; Rottner; Lydia Rezai; Nilufar Jack Bernard; Breien; Catherine Michael Kievit; Sanders; Bobby Bran Rebecca Gill; Schille; Laura Judith Thomas Torres; Armstrong; Sergio don Rich Stanton; Randy Rickert; Bryan. Zirkel Woodruff; ard Marshall Lawrence ; Kundrat; Smith; James Mari Robert Lipman; Gordon; Joel A. Kotova; Josipa Casey; Snyder; Luan Baker; Ben Nguyen; Brian Hattie Stephen Mary Hoessler; Gudgalis; James P. Williams; Holvey; Bill Lourdes Var Hayes; Reeves; Brian . Sam M gas; Snyder; Medina; Kendall Nomer Hammond; Nay Leggett; Mark Edwin Goff; Pyland; Sameria Ursula Marcell thons; Washburn; Ira D. Michael Kaye Holly Kurash; Chapman; Amro Dunst; Weber; Maha Brian Kamneel min; Mary Chapman; D’Angelo; John J, raj; Iocovozzi; Young; Kim Herbert Rudy; Ayman Mousa; George Shelly Bayard; Hasper; Linda Tricia Leslie Henderson; Jeffrey Hathaway; Dennis Fellers; Elliott; Bon Orlando James Murphy; Patterson; Douglas J. A. signore; Margaret Setser; Guillermo Gentry; Scott; John Linda Ruth Dan Quiroz; Kurash; Douglas Car Andres Kay Gilleland; Joseph Bowe; ielle Mi Georgia ullo; Sutta; L. Laura S. Desouto, Plaintiffs-appellees, chael Thomas; Olson; Eric J. Direnzo, Greg Petitioner-Appellee, Woodward; Myers; Tom Jerold Jennifer America; Motor Kia Motors Terhost; Cestaro; John Cameron America; Corporation; Kia Motors. Brown; Con Figueroa; Donald Maria Grossinger Autoplex, Inc., FKA Gros Ganim; Martyn; Dan stance Thomas Krafcik; Hyun singer Hyundai; John Levoff; Baldeschi; iel E. Giu Lillian Company; Kundrat, Motor dai Sarah Trader; Roberto; seppina Robert Sean Defendants-Appellees, Goldsberry; Cynthia Navarro; Owen Chapman; Brein; Michael Travis

Brissey; York, Burkard; Ahearn; Ronald Adam Caitlin Andrew Cloutier; Objectors-Appellants. Craig; J. Dix- Steven John McKinney; Ryan Larson; bel; Lin Eric Hyundai Fuel and Kia

In re Hoffman; Cross; Phillip Debra Sim Economy Litigation, Morales; Peter Blu mons; Abelardo re, Leg Carolyn Hammond; mer; Melissa Moffett; Grogan; Kelly gett; Evan Hunt Espinosa; Nicole Marie Kehlie R. Medina; Dominguez; Carlos Alberto Brady; Wilton; Kaylene er; Jeremy P. Breien; Bernard; Michael Catherine Krauth; Graewingholt; Eric Gunther Schille; Gill; Judith Thomas Laura Thomson; Philip Alex Matura Reece Randy Rickert; Bryan Stanton; Zirk Rottner; Lydia Rezai; ni; Nilufar Jack Smith; Kundrat; Bobby el; Ma Sanders; Robert Kievit; Bran James Rebecca Torres; Sny Kotova; Josipa Casey; Armstrong; Sergio Rich Luan ria don Woodruff; Baker; Nguyen; der; Lawrence Ben Brian Hattie Marshall ard Gordon; Lipman; Holvey; Williams; A. James Gud Lourdes Joel Bill Var Hoessler; Stephen Mary Medina; M. Snyder; P. galis; gas; Nomer Kendall Reeves; Hayes; Pyland; Goff; Brian Sam Ursula Marcell Sameria Hammond ; Naythons; Mi Leggett; Kurash; Holly Kaye Mark Edwin Amro Chapman; Dunst; Washburn; Brian Ira chael D. Mary D’Angelo; min; Chapman; John Maharaj; Weber; Kim Ioco Kainneel Mousa; Shelly Rudy; Ayman George Young; Has vozzi; J. Linda Herbert Jeffrey Hathaway; Henderson; Dennis Fellers; Bayard; Or per; Tricia Leslie Patterson; Douglas A. Murphy; J. Bonsignore; Elliott; lando James Scott; Gentry; Linda Ruth Dan John Quiroz; Setser; Margaret Guillermo Bowe; Kay Gilleland; Mi Joseph ielle Kurash; Carullo; Andres Douglas Desouto, Plaintiffs-Appellees, chael Thomas; Sutta; Georgia L. Laura S. Direnzo, Petitioner-Appellee, Greg Myers; Olson; Tom Jennifer Eric J. Woodward; Terhost; Cameron Jerold America; Hyundai Motors Motor Kia Brown; Cestaro; Maria John Donald Corporation; America; Kia Motors Martyn; Figueroa; Thomas Constance Autoplex, FKA Grossinger Gros Baldeschi; Ganim; E. Lillian Daniel Krafcik; Hyun singer Hyundai; John Roberto; Levoff; Giuseppina Robert Kundrat, Company; Sarah dai Motor Cynthia Trader; Goldsberry; Na Sean Defendants-Appellees, varro; Chapman; Michael Owen Brissey; Brein; Bur Ronald Travis Cloutier; Craig; kard; Steven Adam Objector-Appellant, Sberna, Antonio Dixson; Fanthorpe; Erin L. J.

John Keeth; Hadesh; P. John Eric Michael Fuel In re and Kia MacDonald; Mandahl; Michael Kirk Economy Litigation Mary McDaniel; Moran- Nicholas J. Nicole Marie Hunt Espinosa; Kehlie R. Gary Pincas;

Spicuzza; Brandon Pot Brady; Wilton; er; Jeremy Kaylene P. Renghini; ter; Purdy; Rocco Thomas Graewingholt; Krauth; Eric Gunther Smilеy; Greg Singlteon; Ken Michelle Thomson; Philip Alex Matura Reece Sonstein; Starno; ory M. Roman Rottner; Lydia Rezai; ni; Jack Nilufar Gayle Stephenson; Andres Villica A. Bobby Sanders; Kievit; Bran Rebecca Williams; na; L. Bradford Richard Torres; Armstrong; Sergio Rich Hill; don Hirsch; Ashley Cephas; E. David Woodruff; Lawrence Schiffer; McKinney; ard Marshall Mordechai Chad Gordon; Lipman; A. James Gud- Joel Kendig; Sands; Kevin Go- Donald Lisa

Í© ^[00] tH galls; Mary Hoessler; Stephen gas; P. Snyder; M. Medina; Kendall Nomer Hayes; Reeves; Hammond; Brian Sam Goff; Pyland; Sameria Ursula Marcell Leggett; Naythons; Mark Edwin Mi Chapman; Kaye Kurash; Holly Amro Washburn; Dunst; chael Ira D. Brian min; Chapman; Mary John D’Angelo; Weber; Maharaj; Kamneel Ioco Kim Rudy; Ayman George Mousa; Shelly vozzi; Young; Herbert J. Linda Has Henderson; Jeffrey Hathaway; Dennis per; Bayard; Fellers; Leslie Tricia Or Murphy; Douglas J. Patterson; A. Elliott; Bonsignore; lando James Gentry; Scott; John Linda Ruth Dan Setser; Margaret Quiroz; Guillermo Kay Gilleland; ielle Joseph Bowe; Mi Kurash; Douglas Canillo; Andres Desouto, Plaintiffs-Appellees, chael Sutta; Georgia Thomas; Laura L. S. Direnzo, Greg Petitioner-Appellee, Olson; Myers; Eric J. Jennifer Tom Woodward; Terhost; Jerold Cameron Hyundai America; Motor Kia Motors Cestaro; Brown; John Donald Maria America; Corporation; Kia Motors Figueroa; Martyn; Constance Thomas Grossinger Autoplex, Inc., FKA Gros Ganim; Baldeschi; Daniel Lillian E. singer Hyundai; Krafcik; Hyun John Levoff; Roberto; Giuseppina Robert Company; Kundrat, dai Motor Sarah Trader; Goldsberry; Cynthia Sean Na Defendants-Appellees, varro; Chapman; Owen Michael Brein; Brissey; Travis Bur Ronald v. kard; Cloutier; Craig; Adam Steven Fetsch, Peri Objector-Appellant. Dixson; Fanthorpe;

John J. Erin L. Hadesh; Keeth; Eric Michael P. John Hyundai In re and Kia Fuel MacDonald; Mandahl; Kirk Michael Economy Litigation McDaniel; Mary Nicholas J. Moran- Espinosa; R. Kehlie Nicole Marie Hunt Spicuzza; Gary Pincas; Brandon Pot er; Jeremy Wilton; Kaylene Brady; P. ter; Purdy; Renghini; Thomas Rocco Krauth; Graewingholt; Gunther Eric Singlteon; Smiley; Greg Michelle Ken Philip Thomson; Reece Alex Matura ory Sonstein; Starno; M. Roman Rezai; ni; Rottner; Lydia Nilufar Jack Gayle Stephenson; A. Andres Villica Kievit; Sanders; Bobby Rebecca Bran na; Williams; Richard Bradford L. Armstrong; Sergio Torres; don Rich Hirsch; Ashley Cephas; Hill; David E. Woodruff; ard Marshall Lawrence McKinney; Schiffer; Chad Mordechai Gordon; Lipman; A. Joel James Sands; Gud Kendig; Lisa Donald Kеvin Go galis; Mary Hoessler; Stephen P. M. bel; Larson; McKinney; Ryan Eric Lin Hayes; Reeves; Hammond; Brian Sam Cross; Hoffman; Phillip Debra Sim Leggett; Naythons; mons; Mark Edwin Mi Morales; Abelardo Blu Peter Washburn; mer; Carolyn Dunst; Hammond; chael Ira D. Brian Leg Melissa Weber; Maharaj; gett; Kelly Moffett; Kamneel Kim Ioco Grogan; Evan vozzi; Young; Medina; Herbert J. Dominguez; Carlos Linda Has Alberto Bayard; Bernard; per; Fellers; Breien; Leslie Catherine Tricia Or Michael Elliott; Gill; Schille; Bonsignore; Laura Thomas lando James Judith Stanton; Randy Setser; Rickert; Bryan Margaret Quiroz; Zirk Guillermo el; Smith; Carullo; Kundrat; Douglas Kurash; James Robert Andres Ma Kotova; Sutta; Josipa Casey; Sny Thomas; ria Georgia Luan Laura S. L. der; Baker; Nguyen; Olson; Myers; Ben Eric Brian Hattie J. Jennifer Tom Williams; Holvey; Woodward; Terhost; Bill Lourdes Var- Jerold Cameron i America; Motors Hyunda Kia Brown; Motor Cestaro; Donald Maria

John America; Corporation; Motors Kia Martyn; Thomas Figueroa; Constance Lillian E. Grossinger Autoplex, FKA Gros Baldeschi; Ganim; Daniel Krafcik; Hyun Hyundai; singer John Roberto; Giuseppina Robert Levoff; Kundrat, Company; dai Motor Sarah Goldsberry; Cynthia Trader; Na Sean Defendants-Appellees, Chapman; Michael varro; Owen Brissey; Brein; Ronald Bur Travis Craig; Cloutier; kard; Stevien Adam Objector-Appellant. Roland, Dana Dixson; Fanthorpe; Erin L.

John J. Fuel Kia In re Keeth; Hadesh; P. John Michael Eric Economy Litigation, Mandahl; MacDonald; Kirk Michael Mary McDaniel; J. Moran- Nicholas Espinosa; Marie Nicole Kehlie R. Hunt Pincas; Gary Pot Brandon Spicuzza; Jeremy Wilton; Kaylene Brady; er; P. Renghini; Purdy; ter; Rocco Thomas Graewingholt; Krauth; Eric Gunther Smiley; Greg Singlteon; Ken Michelle Thomson; Philip Alex Matura Reece Starno; Sonstein; ory Roman M. Rezai; Rottner; Lydia ni; Nilufar Jack Gayle Stephenson; A. Andres Villica Bobby Kievit; Sanders; Bran Rebecca Williams; L. na; Bradford Richard Sergio Torres; Armstrong; Rich don Hill; Hirsch; Ashley E. Cephas; David Woodruff; Marshall Lawrence ard Schiffer; McKinney; Mordechai Chad Gordon; Lipman; James Gud A. Joel Kendig; Sands; Kevin Go Donald Lisa Mary Hoessler; galis; Stephen M. P. Ryan Larson; McKinney; bel; Eric Lin Hammond; Reeves; Hayes; Brian Sam Hoffman; Cross; Phillip Debra Sim Naythons; Leggett; Mi Edwin Mark Morales; mons; Blu Peter Abelardo Washburn; Dunst; D. Brian Ira chael Hammond; Leg Carolyn mer; Melissa Maharaj; Weber; Kim Ioco Kamneel Moffett; Grogan; gett; Kelly Evan vozzi; Young; J. Linda Herbert Has ; Dominguez; Alberto Carlos Bayard; Fellers; Medina per; Tricia Or Leslie Breien; Bernard; Michael Catherine Bonsignore; Elliott; James lando Schille; Gill; Judith Thomas Laura Setser; Quiroz; Margaret Guillermo Rickert; Bryan Randy Stanton; Zirk Carullo; Kurash; Douglas Andres Smith; Kundrat; el; Ma Robert Thomas; James Sutta; Georgia L. Laura S. Sny Casey; Kotova; Josipa Luan ria Olson; Myers; Tom Eric J. Jennifer Baker; Nguyen; der; Hattie Brian Ben Woodward; Terhost; Jerold Cameron Holvey; Williams; Lourdes Var Brown; Bill Cestaro; Maria John Donald Snyder; Medina; gas; Nomer Martyn; Kendall Figueroa; Thomas Constance Goff; Pyland; Marcell Baldeschi; Ganim; Sameria Ursula E. Lillian Daniel Kurash; Holly Kaye Amro Chapman; Roberto; Levoff; Giuseppina Robert D’Angelo; Mary min; Chapman; Cynthia John Trader; Goldsberry; Na Sean Mousa; Shelly Rudy; Ayman George varro; Chapman; Michael Owen Hathaway; Henderson; Jeffrey Brein; Brissey; Dennis Bur Ronald Travis Patterson; Douglas Cloutier; Craig; A. Murphy; kard; J. Adam Steven Scott; Gentry; Dixson; Fanthorpe; Ruth Dan Linda Erin L. John John J. Keeth; Gilleland; Bowe; Hadesh; Mi Kay Joseph John P. ielle Eric Michael Desouto, MacDonald; Mandahl; Plaintiffs-appellees, Michael Kirk chael McDaniel; Mary J. Moran-

Nicholas Pincas; Gary Brandon Pot- Spicuzza; Direnzo, Greg Petitioner-Appellee, ter; Purdy; Renghini; Thomas Rocco Gentry; John Scott; Linda Ruth Dan- Singlteon; Smiley; Greg Kay Michelle Ken Gilleland; ielle Joseph Bowe; ory Starno; M. Roman Desouto, Sonstein; Plaintiffs, Michael Gayle Stephenson; A. Andres Villica na; Williams; Richard L. Bradford Feinman, James Ben Appellant, Hirsch; Ashley Cephas; Hill; E. David McKinney; Schiffer; Chad Mordechai Sands; Kendig; Lisa Donald Kevin Go Hyundai America; Motor Kia Motors el; Larson; McKinney; b Eric Ryan Lin America; Corporation; Kia Motors Cross; Hoffman; Phillip Debra Sim Grossinger Autoplex, Gros Fka mons; Morales; Abelardo Peter Blu singer Hyundai; Krafcik; Hyun John mer; Carolyn Hammond; Leg Melissa Company; dai Motor Kundrat, Sarah Kelly gett; Moffett; Grogan; Evan Defendants-Appellees. Medina; Dominguez Carlos Alberto 15-56014, 15-56025, No. No. No. 15-

; Bernard; Breien; Catherine Michael 15-56061, No. No. 15- Gill; Schille; Laura Thomas Judith 56064, No. 15-56067 Stanton; Randy Rickert; Bryan Zirk el; Kundrat; Smith; James Appeals, Robert Ma Court of United States Kotova; Casey; Josipa Sny ria Ninth Luan Circuit. der; Baker; Nguyen; Ben Brian Hattie Argued February Submitted

Williams; Holvey; Bill Lourdes Var Pasadena, California gas; Snyder; Medina; Kendall Nomer January Filed Goff; Pyland; Sameria Ursula Marcell Chapman; Kaye Kurash; Holly Amro

min; Chapman; Mary John D’Angelo;

George Rudy; Ayman Mousa; Shelly

Henderson; Jeffrey Hathaway; Dennis Murphy; Patterson;

J. Douglas A. Gentry; Kay Gilleland;

John Danielle

Joseph Bowe; Desouto, Michael Plain

tiffs-Appellees, Direnzo,

Greg Petitioner-Appellee,

Hyundai America; Motor Kia Motors

America; Corporation; Kia Motors

Grossinger Autoplex, Inc., FKA Gros

singer Hyundai; Krafcik; Hyun John Company; Kundrat,

dai Motor Sarah

Defendants-Appellees. Scott, Objector-Appellant.

Linda Ruth

In re Fuel and Kia

Economy Litigation (argued), James B. Feinman B. Kleinfeld, James Befоre: Andrew J. Sandra S. Associates, Ikuta, Lynchburg, Virgi- Feinman & Jacqueline Nguyen, H. Circuit nia, Feinman, Appellants for Judges. James Ben Scott, Gentry,

John Linda Ruth Danielle by Judge Nguyen Dissent Gilleland, Bowe, Kay Joseph Michael De- souto. OPINION Cochran, George (argued), W. Streets- IKUTA, Judge: Circuit boro, Ohio; Cochran, Edward W. Shaker appeal This involves a nationwide class Ohio; Pentz, Heights, Sudbury, John J. action arising out of misstate- Massachusetts; for Ah- Appellants Caitlin ments Hyundai defendants Motor earn and Andrew York. America, affiliate, Inc. (Hyundai) its Miller, P.C., Steve A. Steve A. Miller America, (Kia)1 Kia Motors Inc. regarding Denver, Colorado, Appellant for Antonio efficiency the fuel of their vehicles. The Sberna. jurisdiction district court had under the n (CAFA), Class Action Fairness Act Kurilich, Tustin, California, Matthew for 1332(d), § U.S.C. because the matter in Appellant Peri Fetsch. $5,000,000, controversy puta- exceeded Gibson, Dallas, Texas, Appel- Dennis comprised tive class plaintiffs, ‍‌​‌‌​‌​​‌‌‌‌‌​​‌‌‌​​​​​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​​‍least 100 lant Dana Roland. plaintiff and at least one class member was (argued), Basking Elaine S. Kusel a citizen of a state different from that of at McCune, Ridge; Richard D. McCune- jurisdiction least one defendant. We have LLP, Redlands, Wright California; for Ap- § pursuant 28 U.S.C. 1291. We hold R. pellees Espinosa, Kehlie Lilian E. Le- that the district court abused its discretion voff, Ganim, Thomas and Daniel Baldeschi. in concluding that common questions pre- certifying dominate and this settlement E, Benjamin W. Jeffers and Dommond 23(b)(3) the Federal Lonnie, PLLC, Dykema Gossett Los An- Procedure, Rules of Civil we remand California, geles, Appellees Kia Motors proceed- to the district court for further America Inc. Kia Corp. and Motors ings opinion. consistent with this Because Morgan Shon (argued) Joseph R. may certify the district court still a class Ashby, Quinn Urquhart Emanuel & Sulli- remand, briefly clarify princi- some LLP, California; van Los Angeles, Karin ples attorneys’ fees awards the class Kramer, Quinn Urquhart Emanuel & Sulli- action context for the district court on LLP, Francisco, California; van San Dean remand. Hansell, LLP, Hogan Angeles, Lovells Los California; Hyundai for Appellees Motor ,1 Hyundai America and Motor Co. exception “The class action is an Carey Robert litigation B. and John M. DeStefa- the usual rule conduct no, Hagens LLP, Shapiro Berman Sobol ed and on behalf of the individual Phoenix, Arizona, Stores, Kaylene for Appellees parties only.” P. named Wal-Mart Brady Dukes, 338, 348, and Nicole Marie Hunter. Inc. v. 564 U.S. 131 S.Ct. Defendants-Appellees Hyundai pany; also include We refer Sarah Kundrat. to all Corporation; and Kia affiliates Kia Motors “Hyundai” Hyundai entities as and all Kia Grossinger Autoplex, Grossinger FKA entities as "Kia.” Krafcik; Hyundai; John Motor Com- (2011) (internal

2541, require of that all the demonstrating den 180 L.Ed.2d 374 omitted). “To come See quotation marks within ments 23 have met. Zin of Rule been ser, requirement maintain exception, party seeking a 253 at 1188. This- the F.3d affirmatively a action must demon that the first plaintiff means must demon class compliance evidentiary his with Rule 23.” Com that through proof strate strate the Behrend, 27, 33, 133 569 Corp. 23(a), v. U.S. of Rule prerequisites cast class meets the (inter (2013) 1426, 515 185 L.Ed.2d provides S.Ct. which certification is class omitted). cer nal marks “Before quotation only “(1) so proper class is numer if: the , trial court a the must con tifying joinder is'imprac ous that of all members rigorous analysis ticable; (2) duct a determine questions of law or there are seeking party the certification class; (3) whether fact common to or claims 23.” prerequisites of Rule has met parties of representative are defenses Inc., Inst., 253 v. Research Zinser typical of of the claims or defenses Accufix 1180, 2001) (internal (9th Cir. 1186 class; (4) F.3d representative parties omitted). quotation marks A district fairly protect the will adequately inter be certification “must supported 23(a); court’s ests class.” Fed. R. Civ. see P. of. findings to be the tradi sufficient afforded 33, Comcast, also 569 U.S. at 133 S.Ct. given such tional deference a determi 23(a) prerequisites 1426. “effec Rule Gleich, F.3d nation.” v. 318 Molski tively fairly limit claims to those the class (internal (9th 2003) Cir. 946-47 quotation plaintiffs encompassed named omitted). court, as a marks “When district Dukes, 564 claims.” U.S. at 131 S.Ct. here, for certifies class action (internal omitted). quotation 2541 marks requires the moment certification only, commonality requirement To meet Fibre Ortiz v. heightened attention[.]” 23(a)(2), plaintiffs’ claims Rule “must 815, 848-49, 119 Corp., 527 U.S. board upon depend a common contention” that is (inter (1999) 2295, 144 S.Ct. L.Ed.2d 715 capable “of it such nature that is omitted). nal quotation marks citation classwide resolution—which means that falsity truth of its or determination will de We review district court’s an is resolve issue that central certify a class cision to abuse an validity of claims in one of the one each Bashas’, F.3d discretion. Parra v. 536 350, 131 Id. 2541. stroke.” at S.Ct. (9th A Cir. its discretion when it abuses makes satisfying After carrying its burden “application of the or when its law error 23(a)’s plaintiff Rule prerequisites, (1) (2) legal illogical, correct standard establish must meets the (3) or in infer implausible, support without one of the three prerequisites at least may from be the facts ences drawn types of set forth class actions Hinkson, States v. the record.” United 23(b). 23(b); Comcast, Fed. R. Civ. P. (9th 2009) (en banc) Cir. Here, 1426. at dis U.S. S.Ct. omitted). (internal quotations “We reverse trict court the class under Rule certified if prem court’s certification is 23(b,)(3),'which class action provides Molski, legal error.” 318 F.3d at ised may maintained'only if “the court finds 947. questions of or common that the fact predominate forth over Rule 23 “does set members Comcast, pleading questions affecting standard.” mem-' individual mere bers, superior plaintiff class action 133 S.Ct. that a U.S. bears, fairly seeking class certification bur- effi- other available methods ciently controversy,” “possess adjudicating slightly and bers differing remedies “pertinent of matters lists a number based on state law,” which statute common 23(b)(3).2 findings.” to these Fed. R. Civ. P. may there still be “sufficient common is n action,” sues warrant Id. 23(b)(3) predominance The Rule 1022-23; see also Sullivan DB Invest demanding” inquiry is than Rule “far more ments, Inc., (3d 667 F.3d 301-02 23(a)’s requirement. Amchem commonality 2011) (discussing the “pragmatic response Prods., Windsor, 591, 624, 521 Inc. v. U.S. to certifications of common claims arising 2231, (1997). 117 138 689 S.Ct. L.Ed.2d n laws,” varying citing state and a commonality “presence of alone is not case that affirmed “the district court’s de 23(b)(3).” sufficient to fulfill Rule Hanlon cision subsume relatively minor dif 1011, 1022 Chrysler (9th v. Corp., 150 F.3d in state single ferences law within a class” 1998). Rather, “duty Cir. a court has a illustrative) In (citing re Prudential a common ques take close look at whether Agent Ins. Co. Am. Sales Litig. Practice of ones,” predominate tions over individual (3d Actions, 283, 1998)); 148 F.3d 315 Cir. questions and ensure that individual do In re Litig., Mex. Money 267 Transfer questions “overwhelm common to the (7th 2001) F.3d (noting 747 Cir. Comcast, U.S. class.” 569 133 S.Ct. though even in “state laws differ may ways (internal omitted). 1426 quotation marks In prevent treatment they could if class short, predomi concern of .the “[t]he main supplied-the of principal theories recov 23(b)(3) inquiry nance is under Rule ery,” representatives class in that met case balance individual between and common the predominance part requirement in News, Daily issues.” Wang v. Chinese limiting federal plus “their theories to law (9th 2013) 737 F.3d 545-46 Cir. uniform”). aspects of are state law On (internаl omitted). quotation marks hand, the other consumer-pro “the where bring plaintiffs a na Where tection of vary laws the affected States under CAFA in tionwide class action ways, legal no common issues fa material court 23(b)(3), Rule a must consider voke resolving vor a approach class-action [a] impact potentially, varying state dispute.” Pilgrim Universal Health v. multi-state, laws, because a ac “[i]n Card, LUC, (6th 660 F.3d 947 Cir. tion, may variations in law state swamp 2011). predominance.” common defeat issues and any Co., determining predo Cas v. Tobacco tano Am. whether 1996). (5th F.3d “Variations minance is variations state Cir. defeated law, preclude state necessarily proceed through steps.- law do not several' See 23(b)(3) Hanlon, Co., action.” 150 F.3d at 1022. Mazza Am. Motor v. Honda F.3d instance, (9th First, For some even when class mem- Cir. the class 23(b) (A) provides, part: the class interests in members’ indi- relevant vidually controlling prosecution or may A class action be maintained if Rule actions; separate 23(a) defense is ... satisfied if: (B) any litiga- (3) the extent nature of questions. finds that court concerning controversy already tion pre- law or fact to class members common members; begun by against questions affecting only dominate over and, (C) membe.rs, desirability undesirability individual class action .or litigation superior concentrating claims other .available methods for .to forum; fairly adjudicating particular efficiently the con- (D) troversy.. pertinent likely managing difficulties in these matters findings include: class action. . ' in state laws will that variations must show establish that the must proponent action cannot court predominance; '“[a] may con- not affect forum state’s substantive faith.”) (quot- accept claims of a na- an assertion stitutionally applied to the such Co., If the Ford Motor ing Id. at 589-90.3 forum class. Walsh tionwide (Ruth (D.C. 1986) Bader requirement, law meets state’s this J.)). forum state’s must use the Ginsburg, whether of law rules determine choice inqui- predominance undertook We multiple or the law state’s law forum v. American Honda Motor ry in Mazza 590. “[I]f claims. Id. at apply states Co., closely analogous to our case. which is rules re- state’s choice-of-law the forum car manufacturer’s Mazza considered only one state’s application quire court’s decision challenge to a district represen- then laws tо entire class of consumers a nationwide certify multiple within the states tation misrepresented claiming that Honda certifica- a barrier to class pose not does regarding Acura information material Commc’ns Nextel tion.” Johnson that RLs. Honda contended (2d if 128, But 141 F.3d 780 this certifying court erred un- require adjudication class claims “will 23(b)(3), con- because “California’s Rule states,” multiple of Wash. the laws der ap- not may be protection sumer statutes Court, 24 Bank, Cal. Superior FA v. Mut. to class "with members plied a nationwide 320, 906, 15 922, Cal.Rptr.2d P.3d 4th 103 Mazza, 666 at jurisdictions,” in 44 (2001), the court must determine then 1071 589, not dem- plaintiffs had and therefore questions predomi- will common whether of or fact questions “that the law onstrated individual issues and whether nate over predominate to class members common may be of a nationwide litigation affecting individu- any questions over efficiently. As with fairly Id. managed 23(b)(3). Pro. Fed. R. Civ. al members.” 23, plain- of requirement other argu Mazza addressed bear seeking tiffs certification analy following by undertaking demonstrating through eviden- ment of burden that first established plaintiffs affected sis. that the tiary proof laws contacts to the adequate ways that vary not defendants states do material state, the court and therefore legal is- finding that common forum preclude a of law Castaño, California’s choice apply at should 84 F.3d predominate. sues See rules, at 590.4Under these 666 F.3d proponents action rules. (indicating that class 741 governmental See interest test. explained tion of the Supreme Court has 3. The that 914-15, Bank, 103 24 4th at Mut. Cal. to out-of- Wash. apply the forum state’s law order 320, govern- 1071. The defendants, Cal.Rptr.2d 15 P.3d "sig- must have a state state steps. "Under test has three mental interest significant aggregation of nificant contact or governmental step interest first by each claims asserted contacts” proponent foreign must approach, law Phillips plaintiff class. Petro- member applicable rule of law in each identify Shutts, 472 U.S. leum Co. v. it potentially state and must show (1985). concerned There 86 L.Ed.2d 628 S.Ct. the law of California.” materially differs from significant con- dispute California has no that Cal.Rptr.2d 15 P.3d 1071. Id. at in this with defendants case. tacts material- finds the laws are If trial court "the different, step rules, proceed the second ly it must of law there 4. Under California choice interest, any, if each statе selecting what analyses and determine are "two different having applied to the its own law has in applied in an action”: which law should an interest If "each state has considering case.” Id. choice-of-law one a contractual reflecting an having applied, thus applica- its own law provision, requiring an and the other foreign proponent had the predominate burden tions would over individual states, showing multiple the law issues.5 law, applied rather than California 23(b)(3) Because the Rule pre

class claims. Id. Mazza therefore walked dominance inquiry focuses on through “questions parts the three California’s settlement,” First, preexist any governmental namely, interest test. “the we de- legal or factual questions that qualify termined Honda showed there were each class member’s genuine material case plain- differences between the contro Amchem, versy,” 623, 117 tiffs’ California misrepresentation claims U.S. S.Ct. may and the district court laws other states. Id. at 591. relax its Second, “rigorous” predominance inquiry we it determined each of the when considers certification different car of a states where the sales class, Zinser, place sure, took strong apply- “has interest in F.3d at 1186. To be when ing request “[confronted its own with a protection consumer laws to set certification, tlement-only class those transactions.” Turning Id. at 592. test, inquire case, court need not step whether the third if determined tried, present manage

that “if California intractable applied law were to the ment problems, for foreign proposal entire is that states would be im- Amchem, there paired in be no trial.” ability liability their calibrate U.S. (citation omitted). 117 S.Ct. 2231 foster Id. But commerce.” at 593. There- fore, specifications “other of the we held that “each class Rule—those member’s designed protect to protection by consumer claim absentees gov- blocking should be or by unwarranted overbroad class defini protection erned the consumer laws of undiluted, jurisdiction tions—demand heightened, in which the even transaction attention in the place.” took at settlement context.” Id. Id. 594.

“Heightened” necessary attention is plain Our conclusion that part to certify because court asked tiffs’ class claims require adjudication “will opportunity, settlement class lack the “will statеs,” under multiple present the laws of litigated, adjust when a case is to Wash. Bank, 922, Mut. 4th Cal. at 103 Cal. informed proceedings 320, Rptr.2d 1071, Indeed, itself, 15 P.3d they led the next unfold.” Id. Amchem question: whether this conclusion defeated the court that determined both factual dif predominance. Although Mazza not ex among did ferences class members and differ pressly predominance ques address the applicable ences in the state laws tion, vacatur of the district its court’s class claims predominance members’ defeated certification plain single that for a order established nationwide settlement class. 624, 117 tiffs had to show that ques- failed common Id. at S.Ct. 2231. actual conflict” the court "must select the law court must determine "whether common of the state whose interests be more would questions predominate will over individual is- Id..; impaired applied.” if its law were not see litigation sues and whether of a nationwide ” Mazza, also 666 F.3d at 589-90. may managed fairly efficiently.’ be Bank, 922, Wash. Mut. 24 Cal. 4th at ap-

5. California approach takes the same California, Cal.Rptr.2d In 15 P.3d 1071. plying analysis a choice-of-law claims. to class “ proponent 'the class action bears the burden law, Under California if the court concludes establishing propriety certifica- adjudication require "that class claims will ” " tion.' Id. states,” multiple under the laws of then 'the EPA application an with justify submit may not its deci

A court efficiency for the fuel information about class on the certify a settlement sion to 7525(a)(1). § In year. Id. No- is fair model proposed settlement each ground advocacy group Indeed, a consumer fed vember class members.6 putative to all com- regarding the EPA sent a letter to authority to substitute for “lack courts eral Kia over- Hyundai plaints a standard criteria certification Rule 23’s efficiency of fair, fuel a number if is a settlement adopted—that stated never 622,117 asked the Id. at their vehicles and EPA audit proper.” certification then EPA Ortiz, response, the 527 U.S. 2231; also manufacturers. see 5.Ct. investigation .-Hyundai’s into. that “a fairness (holding initiated S.Ct. 23(e) procedures. efficiency Kia’s fuel is no test substitute hearing Rule later, year November provisions About those rigorous adherence confirmed that investigation EPA designed protect absen procedures to (internal improper .and Kia tеst tees[.]”) omit quotation marks used efficiency information sub- ted). develop “[i]f sense: fuel makes prohibition This 2011, 2012, and 2013 mitted for certain compromise a fair interest common procedures re- improper predominance require models.7 These satisfy could 23(b)(3), efficiency, fuel esti- prescrip in overstated vital sulted of Rule ment. stripped any meaning in mates. tion would context,” safe and the as the EPA At the same time announced Rule, provided which “serve guards Kia announced findings, Hyundai and its appraisals the chancellor’s foot inhibit efficiency lower their fuel they'would dependent upon certifications kind-class 900,000 Hyun- approximately estimates court’s, gestalt overarch judgment years from model Kia vehicles dai and ing impression the settlement’s fair time, At the same ness,” Amchem, 521 be eviscerated. institution Hyundai and Kia announced the 623, 117 S.Ct. 2231. U.S. voluntary Reimbursement of a Lifetime (LRP) compensate affected ve- Program

II for the additional hicle owners and lessees they costs and would turn to facts of this case. fuel had incurred now We Act, result over- incur in as a Clean Air all new future vehicles Under efficiency estimates. must fuel the United States be covered stated Under sold-in LRP, anyone or an who owned leased af- by Agency Protection Environmental (EPA)- on or before Hyundai or Kia vehicle conformity certificate demon- fected to periodic entitled efficiency 2012 was strating with fuel November compliance .on the number based greenhouse gas standards. reimbursements and emission driven, between the 7522(a)(1). § To miles obtain such difference See U.S.C. efficiency esti- certificate, fuel original and revised a vehicle manufacturer must a tailwind, selecting only finding a that were aided A make such a fairness 6. court must Federal, 23(e) Rules of Civil runs rather than results from test under Rule favorable Procedure, results, ap- prohibits restricting a from which averaging set of a broader proving a unless it concludes that temperature testing periods when the times to reasonable, fair, adequate,” Fed. and R. faster, "it vehicles to coast farther and allowed 23(e)(2). Civ. P. improve the test preparing vehicle tires and results. EPA, proce- According improper to the 7. selecting from results test rims dures included mate, average price and the in the .purchased.or fuel hides who leased- vehi- their driven, area where the car was plus an cles the United States. 15 percent to for extra account the incon- Hyundai' After Espinosa removed the

venience caused the overstated fuel effi- court, action to federah see No. 2:12-cv-800 ciency In estimates. order to receive these (C.D. 30, 2012), Cal. plaintiffs filed Jan. benefits, class members could enroll in the moved certification a nationwide LRP and then periodically Hyundai visit a ’ In its opposition class. to class certifica dealership Kia to verify their odometer tion, Hyundai argued, other things, among readings.- register Car owners could that differences in protec state consumer 31, 2013, the LRP until December al- tion precluded laws application of Cali though program would continue for law to fornia consumers who are Cali registered long those who for as they fornians predominance. defeated or leased their owned vehicles.8 Hyundai supported this with a argument After the EPA investiga- commenced its thirty-four page “Appendix of Variations tion, results, announcing but before its Laws,” State which detailed the numerous number of plaintiffs filed against suit differences proof; burden of liability, Hyundai January plain- Kia. In damages, limitations, statutes of attor putative tiffs filed a nationwide class action neys’ fees awards' under: different state in state court in Angeles Los See County. protection consumer laws and common law Espinosa Am., v. Hyundai No. BC Motor Hyundai fraud actions. argued also (Cal. Super. filed Ct. Jan. there were questions individual regarding complaint under Califor- raised- claims whether each class exposed member was nia’s protection laws- consumer and com- to or on Hyundai’s relied' advertising, and law, mon alleging falsely questions prevented these class certif advertised that its 2011 and 2012 Elantra " ication.10 got and Sonata vehicles per gallon miles (MPG) In November on highway, district court when fact these got ruling vehicles issued tentative far the motion for plaintiffs MPG.-9The lower rescission, sought damages, restitution, class certification Espinosa. Plaintiffs injunctive to.certify two.classes, sought relief in form of correc- an Elantra tive advertising on putative (including purchasers behalf and lessees of specified nationwide mode) Elantras) owners of ve- year 2011-12 and Sona- 2014, Hyundai October investigation and Kia entered announced tiie result of its $100 into a million consent decree with the program, Espi- Honda annoúnced its LRP United States and the California Air Re- plaintiffs nosa certify- their efforts on focused arising sources Board to settle claims from ing plaintiffs class. otherwise limited investigation. EPA the filing their actions two to amended com- (one join ‍‌​‌‌​‌​​‌‌‌‌‌​​‌‌‌​​​​​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​​‍plaints represen- to additional class Specifically, Espinosa plaintiffs 9. the asserted tatives) responding Hyundai's and motion to claims for violations of California Unfair dismiss, to which was denied the district Cal, Law, Competition Bus. & Prof. Code April (Hyundai's prior court on 2012. mo- 17200-17209; §§ violations of California Espi- tion dismiss had when been vacated id, 17500-17509; Law, Advertising §§ False its complaint.) nosa filed amended Hunter v. violations of Legal California Consumer Rem- No, America, Hyundai Motor 8:12-CV-01909 Act, 1750-1784; fraud;' negligent §§ edies id. (C.D. 2, 2012); Brady Cal. filed Nov. and deceit, misrepresentation; § 1.710. id. America, Hyundai Motor No. 8:12-cv-1930 During period January 10. the from (C.D. 6, 2012) Cal. filed were not Nov. filed Espinosa when the com- filed their plaintiffs program until after the LRP -was announced. plaint, until November the date the EPA Third, in- purchasers and les- the court determined that “the (including

ta class all Sonatas). of the more terests other states would be year of 2011-2012 model sees impaired imposed were California law likely it find that The court stated would their than upon citizens California would the plaintiffs both denionstrated 23(b)(3) impaired action to a 23(a) be were this limited commonality pre- and Rule only of In California consumers.” requirements were met as to dominance sum, of the court found “that certification statutory, not common law claims. but nationwide California class where law question whether respect With fore- applied out-of state consumers is plaintiffs show could reliance individualized closed the Ninth Circuit’s decision- on court that it advertising, stated Mazza, virtually on all case fours with find that likely would class-wide reliance the instant matter.” pre- challenged advertising on the could be sweep” sumed to the of due “extensive ap- California law not be Because could marketing Hyundai’s efforts.11 members, plied to out-of-state class thought court it was that obvious Turning question plain- whether could not be certified: “were the tiffs, certify a nationwide de- could of the applied laws other various states spite thе that cornplaint fact their invoked purchasers, class out-of-state certification law, only court held California precluded would because common it was a choice of law required perform of questions longer and fact no law would analysis. The court stated California predominate.” The court held that it the,ex- sufficient, to support contacts Cali- certifying would consider class- of application traterritorial law California consumers, defined to fornia include Mazza, claims, “just to all but as in actually consumers who those California three-part ... choice law test comes out challenged one viewed advertise- reaching favor.” this con- Defendant’s marketing ments or materials. Novem- On clusion, the relied on three factors. 29, 2012, hearing ber held a Court First, appen- of its Hyundai’s submission class certification motion pending “unquestion- dix of in state variations Espinosa, but did not- ruling, make a final ably demonstrates are material there requesting supplemental briefing. instead differences between the states’ various laws that ‘make a difference following Hyundai’s Immediately No- Mazza, litigation.’” (quoting F.3d at LRP, 2012 announcement vember 590-91, considering specifically the scien- Espinosa and before the court could make remedies). requirements -Second, certification, ter ruling plain- a final on class Mazza, that as court ruled each country flurry tiffs across the filed a balancing “has an interest in putative alleging Hyun- states class actions range prices offered products misrepresented and Kia fuel effi- dai legal ciency through advertising af- protections consumers with their vehicles Mazza, ac- Monroney Among forded to F.3d at other them.” 592. Stickers.12 Amazon, Facebook, Yahoo, Although mar- Elantra ads on court indicated sites, print other keting efficiency internet used advertis- related to “the fuel of efforts ing, placed and billboard ads the 2011 vehicles,” for the Elantra and Sonata the cam- in on Square Elantra Times in New York and paign identified was limited to court freeways. certain California Specifically, the 2011 Elantra. noted Hyundai purchased advertising had for Monroney A is named Sena- 12. Sticker after during playoffs, the 2011 Elantra the NFL Monroney, sponsor Mike of the Auto- tor A.S. Awards, Bowl, Super placed Academy аnd the mobile Information Disclosure Act of tions, plaintiffs Hyundai filed Hunter v. Espinosa ing over action. The MDL America, (C.D. Motor No. 8:12-CV-01909 judicial panel noted other related 2, 2012), Brady Cal. filed Nov. and potential actions tag-along were actions.14 America, Hyundai Motor No. 8:12-cv-1930 total, ultimately actions were trans- (C.D. 6, 2012), Cal. in filed Nov. the Cen- ferred the MDL. District of tral California. Both actions One judicial week after the MDL panel claimed violations of California consumer order, its approximate- issued transfer and laws on protection and common law behalf ly three months after announcement of of putative per- nationwide classes all EPA investigation LRP, and the dis- who Hyundai sons or leased a owned trict court held status conference Kia vehicle that had been identified Espinosa matter. At that status confer- investigation.13 EPA In December ence, Espinosa plaintiffs informed the district court requested supple- further they (along district court that with the briefing on mental the class certification Brady) Hunter plaintiffs and had light Hyundai’s motion November Hyundai reached a with settlement for a 2012 announcement. single Shortly thereafter, nationwide class. putative Plaintiffs one nationwide parties informed court that Kia Hyundai see Krauth v. action, Motor agreed had to the same settlement terms Am., (C.D. No. 8:12-cv-01935 Cal. filed Hyundai. 6, 2012), Nov. proceedings initiated before proposed The agreement settlement (MDL) Litigation judicial the Multidistrict following parties agreed terms. pursuant § panel U.S.C. re certify that the district court should a na- questing putative that twelve class actions persons tionwide all who were (including Espi against Hyundai and Kia current and former owners and nosa, Hunter, lessees Brady) relating and to the specified Hyundai Kia vehicles on or marketing advertising of the fuel effi Hyundai 2012.15 before November ciency Hyundai estimates and Kia vehi Kia offer class members several al- single cles be to a district for transferred compensation. First, ternative pretrial methods proceedings. coordinated On Feb ruary judicial opt class members could receive the panel the MDL equivalent pre-existing transferred those actions as cash LRP MDL No. already presid- the court program. Specifically, that was class members could enrichment; ís U.S.C. requires just §§ express The Aсt 1231-1233. for breach of warranty, displaying § car manufacturer to affix label Cal. Com. Code 2313. efficiency information about fuel the car’s every 1.1(h), the window of new vehicle sold in the 14. See Rule Rules of Procedure of the 1232-1233; §§ United States. See 15 U.S.C. United Judicial Panel on States Multidistrict 32908; (" § see also 49 Litigation U.S.C. ‘Tag-along C.F.R. action’ refers to a civ- (2012). Monroney § 575.401 stickers are not pending il action in a district court which required for sales of cars. See 15 used U.S.C. questions involves common with either fact (1) §§ 1232-1233. pending motion to actions transfer to (2) previously an MDL or create actions trans- MDL, existing 13.Specifically, plain- ferred to an and which the Brady Hunter transferring Panel would under Sec- tiffs asserted claims consider under California Unfair 1407.”). Law, Competition tion Cal. Bus. & Prof. Code 17200-17209; §§ Advertising False California Law, 17500-17509; §§ id. California agreement Consum- covered 41 dif- 1750-1784; Act, Legal §§ er Remedies id. ferent models and 35 different Kia fraud; negligent misrepresentation; for un- models from 2011 to 2013. expire after three certificate pay- The would single lump sum receive a choose to years. periodic payments rather ment than the LRP. The through preexisting

offered al- Finally, members who were class was payment for owners lump sum current LRP preexisting in the ready participating average 4.75-year based on an calculated forego any of the settle- to choose could 15,000 ownership, miles driven term in options simply ment and remain gas prices each and between year, $3.00 for The deadline LRP. enroll- preexisting average total predicted The July to $3.70.16 in the LRP extended ing was for class was lump payment sum .$353 not members who had giving class Hyundais leasing or owning De- original members' the LRP enrolled leasing or owning for members class an additional cember 2013 deadline $667 begun par- who were A to so. members who Kias. class member months do Class Hyun- before settle- or of certain the LRP ticipating owners lessees current lump to the to remain vehicles who elected ment but elected switch dai for a option would receive could receive additional payment sum LRP $100 sum, for by any original amount cur- reduced current owners lump $50 smaller fleet already rent lessees and owners.17 member had received the' class LRP, The members through- the class in the car owners were Used included payment in lump their receive sum proposed but received settlement expire card that would a form debit only available new car half amounts issued; any year it unused one after was justified settling parties owners. Hyundai or Kia revert amount would ground. on the amount settlement timely deposited the class member unless on “reliance the Monro- car owners’ used bank account. a. amount residual potentially clear and is less ney numbers Monroney stickers because individualized” options other offered compensation Two See sales of required not for used cars. are nominally a was credit consumers §§ 1232-1233. U.S.C. sum larger lump than the value pro- provided settlement proposed LRP but which could existing program, opt out cess for class members to or purchasing more services used by mailing request for exclu- settlement First, Kia. class products Hyundai from or However, court’s upon sion. Hyun- could choose receive members agreement, of the settlement approval final worth dai service credit Kia dealer dismiss “all other the district court would lump pay- sum percent of the- value in the in W'hich MDL lawsuits centralized years. two expired ment. The credit after lawsuit(s) did plaintiffs such named Alternatively, members could choose themselves from the timely exclude car certificate a new rebate receive settlement.” lump pay- sum percent worth requisite to paying addition ment, used toward In which could be members, Hyundai Kia amounts Hyundai or vehicle. of a new purchase lessees, settling parties ad- filed a second lump payment sum tlie 16. For allowing 2,75-year agreement term. settlement dendum the based through the members to submit claims settling parties January filed In requiring defendants settlement website proposed an addendum distributing procedures for to follow certain $100 offer to former the additional extended payments. class members' May owners of these models. Kia-agreed to pay confirmatory counsel reasonable discovery failed to had reveal attorneys’ attorneys’- of fees. The-amount Hyundai evidence and Kia had negotiated sep- fees would be and awarded conduct,' engaged deceptive knowing arately provided from -the relief to class concealment, or acts. In other--bad their (cid:127) members. motion for certification aof settling the parties contended that Following February the 2013 announce- questions common of predomi- Tact or law settlement, of proposed ment the 23(b)(3) nated under Rule respect with to discovery April court ordered 2013 to . of California causes action. confirm the on which the settlement facts plaintiffs evalu- was based and to allow Gentry plaintiffs The opposed class cer- ’ Hyundai ate the terms of the settlement. sought tification and 'of their' remand ac- and Kia produced thou- several hundred tion to the Western of Virginia. District In pages sand of- documents and allowed opposing their memorandum class certifi- plaintiffs to 11 employees. interview May 2014, cation Gentry filed plaintiffs argued that California choice of law rules confirmatory discovery While this was. did allow not of the class. ongoing, The group plaintiffs a different of filed certification memorandum discussed against elements of both Hyundai another action- governmental interest test Virginia. Gentry District and Western See First, Am., provision. contractual Hyundai choice-of-law Motor No. 3:13-cv-0030 (W.D. 14, 2013). respect with claim, their Gentry Oct. contractual Va. filed plaintiffs plaintiffs Virginia plaintiffs stated that the Virginia claims asserted under purchased their protection, advertising, consumer false vehicles means of and Virginia warranty puta- vehicle laws on of a contract with choice of pro- behalf law law, tive vision persons purchased all who had California “an and other- year agreement wise model or 2013 enforceable choice-of-law Hyun- may in Virginia.18Claiming disregarded merely Elantra be not because it that. willful, advertising dai’s false the com- may prosecution of a hinder- multistate plaint greater demanded of treble or nationwide class action or result in the damages or for each class member $1000 nonresident exclusion consumers from a Virginia under the Consumer Protection class action.” Wash. Mut. California-based 59.1-204(A). § Act. See On Va. Code Ann. Bank, Cal.Rptr.2d Cal. 4th panel November judicial MDL Second, 15 P.3d 1071. under the ele- Gentry tag-along identified action as a governmental of California’s inter- ments action, transferred it to the Central test, Gentry plaintiffs noted est part District of California as of MDL No. “[njumerous recognized have courts among conflicts exist State substantive applicable analogous' consumer laws” approximately December after claims, that there argued were eight fraud confirmatory discovery, months significant Hunter, conflicts Brady, “material and Espinosa plain- Virginia compared the law pre- tiffs for class moved certification and sought applied by Espinosa, liminary remedy nationwide approval, Moreover, Hunter, According plaintiffs, Brady.”19 settlement. these 59.1-200(14), Act, Virginia’s § Gentry plaintiffs alleged .and, 18. The false id. violations statute, § advertising id. 18.2-216. Virginia Warranty Motor Vehicle Enforce- Act, §§ ment Code Ann. Va. 59.1-207.9 argued Virgi- Gentry plaintiffs that the 19. Virginia 207.16:1, Consumer Protection provides Consumer Protection Act for a nia Gentry plaintiffs’ objec- contended, withstanding were memorandum grounds “on “materially of tions to class certification the Virginia causes action the materially that dif- Virginia provides law from those asserted the Set- different for Plaintiffs,” remedy Virginia to also ferent consumers” Virginia but tling claims, in state law variations were having apply. its law certain strong interest less a concern could addressed Accordingly, even without the contractual of and Gentry part hearing of the final fairness under provisions, plain- choice-of-law the as 23(e). Accordingly, the district court argued, require law would tiffs California apply of law Virginia sets to California’s choice apply to law.20 Three declined courts Gentry plain- rules law including to determine whether California plaintiffs, of the tiffs, to or to make objections applicable also to the terms of was filed that ruling, of law and held choice instead settlement.21 in law even if differences state “substantial 2014, the court circulat- In June district to brought light are at the final fairness ruling granting the plain- a tentative ed not hearing, prevent those issues do motion of the tiffs’ for certification settle- certifying Court from the class for settle- acknowledged it class. The court that ment court to this purposes.” ment adhered in an engage “would to need extensive position subsequent rulings. its analysis” if case choice were Nevertheless, granted In going August the court the court trial. addressing varia- thought analysis such an not warrant- certification without ever was time, context, in the tions in state law.22At the same ed because not- damages holding statutory as $500 minimum of case that commence- Court damage individuals who suffer as a of a result of a class action in California that does ment act, § violation of the see Code Ann. Virginia Va. 59.1- not cause of will not include a action 204(A), Legal while Consumer California’s Virginia, toll the statute limitations statutory Remedies sets no minimum Act bringing they thus would be time-barred from damages for individuals who suffer violations Recognizing Virginia-specific their claims. act, 1780(a). § of the see Civ. Cal. Code This Gentry interpretation dispute, is in this statutory superior $500 minimum of alternatively urged certify plaintiffs us to average lump $353 maximum sum benefit of question Virginia Supreme Be- Court. that members are entitled Gentry plaintiffs cause the raised their choice- addition, settlement. In under the court, argument we do of-law Act, Virginia Consumer Protection trier of any significance on place fact damages can fact award treble within its dis- argument. they also later raised an alternative if cretion it finds that violation was "will- ful,” 59.1-204; § see Code Ann. Va. Holmes v. Gentry plaintiffs, the to the addition 21. 473, 478, Corp., LG Marion Va. objectors plaintiffs in two included the named (1999), whereas, S.E.2d 528 under Califor- to the other actions transferred Act, Legal nia’s Remedies can trier fact part MDL Wilson No. Krauth and punitive damages if it finds award “clear America, No. 13-CV-1069 v. Kia Motors convincing “oppression, evidence” of (D.N.J. 2013), plaintiffs filed Jan. These fraud, malice,” 3294(a). § or Cal. Civ. Code. objectors appeal. are not in this dissent contends 20.The should disre- class was defined as: current ”[a]ll regarding gard Gentry plaintiffs’ argument of a Class former owners and lessees they California choice of law rules because lessee, (i) on who were the owner or Vehicle argue alternatively appeal on that the failure such Class before November Virginia to include a subclass would violate registered Vehicle the District rights. process their due See Dissent at (50) fifty or one of the states Gentry This Columbia plain- n.3. claim is based on the States,” exceptions. interpretation Virginia Supreme several small tiffs’ United with granted district court preliminary approval Hyundai Kia submitted declarations settlement, finding of the proposed it suffi- reporting response rates of class mem- fair, reasonable, ciently adequate reports bers. The approxi- established that disseminating merit notice of the settle- mately percent of class members had ment the class. The court noted the $44,000,000 claims some filed in total settling parties’ agreement aggre- that an value. Of the class filing claims, members gate amount of represented million began $210 more than two-thirds participating lump total compensation sum LRP before the settlement. There- would be available to fore, class members. portion the filing the class new claims for accounted a small fraction Espi- In December for the counsel of the million in total value. $44 nosa, Hunter, Brady plaintiffs, and as well plaintiffs for counsel in actions In other June the district court gave its that had been transferred to the district final approval the class settlement. The court, applications attorneys’ filed for fees. court prior reaffirmed its conclusion that Through hearings a series of in beginning the certification of the March the approved proper 23(b)(3) district court under Rule and that $2,700,000 fair, in attorneys’ fees to class co- the relying settlement was in part on represented counsel plaintiffs who the in its August finding that the settlement cases, $2,850,000 Brady Hunter and the in provide an estimated million to $210 attorneys’ fees to rep- objections class co-counsel who the In rejecting class. that the Espinosa in plaintiffs proposed resented the the attorneys’ fees awards were ex- case, collectively and over million to not in proportion cessive and to the benefit $3 class, plaintiffs. counsel for other calculating In conferred the district court fees, attorneys’ began the district court attorneys’ noted that the fees did im- (multiplying pact with lodestar method recovery they because were number of prevailing party separately, hours the rea- and so awarded the issue of sonably Further, expended litigation by on the collusion did not arise. the court rate). hourly reasonable The court then stated that the fees were most cases Hunter Brady determined that requested by and less than amount counsel. counsel were entitled to a lodestar Finally, en- the court all dismissed lawsuits light hancement in complexity except and MDL No. those in which volume of plaintiffs work the amount of timely and named excluded settlement, multiplied and themselves from lodestar the settlement. by multiplier.

amount a 1.22 The district Ill Espinosa court also that the determined counsel was to a entitled lodestar enhance- Objectors bring now five consolidated ment- due to the of filing risk a lawsuit appeals raising challenges to class certifi- before the November EPA an- cation, approval of the settlement as fair nouncement, multiplied and the lodestar adequate, approval attorneys’ total, multiplier. amount a 1.5521 fees as reasonable in proportion district court approximately awarded $9 benefit conferred on the class. million in attorneys’ fees and costs. A 2015, Hunter,

In March Brady, Espinosa plaintiffs, along with first objectors’ argu We address Kia, jointly approval moved for final of ments that the district court abused its motion, class settlement. In support of this failing discretion to conduct a choice of 23(b)(3). analyze state potential “variations in law analysis rigorously Because law or protection common may swamp any consumer and defeat in state issues differences Castano, single 84 F.3d at certifying predominance,” laws before nationwide 23(b)(3). analyze As court whether “the must consum settlement class-under Mazza, er-protection States the district court was affected explained in laws ways,” Pilgrim, vary material required apply California’s choice law ultimately if deter California law at even rules determine whether common, aggregation-en nation- mines “the apply plaintiffs could to all abling, preva the court had to case are more issues wide whether state, non-common, so, if than important lent or of each apply law issues,” law aggregation-defeating, in state individual variations defeated whether — Foods, Tyson Bouaphakeo, U.S. F.3d at 588-89. Under Inc. v. predominance. 666 rules, —, 1036, 1045, 194 re- L.Ed.2d choice S.Ct. California’s omitted) (2016) (citation . to apply the Cali- the district court quired governmental, test. fornia Id. interest reasoning The court’s that district that is 590. Theré dispute no it of its obli- settlement context relieved parties not acknowl- court did do so. a gation analy- to choice of law undertake court did not conduct edge that the district and that a all of sis to ensure class meets and did not analysis, apply a choice of law 23, wrong of Rule as a prerequisites any particular law California or the law matter of the district court law. While certify the deciding in to state class.for litigation correct not that it need consider settlement. management in determining issues wheth- 23(b)(3) certify to a the Rule er failing apply to California In predominance inquiry on focuses whether rules, the district com of law court choice questions common outweigh individual “A federal sit legal a mitted error. questions, preexists any that set- issue to in look ting diversity must the forum Amchem, tlement. U.S. to choice of rules determine the state’s Therefore, S.Ct. 2231. factors such controlling Id. (quoting law.” substantive in plaintiffs whether the named favor were Zinser, The district F.3d at other class whether by to failing court made further error a are opt an opportunity had members out acknowledge, in rul as it had its tentative a irrelevant to the determination whether Hyundai Gentry ing, plaintiffs that and class can be certified. that the laws in vari submitted evidence materially anything, ous states If this highlights were different than case California, warning in that underlying those varia reasons these Amchem’s “undiluted, prevented applying give tions from that must thé court district courts Finally, heightened, law.' the court even in California attention the settle Amchem, context,” ruling a final as to ment failing erred make 521 U.S. at proposed whether material variations in state 117 S.Ct. scrutinize set tlement predominance law defeated under classes.23 district Rule Because Amchem, argues apply we fail court. dissent that district 521 U.S. at J., (Breyer, concurring part correct See of review. Dissent at standard S.Ct. making argument, dissenting In But part). 714-15. the dissent are bound we Amchem, justices majority, a dissenting echoes the the Amchem which indicates that error, legal argued majority which likewise that the district court makes and thus discretion, failing give -when to scruti- erred in sufficient deference to abuses its it fails n unlikely it court made clear that would ment that be the district court abused its certify litigation pur- discretion-.in certifying, the same settlement class poses, representatives 23(b)(3) well were that includes used car they unlikely aware to suc- owners- analyzing without whether these certify efforts to to, ceed nationwide exposed class members were and there- Thus, litigation by “permitting class class. fore could Hyundai’s on have relied designation despite the of liti- impossibility misleading Kia’s According statements. gation, both class court [were] counsel objectors, questions individual of reli- disarmed.” Id. at 117 S.Ct. 2231. preclude ance the inclusion of car used knew that and Kia there was owners this class. they risk little would face a nation- Mazza, provided guidance we on how if litigation they wide action did not a district court should determine whether agreement. According- reach a settlément presume a court can that class members ly, confined to settlement “[c]lass counsel relied misleading advertising; On the negotiations could use threat hand, explained, one “[a]n inference offer, litigation to press for better classwide reliance cannot be made where the court a bargain proffered for [faced] there is no evidence the allegedly its approval without benefit adversarial representations uniformly false were made n (citation omitted). investigation.” Id. to all members of the proposed class.” Mazza, 666 F.3d at Finally, (quoting Davis- court erred in Miller v. Club holding considering avoid Automobile Southern it could California, 106, 125, potential App. 201 Cal. 4th of the of multi 134 applicability laws (2011)). Rather, ple Cal.Rptr.3d on that' 551 ground proposed states the the class proponent hearing scope settlement was fair. must that “[A] fairness establish 23(e) advertising it rigor under Rule is no for makes to substitute reasonable as provisions ous adherence to sume that all exposed those class members were designed protect to allegedly misleading Or to the absentees[.]” advertisements. tiz, hand, 627 U.S. 119 S.Ct. 2296. Id. On other we noted the Cali fornia Supreme exception Court’s to this in Because the certi- erred general in In re Tobacco II rule Cases. fying we must vacate presumed Tobacco II that class members the class certification. This not does mean on pervasive advertising had relied cam that the court is from certifying foreclosed paign cigarettes, extending 40 over subclasses) (or on class remand. We defendants, 11 years by different which issue, ruling no merely make on this and public smoking “misled the health note that no Mazza determined that such smoking nature of risks addictive possible class was a closely analogous in targeted putative uniformly class in an case. to in

alleged class-wide effort seduce and B to 4th people duce smoke.” Cal. 327-28, Cal.Rptr.3d if Even the district court hаd re P.3d II). (Tobacco (2009) Distinguishing stricted the To class to California consumers (as II, in "in the court it do bacco that indicated its explained would Mazza ruling Espinosa), decades-long tentative in we context of a tobacco advertis still to objectors’ argu- ing have little campaign consider there was where doubt at-620, litigation

nize to the a settlement class same S.Ct. 2231. extent class. Id. 117. Monroney class stickers and nation every almost member had been virtue that misleading advertising.” to state- exposed reaching defendants’ In this conclu wide ments,” not members did need sion, district court failed to reference reliance. 666 demonstrate individualized any regarding the record evidence rules, Harmonizing these at 596. for the advertising campaign extent of the that the absence of concluded “[i]n Mazza 41 different models and 35 differ advertising campaign kind of massive 2013; nor ent Kia models from 2011 did II, relevant at issue in Tobacco provide reasoning regarding it how way in such a as to in- must be defined advertising this reached level only exposed to members who were clude cigarette campaign (extending advertising advertising alleged to be materially that is defendants) over 40 discussed years misleading.” that the /d24 held defen- We Furthermore, II.25 Tobacco advertising scope Mazza did dant’s error, ruling is on a court’s based factual level, rise not therefore an requirement is no because there that Mon- case to be individualized made roney purchasers provided stickers be showing member reliance. Id. For each cars, is no and there evidence used reason, ques- we held that common this car owners were uni record used predominate not where tions fact did fact, exposed formly to such stickers. not the class included members who were on this differ settlement itself relied exposed advertising false or who to the exposure misleading information ence learning of the purchased products after in awarding ear owners half the used it was misrepresentations, and therefore to new car See amounts awarded owners. certify an error the class. Id. p. supra, Nor can conclude ques- The district court addressed exposure harmless because error tion could have whether members advertising pre the defendant’s can Hyundai’s misleading Kia’s relied settling parties sumed. The have iden ruling, in its June statements any evidence in the of this tified record it all presume concluded that could advertising campaign sort of massive that misleading relied class members on to give presumption could rise such a with “misrepresentations statements because respect uniformly by to used car owners. made to all consumers were likewise read 25. The district court's statement in its Novem- 24. California courts have Tobac- ruling narrowly, rejected argu- II 2012 reliance on co and have ber that class-wide challenged advertising presumed pre- ment can be that class-wide reliance could showing sweep” Hyundai’s sumed "whenever there is a that a due to the "extensive marketing misrepresentation solely efforts on the 2011 was material." focused Tucker model; Services, merely App. 208 Cal. the Sonata is Bell Mobile 4th Elantra model Pacific 201, 226-27, (2012) (cit- Cal.Rptr.3d 340 in an aside. court did not 145 mentioned II, 327, Hyundai ing 46 Cal. at 93 address either the 35 other models Tobacco 4th Cal. 559, 20). Rptr.3d any surprising, is 207 P.3d As in Kia models. This not indicated Mazza, only given presumed can be that the district court relied on a decla- reliance when exclusively decades-long there is the of massive that focused almost on sort ration ad- Elantras, vertising only campaign at issue in 666 2011 with limited mention Tobacco II. Regardless 2012 F.3d at 596. whether of the 2011 Sonata models or made Moreover, advertising advertising campaign Kia here because was more models. (under Mazza, year) scope, campaign extensive limited time than the see pervasive cam- Dissent it does come close it not come close to the at not to the does (extending years separate cigarette advertising paign over level from the 1960s II, companies) to the described Tobacco 2000s. settling parties argue context, that if even nationwide in this class see Maz za, 596-97, questions regard- are there individualized 666 F.3d at this certification ing exposure to the advertis- decision cannot nationwide stand.

ing, questions not predominate these do context,

in the settlement where there is IV manageability argument no concern. This Because court may district Amchem, contrary is where the Court yet determine, a rigorous after Rule 23 among held factual differences analysis, may certify that it a settlement members, ways such as settlement, aрprove class and briefly exposed members were asbestos and clarify principles some of attorneys’ fee length of those exposures, translated approval for the district court on remand. differences, significant legal into thereby Gen, See, e.g., In re Motors Corp. Pick-Up defeating predominance for a settlement Truck Fuel Tank Prods. Liab. Litig., 55 class. 521 U.S. S.Ct. 2231. (3d 1995). F.3d 820-22 Cir. When here, Similarly regard- factual differences awarding attorneys’ action, fees in a class ing exposure used car owners’ “an independent the district court ‍‌​‌‌​‌​​‌‌‌‌‌​​‌‌‌​​​​​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​​‍has obli misleading sig- into statements translate gation award, to ensure that the like the legal nificant regarding differences itself, reasonable, settlement is if even viability of these members’ claims. agreed parties already have to an amount.” sum, In because the record does re Bluetooth Headset Prods. Liab. Li support presumption car used (9th 2011). tig., 654 F.3d Cir. exposed owners were to and relied mis Therefore, “encouraged we have courts to leading advertising, court had guard against an unreasonable result by obligation define relevant class cross-checking against their calculations “in such a way as to include members circuit, “In second method.” Id. at 944. this exposed advertising who were primary there are two methods calcu alleged to misleading.” be materially Maz attorneys late fees: lodestar method za, 666 F.3d at 596. The district court percentage-of-reeovery and the method.” failing erred do so here. re Litig., In Online DVD-Rental Antitrust (9th “Under

C method, the percentage-of-recovery the at obligations torneys’ Because a court’s equal percentage un fees some fund; circuit, heightened Rule 23 are common der the settle context, Amchem, percentage ment-class 521 U.S. the benchmark is 25%.” Id. (citing 117 S.Ct. obli Headset Prods. a district court’s Bluetooth Liab. Li gation 942); Hanlon, to “rigorous analysis” tig., conduct a 654 see also to F.3d at 150 ensure that of at prerequisites employs the Rule F.3d 1029. If the court 23 district method, met, Comcast, have been 569 at the lodestar but an U.S. calculates 1426, heightened Here, “overcompensates 133 S.Ct. is as well. award that the attor neys the district to rigor according court failed conduct a to the 25% benchmark inquiry standard, ous look proposed into the then a second to evaluate whether class could 23 prerequisites meet the of the the reasonableness hours worked appropriate.” on the mistaken and rates is In re assumption that the stan claimed for Proceedings dard certification Coordinated Pretrial in Pe was lessened in the Litig., settlement our Prod. Antitrust 109 precedent Because troleum F.3d context. 1997). (9th grave raises the When a district viability concerns about of 607 Cir. made, “comparison fails to a -be and the claims data in the record court conduct of attorneys’ indicates that the amount settlement the settlement’s fees tween by funds was far members to the class or de claimed award and the benefit Moreover, the lower.26 court failed ad- or litigation” of success in the a “com gree objectors’ questions dress reasonable between the amount parison lodestar and settlement, about of the for ex- the value award,” may percentage re reasonable ample, the value class mem- whether for the case to the district court for mand began in participating bers who the LRP further consideration. Bluetooth Headset settlement, before and who elected the 943; Litig., see Prods. Liab. 654 F.3d or remain in LRP from the who switched Inkjet Litig., In re HP Printer also LRP lump option, to the sum could the 2013). (9th Indeed, Cir. in F.3d attorneys’ in to the attributed efforts explanation adequate the absence litigation.27 the Because district court could the proportionate whether award is the not the fees to the settle- compare award class, “we benefit obtained for the have no considering ment value without these ,to case the choice but remand the dis questions determining actual, and set- permit court to to make the trict neces it value, tlement “to itself— it failed assure provide the neces sary calculations and us—that amount was not awarded explanations.” City v. sary McCown unreasonably, light excessive in re- (9th Fontana, Cir. F.3d sults Bluetooth Prods. achieved.” Headset 2009). Litig., Liab. at 943. F.3d Here, court used the A pro district court must also attorneys’ to calculate lodestar method justification of a adequate for the use vide fees, awarding approximately million multiplier, $9 appropriate which is However, attorneys’ fees costs. “exceptional” “rare” or See Perdue cases. сourt failed calculate the value of the Winn, Kenny v. rel. A. ex 559 U.S. S.Ct, settlement order ensure that 554, 130 176 L.Ed.2d attorneys’ pro fees not excessive in (2010). were Here, reasoning the district court’s Although portion to the settlement value. enhancing by for lodestar amount. settling par counsel, the court mentioned that multiplier namely earlier Brady multiplier estimated the Hunter war ties the value was million, it did proposed “complexity settlement at ranted and volume $210 in,” a finding engaged not actual make work that counsel regarding Espinosa multiplier claims based on was warranted value 26, Although settling expert reject parties 27. The dissent contends that "we filed have objectors' arguments investi ed that a federal (cid:127)reports, court did not discuss district gation merits a class counsel’s reduction way. of. An them examination address fees,” citing Corp., 290 Vizcaino Microsoft reports, likely led have (9th Dissent 1048 n.3 See probe expert’s questionable some con This incorrect. Vizcaino assumptions, assumption such as that car investigation the federal irrel cluded that who LRP before program owners entered the suit, pivotal evant to the issue in the own settlement would their cars therefore it concluded did merit period of who shorter time than car owners contrast, By inves reduction the EPA in fees. settlement, program LRP entered the after tigation here established that and assumption of mem- and the that all class efficiency fuel for Kia had estimates misstated program bers who models, the LRP entered after pivotal in certain issue which action, so of directly Hyun would not have done their settlement which this class and led (cid:127) regardless program. implement of dai and Kia to the LRP own accord the settlement. Espinosa the risk that counsel assumed wide settlement class without’conducting a - filing a lawsuit before the of announcement rigorous predominance analysis under LRP, why is insufficient -explain 23(b)(3) Rule to determine whether varia- warranted, is particularly enhancement tions in laws, state protection consumer given objectors’ concerns that the settle individual factual questions regarding ex- only ment confers modest benefits posure to statements, the misleading pre- class, see Bluetooth Headset Prod. Liab. class, certification.30 cluded We cer- vacatе Litig., (holding F.3d at 942 that dis tification and remand the district court trict courts should “award further proceedings consistent with amount of fees reasonable in is rela opinion. this Each party will bear its own obtained,” to the results tion even where on appeal. costs counting reasonably spent all hours award) produce larger fees (quoting AND VACATED REMANDED. Eckerhart, Hensley v. 424, 440, 461 U.S. (1983)).28 103 S.Ct. 76 L.Ed.2d 40 NGUYEN, Judge, Circuit dissenting: remand, if properly On the district court “Economic reality dictates” this approves class certification and settle- consumer lawsuit “proceed aas ac class ment, court must district determine tion or not at all.”’ Eisen v. Carlisle & what value was created the settlement Jacquelin, 156, 161, 417 U.S. 94 S.Ct. take a closér look at the reasonable- (1974). By championing L.Ed.2d 732 attorneys’ ness of the in of light fees cause objectors results handful of achieved.29 their (who attorneys below) were fees denied V class, decertify the majority deprives We conclude that the district court thousands consumers chance to is, certifying abused its discretion in a nation- recover conservatively what speaking, a disagree 28. We also with conducting the district analysis court’s a choice of-law and con- conclusion “the issue collusion is sidering not protec- differences in state consumer present attomey[s’] in the fees context” be- laws, objection tion we do not reach the attomey[s’] cause fees were “the awarded Feinman, by James raised counsel separately from the recovery class did not Gentry plaintiffs, that the district court abused impact recovery.” class The district court’s awarding attorneys’ its discretion not him responsibility independent to conduct an in- fees. quiry attorneys' into the reasonableness of- equal, greater, fees importance if not 30.Objectors raised a number additional attorneys’ separately when fees are awarded arguments, including claims that: from the class award. See Bluetooth Headset certifying court its discretion abused Indeed, Litig., Prods. Liab. 654 F.3d at 943. n plaintiffs because named did arrangement we have identified exact as adequately represent the not interests one signs” the "subtle of collusion 23(a)(4); required Rule under settlement context. See at 947. Similar id. n district court’s to conduct a choice of failure sailing agreement” the "clear еxamined analysis violated absent class members’ Litig., par- Headset Bluetooth Prods. Liab. process rights; the court's failure due district agreement ties reached an amount of Virginia certify subclass violated Hunter, attorneys’ paid fees to be in the process rights; members’ due and the settle- actions, Brady and the did defendants not adequate fair ment was under Rule contest the fees before the district court. we that the Because conclude 23(e), light certifying of our court abused its decision that the district discretion 23(b)(3), certifying its do not consider abused discretion in a set- Rule 23(b)(3) arguments. Wang, tlement class under without these See 737 F.3d at 546. 708 [laws.]”). imposing geographic Far from In do- million settlement.1

more than $159 limitations, predominance inquiry un so, majority arguments on ing relies 23(b)(3) tests whether simply der Rule objectors, contravenes never raised to the class “are more questions common disregards reasonable fac- precedent, important” or than individual prevalent findings by the district court tual made Foods, ones, Bouaphakeo, Inc. v. Tyson years litigation. after of extensive — 1045, —, 194 136 S.Ct. U.S. majority major also deals a blow (citation omitted), (2016) a 124 L.Ed.2d Contrary to our class actions. multistate “readily consum which is met” standard circuits, the that of our sister case law and Products, actions, Inc. v. Amchem er class proving majority shifts the burden 591, 625, 117 Windsor, 521 S.Ct. U.S. governs class claims foreign law whether (1997). “Predominance is 138 L.Ed.2d 689 foreign proponent—here, from not, however, nose-counting. matter objectors—to district court or class Rather, important questions apt more sig- newly This counsel. invented standard litigation are the resolution of the drive district nificantly burdens our overloaded predominance given weight more courts, runs split, a circuit creates questions analysis over individualized long ago of the doctrine established afoul considerably significance less which are Tompkins, in Ene R.R. v. 304 U.S. claims of the class.” Torres v. Mer to the (1938). Next, L.Ed. S.Ct. (9th Canyons cer car from excluding used owners Therefore, 2016) (citation omitted). Cir. misapplies that con- majority the rule question predomi just if one common even merely require proof claims sumer nates, prop may action be considered “the likely to be public—not individual—is 23(b)(3) though other even er under Lastly, majority its deceived. bases matters will have to be tried important attоr- clarification of the court’s district damages or some affir separately, such reading on neys’ fees flawed award peculiar some individu mative defenses disregard the record and our usual Tyson, 136 S.Ct. al members.” deferential review. (citation omitted). Here, court concluded that predominance inquiry I. Rule 23’s undisputed ques- following common readily met is- predominated over individualized tions Both we and our sister circuits have economy the fuel state- “[w]hether sues: long held that a class action nationwide in fact accurate” and “whether ments were simply economy be decertified because there cannot knew that their fuel defendants misleading.” are “differences between state consumer false were statements protection Chrysler laws.” Hanlon v. court also found the class (9th proof to common be- Corp., subject 150 F.3d 1022-23 Cir. claims were 1998); Money Litig., economy re Mex. statements were cause the fuel Transfer (7th 2001) (“[N]a via “uniformly” by Defendants 267 F.3d made “Monroney and nationwide adver- routinely stickers tionwide classes are certified issues, types of common though every tising.” has its own These even state acknowledged majority’s by the majority attempts is undercut 1. The to soften its decision by noting viability certifica- that its of the class of a na- "grave vacatur about the concerns tion "does not mean that the court is foreclos- Opin- in this context.” [case’s] tionwide class subclasses) (or certifying ed from ion Opinion But remand.” at 703. this sentiment

709 heavy turn on a of which common course conduct reliance on misplaced Amchem is defendant, predominance establish because that did not case address choice- Hanlon, class actions. nationwide 150 issues of-law and involved be- conflicts (affirming F.3d at certification of 1022-23 potential tween claimants that are not a nationwide settlement class of car own present here. common questions

ers because defen knowledge dant’s and existence objectors A. The failed to meet problem over state law predominated vari their choice-of-law burden ations); Edwards Am. Corp., v. First 798 As majority acknowledges, Califor (9th 1172, 2015) (revers F.3d 1182-83 Cir. nia’s choice-of-law rules control the out ing of a denial nationwide consumer class 691-92, come Opinion of this case. at certificаtion because the “com defendants’ rules, Under these applies California law scheme, true, mon if presents significant party litigant timely “unless a invokes the transactions”). aspect of Nei [defendants’] state,” of a foreign law in which case it is objectors majority ther the nor the adhere foreign “the law who proponent” must precedents. to these “shoulder the burden of demonstrating law, foreign rather than California II. Neither the district nor court law, apply should class claims.” Wash. duty argu- counsel had a to raise Bank, Court, Mut. FA v. Superior 24 objectors’ behalf, ments on nor can 906, 320, Cal.Rptr.2d Cal.4th 103 15 P.3d class action decertified fail- (2001) 1071, 1080-81 (citation omitted); Pok ure to do so Quixtar, Inc., orny v. 601 F.3d majority’s misstep pre- first in the (9th “foreign propo law analysis subtle, disposi- dominance is a but here, course, nent” objectors. is the tive, from departure our nationwide class burden, To their objectors meet jurisprudence. action violation con- satisfy three-step governmental must rules, trolling. majority choice-of-law Mut., Cal.Rptr.2d interest test. Wash. places the on court or burden 320, 15 1080-81; Pokorny, P.3d at 601 F.3d extensively every class counsel to canvass test, objectors at 994-95. Under that state’s laws and that none other determine (1) prove foreign must that: law apply. Opinion than California’s at “materially from the law of state differs First, wrong 703. This three reasons. California,” Mut., Cal.Rptr.2d Wash. objectors because the here bore the bur- 1080-81, meaning 15 P.3d at that the it, den and failed to meet claims regard particular “with to the law differs Second, are California law. controlled (2) question”; issue in a “true conflict ex majority’s reassignment of the burden ists,” meaning that each state has inter justified cannot be which is own application est its law “the requires silent choice-of-law issues case”; particular circumstances to prove predominance, counsel but (3) foreign state’s would be interest negative. not a can majority rely Nor impaired” “more than California’s interest on the combination Rule 23 and CAFA if applied. Kearney California law were diversity jurisdiction flip the burden. to. Erie, Doing doctrine, Barney, Salomon Smith 39 Cal.4th so violates the which requires Cal.Rptr.3d a California 137 P.3d sitting federal (2006);Pokorny, 601 F.3d at If the diversity jurisdiction apply Califor- 994-95. rules, objectors nia’s to meet their choice-of-law even where а fed- fail burden Third, majority’s analysis, “may eral rule is step involved. the district court objectors’ opposition in the applicable find California few sentences properly law analysis. certification to the rest class' constitute devel- proceeding” without - (quoting oped analysis, Opinion at 995 choice of orny, Pok 320, 15 Mut., opposition, But in Gen- Cal.Rptr.2d 103 699-700. that P.3d Wash. n tryobjectors clearly argue 1081).2 California at that choice provisions contractual law faults the district majority court The govern, citing explicitly to three should surveying all 50 states’ sponte laws not sua into their contracts entered named than California’s prove none other to that representatives. “California two has But, anyone to the extent apply. should analyses selecting different which law analyze to the laws of other obliged was applied should be an action”: con- states, squarely fell on the that burden provisions analysis tractual choice-of-law they to meet No failed it. objectors—and Ct, Nedlloyd Super. v. from Lines B.V. 3 mentioned, con- objector much less even 459, 330, 11 834 Cal.Rptr.2d Cal.4th P.2d ducted; analysis. choice-of-law correct (1992), and, “[alternatively,” gov- 1148 how, explain any objector Nor did Mut., test. ernmental interests 103 Wash. case, they satisfied the the facts 320, 15 Cal.Rptr.2d Apart at 1077. P.3d test’s three ele- governmental interest Washington a reference passing from to here, “Where, parties hot do as ments. Mutual, objectors never even ad- issues, California address choice-of-law governmental dressed test interests apply California presumptively courts They certainly court. before the district v. Lucent Techs. 653 law.” Johnson not, showing their did meet burden that (9th 2011). 1000, Cir. Given the F.3d 1008 foreign apply.3 law should prove to that the of a objectors’ law failure applied, than California state- other that-when, precedent recognizes Our acted well its discre- district court within here, foreign proponent to law fails- certifying tion in the class. burden, meet its neither the district court must, to majority acknowledges, obligated as it nor is address class counsel issues, objectors nor Opin- that the burden. choice-of-law will class action carry analysis. But it not for lack of such acknowledge ion does be decertified at 692. Smith, for entirely example, reject- the' do so objectors Hаrmsen failed Instead, argument that California majority implies here. ed the law could Indeed, objectors’ plaintiff Gentry tag- 2. The in the burden not "modest” the lead applicable (the. when defen objector burden only Gentry ap out-of-state along action process right invokes due dant its to be free sought hostage peal) class recov hold law, arbitrarily applied Phillips from state ery she her under the settlement unless ' Shutts, 797, Petroleum Co. v. 472 U.S. 818 to'represent Virginia attorney were certified , (1985). 105 S.Ct. L.Ed.2d We concession, that, by own subclass her process rights cannot conflate the due of out- nothing her because claim recover "time- objectors defendánts with those of-state Virginia law. Given that barred” under con given placed by "burdens a State cession, any textual differences between upon plaintiff an absent class-action are not "material” be two states’ statutes are , magnitude of the same as those order it they difference in this do not "make a cause upon an places absent defendant.” Id. at greater litigation”: they in a do not result objectors 105 S.Ct. 2965. While the have a Virginia recovery under than rather Califor settlement, process right opt due out of tire Co., Inc., Motor they nia law. v. Am. Honda process right have no due to dictate Mazza 2012). (9th applies which state’s law class. See id. Cir. (rejecting objectors’ at S.Ct. 2965 settlement). process challenge due to' applied not.be to a class -which'included Id. n.3. Weighing ences[.]” these non-Californians, though even arguments concessions, pan divided no analysis. conducted choice-of-law el it was concluded error to find that the (9th 693 F.2d 946-47 “not defendant had met its burden” to There, foreign proponent law chal foreign show that applied “[u]nder the lenged ability of non-California class facts and circumstances of this case.” Id. members recover under California fraud light record, 594. In unique that, here, and tort claims like the claims Mazza as a exception stands rare arose from the misrepresenta defendants’ general “[predominance rule that is a test tions. Id. at 935-37. district court readily met” in consumer class actions. rejected argument on procedural Amchem, 625, 521 at U.S. 117 S.Ct. 2231. ground, ap which we did not on embrace held, have never We in or any Mazza However, peal. Id. at 946. we not did fault case,.that other a class cannot be certified failing the district court for to raise Unless a sponte district court sua raises arguments then refute favoring another arguments refutes objectors’ on the Instead, state’s law. placed we the onus support Rather, behalf of foreign in law. it belonged: where on the foreign pro law that, have made clear if “parties we do ponent show, who required by “failed to as issues, not address choice-of-law California lawj California that of other states the law courts presumptively apply California relating to significantly claims is [class] Johnson, law.” 653 at (emphasis F.3d 1008 and, from different more im California’s added). all, court, After as an impartial portantly, that the interests of other states arbiter, not it, need a party’s do “work for impaired by application would be of Cali either manufacturing legal argu its nonresident, fornia law to plaintiffs.” these ments, combing on the record its 947; Id. at Pokorny, accord 601 F.3d at behalf for support.” factual Radio See W. 994-96 (affirming application of California Qwest Co. v. Corp., Servs. 678 F.3d foreign law because the proponent law (9th 2012). 979 Cir. duty, trig Nor is to meet failed its burden California’s gered if a. district court becomes aware test). governmental interest multiple may states’ laws apply; as This is straightforward case more even confirmed, Mazza “fact that two mere Harmsen,. than objectors as here did or more states are involved does not itself any argument gov- advance under the indicate there is a conflict of law.” 666 test, ernmental interest therefore Mut., F.3d 590 (quoting at Wash. 103 Cal. “apply Johnson, must California law.” 653 1080). Rptr.2d 15 P.3d The objectors’ F.3d at 1008. The is a far silence court duty dig. up therefore had no cry from Mazza—the from case briefing from years two Es- earlier circuit to majority analogizes. which the pinosa action argu and refashion those There, (the foreign proponent de- law objectors’ ments for the benefit. fendant) “exhaustively ways detailed which law from California differs the- laws B. Under the Erie doctrine, CAFA and jurisdictions” the 43 other showed 23 reassign foreign cannot how applying disparate the facts to those proponent’s law burden is because it litiga- state laws made “a in this difference substantive state law Co., tion.” Mazza v. Am. Honda Motor Inc., (9th 666 590-91 F.3d Cir. majоrity’s reassignrhent bur- here, Unlike class counsel plaintiffs in den under California’s rules choice-of-láw Mazza did “not contest these differ- also violates the A Erie doctrine. federal

712 is that the Erie doctrine sitting diversity jurisdiction must federal” outcomes designed Gasperini v. Ctr. law the state to combat. “apply substantive for Humanities, 415, 430, sits, including it choice-of-law 116 which U.S. (1996); a federal rule or stat- rules”—even where 135 L.Ed.2d 659 Bee S.Ct. Harmsen, LLC, 693 F.2d at 946- ute is involved. Prescription Mgmt., man Anthem 47; States, 2012) (9th (en Manalis v. United Fin. Co. Cir. F.3d 1980) (9th (“[W]hen banc) panel’s (critiquing misapplication depends statute on application a federal violating by creating state for Erie law, a federal court should an issue state “inconsistent” results state and federal highest ruling to the court of defer courts). Supreme Court has stressed issue.”). the state prevent inconsistent state and need federal outcomes the basis its hold choice-of-law rules Because California’s courts ing apply federal must state state law which the are substantive Klaxon, choice-of-law rules. 313 U.S. is the final arbi Supreme California Court explained, 1020.As the Court S.Ct. ter, disregard not free to majority failure to follow these rules would allow 946-47; Harmsen, F.2d at them. Klax diversity citizenship “the of [to] accident Co., Mfg. v. on Co. Stentor Elec. 313 U.S. justice in equal administration of disturb 496, 1020, 487, 61 85 L.Ed. 1477 S.Ct. sitting ... state and federal courts side (1941). Supreme has The California Court side,” prin would “do to the which violence unequivocally gov that held California law uniformity upon ciple of within a state proponent foreign erns unless a law meets decision is based.” Id. [Erie] which the prove its burden to otherwise under the test, Mut., governmental interest Wash. majority rely general Nor on the can the 1080-82, Cal.Rptr.2d 15 at 103 P.3d principle “pro that a district court should See, recognized. repeatedly e.g., have we by conducting “height tect” the class Moreover, Pokorny, 601 at 995. F.3d “rigorous” analysis ened” or whether has clear Supreme California Court made has Rule 23 counsel satisfied certain proponent foreign that law bears 693, 702-03, Opinion prerequisites. at 704- even ac burden “when a nationwide class says nothing 06. Rule 23 about how choice- issue,” rejecting tion is at the idea that the resolved, of-law issues should nor does “proponent of class certification [should] require it class counsel or the district court affirmatively ] California demonstrate[ arguments choice-of-law on the make Mut., properly applied.” law is more Wash. objectors’ import behalf. We should avoid Cal.Rptr.2d 103 15 P.3d Yet 1081. ing process certification “an into the class majority is exactly what the demands found in the additional hurdle” nowhere here. Foods, ConAgra v. Rule. Briseno n By flouting applicable choice-of-law (9th 1121, 1126 Cir. rules, relief majority denies Moreover, ‍‌​‌‌​‌​​‌‌‌‌‌​​‌‌‌​​​​​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​​‍majority’s position puts class would obtained state court.4 have so, doing us odds with the reasoned decisions majority’s ruling creates exactly prevailing other circuits. The view “variations between state and See, Co., e.g., Rutledge because burden was on 4. counsel "the Hewlett-Packard Cal.App.4th Cal.Rptr.3d proponent] foreign demonstrate [the (2015) (reversing 431-32 denial nationwide of other laws were that the interests state’s consumer class certification where lower interests”). greater than California’s placed improperly "court the burden” amongst our sister circuits is that “varia multiple class actions were filed and then rights tions and remedies following available consolidated California a fed- injured agency’s investigation, eral class members under with the vari the defen- announcing dant fifty plan ous laws of the states remedial defeat and en- [do] not tering into a settlement only after commonality predominance.” Sullivan moved Investments, Inc., certification. Id. at v. DB 667 F.3d Gentry objector Like the in our (3d 2011) (en banc) (alteration appeal, an origi Cir. objector in Hanlon nal) filed a late class action (quoting In re Sodium Anti Warfarin in another state and sought litigate it in (3d Litig., trust 391 F.3d contravention of the district court’s orders. 2004)). reject These circuits the notion that Id. at 1019. We held common ques- places anyone the burden on other tions as to the knowledge defendant’s objector than the to prove ap which law (the problem the existence same plies. See Mex. Money, 267 F.3d at 747 here) questions at issue predominated, (“Why [class counsel] should have an obli notwithstanding “variations state law.” gation to way find some to defeat class Id. at 1022-23. In rejecting the ob- mystery.”). treatment is a Judge As East jectors’ argument idiosyncratic that “the explained: erbrook has differences state pro- between consumer It marginal is best to bypass if theories tection laws” predominance, defeated their presence spoil the use of an reasoned that the claims revolved around aggregation device that on the whole is “common applied nucleus facts” and favorable to holders small claims. In- longstanding “differing rule that reme- requiring stead of plaintiffs to con- preclude dies” do class certification. hunt, may duct what be a snipe Id. at reasoning 1022-23. That same ap- judges should do what the court did plies here, greater with even force where objectors here: Invite to identify an the class claims turn on the Defendants’ theory available state-law rep- that the (its common course conduct fuel econo- raised, resentatives have should and that statements) my objector no and estab- if presented would have either increased the law of lished other states recovery the inap- demonstrated applied. propriateness of class treatment. Id. This burden allocation makes sense C. The no settlement raises concerns Rule because 23 does not into play come collusion about until a foreign proponent has after majority implies that the settlement proven that the claims governed class are here raises same concerns about collu by multiple majority’s states’ laws. The sion between class and defense counsel contrary holding a sends district court on Opinion Amchem. animated at 702-03. exactly “snipe hunt” that the Seventh Amchem, nothing But this case is like against. Circuit warns “sprawling” which was the most class the

The problem created by majority Court had ever seen. 521 U.S. at can easily simply avoided adhering There, S.Ct. 2231. asbestos manufacturers to our precedent, own on which is all fours. agreed settle with class counsel for sev Chrysler Corp., Hanlon v. we affirmed liability pending products eral cases 23(b)(3) certification Rule receiving a na- upon global as-yet- a release for claimants, tionwide settlement of car class owners unfiled lawsuits future who alleging violations of state represent. consumer laws. counsel Id. at class did There, here, here, 150 F.3d at 1022. 2231. Unlike class counsel S.Ct. “designed- protect” 23 criteria absent parties settling litigated years, who right proper and their class members litigate intended Amchem never adequate representation. Id. at Id. at claimant's’ and lаwsuits. notice future Instead, Single day, 23(c) a 2231. within (citing- 117 S-.Ct. 2231 S.Ct. answer, pro they complaint, (d)). Moreover, filed expressly the Court distin- settlement, certify a motion a' it, posed guished the case before where “individ- future current and claimants-under! class high disparities among are .ual stakes liability products laws—none state various from consumer great,” members class 601-03, at implicated here. Id. are which actions, re- predominance where The class encompassed 2231. in 117 S.Ct. “readily met.” Id. at- quirement is “exposed to different asbestos- dividuals 2231. S.Ct. containing products, different amounts certified here raises The consumer class time, over ways, in different differ in Am- none of the concerns identified rendering some mem periods,” ent explained distinguish- As Hanlon chem. “no physi others suffered sick while bers Amchem, problem “heart” ing S.Ct. injury.” Id. at 2231. But cal conflicting there class members’ was expansive; definition while claimants, who were interests: current anemic; The the remedies were sick, to maximize the immediate wanted set unilaterally the defendants allowed healthy claimants payout, whereas claims, capped compensation for strong preserving funds case interest per year regard payable number claims Hanlon, 150 they ill in the future." became filed, bound the many less of how were Hanlon, Here, 1020-211 like allowing despite the- perpetuity class in no conflicts all there such because are years. after ten Id. defendants withdraw suffer from “the same class members at.604-05,117 2231. S.Ct. problem”—cars economy fuel with Unsurprisingly, the Court found the they which are worse than advertised—for multiple grounds, in- class untenable any of the oner- without compensated, all be- cluding inadequate representation, objectiona- ous terms Amchem found conflicting inter- of class members’ cause' See id. at 1021. ble. 627-28, Id. S.Ct. ests. claimants, who suffered Whereas current Nor Amchem support does decertifica- other lung asbestos-re- cancer from urged by majority, ground tion on the illnesses, to maximize the lated wanted court should have namely, that the district claimants, future who payout, current catalogued the of all 50 sponte sua laws time, strong healthy a were at the identify state variations and they preserving funds should interest state, did not competing interests. Amchem Id, 624, 2231. at 117 S.Ct. become sick. conduct, address, much a choice-of-law less unexplained highlighted The Court also in Am- analysis. problem The fundamental class recov- disparities between members’ chem differences between was factual receiving ery, with some class members that a be- class members created conflict at all others receiv- compensation no Id. 1020-21. potential claimants. at tween than the ing of thousands less hundreds conflict have even existed And at average recovery for claim. Id. laws,at issue were identical. if state all the n.14, 604, It 2231. was 610 117' S.Ct. district court at faulting the ev- Finally, Amchem chided this collusive context that turn, majority to adhere to ery fails devoting “undi- district court of review. When our deferential standard luted, to Rule attention” heightened, even

715 ted) reviewing granting Cases, certifica II (quoting order class In re Tobacco 46 tion, 298, 569, the district “we accord court notice Cal.4th Cal.Rptr.3d 93 207 P.3d ably more (2009)). deference than when we review 20, Rather, 35 “reason Torres, (quot a denial.” 835 F.3d at 1132 test,” presumed able consumer is reliance Assocs., Inc., ing Abdullah v. U.S. Sec. 731 if public likely “members are to be (9th 2013)). 952, 956 Cir. review F.3d Our deceived” misrepresen defendant’s “very a class action settlement limit is Bank, Capital tation. v. Rubio One 613 upon ed” only and we will “reverse a 1196, (9th 2010) F.3d 1204 Cir. (quoting strong showing that court’s the district Co., v. Gerber Williams Prods. 552 F.3d decision was-a clear abuse discretion.” (9th 2008)); II, Cir. 938 Tobacco 93 Linney v. 151 P’ship, Cellular Alaska F.3d Cal.Rptr.3d fact, 207 at P.3d 29. In (9th 1998) (internal quota Cir. Supreme the California has express Court omitted) tion marks (quoting Class Plain ly rejected the view that claim requires a (9th Seattle, v. 955 F.2d tiffs proof purchasers “heard and had re 1992)). especially light Cir. is “This true specific lied on misrepresentations.” To strong judicial policy that favors II, Cal.Rptr.3d bacco P.3d at ’ settlements,- particularly complex where 40. litigation class action is concerned.” Id. standard, Applying.this routinely we af- (quoting Plaintiffs, Class 955 F.2d at certification without demanding firm 1276); Rodriguez Publ’g see also v. W. every member’s, proof of exposure 2009). (9th Corp., 563 963-64 Cir. F.3d misrepresentation. same Gutierrez majority’s apply failure to a deferen Bank, NA, Fargo example, Wells tial is in- standard of review reflected upheld certification because common .class opinion’s unusual reliance on a tentative predominated, issues as to whether action, Espinosa order which (and public likely to be was deceived thus Opin never adopted. See could presumed) by reliance bank’s 695-97, ion at But it is only 703. dis marketing “misleading materials.” 704 trict rulings—issued court’s final after it (9th 728-79 dis- hear briefing, had the benefit of additional trict court identified four exhibits that con- ings, eight more and over dis months misleading marketing the bank’s tained covery—which reviewing arewe here. .website, its fees: a overdraft III. Used owners car need not offer brochure, jacket account new. proof rea- individualized under the provided” from “customarily test,

sonable consumer asks which Id. opening new account. only public likely if to be On did not appeal, we limit class to deceived .new those holders who read account instead, jacket; we upheld certification In excluding car from the used owners of all account a class included holders on majority again the an focuses incurred overdraft fees from 2004 by who had argument objectors not raised the (cid:127) Id. at As 2008. by belied 728-29. we ex- the record. The element reliance plained, the class was of not overbroad be- California consumer laws protection “pervasive of the mar- proof’ “does not cause the nature” require individualized reliance, specific as plaintiff exposed keting was to a materials established each Middleman, in other misrepresentation. appeared similar statements ad- Pulaski & 986-(9th v. show reli- Google, vertising, enough--to LLC 802 which was F.3d 2015) (internal 729; at quotation Cir. Id. ac- omit- ance California mark law. 716 1137-38; re Barrack, 902 at accord 524 established. Id. Blackie v. F.2d

cord Co., (where 471 F.3d (9th Cir.1975) Mortg. First All. there are “similar (9th 2006) (affirming consumer 990-91 the is united misrepresentations, ... under California law determining class certification common interest in by a mis- on is based defendants’ omissions course of conduct defendant’s whether through actionable, representations communicated outlines which in its broad officers). loan slight in various not defeated differences positions”). members’ review, clear apply Rather than error majority settling parties not faults the Similarly, court here did the any evi- purportedly identifying] Mon- “not class to those saw limit the who the in the massive adver- [a] on new cars dence record roney stickers because at But the economy tising campaign.” Opinion “uni 704. also fuel statements were us evi- advertising.” settling parties directed to such formly” made “nationwide dence, print adver- including even TV advertising campaign The here was And, Gutierrez, contrary to tising with above. pervasive than discussed more assertion, majority’s advertise- spent large more than million on $100 billboards, misleading fuel were print magazines, and ments’ statements number pot Im- during playoffs, Elantra vehicles. commercials NFL limited TV might Bowl, settling parties well Super Academy portantly, Awards. of this more the ob- objectors any identified evidence had do refute have evidence, argument made the requires jectors actually which in event us finding objectors’ majority to the court’s factual here. The defer advances or more” failure to do waived issue. See W. equally if another view “is so even — Harris, U.S. —, Radio, at plausible. Cooper v. 678 F.3d 979. 1455, 1465, 137 S.Ct. 197 L.Ed.2d Finally, majority mistakenly equates (2017). advertising campaign uniform here Amchem, advertising exposure cam- The omissions in the with the asbestos 704-05, Opinion to the at which involved different paign here bear no resemblance “quite products state Unlike the “smaller-scale” advertisements substantive law. Amchem, Mazza, liability consumer disparate to which claims in information” (but majority objectors) not the analo- here not turn claims do individualized Rubio, at gizes. exposure. at have 613 F.3d proof 595-96. We See Moreover, distinguished uphold class certi- is not de- predominance Mazza here, where, “im- simply may fication class suffers there as feated because meaning peculiar “a ... to some indi- injury,” from “informational matters portant policy Tyson, common S.Ct. of non-disclosure” class members.” vidual Torres, 1045; Exec. defendant. F.3d at 1135.As we Local Bd. Culi- Joint explained, Vegas Fund Las nary/Bartender have outcome in Mazza was Tr. Sands, Inc., (9th Cir. having “subjected to the 244 F.3d due defendant 2001) only a small of an of class certifica- segment expansive (reversing denial buyers despite of car variation” in claims misleading material tion “some difficulty proof’). part Very advertising potential limited’ cam- “some Mazza, Id. paign.” (quoting attorneys’ fees award IV. “a F.3d at But exists where there not an abuse discretion information, common failure disclose correctly not of affir- The district court calculated merely disparate and series statements,” attorney’s using award the lodestar predominance eаsily mative fee is did, figure method then that litigation and cross-checked that this pressured Defen- against the settlement’s estimated value to dants to announce the LRP. finding the factual make that the “total Certainly, the claims here were bol- attorney’s amount of fees awarded this by finding stered the EPA’s that Defen- ... case far lower than 25% of the economy dants’ fuel representations were figure.” settlement majority does not Yet other important inflated. elements of dispute methodology, but criticizes the the class claims remained unresolved. award based on own miscalculation of its Where, here, “pivotal as other issue[s]” the settlement’s value and the mistaken remain, rejected have objectors’ argu- belief that the court failed address the investigation ments that a federal merits a objectors’ questions. Opinion at 705-07. in class counsel’s reduction fees. Vizcaino grounds disapproval, These are curious Carp., 290 F.3d 1048 n.3 Microsoft them, objectors rely not do in- (9th And we have never before confirming argument stead at oral that conjured arguments by ob- advanced “only that their disagreement is with the jectors to discredit class counsel’s role in

multiplier that portion to a applied diligently litigating a case to settlement Argument the fees.” Oral at 17:01- 17:25. because, simply along way, agency’s fact, objectors concerns findings viability. claims’ To confirmed by raised were addressed the district court the contrary, upheld we have certification hearings supple- several rounds of nationwide class actions they even when briefing. mental agency’s were filed a federal investi- after gation liability. Hanlon, established See majority that the states court failed 1018. objectors’ questions answer the about whether the Lifetime Pro- Reimbursement Moreover, supports the record the dis- (“LRP”) gram portion of the settlement trict finding attorneys’ court’s fees attorneys’ “could be attributed to the ef- were “far than 25% of lower” the settle- litigation,” forts in this implying that the only por- ment value even if we count LRP was EPA instead the result tion of the settlement is indisputably investigation. Opinion at 706. But these attributable to class LRP counsel’s efforts: questions objectors were not raised (the claims filed after December and, event, are answered original LRP enrollment deadline that the finding investiga- district court’s that the extended). As reflected in sev- only played tion “part” Defendants’ reports, expert5 eral other the net announcement of the LRP on November present of LRP claims value filed after 2012. The LRP announcement came than million by date totaled more $65 motions, year dispositive after almost a 26, 2015, March which was still several discovery, depositions, expert reports, away months from the claim July just three weeks before class certifi- attorneys’ An deadline.6 fees award $8.9 cation hearing. It is therefore more than million is than million less 14% this $65 infer, reasonable to portion as the district court of the settlement. ($13,698,496) ($12,535,120), expert reports appeal 5. These were plus filed Kai net No. 15-56014 on March present value of LRP filed claims after that ($21,862,156) Hyundai date with and Kia figure $65

6. That million is the sum of the net ($17,655,276). present value of LRP claims filed from Janu- ary through December 2014 with agreed “defendants what suggests that all instead awarded majority wrongly (cid:127)The Here, “$44,- the settlement has pay.” than were worth less to Id. 943. claims class clauses, The 000,000 Opinion sailing value.” at 701. or kicker Defen total no clear plucks it that number litigated from which a reduction reports successfully dants million the reflected fees, findings, clear that and the class make court made $44 100,- for roughly lump payments sum only of More of millions tens dollars. received , of 2015. as March “completed claims” over, negotiated “was here the settlement not.include number does the $65 That sessions multiple with a mediation over filed after December claims million in LRP mediator,” class experienced respected and 42,000 “pending 2013, the almost nor “experienced,” class ..and counsel were yet paid, been not nor that had claims” plenty opportunities of members in the more other claims be submitted hearings over raise concerns seven their 2015, 6, July than three months before majority has “float months. The seventeen that, majori- deadline. Not claim collusion, “but specter” of out ed to account for how ty’s about concerns give no eidolon brought facts forth from' the switched class members who Negrete v. Allianz more substance.” Life payment were ad- lump to a sum LRP 1091, Am., 523 F.3d Co. N. Ins. of calculated reports that in expert dressed 2008). (9th Cir. lump of sum the “incremental value” quibble is objectors’ sole that the Given never chal- reports were payments. These district multiplier used with the lenged below.7 court, findings for reviewing factual suggests that “this majority also error, easy affirmance an be clear should has been found be arrangement” exact findings district court’s about call. The of signs’ collusion.” of ‘subtle “one “risk” “complexity” work and (quoting In re Blue Opinion at n.28 .707 by litigating this counsel assumed Litig., 654 Liab. F.3d Headset tooth Prod. , findings exactly are case kind 2011)). (9th This 935, 943, case Cir. adjustment. justify an lodestar upward than different Blue- not more could Hanlon, 150 at 1029. on simi- F.3d Based tooth, paid the which findings, have affirmed fee lar awards a “clear and contained “zero dollars” totaling greater percentage a far which “defendants sailing” provision See, e.g., here. recovery than the fees to an of attor award agreed object” not to (no Vizcaino, 290 F.3d at 1047-48 abuse eight cy pres times the totaling neys’ fees constituting fees discretion award 28% whereby award, “all a “kicker” clause “risk” recovery of the class’s given revert defen fees awarded litigating); Pac. Enters. assumed re 947. dants.” (9th 1995) Litig., Cir. Sec. 47 F.3d findings either no court there made (no mil- abuse discretion percentage method and “$4 lodestar where was correct that the claims reports the district court reflect a total settlement value These of, conservatively speaking, $159 more than process to reach estimated was on track months Where, here, 2015—three be- million as March a settlement $210 million. July deadline. That fore the claim complicated which "a formula from involves mil- $65 $159 million reflects the sum are of several considerations kinds valuable LRP after December lion in claims filed members,” it is no abuse provided the class LRP claims filed $50 another million in “estimated to use settlement’s discretion date, lump sum $44 before million in calculating Wing v. Asarco value" fees. when payments. Given' that the settlement totaled (9th 114 F.3d deadline, million well before the $159 claim (thirty-three percent lion [of award recovery]) attorneys’

class’s for fees is

justified complexity of of because risks”). majority’s

issues and the dis-

regard our usual deferential review is

deeply troubling.

[*] * * decertifying this class hundreds of car owners who were de

thousands

ceived, majority effectively ensures anything.”

that “no will In re one recover Corp.

Mego Fin. Sec. Litig., (9th (June 2000), as amended damages ‍‌​‌‌​‌​​‌‌‌‌‌​​‌‌‌​​​​​​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​​‌​​‍allows “Settlement at least where, some members the class dam

ages might otherwise unobtainable

any, member Id. class.” Because error, I no committed

affirm. HAMAMOTO; Roco,

Eugene P. John

Plaintiffs-Appellants, IGE,

David Y. of the State of Governor

Hawaii; Party Hawaii; Democratic Nago, capacity

Scott T. his official the Chief Officer of Election Hawaii; Evans,

State Brian Defen

dants-Appellees.

No. 15-15572 Appeals,

United States Court of

Ninth Circuit.

Argued August and Submitted

2017, Pasadena, California January

Filed 201 8

Case Details

Case Name: Caitlin Ahearn v. Hyundai Motor America

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 23, 2018

Citation: 881 F.3d 679

Docket Number: 15-56014, 15-56025, 15-56059, 15-56061, 15-56064, 15-56067

Court Abbreviation: 9th Cir.