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Gerald Oscar, Individually and On Behalf of All Others Similarly Situated v. Bmw of North America

June 19, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff Gerald Oscar brings his second motion to certify a New York class of purchasers of MINI vehicles with Goodyear run-flat tires ("RFTs"), who were allegedly deceived, in violation of N.Y. General Business Law § 349,*fn1 by defendant BMW of North America's ("BMW") defective disclosures regarding the reliability and replacement cost of the RFTs fitted on MINI vehicles. For the following reasons, Oscar's motion is, again, denied.


The Court assumes familiarity with the background and procedural history of this matter, which are set forth at length in three prior opinions. In the most recent, this Court denied Oscar's motion for reconsideration of his motion for leave to amend his complaint. Oscar v. BMW of N. Am., No. 09-cv-11, 2012 U.S. Dist. LEXIS 9230 (S.D.N.Y. Jan. 25, 2012). Previously, the Court denied Oscar's motion for leave to amend his complaint as both untimely and prejudicial to BMW. Oscar v. BMW of N. Am., No. 09-cv-11, 2011 U.S. Dist. LEXIS 146395 (S.D.N.Y. Dec. 20, 2011). In an earlier opinion, the Honorable Richard J. Holwell, to whom this case was previously assigned, had denied Oscar's first motion for class certification. See Oscar v. BMW of N. Am., 274 F.R.D. 498 (S.D.N.Y. 2011). As relevant here, in denying Oscar's prior certification motion, Judge Holwell noted that Oscar "may seek leave to renew [the motion] as to the New York sub-class in the event that he can make an appropriate showing on numerosity and predominance." 274 F.R.D. at 513.

That renewed motion is now before the Court. The class Oscar seeks to certify is defined as:

All consumers who purchased or leased new 2005, 2006, 2007, 2008 and 2009 MINI vehicles equipped with Run-Flat Extended Mobility Technology tires manufactured by Goodyear and sold or leased in the State of New York . . . whose tires have gone flat and been replaced.

Oscar Br. 1. On February 10, 2012, Oscar filed the instant motion. (Dkt. 93.) On February 24, 2012, BMW filed its opposition. (Dkt. 96.) On March 5, 2012, Oscar submitted a reply. (Dkt. 100.)

II.The Parties' Arguments

Oscar argues that he has satisfied both the numerosity and predominance requirements of Federal Rule of Civil Procedure 23.

As to numerosity, Oscar claims that he has sufficiently shown that more than 40 New York residents purchased MINI vehicles with Goodyear RFTs which subsequently punctured. First, he extrapolates from materials obtained from road hazard warranty companies during third-party discovery. Oscar Br. 3--7. Second, he points to a report from J.D. Power & Associates, a market research company, and media reports, both of which, he contends, show that a significant number of MINIs' RFTs punctured during the class period. Id. at 7--8. Finally, Oscar points to the conclusion of his expert witness that approximately 27% of MINIs nationwide would be expected to have suffered tire failure between June 2005 and April 2010. Id. at 8.

As to predominance, Oscar argues that the purchase price injury he asserts is cognizable under N.Y. Gen. Bus. L. §§ 349--50, and that all class members similarly suffered from BMW's failure to disclose that: (1) there was no spare tire on the MINI; (2) RFTs cannot be repaired; (3) RFTs cost more than regular tires to replace; and (4) replacing RFTs entails more "inconvenience and delay" than replacing a normal tire. Id. at 10. Oscar alternatively points to a different injury-the high cost of replacing flat RFTs. Notwithstanding that Judge Holwell previously found that Oscar's claims as to this injury did not meet Rule 23's predominance requirement, Oscar claims that Judge Holwell erred, because Oscar need not establish the cause of the flat tire, only that BMW failed to warn the buyer as to its high replacement costs. Id. at 11--12.

In opposition, BMW argues, first, that a class of some vehicle consumers who suffered flat tires is not ascertainable, because considerable effort, including individual inquiries, would be required to identify class members. BMW Br. 3--4. Second, BMW contends that by defining the class as those who purchased or leased their MINIs in New York, Oscar includes many owners who are not citizens or residents of New York, giving rise to the need to conduct a choice of law analysis as to each class member to determine whether N.Y. Gen. Bus. L. §§ 349--50 (or some other state's law) would apply to BMW's alleged omission. Id. at 5--7. Third, BMW claims that, under §§ 349--50, Oscar must prove that BMW's alleged omission caused each class member to pay more for the MINI than he or she otherwise would have, which requires member-specific facts to determine. Id. at 7--12. Fourth, BMW asserts that Oscar's injury theories are based on unfounded premises, such as that the replacement cost of an RFT is necessarily more expensive, by a determinate amount, than that of other tires. Id. at 12--14. Finally, BMW argues that Oscar's claim of numerosity is speculative and insubstantial. Id. at 14--15.

In his reply brief, Oscar withdrew his motion insofar as it sought certification under § 350. Oscar Reply 7 n.3. Oscar defends his showing as to numerosity, and argues that the membership in the class (i.e., those who have suffered flat tires) is ascertainable. Id. at 2--3. Oscar further contends that, whatever the citizenship of the class members or the location of their tire failure, New York's interest in having cars sold only with proper disclosure necessarily trumps, in a choice of law analysis, any conceivable interest of the state whose citizen suffered injury. Id. at 3--5. Oscar also asserts that he need show only common causation of injury, and downplays any variance in the purchase price paid by class members as relevant only to the extent of damages. Id. at 5--9.

For the reasons discussed below, the Court holds that Oscar has not satisfied Rule 23(b)(3)'s predominance requirement. There is, therefore, no occasion to reach BMW's alternative argument that Oscar has not shown numerosity.

III.Applicable Legal Standards

Under Rule 23(a), to obtain class certification, a plaintiff must demonstrate that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); Teamsters Local 445 Freight Div. v. Bombardier, 546 F.3d 196, 201--02 (2d Cir. 2008). In addition, the plaintiff must satisfy Rule 23(b). Oscar claims to satisfy Rule 23(b)(3), which requires that (1) questions of law or fact common to the members of the class predominate over individualized questions; and (2) a class action be superior to other available methods for fairly and efficiently adjudicating ...

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