Class certification; FedRCivP 23; “Common questions” of fact or law; Whether the district court properly applied the “commonality” analysis; Whether the common questions predominated over non-common ones; Whether the district court properly applied the “predominance” analysis; Breach of express & implied warranties; State consumer protection statutes; Arbitration agreements

[This appeal was from the ED-MI.] In an en banc opinion, the court vacated the district court’s class certification order in this action alleging problems with a transmission in some of defendant-GM’s vehicles and remanded for the district court to conduct an “element-by-element commonality analysis” to determine which questions are truly central to which claims and whether “those questions predominated over individual ones.” Plaintiffs alleged defects in GM’s 8L transmissions in vehicles offered between 2015 to 2019. “The district court certified 26 statewide subclasses with a total of 59 state-law claims on behalf of roughly 800,000 individual car buyers.” On appeal, the court framed two issues: whether the district court properly (1) identified “common questions of fact or law” and (2) ruled that “those questions predominated over individual ones[.]” The court explained that the commonality requirement is not met “if the answer requires ‘evidence that varies from member to member.’” The district court found that “‘three readily discernible common questions that are crucial to the pleaded causes of action’ exist: whether the transmissions have shift and shudder defects; whether GM knew about them; and whether the defects are material.” It pointed out that every claim demanded “‘proof of a defect in the vehicles’ transmission design.’” Because it concluded “that these questions lend themselves to a common answer and feature ‘prominently in the disposition of the case,’ it found commonality satisfied.” The court held that this did “not suffice. A court may not simply ask whether generalized questions yield a common answer.” Rather, an “element-by-element commonality analysis” was required. Without it, the court could not “effectively review which questions are truly central to which claims.” The predominance requirement analysis required a “claim-by-claim comparison of the common and non-common questions to see which ones, if any, predominate.” Considering the four causes of action, the court concluded it was “doubtful that the common questions predominate over the non-common ones” as to the express and implied warranty claims. The claims under various states’ consumer protection statutes faced “two general hurdles. The first is a requirement in some states that a product defect must manifest before a consumer may bring such a lawsuit. The second is a requirement in some states that a consumer must show he actually relied on a merchant’s misrepresentation or omission. Only the state regimes that impose neither requirement avoid these predominance pitfalls.” The court also ordered the district court to consider whether “arbitration questions overwhelm the common ones in this” 800,000-car class.