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Third Circuit decertifies class action over Bridgestone tires

By Jessica M. Karmasek | Aug 9, 2012


PHILADELPHIA (Legal Newsline) - A federal appeals court this week decertified a class action lawsuit brought over run-flat tires.

In its ruling Tuesday, the U.S. Court of Appeals for the Third Circuit parted from a decision by the U.S. District Court for the District of New Jersey.

The district court had certified plaintiff Jeffrey Marcus' suit as an opt-out class action brought on behalf of all purchasers and lessees of certain model-year BMWs equipped with Bridgestone brand run-flat tires, or RFTs, sold or leased in New Jersey with tires that "have gone flat and been replaced."

As their name suggests, the tires can run while flat.

More specifically, if an RFT suffers a total and abrupt loss of air pressure from a puncture or other road damage, the vehicle it is on remains stable and can continue driving for 50 to 150 miles at a speed of up to 50 miles per hour.

Marcus leased a BMW convertible equipped with four Bridgestone RFTs.

During his three-year lease, he had four flat tires.

In each case, the RFT worked as intended. Even though the tire lost air pressure, Marcus was able to drive his car to a BMW dealer to have the tire replaced.

Unsatisfied, he sued Bridgestone Corporation, Bridgestone Americas Tire Operations LLC and BMW of North America LLC, asserting consumer fraud, breach of warranty and breach of contract claims.

Among other things, he claims that Bridgestone RFTs are "defective" because they are highly susceptible to flats, punctures and bubbles and... fail at a significantly higher rate than radial tires or other run-flat tires; cannot be repaired, only replaced, in the event of a small puncture; and are "exorbitantly priced."

He also claims RFT-equipped BMWs cannot be retrofitted to operate with conventional, non-run-flat tires, and that many service stations do not sell Bridgestone RFTs, making them difficult to replace.

He faults BMW and Bridgestone for failing to disclose these so-called "defects."

In its 55-page ruling, the Third Circuit vacated the district court's certification order and remanded the case.

Among other problems, Marcus' claims do not satisfy the numerosity requirement, the court said.

Numerosity, Judge Thomas Ambro explained, requires that a class be "so numerous that joinder of all members is impracticable."

"When a plaintiff attempts to certify both a nationwide class and a state-specific subclass, as Marcus did here, evidence that is sufficient to establish numerosity with respect to the nationwide class is not necessarily sufficient to establish numerosity with respect to the state-specific subclass," the judge wrote.

In this case, the Third Circuit said it can only "speculate" as to how many 2006-09 BMWs were purchased or leased in New Jersey with Bridgestone RFTs that have gone flat and been replaced.

To begin, it can only guess as to how many 2006-09 BMWs were purchased or leased in New Jersey regardless of tire brand, the court noted.

"That information is not in the record," Ambro wrote. "There is also no evidence of how many of the 740,102 vehicles bought and leased nationwide had Bridgestone RFTs. No evidence shows that BMW purchased tires from its seven RFT-suppliers in roughly equal proportions or even if Bridgestone was among its larger or smaller suppliers."

The judge continued, "Not to pile on, but Marcus has not pointed us to any evidence in the record -- not in the customer complaints, the road hazard warranty claims, the loss-ratio data or the internal BMW emails -- that identifies another purchaser or lessee of a 2006-09 BMW that was sold or leased in New Jersey and equipped with Bridgestone RFTs that have gone flat and been replaced. In short, he has offered proof of only one potential class member: himself."

The Third Circuit pointed out that the district court, nonetheless, found that the New Jersey class met the numerosity requirement because "it is common sense that there will be more members of the class than the number of consumers who complained -- probably significantly more" and "common sense indicates that there will be at least 40."

"That may be a bet worth making, but it cannot support a finding of numerosity sufficient for Rule 23(a)(1)," Ambro wrote.

"If Marcus continues to attempt to certify a class, he needs to provide the court with a more clearly defined class and set of claims, issues or defenses to be given class treatment."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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