Cardenas v. Toyota Motor Corporation

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 18-22798-CIV-MORENO

JAVIER CARDENAS, KURT KIRTON,

PAMELA BAKER, and MICHELLE MONGE,

individually and on behalf of all others simiarly

situated,

Plaintiffs,

vs.

TOYOTA MOTOR CORPORATION;

TOYOTA MOTOR SALES, U.S.A., INC.;

TOYOTA MOTOR ENGINEERING & .

MANUFACTURING, INC.; and

SOUTHEAST TOYOTA DISTRIBUTORS,

LLC,

Defendants.

/

ORDER CERTIFYING A REVISED CLASS

This case is about an alleged defect in non-hybrid Toyota Camrys for the model years

2012 to 2014. Car owners Javier Cardenas, Rodney Baker, and Michelle Monge bring this

putative class action against a variety of Toyota entities, in particular Toyota Motor Corporation,

which designed and manufactured the vehicles, and Southeast Toyota Distributors, which

distributed the vehicles to authorized dealers in the southeast United States. Plaintiffs allege that

Toyota and Southeast Toyota Distributors conspired to and actually concealed a defect in the

Heating, Ventilation and Air Conditioning (“HVAC”) systems of the vehicles, in order to protect

the Toyota brand, overcharge consumers, and avoid buybacks under the Florida Lemon Laws.

The Court certifies one class under the Florida Deceptive and Unfair Trade Practices Act

of all persons who purchased a 2012-2014 model year non-hybrid Toyota Camry from an

authorized Toyota dealer in the state of Florida. But the Court declines to certify a class under

the Racketeer Influenced and Corrupt Organizations Act for purchasers of the same vehicles

from authorized dealers in all of the southeast United States.

I. Background

Plaintiff car owners bring claims under the Racketeer Influenced and Corrupt

Organizations Act (RICO) and the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

Plaintiffs seek to certify two classes under Federal Rule of Civil Procedure 23(b)(3):

1. All persons who purchased a 2012-2014 model year non-hybrid Toyota Camry in

the state of Florida, called the FDUTPA Class.

2, All persons who purchased a 2012-2014 model year non-hybrid Toyota Camry in

the Southeast region, which includes Alabama, Florida, Georgia, North Carolina,

and South Carolina, called the RICO Class.

Plaintiffs claim that the HVAC systems in the Class Vehicles are designed such that

nutrient particles, organic matter, and dusts become trapped in the nooks and crevices in the

evaporator housing. As a result, Plaintiffs says that this design traps instead of flushing out

contaminants with flowing condensation, creating a habitat for organic matter that causes

microbial growth and malodor that is then expelled into the Pere

The three representative plaintiffs have generally the same story. Named plaintiff

Rodney Baker purchased a 2012 Toyota Camry from an authorized Toyota dealership in central

Florida. After the purchase, he noticed a moldy smell coming from the vehicle’s vents. He

complained to a Toyota dealership, but no repair was completed. Two years later, he traded in

the 2012 Camry for a 2014 Camry at another Toyota dealership in Florida. Baker noticed the

same odor, and again no repair was completed when he complained of it. Michelle Monge

purchased her 2013 Camry “as is” from a non-Toyota dealer in 2016 in Florida. She noticed that

the vehicle emits a moldy smell but has never had it inspected. Lastly, Javier Cardenas

purchased his 2014 Camry from a dealer in south Florida. After, he noticed a bad smell coming

from the HVAC system after he started the vehicle. All named Plaintiffs say that had Toyota

disclosed the alleged defect to them, they either would not have purchased the vehicle or would

have paid less.

This suit, howver, is not so much about the odor as it is about the Defendants’ efforts to

hide that defect and thereby overcharge for the vehicles. Plaintiffs claim that Defendants have

known about this defect and concealed it for some time. Toyota Motor Corporation internally

described HVAC odor as a “chronic issue” in 2012 and ranked it as third on Toyota’s list of

global issues. In response, Toyota Motor Corporation developed technical service bulletins and

“Tech Tips” that Southeast Toyota Distributors would distribute to authorized dealers. These

documents stated that HVAC odor was a normal characteristic of the systems and that it was

naturally occurring—in other words, that Toyota could do nothing to fix it. Toyota and

Southeast Toyota Distributors, through these documents and others, directed dealerships to tell

customers that HVAC odor was normal. Toyota Motor Corporation and Southeast Toyota

Distributors did so, in part, to avoid Florida’s Lemon Law that required a buyback after three

failed attempts to repair the issue.

Plaintiffs have put forward several expert witnesses in support of their claims. First,

Murat Okcuoglu analyzed the design of the HVAC systems in the class vehicles. He opines that

the system is the same in all class vehicles and that the defective design features which permit

materials to accumulate and cause odor are therefore present in class vehicles. Next, Steve

Gaskin and Colin Weir performed a conjoint analysis, which Plaintiffs say accurately determines

the amount of overpayment damages (what class members paid versus what the vehicles were

actually worth with the defect). In a conjoint survey, consumers are surveyed and asked to

assign values to particular product attributes. In this case, they were essentially surveyed about

their willingness to pay for two different vehicles: one with an HVAC system that might emit

odor versus one with an HVAC system that did not emit odor. Gaskin and Weir found that the

defect’s disclosure resulted in a 25 percent reduction in value per class vehicle. In addition to

this measure of overpayment, Weir offers another: he estimated the cost to abate HVAC odor

over a ten-year period. These different damages theories are referred to as the “conjoint

analysis” and the “cost to repair model.”

First, Plaintiffs moved for class certification. Both Southeast Toyota Distributors and

Toyota Motor Corporation separately filed briefs arguing against certification. Defendants have

also moved for summary judgment. The Court referred both class certification and summary

judgment to Magistrate Judge Lauren F. Louis. In addition to class certification and summary

judgment, the Court referred several of the parties’ evidentiary motions to Magistrate Judge

Louis—specifically, Defendants’ motions to exclude the opinions of Okcuoglu as well as the

conjoint analysis and cost to repair model. Magistrate Judge Louis entered a well-reasoned

reports recommending denying summary judgment. She also recommended granting class

certification, but only after amending the class definition to include only those individuals who

purchased their Class Vehicle from an authorized Toyota dealer. She therefore recommended

excluding Michelle Monge as a class representative. Plaintiffs chose not to object to this

suggested revision of the class definition. Magistrate Judge Louis recommended admitting

Okcuoglu’s opinions and the conjoint analysis but excluding the cost to repair model as an

inappropriate proxy for overpayment damages.

The Court then held a hearing on all pending motions that spanned four hours. Counsel

for all parties as they wished presented argument and the Court inquired accordingly. The Court

then adopted the Magistrate’s recommendation on summary judgment and explained that ruling

in a written order. The Court also adopted Judge Louis’s recommendation on Defendants’

motions to exclude Plaintiffs’ experts, without a concurrent written explanation, and noted that it

would further elaborate on that decision in its forthcoming class certification ruling. Thus, in the

present order the Court will rule on class certification and explain its ruling on Defendants’

motions to exclude Plaintiffs’ experts as required for class certification.

I. DEFENDANTS’ MOTIONS TO EXCLUDE

“[A] district court must make the necessary factual and legal inquiries and decide all

relevant contested issues prior to certification.” Sher v. Raytheon Co., 419 F. App’x 887, 891

(11th Cir. 2011). The Court in this section is ruling only on those evidentiary matters that must

be decided before it can rule on class certification. Thus, the Court first considers Defendants’

Motions to Exclude the conjoint analysis and the cost to repair model as well as the opinions of

Okcuoglu.

Federal Rule of Evidence 702 governs the admissibility of expert witness testimony.

That rule permits admission if “(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable

principles and methods; and (d) the expert has reliably applied the principles and methods to the

facts of the case.” Fed. R. Evid. 702. The Supreme Court’s decision in Daubert v. Merrell Dow

Pharmaceuticals, 509 U.S. 579 (1993), instructs trial courts to act as “gatekeepers,” ensuring that

“speculative, unreliable expert testimony does not reach the jury.” McCorvey v. Baxter

Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). A district court has satisfied its

Daubert obligations only after it has considered whether “(1) the expert is qualified to testify

competently regarding the matters he intends to address; (2) the methodology by which the

expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry

mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of

scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in

issue.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005).

Defendants’ arguments here go to the second prong, often called “reliability.” In

ascertaining reliability under the second prong, the Eleventh Circuit has “identified several

factors which can be considered: (1) whether the expert’s methodology can be tested; (2)

whether the expert’s scientific technique has been subjected to peer review and publication; (3)

whether the method has a known rate of error; (4) whether the technique is generally accepted by

the scientific community.” Jd. at 1292.

Defendants argue, with help from their expert Peter Rossi, that the conjoint analysis did

not reliably calculate a proper market value because it did not account for supply-side factors.

Defendants explain that an accurate measurement of true market price requires considering both

demand by consumers and supply from sellers. Here, they say, Gaskin and Weir considered only

what consumers would be willing to pay. This was to the neglect of important factors such as

competitor pricing decisions and Toyota’s willingness to sell, which directly impact market

value. To support their position, Defendants principally rely on In re Volkswagen “Clean

Diesel” Mktg., Sales Pracs., & Prod. Liab. Litig., 500 F. Supp. 3d 940, 949 (N.D. Cal. 2020),

which generally adopted Defendants’ arguments to exclude a conjoint analysis by Gaskin, see id.

(“Mr. Gaskin does not actually calculate a market price premium; he examines only what

consumers say they would be willing to pay for certain vehicles. As Defendants point out, this

ignores the ‘supply’ part of the supply/demand curve.”).

Plaintiffs respond to the contrary. They say that Gaskin and Weir expressly describe in

their reports which supply side factors they incorporated into their conjoint analysis to calculate

the reduction in market value caused by the alleged Defect. (D.E. 223 at 9-13). Defendants only

quarrel with the factors that were chosen, which goes to weight but not admissibility, according

to Plaintiffs. The supply side factors that Gaskin and Weir considered are (1) the actual market

prices that prevailed during the Class Period and (2) the actual quantity of Class Vehicles sold

during that period. This makes sense, Plaintiffs explain, because their damages calculation is

supposed to reflect a “but-for world” in which all else is equal except the Defendants’ challenged

conduct. In this case, that means that all should be the same except that Defendants did not make

any material misrepresentations or omissions regarding the defect. Plaintiffs describe the court’s

decision Clean Diesel as an outlier and instead cite several cases that have accepted Gaskin

and Weir’s conjoint analysis as offered in this case. See, e.g., Martinelli v. Johnson & Johnson,

2019 WL 1429653, at *4 (E.D. Cal. Mar. 29, 2019); Kaupelis v. Harbor Freight Tools USA, Inc.,

2020 WL 5901116, at *6 (C.D. Cal. Sept. 23, 2020); Hadley v. Kellogg Sales Co., 324 F. Supp.

3d 1084, 1106 (N.D. Cal. 2018).

In some respects, Plaintiffs and Defendants are both right. District courts around the

country have accepted both arguments—some have excluded the proffered conjoint analysis and

some have admitted it. For instance, the court in Hadley found that Gaskin’s conjoint analysis

sufficiently accounted for supply-side factors because it considered actual market prices and

actual sales during the class period. See Hadley, 324 F. Supp. 3d at 1106. Judge Koh explained

that courts have found conjoint analyses to have adequately considered supply-side factors when

they consider these metrics, and she thus held consistent with that trend. See id. at 1105. The

court in Clean Diesel, however, felt differently; there, Judge Breyer explained that “presuming

that Defendants would have sold the same number of cars, at the exact price that consumers

would have been willing to pay, is not a way to reliably incorporate supply-side considerations.”

500 F. Supp. 3d at 949.

In light of these conflicting views, Judge Crawford in the Western District of New York

recently explained, “[t]his debate is common in the caselaw of conjoint analysis” and “[cJourts

have followed [both] directions.” Jn re Fisher-Price Rock ‘N Play Sleeper Mktg., Sales Pracs. &

Prod. Liab. Litig., 2021 WL 4988186, at *6 (W.D.N.Y. Oct. 19, 2021). He elaborated:

What these two lines of cases indicate is that there is a legitimate difference of

opinion, both among judges and experts, about the significance of supply side

information in calculating loss of value. Mr. Weir’s methodology is not wrong or

“fake”—it is simply different in a principled way from Dr. Rossi’s analysis. A

difference in opinion is not a basis for exclusion of an expert opinion under

Daubert standards.

Id. at *7.

This Court agrees with Judge Crawford and other district courts which have observed that

“critiques about Gaskin’s failure to include certain attributes in his conjoint survey may be

valid,” yet “it is well-established that these types of critiques merely go to the weight, [] not to

the admissibility, of survey-based analyses.” Hadley, 324 F. Supp. 3d at 1108; Beaty v. Ford

Motor Co., 2021 WL 3109661, at *5 (W.D. Wash. July 22, 2021) (noting this disagreement

among district courts, concluding that the defendant “simply disagrees with Gaskin and Weir

about whether Plaintiffs’ proposed conjoint model . . . should incorporate certain supply-side

information,” and reasoning that “[s]uch disputes go to the weight that should be afforded to the

experts’ model, not its admissibility”); Earl v. Boeing Co., 2021 WL 4034514, at *38 (E.D. Tex.

Sept. 3, 2021) (concluding that “the various threads of argumentation Defendants urge on this

point relate more readily to the task of the factfinder at trial”); Milan v. Clif Bar & Co., 2021 WL

4427427, at *7 (N.D. Cal. Sept. 27, 2021) (“This may be grist for cross-examination at trial, but

it is not a good reason to exclude Gaskin altogether from the case.”).

This resolution is consistent with how this district has handled the matter before. See

Sanchez-Knutson v. Ford Motor Co., 181 F. Supp. 3d 988, 996 (S.D. Fla. 2016). And it is

consistent with the principle, recognized in this district, that arguments about a consumer

survey’s methodology generally go to weight, not admissibility. Ohio State Troopers Ass’n, Inc.

v. Point Blank Enterprises, Inc., 2020 WL 1666763, at *13 (S.D. Fla. Apr. 3, 2020); Taylor v.

Trapeze Mgmt., LLC, 2019 WL 1977514, at *2 (S.D. Fla. Feb. 28, 2019).

Defendants add a bevy of additional arguments for why Gaskin’s conjoint analysis is

unreliable. First, they argue that the conjoint analysis contained innumerable flaws: it provided

respondents with a false choice between a vehicle that may emit HVAC odor and one that never

will emit HVAC odor (which Defendants say does not exist), it omitted vehicle features that

respondents actually care about and thus artificially increased apparent value of the HVAC

system, it lacked a sufficient sample size, and it was unrepresentative because it included

purchasers of hybrid vehicles and old people. Defendants also argue that the variability of

Gaskin’s result show that his method was unreliable; this, in addition to results showing that

respondents would have unreasonably overpaid for certain vehicle features.

Notwithstanding the potential merit of these objections, the Eleventh Circuit, as well as

district courts from sea to shining sea, have recognized that they go to weight, not admissibility.

See FCOA, LLC v. Foremost Title & Escrow Servs., LLC, 2019 WL 416817, at *4 (S.D. Fla.

Feb. 1, 2019) (noting that objections like poor sampling, poorly designed questions, and other

errors in execution are “technical deficiencies that affect the survey’s weight” but “not its

admissibility” (quoting Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 844-45

(11th Cir. 1983))); Sanchez-Knutson, 181 F. Supp. 3d at 995 (same); In re Arris Cable Modem

Consumer Litig., 327 F.R.D. 334, 370 (N.D. Cal. 2018); In re FCA US LLC Monostable Elec.

Gearshift Litig., 382 F. Supp. 3d 687, 698 (E.D. Mich. 2019); Hadley, 324 F. Supp. 3d at 1110.

As a result, Defendants’ objections do not provide reason to exclude the conjoint analysis—

especially because it is sufficiently tied to Plaintiffs legal theory that they overpaid for their

vehicles and because it satisfies the predominance requirement under Comcast Corp. v. Behrend,

569 U.S. 27 (2013), a conclusion that is elaborated upon later in this order. Cf Sanchez-Knutson

v. Ford Motor Co., 310 F.R.D. 529, 538-39 (S.D. Fla. 2015).

Defendants also object to Weir’s cost-to-repair model on the grounds that under both

FDUTPA and RICO, the proper measure of damages is the difference in market value of the

product as delivered and the condition in which it should have been delivered, a value that is

completely separate from the cost to repair. Defendants are correct, see Sanchez-Knutson, 310

F.R.D. at 538, as explained in greater detail by Magistrate Judge Louis in her recommendation to

exclude the cost to repair model. (D.E. 334 at 41-43). Accordingly, the cost to repair model is

excluded.

Finally, Defendants move to exclude Okcuoglu’s opinions because he did not himself test

the class vehicles for odor. As Magistrate Judge Louis explains, however, this is not sufficient

reason to exclude his opinions. Okcuoglu’s objective was not to deteremine whether there was

odor in the vehicles—Toyota’s own documents show that. Instead, his mission was to determine

the cause of the odors generated in the HVAC system and see if a defect common to the class

vehicles was the cause. For this reason and those explained in greater detail by Magistrate Judge

Louis, (D.E. 355), the motion to exclude Okcuoglu is denied.

10

Having resolved the parties’ evidentiary skirmishes as necessary, the Court moves on to

class certification.

Il. CLASS CERTIFICATION

In a class action, representative litigants may bring claims on behalf of absent persons

called class members. Class actions are “an exception to the usual rule that litigation is

conducted by and on behalf of the individual named parties only,” Califano v. Yamasaki, 442

U.S. 682, 700-701 (1979), and as a result, the presumption is against class certification, Brown v.

Electrolux Home Prod. Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). Although district courts

have traditionally enjoyed broad discretion in deciding whether to certify a class, Washington v.

Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992), that discretion must

be carefully exercised according to the dictates of Federal Rule of Civil Procedure 23, Klay y.

Humana, Inc., 382 F.3d 1241, 1251 (11th Cir. 2004) .

To proceed as a class, the named representatives must complete a burdensome checklist.

Specifically, they “must satisfy an implicit ascertainability requirement, the four requirements

listed in Rule 23(a), and at least one of the requirements listed in Rule 23(b).” Ohio State

Troopers Ass’n, Inc., 481 F. Supp. 3d at 1270. Rule 23(a) requires 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). These requirements are generally referred to as “numerosity,

commonality, typicality, and adequacy of representation.” Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009).

11

If the plaintiffs have affirmatively demonstrated ascertainability and that the requirements

of Rule 23(a) are satisfied, the district court moves on to Rule 23(b). Here, since Plaintiffs

proceed under Rule 23(b)(3), they must show that “questions of law or fact common to class

members predominate over any questions affecting only individual members, and that a class

action is superior to other available methods for fairly and efficiently adjudicating the

controversy.” Fed. R. Civ. P. 23(b)(3). Finally, Plaintiffs must also establish that “damages are

susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” Comcast

Corp., 569 U.S. at 35.

Since it is the plaintiffs’ burden to establish that Rule 23 is satisfied, and that rule does

not set forth a mere pleading standard, “the merits of the underlying claim may be considered to

the extent that they are relevant to determining whether the Rule 23 prerequisites for class

certification are satisfied.” Ohio State Troopers Ass’n, Inc., 481 F. Supp. 3d at 1271

(simplified). Doubts are resolved against class certification. Brown, 817 F.3d at 1234.

Because Magistrate Judge Louis recommended revising the class definition to only those

purchasers that acquired their Class Vehicle from an authorized Toyota dealer, and Plaintiffs did

not object, the forgoing discussion is based on that revised definition.

A. Ascertainability

The first step for a plaintiff seeking class certification is to establish that the proposed

class is adequately defined and clearly ascertainable. Little v. T-Mobile USA, Inc., 691 F.3d

1302, 1304 (11th Cir. 2012). In other words, the plaintiff must show that class members can be

identified by reference to objective criteria. Bussey v. Macon Cty. Greyhound Park, Inc., 562 F.

App’x 782, 787 (11th Cir. 2014). And such objective criteria must enable an identification

process that is administratively feasible, requiring little, if any, individual inquiry. Jd.

12

Plaintiffs maintain that this requirement is satisfied here because the class is defined by

reference to objective criteria: persons that purchased the Class Vehicles from authorized dealers

in Florida and in the Southeast region. Such persons could be identified, Plaintiffs maintain,

through Defendants’ records and through public records, like Vehicle Identification Numbers,

which are maintained by various public and private entities. Plaintiffs are correct that use of this

data is sufficient to render a class ascertainable. See, e.g., Berman v. Gen. Motors LLC, 2019

WL 6163798, at *11 (S.D. Fla. Nov. 18, 2019).

In opposition, Defendants also argue that the class definition is overbroad. Specifically,

Defendants argue that the class includes class members that never experienced HVAC odor and

therefore never experienced any harm. But this is based on a fundamental misunderstanding of

the nature of Plaintiffs’ claims.

At bottom, this is a fraud case. It is not a products liability case. Plaintiffs allege that

Defendants conspired to and succeeded at concealing a defect in their vehicles in order to

defraud purchasers of the class vehicles. Their claims in general, under RICO and FDUTPA,

require a showing that Defendants engaged in a scheme to defraud and acted deceptively. See

Cardenas v. Toyota Motor Corp., 418 F. Supp. 3d 1090, 1098, 1105 (S.D. Fla. 2019). These

legal wrongs, if committed, were complete at the time of purchase of the class vehicles,

irrespective of which class members experienced HVAC odor. See, e.g., Debernardis v. IO

Formulations, LLC, 942 F.3d 1076, 1084 (11th Cir. 2019).

Defendants cited authorities do not compel a different conclusion. All that Defendants

have established is that a class is overbroad when it includes uninjured individuals. See, e.g.,

Ohio State Troopers Association, Inc., 481 F. Supp. 3d at 1269; Breakstone v. Caterpillar, Inc.,

2010 WL 2164440, at *6 (S.D. Fla. May 26, 2010). And they have further demonstrated that

13

such might be the case where plaintiffs seek to certify a class of all purchasers, yet there is no

evidence to show that a uniform defect existed at the time of sale. See Ohio State Troopers

Inc., 481 F. Supp. 3d at 1276 n.9.

But we do not have such a case here. Rather, the plaintiffs have created a triable issue

that the HVAC systems in the Class Vehicles were defectively designed and that Defendants

failed to disclose that defect. A jury, if it believes Plaintiffs’ evidence, could thus find that the

Class Vehicles were defective at the moment of sale, and that at the same moment Defendants

failed to disclose that defect. See, e.g., Sanchez-Knutson, 310 F.R.D. at 535. Thus, the proposed

class definitions are sufficiently ascertainable and do not include class members that sustained no

injury.

In its objections, Southeast Toyota Distributors ascribes error to Magistrate Judge Louis’s

report and recommendation for accepting “Plaintiffs’ theory that the harm in this case is ‘not the

odor’ but is instead the mere existence of an alleged undisclosed design problem at the time of

purchase.” Southeast Toyota Distributors then cites many cases, all of which the Court has

considered, which simply restate the undisputed proposition that the presence of uninjured class

members in a class often defeats certification. Breakstone, Harris, Melton, and Ohio State

Troopers do nothing to establish that uninjured class members are included in the class definition

here. If Plaintiffs’ claims were for products liability-design defect, and therefore their alleged

damages were odor in the cars, Southeast Toyota Distributors would be correct. But Plaintiffs’

claims are brought under consumer protection-fraud statutes, and therefore the alleged harm is

the overpayment as a result of the concealement of the alleged defect, not the defect itself. Any

qualms about the existence of such a cause of action should be lodged with the legislatures that

made the cause of action available, not the Court.

14

This misunderstanding of the cause of action also undermines Southeast Toyota

Distributors’s contention that Baker suffered no harm because he sold his class vehicle without

respect to any diminution in value as a result of the alleged defect. Unlike in the case cited by

Southeast Toyota Distributors, Licul v. Volkswagen Grp. of Am., Inc., 2013 WL 6328734, at *5

(S.D. Fla. Dec. 5, 2013), where the alleged defect had not manifested prior to resale, both the

injury and damage in this case accrued to Baker at the point of his initial purchase and was not

ameliorated by his resale of the vehicle.

B. Numerosity

The first requirement of Rule 23(a) is that the class be so numerous that joinder of all

members is impracticable. Plaintiffs argue that this is satisfied here because the class vehicles

number over 205,000 in the Southeast region and 91,000 class vehicles in Florida. It is clear that

joinder of all purchasers from an authorized dealership would be impracticable, see Cox v. Am.

Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986), and Defendants do not argue

otherwise.

C. Commonality and Predominance!

Next, under Rule 23(a)(2), there must be questions of law or fact common to the class.

This means that more than one common issue of law or fact must exist. Walco Invs., Inc. v.

Thenen, 168 F.R.D. 315, 325 (S.D. Fla. 1996), Such issues, furthermore, must be susceptible to

class-wide proof. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009). The

focus is on the “capacity of a class-wide proceeding to generate common answers apt to drive the

resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Though

not always the case, the commonality inquiry is generally satisfied where the defendants have

' “Because there is considerable overlap between Rule 23(a)’s commonality requirement

and Rule 23(b)(3)’s predominance requirement, courts often address them together.” Ohio State

Troopers Ass'n, Inc., 481 F. Supp. 3d at 1282.

15

engaged in a standardized course of conduct that affects all class members. See Sanchez-

Knutson, 310 F.R.D. at 536.

Predominance, on the other hand, presents a more difficult hurdle for plaintiffs. See

Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997). Predominance

demands, under Rule 23(b)(3), that “questions of law or fact common to class members

predominate over any questions affecting only individual members.” As described by the

Eleventh Circuit, this means that the common issues of law and fact must have a direct impact on

every class member’s effort to establish liability and on er class member’s entitlement to

relief. Williams, 568 F.3d at 1357. Judge Tjoflat, writing for the panel, has provided the

following particularly helpful illustration:

[Ijf the addition of more plaintiffs to a class requires the presentation of

significant amounts of new evidence, that strongly suggests that individual issues

(made relevant only through the inclusion of these new class members) are

important. If, on the other hand, the addition of more plaintiffs leaves the quantum

of evidence introduced by the plaintiffs as a whole relatively undisturbed, then

common issues are likely to predominate.

Vega, 564 F.3d at 1270 (simplified).

To begin, Plaintiffs argue that there are both common questions of law and fact; for

example, whether Defendants engaged in a scheme to defraud Class members by knowingly

selling defective Class Vehicles (RICO) and whether Defendants engaged in a deceptive or

unfair business practice by concealing the HVAC Defect (FDUTPA). (D.E. 181 at 15-16).

Those are examples of the biggest questions. Plaintiffs offer more discrete questions of fact and

law as well, like whether the Class Vehicles contained an HVAC Defect, whether Defendants

knew or should have known about that defect, and whether Defendants intentionally

misrepresented or concealed facts concerning the defect. (D.E. 181 at 16).

16

As to predominance, Plaintiffs advance three main arguments. First, Plaintiffs argue that

their RICO claims will be established on a class wide basis using common evidence. They will

have to show an omission of material fact that was calculated to deceive. And given Defendants’

uniform conduct, the claims of each Class member will rise and fall together. Second, Plaintiffs

argue that common questions predominate on their FDUTPA claim because Florida courts apply

an objective standard to such claims. According to Plaintiffs, that means they only need to show

that a reasonable consumer would have been harmed by the omission—an inquiry perfectly

suited to class wide resolution. Finally, Plaintiffs argue that their damages methodologies can be

applied class wide because the conjoint analysis offered by their experts establishes the

difference in market value of the Class Vehicles based on whether they had the alleged defect.

In sum, on both their RICO and FDUTPA claims, Plaintiffs maintain that both the elements of

such claims and the damages that follow are susceptible to class wide proof: answering the

question as to one class member will answer it as to all of them.

In response, Defendants argue that individualized inquires will necessarily be required on

all fronts, and that they will predominate over the common questions. Defendants’ collective

response can broadly be divided into five main arguments, each of which is explained and

considered in view of Plaintiffs’ arguments in turn.

1. Design defect

Defendants argue that all claims require a common design defect causing odor, but that

no evidence of such a common defect exists. The Court does not agree. Plaintiffs’ expert

Okcuoglu has opined that the Class Vehicles “share identical or substantially similar HVAC

designs” and that each has the same “design defects that allow moisture to accumulate in the

HVAC systems.” Okguoglu Report at 31. Defense expert Robert Kuhn purports to identify

17

“key” differences across Class Vehicles, but none of these purported differences go to the

physical design of the HVAC systems. To the extent that Mr. Kuhn disagrees with Okcuoglu’s

conclusions, that is an issue if fact for the jury. Either way, Plaintiffs have presented evidence

that, if a jury believes, will show a design defect common to the Class Vehicles. Resolving

whether there is in fact a defect, then, will answer the question for all Class members.”

2. Common evidence of RICO Liability

Defendants provide three reasons for why individual issues predominate on Plaintiffs’

substantive and conspiracy RICO claims.

First, Defendants say that there is a lack of common evidence showing a uniform,

material misrepresentation or omission. They argue that the only alleged misrepresentations to

which Plaintiffs point are the “Tech Tips” and technical service bulletins which aren’t good

enough because they only go to dealers, not consumers, and owner’s manuals, which may or may

not have been read by consumers before purchase. Defendants’ position essentially breaks down

to unless Plaintiffs point to a single, uniform misrepresentation made to all class members, there

are no common questions on RICO liability.

Defendants also argue that Plaintiffs have offered no class-wide theory of RICO

causation. The way they tell it, Plaintiffs must show that someone relied on the alleged

misrepresentation. For this reason, they say, predominance is doomed: there’s no evidence of

any uniform misrepresentation or omission, much less reliance thereon. They add that according

? Defendants make much of Okcuoglu’s statement in his deposition that “[i]f you drive a

vehicle under different conditions on a large number of occasions, then in the absence of any

malodors, one can conclude that a defect does not exist which causes odors.” (D.E. 340 at 14).

This, of course, does not alter the conclusions set forth in Okguoglu’s report or suggest that he

will not testify consistent with that report at trial. Furthermore, seconds before that statement in

his deposition, Okguoglu was asked “[i]f a vehicle does not exhibit HVAC odor, does that lead

you to conclude that there’s no defect with respect to the HVAC system” and he responded

wouldn’t be an accurate statement.” If Defendants believe that Okcuoglu’s testimony is

self-contradictory, they are free to pursue that theory on cross examination.

18

to their expert, most class members still would have purchased the vehicle at the same price in

the face of a disclosure—and there can’t be reliance where a plaintiff would have acted the same

regardless.

Defendants’ arguments on the nature of the RICO statute and of Rule 23 are incomplete.

They are correct that to succeed on their substantive RICO claim, Plaintiffs must show that

Defendants engaged in a pattern of racketeering activity. Williams, 465 F.3d at 1282. And they

are also correct that racketeering activity predicated on mail and wire fraud requires showing a

scheme to defraud, which requires showing a material misrepresentation or omission. United

States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). Finally, Defendants are correct that for

predominance to exist, there must be common evidence, capable of resolving in one swipe issues

that are common to every single class member. Williams, 568 F.3d at 1357. However, it does

not follow from these statements that in a RICO class action predicated upon mail and wire

fraud, predominance rises and falls on the existence of a material misrepresentation or omission

made by the defendant to every single class member, on which they in fact relied.

To begin, the Supreme Court has held that a plaintiff asserting a RICO claim predicated

on mail fraud need not show that it relied on the defendant’s alleged misrepresentation. Bridge

v. Phoenix Bond & Indem. Co., 553 U.S. 639, 661 (2008). So that Plaintiffs personally relied on

the owner’s manual, or any other alleged ee by Toyota and Southeast Toyota

Distributors, is not a requirement of their claim. See id. at 660 (“RICO’s text provides no basis

for imposing a first-party reliance requirement.”’). Rather, under RICO, a plaintiff needs to show

a “pattern” of racketeering activity by the defendant, meaning two such acts. 18 U.S.C.

§ 1961(5). And once a RICO plaintiff has proved the predicate acts, they will still need to show

causation, which is often done by showing that someone else relied on the misrepresentation or

19

omission. Bowe v. Pub. Storage, 318 F.R.D. 160, 179 (S.D. Fla. 2015). But plaintiffs need not

establish individual, actual reliance on the predicate acts once proved; as the Supreme Court has

explained, quoting the RICO statute, “a person can be injured ‘by reason of? a pattern of mail

fraud even if he has not relied on any misrepresentations.” Bridge, 553 U.S. at 649. Consider

the following example that it provided:

[SJuppose an enterprise that wants to get rid of rival businesses mails

misrepresentations about them to their customers and suppliers, but not to the

rivals themselves. If the rival businesses lose money as a result of the

misrepresentations, it would certainly seem that they were injured in their

business ‘by reason of? a pattern of mail fraud, even though they never received,

and therefore never relied on, the fraudulent mailings.

Id. at 649-50.

In short, if the plaintiff in an individual RICO action based on wire and mail fraud

needn’t be exposed to the predicate act-misrepresentation, then surely in a RICO class based on

wire and mail fraud, not every class member need be actually exposed to the same

misrepresentation. Instead, Plaintiffs need to present at least two predicate acts that are

susceptible to class-wide proof that ultimately caused them to overpay for their vehicles. But

they need not show by class-wide proof that every class member was in fact exposed to and

relied on those predicate acts.

But even so, Plaintiffs’ misrepresentation theory fails. Even if Plaintiffs’ are correct that

Toyota and Southeast Toyota Distributors made misrepresentations to authorized Toyota dealers

about the source of the odor and the efficacy of the HVAC system, it does not follow that these

misrepresentations caused every purchaser from an authorized dealership to overpay for their

vehicle. Based on the evidence Plaintiffs offer, it was only those people who already owned a

Class Vehicle and brought it to a dealership complaining of odor who were the potential victims

20

of a misrepresentation—i.e., they were the only people told that the odor was normal.’ But it is

too attenuated an inferential chain to conclude that a purchaser from an authorized dealer, that

had no meaningful communication with the dealer or Defendants about the HVAC defect, was

harmed “by reason of’ Defendants directing dealerships to convey to complaining customers that

the odor was normal. Magistrate Judge Louis came to a similar conclusion in her report and

recommendation, (D.E. 334 at 25), and the Court agress with her.

Plaintiffs are correct, as a general principle, that causation can be achieved by an

inference that a person who pays the amount specified for a product would not have done so

absent reliance on the representation that the product was not defective. Bowe 318 F.R.D. at 179

(collecting cases); CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1089-90 (10th

Cir. 2014) (“In the RICO context, class certification is proper when ‘causation can be established

through an inference of reliance where the behavior of plaintiffs and the members of the class

cannot be explained in any way other than reliance upon the defendant’s conduct.’” (citation

omitted)). But for the reasons explained in this section, that observation does not connect the

misrepresentations by Toyota and Southeast Toyota Distributors regarding the source of the odor

to authorized dealerships with all persons that purchased a Class Vehicle.

Plaintiffs argument that a duty to disclose arose under RICO fails for similar reasons.

Plaintiffs are correct that the “nondisclosure of material information, even in the absence of any

patently false statements, can also constitute a violation of the mail and wire fraud statutes where

a defendant has a duty to disclose.” Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354, 1359-60 (11th

Cir. 2004). The Eleventh Circuit has explained that determinations “as to whether a duty to

3 Even on this front, there is no class wide evidence to suggest that invididuals who

already owned a Class Vehicle and brought it in for odor issues were actually told that the odor

was due to natural causes. There is only evidence making it plausible that they were so

informed. To reach that conclusion, the jury would have to assume that authorized dealers

followed Defendants’ instructions in all cases.

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disclose information exists must be made on a case by case basis, with appropriate attention

given to the nature of the transaction and the relationship between the parties.” Langford v. Rite

Aid of Alabama, Inc., 231 F.3d 1308, 1313 (11th Cir. 2000).

The court in Kemp elaborated that a duty to disclose can arise “in a situation where a

defendant makes partial or ambiguous statements that require further disclosure in order to avoid

being misleading” and that under RICO it is unlawful to omit certain facts that are necessary to

make statements already made not misleading. 393 F.3d at 1360. The problem for Plaintiffs is

that they have not offered any class wide evidence that Defendants, or even dealerships, told half

truths to Class members before they purchased their vehicles. Plaintiffs have only submitted

evidence that would permit a jury to infer that class members who complained of odor to an

authorized dealership were mislead.

Neither have Plaintiffs provided a persuasive reason to find a duty to disclose on account

of the relationship between themselves, Toyota, and Southeast Toyota Distributors. For RICO

purposes, a vehicle manufacturer and a vehicle distributor are not in a fiduciary relationship or

other relationship of trust with a vehicle purchaser such that a duty to disclose arises—or at least

Plaintiffs here have not sufficiently explained why they are. Plaintiffs cite this Court’s statement

that the “concealement of critical data, even without a formalized duty to disclose, may also

constitute mail and/or wire fraud in certain situations.” In re Managed Care Litig., 298 F. Supp.

2d 1259, 1278 (S.D. Fla. 2003). But they have not explained why this case is one such certain

situation. Furthermore, even if a “formalized” duty to disclose may not be required (i.e., a duty

imposed by statute or regulation), an “informal” duty still is, as explained in Langford, which

was cited by this this Court in Managed Care. So Plaintiffs still must explain why a duty to

disclose has arisen, which they have not done. And this Court declines to hold, without any hint

22

from the Eleventh Circuit or Supreme Court, that manufacturers and distributors are under an

omnipresent duty to disclose, for RICO purposes, all that may conceivablely be labeled a defect.

To conclude, the Court finds that Plaintiffs have not offered class wide evidence of a

material misrepresentation or omission that caused injury to Plaintiffs, and as a result, individual

issues of RICO liability predominate over the common RICO questions. The Court thus declines

the certify a RICO class. Because no class can be certified on Plaintiffs’ substantive RICO

claim, a class likewise cannot be certified on their conspiracy RICO claim. Cf Douglas Asphalt

Co. v. QORE, Inc., 657 F.3d 1146, 1152-53 (11th Cir. 2011). For the sake of completeness, the

Court still reaches conclusions in this order on Plaintiffs’ and Defendants’ arguments on the

other RICO-related class certification issues.

3. Common evidence of the FDUTPA claim

Florida courts hold that “a consumer claim for damages under FDUTPA has three

elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins,

Inc. vy. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006).

Plaintiffs assert, of course, that this claim will be established on a class wide basis

through common evidence. (D.E. 181 at 23). First, Plaintiffs argue that under Florida law, an

omission (such as a failure to disclose a defect) is a deceptive act for the purposes of FDUTPA

(they are correct, see Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cty., Inc.,

169 So. 3d 164, 167 (Fla. Dist. Ct. App. 2015)), which can be established through common

evidence. Second, Plaintiffs argue that their FDUTPA claim is well-suited for class treatment

because Florida courts apply an objective standard of causation—whether a reasonable person

would have been deceived. Because of this, Plaintiffs assert, whether a reasonable person would

have been deceived is capable of common resolution for all class members.

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Defendants attack FDUTPA predominance on two grounds. (D.E. 205 at 29-33). First,

they argue that there is no common evidence of exposure to any alleged false statement or

omission. Second, they argue that there is no class wide evidence that could show their conduct

would have deceived all reasonable consumers in the same circumstances.

a. Common evidence of a deceptive act and causation

Defendants concede that a FDUTPA plaintiff need not show reliance but say they must

nevertheless show causation. To Defendants this means that the plaintiff must demonstrate

actual exposure to the deceptive act, or else there is no causal link. They maintain that Plaintiffs

cannot achieve this here; first, because there is no evidence of an omission that all consumers

were exposed to and therefore could have relied upon, and second, because there’s no evidence

that Plaintiffs would have received a disclosure had Defendants made one.

Defendants’ first argument is inconsistent Florida law as well as the proffered evidence in

this case. With respect to FDUTPA, the Eleventh Circuit has explained that “plaintiffs do not

need to present evidence that each potential class member was actually harmed by a defendant’s

conduct,” and rather, that “plaintiffs need only show that a reasonable consumer would have

been harmed by defendant’s conduct.” Bowe v. Pub. Storage, 318 F.R.D. 160, 182 (S.D. Fla.

2015) (citing Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007)); see

also Carriuolo v. Gen. Motors Co., 823 F.3d 977, 985 (11th Cir. 2016) (“Because a plaintiff

asserting a FDUTPA claim need not show actual reliance on the representation or omission at

issue, the mental state of each class member is irrelevant.” (simplified)). This understanding has

been confirmed by Florida courts: “For the purposes of FDUTPA, we think the inquiry is how a

reasonable consumer would” have responded to the alleged deceptive act. Latman v. Costa

Cruise Lines, N.V., 758 So. 2d 699, 703 (Fla. Dist. Ct. App. 2000). The Latman court explained

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that plaintiffs “need not individually prove reliance,” only that “a reasonable person would have

relied on the representations.” Jd. (simplified). And the court added that reliance (which

Defendants dispute here) can be sufficiently shown by the fact that the consumer parted with

their money as a result of the deceptive act. Jd.

Furthermore, in view of the revision of the class definition to only those who purchased a

class vehicle from an authorized dealer, “a permissible inference of common exposure may be

drawn.” (D.E. 334 at 25). Thus, whether Plaintiffs were exposed to the same omission is indeed

susceptible to class wide proof. As other district courts have aptly put it: “all class members

received the same information from defendant regarding the purported defect — which is to say,

no information.” Salas v. Toyota Motor Sales, U.S.A., Inc., 2019 WL 1940619, at *9 (C.D. Cal.

Mar. 27, 2019) (citing Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 531 (C.D. Cal. 2012)).

Defendants rely on the decision in Stockinger v. Toyota Motor Sales, U.S.A., Inc., 2020

WL 1289549, at *9 (C.D. Cal. Mar. 3, 2020). In that case, they say, the district judge “denied

certification of a FDUTPA class on the very theory advanced” by Plaintiffs. But the California

district court in that case appears to have concluded that FDUTPA has an individual reliance

requirement—a concession that Defendants have already made here.

Defendants also seek refuge under the predominance analysis in Justice v. Rheem

Manufacturing Company, 318 F.R.D. 687, 696 (S.D. Fla. 2016). There, the district court

concluded that the defendant’s evidence suggested that consumers were unlikely to view and

attach significance to any disclosure of the alleged defect. Jd at 697. This is not persuasive: the

district court in that case was careful to note that the plaintiffs offered no rebuttal evidence

suggesting that consumers would have received and cared about a disclosure. See id. atn.5. But

here, there is a permissible inference that purchasers from an authorized dealer would have been

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exposed to a disclosure, and Plaintiffs’ expert reports constitute evidence that purchasers indeed

would have attached significance to such a disclosure.

b. Common evidence of reasonable consumers in the same

circumstances

Defendants next argue on Plaintiffs FDUTPA claim that there is no common evidence

that Defendants conduct was likely to deceive all reasonable consumers in their particular

circumstances. They maintain that the evidence in this case reveals that not all class members

had the same purchasing circumstances. Therefore, the circumstances of each class member’s

purchase cannot be proven class wide. The Court does not agree. The Court has explained the

consequences for this case of FDUTPA’s objectively reasonable consumer standard. In addition,

Magistrate Judge Louis’s suggested revision to the class definition ensures that all class members

did purchase their vehicle under the same circumstances: from an authorized Toyota dealer. See

(D.E. 334 at 25-26).

4, Common evidence of damages

On damages, Defendants raise several arguments against the conjoint survey. Only one

of these arguments,’ though, goes to the survey’s capability of generating class wide answers—

Defendants argue that the conjoint survey does not measure damages for any class member but

instead merely aggregates damages to the class as a whole. This is insufficient, Defendants

argue, because Plaintiffs must prove the actual injury to each class member.

The Court does not agree. First, Defendants do not dispute Plaintiffs’ observation that

“individualized damages calculations are insufficient to foreclose the possibility of class

certification.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 988 (11th Cir. 2016). Indeed,

4 That is, only one of those arguments after bracketing arguments that go to admissibility,

the cost-to-repair model, and damages for class members that did not purchase their class vehicle

from an authorized Toyota dealer, all of which the Court addressed above.

26

nothing in Rule 23 “requires plaintiffs to prove predominance separately as to both liability and

damages.” Jd. Second, Defendants appear mistaken that the conjoint analysis cannot estimate

the damages per class member. Gaskin explains how, having calculated the amount of

overpayment damages per vehicle,” the damages per class member and to the class as a whole

can easily be calculated. (D.E. 223-2 55-59). Defendants do not suggest that the Gaskin

Report here is mistaken or otherwise incorrect. The most they offer is an excerpt of Wier’s

deposition in which he explains that allocating damages to class members takes place during

claims administration and that therefore he was not at that moment offering an opinion on the

way to allocate between one class member or another. (D.E. 205-33 at 114-15). For that, he

explains, he will need the class definition. Yet this does not rebut the methodology that the

Gaskin report offered for calculating damages per class member; it just highlights the obvious

fact that to make such a calculation, one would need to know who is a class member and who is

not, which will be most prescient during claims administration after the Court has officially

defined the class.

5. Individualized defenses

Defendants finally argue that they will raise two affirmative defenses in particular that

are sufficient to defeat class certification. First, Defendants argue that many of the class

members claims, because they regard Camrys from 2012-2014, are likely barred by the statute of

limitations, because both RICO and FDUTPA have 4-year limitations periods and this action was

filed in July 2018. Second, Defendants argue that many class members likely signed contracts

agreeing to arbitrate and waiving any class action claims. —

> And the parties agree that under RICO and FDUTPA, overpayment is the proper

measure of damages.

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The general rule, as acknowledged by the Eleventh Circuit, is that individual affirmative

defenses ordinarily do not defeat predominance. Brown, 817 F.3d at 1240. Still, a district court

confronted with the prospect of affirmative defenses should not simply recite this general rule

and move along. See id. at 1240-41. Affirmative defenses are relevant to the predominance

inquiry, particularly where they raise individual questions and could apply to the vast majority of

class members. /d. at 1241.

The putative statute of limitations bar in this case does not defeat predominance because

Plaintiffs raise fraudulent concealment as a tolling doctrine, which can be proven on a class-wide

basis. This would require showing successful peneeeinent of the cause of action and fraudulent

means to achieve that concealment. Fedance v. Harris, 1 F.4th 1278, 1287 (11th Cir. 2021).

Plaintiffs must also show that they have “pursued [their] rights diligently;” in other words, “the

tolling ceases when those facts are, or should have been, discovered by the plaintiff.” Jd.

(simplified). Whether Defendants succeeded at concealing the alleged defect and did so

fraudulently is consistent with Plaintiffs’ theory and capable of proof class wide. See Jn re

Checking Acct. Overdraft Litig., 307 F.R.D. 656, 680 (S.D. Fla. 2015) (“Predominance is not

defeated because the doctrines used by plaintiffs for tolling the statute of limitations, such as the

doctrine of fraudulent concealment, involve proof common to the defendants, namely, the act of

concealing defendant’s wrong.’’) (simplified), Indeed, much of the evidence on which Plaintiffs

will rely for the merits of their claims will also support their burden on fraudulent concealment.

Defendants also argue that many class members are subject to binding arbitration

agreements and class waivers that they signed with Southeast Toyota Distributors, and that

Toyota would be entitled to invoke these clauses under an equitable estoppel theory. The Court

acknowledges that arbitration may bar the litigation of some class members’ claims. But

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Defendants do not say how many class members have signed such agreements or why they are

definitely applicable here. Until they do so, the Court declines to find that this possibility cuts

against predominance. The Court is mindful that if evidence later shows that an affirmative

defense is likely to bar claims against some class members, there are adequate procedural

mechanisms at its disposal. Brown, 817 F.3d at 1241 (citing Smilow v. Sw. Bell Mobile Sys.,

Inc., 323 F.3d 32, 39-40 (1st Cir. 2003)). For example, the Court could appoint a special master

to preside over individual damages proceedings, decertify the class after the liability trial and

provide notice to class members about how they may proceed to prove damages, amend the class

definition, and more. See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 Qd

Cir. 2001).

D. Typicality

Under Rule 23(a)(3), the “claims or defenses of the representative parties” must be

“typical of the claims or defenses of the class.” This requires that a “sufficient nexus exist[]

between the legal claims of the named class representatives and those of individual class

members to warrant class certification.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th

Cir. 2001). Such a nexus is present if “the claims or defenses of the class and the class

representative arise from the same event or pattern or practice and are based on the same legal

theory.” Williams, 568 F.3d at 1357 (citation omitted). At bottom, if proof of the

representative’s claims would prove the proposed class’s claims, the representative’s claims are

typical of the proposed class. Alhassid v. Bank of Am., N.A., 307 F.R.D. 684, 698 (S.D. Fla.

2015).

Plaintiffs argue that this requirement is satisfied because their claims arise from the same

defect and common effort to conceal that defect as the rest of the class. They add that they and

29

the rest of the class were injured in the same way, by overpaying for their vehicles, and that to

support their claims they will advance the same arguments of law and fact as individual class

members would.

Defendants raise several arguments against the typicality of each named plaintiff. With

respect to Cardenas, Defendants argue that his class vehicle was purchased by his mother on his

behalf who decided which car to buy and made the down payment for him. Further, Cardenas

has had no interactions with Southeast Toyota Distributors. And he cannot represent the

FDUTPA class, they say, because he paid for and operates his car in Missouri. These objections

are unpersuasive. Cardenas made monthly payments on the vehicle even though his mother

made the down payment and was therefore still injured by overpayment in the same way as other

class members. Further, since there is no subjective reliance requirement in either statute, that

Cardenas himself did not interact with Southeast Toyota Distributors is irrelevant. And while it

is true that he lives in Missouri, it is undisputed that he purchased the vehicle from a Toyota

dealer in Miami, Florida and thus was injured in Florida. (D.E. 181-73 at 26).

Defendants next argue that Baker is an inappropriate class representative because he

never experienced any odor and because he only reviewed third-party materials before making

his purchase. These facts are irrelevant, since the alleged injury is overpaying for the vehicle—

not experiencing odor—and since there is no subjective reliance requirement (as explained

above, a plaintiff needn’t have been exposed to the alleged misrepresentation to have been

harmed by it). Defendants add that Baker’s claim is tolled by the statute of limitations, but they

make this same argument as to other class members, so it does not interfere with typicality.

Further, the statute of limitations in this case is disputed; Plaintiffs invoke the doctrine of

fraudulent concealment, which is subject to class wide proof.

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Finally, Defendants argue that Monge did not purchase her vehicle from an authorized

Toyota dealer. Consistent with the revised class definition as recommended by Magistrate Judge

Louis, and adopted by this Court, Monge is excluded from being a class representative for this

reason.

E. Adequacy

Under Rule 23(a)(4), a class action cannot proceed unless “the representative parties will

fairly and adequately protect the interests of the class.” Adequacy is satisified where a named

plaintiff shows they possess “the integrity and personal characteristics necessary to act in a

fiduciary role sepresenting the interests of the class, and has no interests antagonistic to the

interests of the class.” Sanchez-Knutson, 310 F.R.D. at 540. “In addition, plaintiffs counsel

must be qualified, experienced, and generally able to conduct the proposed litigation.” Ohio

State Troopers Ass’n, Inc., 481 F. Supp. 3d at 1279. “[A]bsent specific proof to the contrary, the

adequacy of class counsel is presumed.” Sanchez-Knutson, 310 F.R.D. at 540 (simplified).

Plaintiffs argue that adequacy is satisfied here because the named plaintiffs have been

actively involved with the litigation and will continue to do so. According to Plaintiffs, they

have responded to written discovery requests, sat for depositions, allowed Defendants to inspect

their vehicles, selected competent counsel, and otherwise participated in the litigation.

Defendants offer very little in the way of rebuttal other than a smattering of claims

without citation to pertinent legal authority. For instance, Defendants say that “Baker was never

looking to sue Toyota until he surfed the internet while bored, reviewed only a few filings about

the case until his deposition, and, even at this deposition, did not know the names of his Florida

counsel.” (D.E. 205 at 37). But Defendants do not explain why these facts would render Baker

an inadequate representative.

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Without any serious challenge from Defendants on this front, Plaintiffs have established

that they will serve as adequate class representatives. Further, class counsel are experienced

class litigators that are competent to conduct this litigation—Defendants do not challenge this

point.

F. Superiority .

The second requirement of Rule 23(b)(3) is that “a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” Four criteria for

consideration are offered in a non-exhaustive list: “(A) the class members’ interests in

individually controlling the prosecution or defense of separate actions; (B) the extent and nature

of any litigation concerning the controversy already begun by or against class members; (C) the

desirability or undesirability of concentrating the litigation of the claims in the particular forum;

and (D) the likely difficulties in managing a class action.” Fed. R. Civ. P. 23(b)(3). Generally,

this inquiry requires the Court to “consider the relative advantages of a class action suit over

whatever other forms of litigation might be realistically available to the plaintiffs.” Klay, 382

F.3d at 1269. The outcome of the Court’s predominance analysis “has a tremendous impact on

the superiority analysis” because “the more common issues predominate over individual issues,

the more desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiffs’

claims.” Id.

Plaintiffs argue that superiority is satisfied because there is “no evidence that any class

member has shown an interest in individually controlling this cation and there is no overlapping

litigation involving these claims on behalf of these members of the Classes.” (D.E. 181 at 30).

They add that the Court is so familiar with this case that its desirable to litigate all claims in this

forum, and that the legal and factual issues of the class will be resolved on a core set of

32 .

documents, fact witness testimony, and expert testimony. This, they describe, is to be preferred

to thousands of repetitive proceedings that will probe the same questions.

Defendants respond that individual issues een sO superiority is not established.

Defendants are correct as to the RICO claims but incorrect as to the FDUTPA claim. Defendants

add that a “more expedient dispute resolution program” is available “for the few class members

who experience HVAC odor.” This contention is again predicated on Defendants’

misunderstanding of the causes of action, and Defendants do not say why the mere availability of

an alternative dispute resolution program defeats superiority. Defendants also argue that class

members are incentivized to bring their own actions because potential damages are not de

minimis and both causes of action provide for attorney’s fees. The Court acknowledges that in

cases like-the one cited by Defendants, where very few class members have been identified, the

availability of damages and attorney’s fees weighs against superiority. See Grimes v. Rave

Motion Pictures Birmingham, L.L.C., 264 F.R.D. 659, 669 (N.D. Ala. 2010). But this case does

not concern a small amount of class members that have not been identified. In light of the many

potential class members, the straightforward identification mechanism offered by Plaintiffs, and

the predominating issues of law and fact, the availability of damages and attorney’s fees is not

enough to defeat superiority on the FDUTPA claim.

IV. Appointment of Class Counsel

Unless a statute provides otherwise, a court that certifies a class must appoint class

counsel. In appointing class counsel,” the court must consider “(i) the work counsel has done in

identifying or investigating potential claims in the action; (ii) counsel's experience in handling

class actions, other complex litigation, and the types of claims asserted in the action; (iii)

counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to

33

representing the class.” Fed. R. Civ. P. 23(g)(1). The Court appoints Peter Prieto of Podhurst

Orseck and Joseph H. Meltzer of Kessler Topaz Meltzer & Check as class counsel.

V. Conclusion

Based upon the foregoing, it is ORDERED and ADJUDGED as follows:

l, Plaintiffs Motion for Class Certification is GRANTED in part and DENIED in

part.

2. Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Court hereby certifies

the following class:

All persons who purchased a 2012-2014 model year non-hybrid Toyota Camry in

_ the state of Florida from an authorized Toyota dealer, (“the FDUTPA Class”).

3. Rodney Baker and Javier Cardenas are designated as class representatives.

4. Peter Prieto and Joseph H. Meltzer are designated as class counsel. gh

DONE AND ORDERED in Chambers at Miami, Florida, this: 6 of December

2021, se

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Magistrate Judge Lauren Fleischer Louis

Counsel of Record

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