Danvers Mtr Co Inc v. Ford Mtr Co

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

9-12-2008

Danvers Mtr Co Inc v. Ford Mtr Co

Precedential or Non-Precedential: Precedential

Docket No. 07-2287

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2287

DANVERS MOTOR CO., INC., a Massachusetts

corporation; BOB CHAMBERS FORD, d/b/a Augusta Ford,

a Maine corporation;

CONCORD FORD-LINCOLN-MERCURY,

a New York corporation;

FETTE FORD INC., a New Jersey corporation;

SENATOR FORD, INC., a Delaware corporation;

ROSEVILLE MIDWAY FORD COMPANY,

a Minnesota corporation;

FULLERS' WHITE MOUNTAIN MOTORS,

an Arizona corporation;

CONDON FORD, INC., an Iowa corporation;

G. & S. MANAGEMENTCORPORATION,

on behalf of themselves and all others similarly situated,

d/b/a Tilton Ford, a New Hampshire corporation,

v.

FORD MOTOR COMPANY,

Appellant.

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 02-cv-02197)

District Judge: Hon. Dennis M. Cavanaugh

Argued on March 6, 2008

Before: FISHER, GREENBERG and ROTH, Circuit Judges

(Opinion filed : September 12, 2008)

James F. Hibey, Esquire (ARGUED)

Lisa K. Hsiao, Esquire

Howrey

1299 Pennsylvania Avenue, N. W.

Washington, DC 20004

Romeo S. Quinto, Jr., Esquire

Howrey

321 North Clark Street

Suite 3400

Chicago, IL 60610

Counsel for Appellant

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Eric L. Chase, Esquire (ARGUED)

Bressler, Amery & Ross

325 Columbia Turnpike

P. O. Box 1980

Florham Park, NJ 07932

Counsel for Appellee Fette Ford, Inc.

Barry S. Goodman, Esquire (ARGUED)

Greenbaum, Rowe, Smith & Davis

P. O. Box 5600

Metro Corporate Campus One

Woodbridge, NJ 07095

Counsel for Appellee Danver Motor Co., Inc.

OPINION

ROTH, Circuit Judge:

Ford Motor Company appeals the certification of a class

of Ford dealers in an action alleging violations of the Robinson-

Patman Act, the Automobile Dealer’s Day in Court Act, and

numerous state franchise laws, as well as breach of contract and

the covenant of good faith and fair dealing. We hold that the

prerequisites for a class action are not met in this case.

Accordingly we will vacate the order of the District Court and

remand for decertification of the class and further proceedings.

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I. Factual and Procedural Background

In November 2000, some of the current plaintiffs, on

behalf of a proposed class of Ford dealers, filed suit, alleging

that Ford’s Blue Oval Program (BOP) violated state and federal

law. The District Court for the District of New Jersey dismissed

the case without prejudice for lack of standing. Danvers Motor

Co. v. Ford Motor Company, 186 F. Supp. 2d 530 (D.N.J.). The

plaintiffs did not appeal this ruling.

The current plaintiffs filed a revised complaint in May

2002 and, of relevance to this appeal, an amended and

supplemented complaint in January 2003. The District Court

again held that eight of the nine named plaintiffs lacked

standing. On appeal, we reversed. Danvers Motor Co. v. Ford

Motor Company, 432 F.3d 286 (3d Cir. 2005). Plaintiffs then

moved to certify a class of Ford franchisees who were affected

by Ford’s BOP. The District Court granted plaintiffs’ motion

and certified a class. We granted Ford leave to appeal pursuant

to Rule 28 U.S.C. § 1292(b).

The Blue Oval Program was instituted by Ford in April

2000 and terminated in March 2005. Ford created the BOP to

improve dealer performance and customer satisfaction. The

BOP provided cash bonus payments and other benefits to Ford

dealers who improved customer satisfaction according to certain

criteria. The BOP was voluntary but was available to all Ford

dealers.

The BOP established requirements in a number of areas:

Leadership, Concern Resolution, Sales, Service, Facilities, and

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Customer Sales and Service Satisfaction as determined by the

survey process. In addition, all Ford dealers were required to

pay a 1% assessment on all Ford vehicles, although there was no

increase in the Manufacturer’s Suggested Retail Price (MSRP).

Dealers who obtained Blue Oval Certification under the BOP

were eligible to receive certain monetary and non-monetary

benefits. Dealers who met the initial certification requirements

by April 17, 2001, received a reimbursement from Ford of

1.25% of the MSRP for each vehicle sold. Dealers who

qualified for certification prior to April 17, 2002, received a

1.0% reimbursement.1 In addition to these rebates, certified

dealers received an increase in After-Warranty Adjustment

Allowance Levels, a ten-percent increase in Ford’s

transportation assistance allowance, a fifty-percent discount on

all retail invoice messages, up to fifty-percent tuition reduction

on finance and insurance-related courses, a 401K plan for dealer

employees, the Blue Oval Certified Healthcare Plan, and Blue

Oval National Advertising.

The BOP established the Voice of the Customer (VOC)

Index, which used survey responses from a dealer’s sales and

service customers to measure that dealer’s customer satisfaction

levels. The target VOC Score for a particular dealer depended

on factors such as dealer size and location. Some dealers met

their target score with relatively little effort. Others had to work

1

The percentage of the rebates was subsequently reduced.

Rebates were scheduled to drop from 1% or 1.25% initially to

1% in April 2003, 0.75% in April 2004, and 0.50% in April

2005.

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over a period of time to increase the VOC score to the target

level to apply for certification. If a dealer’s VOC score was

high enough, that dealer was entitled to automatic certification.

Dealers with a lower score could become certified by satisfying

certain sales, service, and facilities criteria. Large dealers were

evaluated by an independent contractor. Small and/or rural

dealers were able to self-evaluate.

Plaintiffs contend that because of the differences in

certification standards and processes, the requirements to

achieve certification varied. In their amended complaint,

plaintiffs allege that, through the BOP, Ford violated three

provisions of the Robinson-Patman Act, 15 U.S.C. §§ 13(a),

13(d), and 13(e), the Automobile Dealer’s Day in Court Act, 15

U.S.C. §§ 1221-25, and various state franchise laws. They also

allege breach of their Sales and Service Agreement with Ford

and of the implied covenant of good faith and fair dealing.

Plaintiffs seek both injunctive relief and damages on behalf of

approximately 4,000 Ford dealers.

Plaintiffs assert that the BOP was meant “to determine

the size and makeup of [Ford’s] dealer distribution system

without regard to the dealers’ rights.” They claim that dealers,

who were not certified, faced in effect the constructive

termination of their franchises; further, because dealers were

required to re-certify every year and Ford could unilaterally

change both the VOC Index and the Blue Oval Program, all

dealers faced the risk of not being certified. Plaintiffs allege

that all of them made significant investments to comply with the

requirements of certification and re-certification under the BOP.

6

However, given that some dealers were certified and

other were not and that dealers expended different efforts with

respect to certification, the dealers were impacted by the BOP in

different ways. Specific injuries alleged by the nine named

plaintiffs demonstrate these differences:

1) Danvers Motor Co. became Blue Oval Certified on

April 5, 2002. Danvers spent tens of thousands of dollars in

management time to become certified and to maintain

certification. Danvers did not receive either the 1% or the

1.25% rebate during the period that it was not certified.

Certified dealers in Danvers’ market allegedly told Danvers

customers not to buy from Danvers because it was not certified.

2) Bob Chambers Ford (Augusta Ford) became certified

on November 9, 2001, at which point it became eligible for the

1% rebate. Augusta Ford spent nineteen months and had to

engage outside assistance to obtain certification. During this

time, Ford dealers in the same market had been automatically

certified or able to certify earlier because of the VOC Index.

After obtaining initial certification, Augusta Ford incurred

additional costs to re-certify based on the independent contractor

evaluation.

3) Concord Ford-Lincoln-Mercury certified automatically

on December 23, 2000, because its VOC scores were already

above target. Concord automatically re-certified for 2002.

Concord was therefore qualified to receive the 1.25% rebate.

Concord alleges, however, that its profit margin was reduced, it

lost sales to other makes of automobiles, and it suffered from

underallocation of vehicles. Concord also claims that in the

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future it might not be able to certify based solely on the VOC

Index, at which point it would need to satisfy other BOP criteria.

4) Condon Ford certified on December 10, 2000, making

it eligible for the 1.25% rebate. However, Condon lost its

certification on March 11, 2002, because it failed to meet its

VOC Index. Condon spent thousands of dollars to re-certify.

Condon believes that other dealers (related to or financed by

Ford) in the same market had lower VOC targets. Condon

alleges that, as a result of de-certification, not only has it lost the

1.25% rebate, but it also has decreased profits and sales

effectiveness, as well as lost sales to other Ford and non-Ford

dealers.

5) Fette Ford qualified and applied for certification on

April 17, 2001. Fette was certified on June 26, 2001, and

received a 1.25% rebate. Fette did not have to make “any major

process changes” to obtain certification. However, Fette made

significant expenditures to obtain certification, including hiring

additional personnel, and incurred further costs for re-

certification. Fette believes that Ford dealers are losing business

to other makes of automobiles because of the BOP.

6) Senator Ford became certified on January 25, 2001,

and received a 1.25% rebate. Senator incurred expenses to

certify and to re-certify, including increased personnel costs.

Senator expects that it will eventually have to remodel its

dealership, at a cost of over $1 million.

7) Midway Ford Company obtained certification on

February 13, 2001, thereby qualifying for the 1.25% rebate, but

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at a cost of hundreds of thousands of dollars. Ford

representatives reportedly told Midway management that there

were too many Ford dealers in the area and that the BOP was a

way to eliminate some of those dealers.

8) Fullers’ White Mountain Motors never certified,

despite significant expenditures and changes in its business

model. Fullers spent thousands of dollars trying to obtain

certification. The VOC Index of Fullers, a rural dealership, was

higher than that of dealers in a nearby metropolitan area. Fullers

believes that it has been undersold by a BOP certified dealer.

9) G&S Management Corporation (Tilton Ford) has not

obtained certification although it hired an outside consultant and

made other investments of time and money to do so. Tilton

claims that Ford assisted other local dealers to obtain

certification but ignored Tilton. Tilton also claims that it has

been unable to compete with local BOP certified dealers or with

dealers of other makes of automobiles.

As noted above, plaintiffs claim that, through its Blue

Oval Program, Ford has violated Sections 13(d), 13(e), and

13(a) of the Robinson-Patman Act, the Automobile Dealer’s

Day in Court Act, and state franchise statutes, and is liable for

breach of contract and the implied covenants of good faith and

fair dealing.

Section 13(d) of the Robinson-Patman Act prohibits a

payment or contract for the payment of anything of value . . . in

connection with the processing, handling, sale or offering for

sale of any products or commodities manufactured, sold or

9

offered for sale by such person, unless such payment or

consideration is available on proportionally equal terms to all

other customers competing in the distribution of such products

or commodities.

15 U.S.C. § 13(d).

Plaintiffs allege that Ford’s “payments to and on behalf

of dealers it deemed Certified under the Blue Oval Program, as

reimbursement of a percentage of the purchase price and as

national advertising” were not intended to be available to all

dealers on proportionally equal terms, as required by the

Robinson-Patman Act. With respect to the cash reimbursements

provided only to certified dealers, plaintiffs claim,

This deliberately differential treatment dependent

on Blue Oval Certification adversely affects

competition because Plaintiffs and other Ford

dealers who did not receive or do not receive

1.25% of MSRP, 1% of MSRP .75% of MSRP, or

even .5% of MSRP, or who lose Certification, as

the case may be, cannot compete fairly with other

dealers in their respective markets for the

purchase of like products from Ford and the sale

of such products to consumers; consequently,

uncertified dealers who cannot compete face the

constructive termination of their franchises.

Plaintiffs also allege a violation of Section 13(e).

Section 13(e) prohibits discriminat[ion] in favor

of one purchaser against another purchaser or

10

purchasers of a commodity bought for resale . . .

by contributing to the furnishing of, any services

or facilities connected with the processing,

handling, sale, or offering for sale of such

commodity so purchased upon terms not accorded

to all purchasers on proportionally equal terms.

15 U.S.C. § 13(e).

Plaintiffs claim that the benefits provided only to

certified dealers under the BOP constitute “services or facilities

. . . not accorded to all purchasers on proportionally equal

terms.” They reiterate that, because some dealers must submit

to evaluation by an independent contractor while others are

permitted to self-certify, certification is not available to all

dealers on proportionally equal terms. Plaintiffs allege that

This deliberately differential treatment dependent

on Blue Oval Certification adversely affects

competition because these Plaintiffs and other

Ford dealers who do not receive or lose the

benefits . . . cannot compete with dealers in their

respective markets for the purchase of like

products from Ford and the sale of such products

to consumers; consequently, the dealers who

cannot compete face the constructive termination

of their franchises.

Plaintiffs claim that Ford also

violated Section 13(a).

Section13(a) prohibits

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discriminat[ion] in price between

different purchasers of

commodities of like grade and

quality . . . where the effect of such

discrimination may be substantially

to lessen competition or tend to

create a monopoly in any line of

commerce, or to injure, destroy, or

prevent competition . . ..

15 U.S.C. § 13(a).

Plaintiffs allege that

The disparate Certification requirements for

dealers coupled with a reimbursement of a 1.25%

of MSRP to dealers achieving Certification

eligibility prior to April 17, 2001, a

reimbursement of a 1% of MSRP to dealers

achieving Certification eligibility after April 17,

2001 and prior to April 17, 2002 and 1.25%

prospectively; and no reimbursement to dealers

who fail to achieve or lose Certification eligibility

prior to April 17, 2002 or who do not enroll in the

Blue Oval Program, constitute unlawful price

discrimination pursuant to the Robinson-Patman

Act, 15 U.S.C. § 13(a).

Plaintiffs allege further that the Blue Oval Program

“discriminates among dealers by making the benefits available

only to Certified dealers and their employees.”

12

The Automobile Dealer’s Day in Court Act permits

dealers to bring suit against a manufacturer for “failure . . . to act

in good faith in performing or complying with any of the terms

or provisions of the franchise, or in terminating, canceling, or

not renewing the franchise with said dealer . . . .” 15 U.S.C. §

1222. Plaintiffs allege that

The ‘choices’ contemplated in the Blue Oval

Program are facially coercive in that, to become

Certified and then Recertified annually, Plaintiff

dealers have committed substantial investments of

time, effort, personnel and dollars (with no

certainty of Certification, Recertification, or the

consistency of the rewards and requirements

therefor), while dealers who do not or cannot seek

Certification will continue to pay significantly

higher prices for their vehicles than Certified

dealers.

Plaintiffs allege further that “Ford has professed an intention to

leverage its coercive program into a device for selecting dealers

for termination, or otherwise causing them constructively or

actually to fail . . ..”

With respect to their state franchise law claims, plaintiffs

allege that the Blue Oval Program “is an illegal means of

constructive termination or attempted termination of Plaintiffs’

franchises” in violation of state franchise statutes and public

policies. They allege that the BOP also violates prohibited

practices provisions in state statutes and policies. Plaintiffs

13

claim that the BOP violates the statutes and policies of all states

against the termination of a franchise without good or just cause.

Plaintiffs also assert that Ford breached the Sales and

Service Agreement. In particular, they claim that the Sales and

Service Agreement does not permit either the “coercive and

arbitrary control” of dealers, multi-tier pricing, or de facto

termination imposed by the BOP. Plaintiffs claim that the BOP

constitutes an impermissible material unilateral amendment to

the Agreement.

Finally, plaintiffs allege that Ford has violated its duty of

good faith and fair dealing by imposing the BOP, including by

imposing commitments and requirements not contemplated by

the Sales and Service Agreement. Plaintiffs allege that Ford has

prevented them from enjoying the fruits of the Agreement.

II. Discussion

The District Court had jurisdiction over plaintiffs’ claims

under 28 U.S.C. § 1331, 28 U.S.C. § 1337, and 27 U.S.C. §

1367. We have jurisdiction to review the District Court’s

certification of a class pursuant to 28 U.S.C. § 1292. See also

Fed. R. Civ. Proc. 23(f).

We review the District Court’s decision to certify a class

for an abuse of discretion. Beck v. Maximus, Inc., 457 F.3d 291,

295 (3d Cir. 2006). The District Court abuses its discretion

where “its decision rests upon a clearly erroneous finding of

fact, an errant conclusion of law or an improper application of

law to fact.” Id. (internal quotations omitted).

14

A class may be certified only if the prerequisites of Rule

23(a) have been satisfied and the parties seeking class action

have shown that the action is maintainable under Rule 23(b). Id.

at 297. Failure to meet any of Rule 23(a) or 23(b)’s

requirements precludes certification. In re LifeUSA Holding

Inc., 242 F.3d 136, 147 (3d Cir. 2001).

Under Rule 23(a), a class may be certified only if

(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.2

In addition to those requirements, one of the provisions

of Rule 23(b), subsection (b)(1), (b)(2), or (b)(3), must be met.

Here the plaintiffs sought class certification under Rule

23(b)(3). Rule 23(b)(3) provides that a class may only be

certified if, in addition to the requirements of Rule 23(a), “the

questions of law or fact common to the members of the class

predominate over any questions affecting only individual

members, and . . . a class action is superior to other available

2

Because the court below issued its decision before the

December 2007 Amendments to the Federal Rules of Civil

Procedure became effective, we cite to the Rules as they existed

prior to the Amendments.

15

methods for the fair and efficient adjudication of the

controversy.”

Plaintiffs’ claims, as alleged in their complaint, reflect

diverse and conflicting interests within the proposed class of

Ford dealers. Some dealers benefitted from the BOP, while

others were harmed. For example, plaintiffs allege that certified

dealers (including, for at least some periods of time, Augusta,

Concord, Condon, Danvers, Fette, Midway, and Senator) were

eligible to receive reimbursement of a percentage of the MSRP

(which could offset the 1% assessment) as well as additional

benefits, while others (including Fullers and Tilton) were not.

Plaintiffs allege further that some dealers (such as Condon,

Fullers, and Tilton) lost sales to other certified dealers.

With respect to plaintiffs’ Robinson-Patman Act claims

in particular (which appear to be the principal claims), this

diversity and conflict within the proposed class defeat the

requirements for class certification. “Rule 23(a)(2) requires that

‘there are questions of law or fact common to the class.’”

Georgine v. Amchem Prods., Inc., 83 F.3d 610, 626 (3d Cir.

1996), aff’d sub nom Amchem Prods., Inc. v. Windsor, 521 U.S.

591 (1997). However, where an action is to proceed under Rule

23(b)(3), the commonality requirement “is subsumed by the

predominance requirement.” Id. at 627. Under Rule 23(b)(3),

“[i]ssues common to the class must predominate over individual

issues . . ..” In re Prudential Ins. Co. of Am. Sales Practice

Litigation Agent Actions, 148 F.3d 283, 313-14 (3d Cir. 1998).

The predominance requirement “tests whether the class is

sufficiently cohesive to warrant adjudication by representation,

and mandates that it is far more demanding than the Rule

16

23(a)(2) commonality requirement.” In re LifeUSA Holding

Inc., 242 F.3d at 144.

The rules and requirements of the BOP, standing alone,

may, as plaintiffs allege and as the District Court found, reflect

a common course of conduct. However, this action involves

many non-common issues based on Ford’s conduct in

implementing the BOP and each proposed class member’s

treatment under the BOP. Such individualized issues include,

for example, whether the dealer was certified; during what time

period the dealer was certified; whether the dealer incurred

expenses in attempting to obtain certification; whether the dealer

received reimbursement as a result of certification; whether

other dealers in the same market were treated differently under

the BOP; and whether Ford’s conduct vis-a-vis a particular

dealer violated the dealer’s state’s franchise laws. These non-

common issues overtake any common issues so that as a result

the latter do not predominate.

Even plaintiffs acknowledge that, as implemented, the

BOP impacted individual dealers differently. Although

plaintiffs allege that all Ford dealers expended money in

attempting to obtain certification or re-certification, they also

allege that some Ford dealers were much closer to their VOC

target, and therefore had an easier time than others in obtaining

certification. Moreover, with respect to discrimination in

pricing or the provision of services – the conduct that the

Robinson-Patman Act is designed to prevent – some members

of the proposed class were in fact “favored” purchasers who

benefitted from the alleged discrimination. Some Ford dealers

apparently gained sales from other non-certified dealers, as a

17

result of the Program. Conversely, some members of the

proposed class (and even within the group of named plaintiffs)

lost sales to other, certified dealers and did not receive the

benefits of certification. These dealers, those who were certified

and those who were not, those who might have gained sales and

those who might have lost sales, are in very different positions

with respect to their Robinson-Patman Act claims.3 Indeed,

plaintiffs repeatedly allege that “the dealers who cannot compete

face the constructive termination of their franchises.”

The individualized and diverse issues suggested by

plaintiffs’ Robinson-Patman Act claims also subsume any

commonality with respect to their other claims. Even assuming

that the Automobile Dealer’s Day in Court Act, breach of

3

In concluding that the predominance requirement is satisfied,

the District Court reasoned that, because plaintiffs are entitled

to an inference of injury under the test established by the

Supreme Court in FTC v. Morton Salt Co., 334 U.S. 37, 49-51

(1948), the fact that plaintiffs must show actual competitive

injury does not defeat predominance. See Volvo Trucks North

America, Inc. v. Reese-Simco GMC, Inc., 546 U.S. 164, 177

(2006) (“[A] permissible inference of competitive injury may

arise from evidence that a favored competitor received a

significant price reduction over a substantial period of time.”).

Even allowing the inference, common issues do not

predominate. Plaintiffs’ allegations themselves, as detailed in

the complaint, present numerous individualized issues that will

have to be resolved, including whether and which particular

dealers benefitted under the BOP.

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contract, and breach of the covenant of good faith and fair

dealing claims are all based on a single franchise agreement and

single course of conduct, we cannot ignore the non-common

issues that would require consideration in order to resolve

plaintiffs’ claims. For example, some plaintiffs were reportedly

directly threatened with termination, and others suffered from an

underallocation of vehicles. With respect to plaintiffs’ claims

for violations of state franchise laws, determining Ford’s

liability under these laws will require a state-by-state

adjudication, based on the law of each state and the facts of the

dealers located in that state. On these facts, we cannot say that

any common issues of law or fact predominate.

Having determined that commonality and predominance

are lacking, we need not address at length the remaining

requirements of Rule 23, as failure to meet any one of them

precludes class certification. In re LifeUSA Holding Inc., 242

F.3d at 147. However, the diversity of interests and issues that

defeat the commonality and predominance requirements compel

the conclusion that the superiority requirement is likewise not

met.

The superiority inquiry requires us to “balance, in terms

of fairness and efficiency, the merits of a class action against

those of alternative available methods of adjudication.”

Georgine, 83 F.3d at 632 (internal quotations omitted). There

are four nonexclusive factors that we should consider under the

provisions of Rule 23(b)(3): (1) the interest of individual

members of the class in controlling the prosecution of the action,

(2) the extent of litigation commenced elsewhere by class

members, (3) the desirability of concentrating claims in a given

19

forum, and (4) the management difficulties likely to be

encountered in pursuing the class action.

The fourth factor counsels strongly against finding that

a class action would be superior in this case. The multitude of

individualized issues presented in plaintiffs’ claims would entail

complicated mini-litigations within the class action itself. On

these facts, it would be neither more fair nor more efficient to

proceed with this matter as a class action.

Nor can the proposed class satisfy the Rule 23

requirements of typicality and adequacy of representation. The

typicality and adequacy inquiries “both look to the potential for

conflicts in the class.” Georgine, 83 F.3d at 632. “The

[typicality] inquiry assesses whether the named plaintiffs have

incentives that align with those of absent class members so that

the absentees’ interest will be fairly represented.” Id. at 631.

Factual differences will not defeat typicality if the named

plaintiffs’ claims arise from the same event or course of conduct

that gives rise to the claims of the class members and are based

on the same legal theory. Beck, 457 F.3d at 296. Similarly, the

adequacy inquiry “assures that the named plaintiffs’ claims are

not antagonistic to the class and that the attorneys for the class

representatives are experienced and qualified to prosecute the

claims on behalf of the entire class.” Id.

Plaintiffs’ own allegations make clear that their claims,

although ostensibly all arising from the Blue Oval Program, are

rooted in a variety of actions Ford took pursuant to the BOP.

Ford is alleged, among other things, to have denied certification

to some plaintiffs, awarded certification to others, set higher

20

VOC targets for some plaintiffs than for others, assisted some

dealers in obtaining certification while abandoning others, and

underallocating vehicles to certain dealers.

The fact that named plaintiffs include among their ranks

both certified and non-certified dealers increases the atypicality

of their claims. See Georgine, 83 F.3d at 632. As reflected by

the allegations of just the named plaintiffs, the postures of each

Ford dealer and proposed class member with respect to the BOP

are quite diverse. It follows that proposed class members will

likely need to pursue different, and possibly conflicting, legal

theories to succeed. Again, for example, some members of the

proposed class received benefits under the BOP, while others

did not; some had to comply with directives set by the

independent contractor, and others did not. The wide range of

interests among members of the proposed class precludes a

finding of typicality or adequacy in this case.

IV. Conclusion

For the reasons stated above, we conclude that the

prerequisites of class certification set forth in Rule 23 are not

satisfied in this case. Accordingly, we will vacate the District

Court’s order granting class certification and remand the case to

the District Court for decertification of the class and further

proceedings consistent with this opinion.

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