Mazza v. American Honda Motor Co., Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL MAZZA; JANET MAZZA; 

DEEP KALSI, No. 09-55376

Plaintiffs-Appellees, D.C. No.

v.  2:07-cv-07857-VBF-

AMERICAN HONDA MOTOR JTL

COMPANY, INC., OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Valerie Baker Fairbank, District Judge, Presiding

Argued and Submitted June 9, 2010

Submission deferred December 7, 2010

Resubmitted June 22, 2011

Pasadena, California

Filed January 12, 2012

Before: Dorothy W. Nelson and Ronald M. Gould,

Circuit Judges, and James S. Gwin, District Judge.*

Opinion by Judge Gould;

Dissent by Judge D.W. Nelson

*The Honorable James S. Gwin, District Judge for the U.S. District

Court for Northern Ohio, Cleveland, sitting by designation.

185

MAZZA v. AMERICAN HONDA 189

COUNSEL

Roy Morse Brisbois, Eric Y. Kizirian, Lewis Brisbois Bis-

gaard & Smith LLP, Los Angeles, California, for the

defendant-appellant.

Donald Manwell Falk, Mayer Brown, LLP, Palo Alto, Cali-

fornia for the defendant-appellant.

Robert Ebert Byrnes, Payam Shahian, Glenn A. Danas, Marc

Primo, Initiative Legal Group APC, Los Angeles, California,

for the plaintiff-appellees.

Michael Francis Ram, Ram, Olson, Cereghino & Kopczynski,

LLP, San Francisco, California, for the plaintiff-appellees.

190 MAZZA v. AMERICAN HONDA

OPINION

GOULD, Circuit Judge:

Honda appeals the district court’s decision to certify a

nationwide class of all consumers who purchased or leased

Acura RLs equipped with a Collision Mitigation Braking Sys-

tem (“CMBS”) during a 3 year period under Federal Rule of

Civil Procedure 23(b)(3). Plaintiffs allege that certain adver-

tisements misrepresented the characteristics of the CMBS and

omitted material information on its limitations. The complaint

states four claims under California Law. Honda contends: (1)

that Plaintiffs failed to satisfy Rule 23(a)(2)’s commonality

requirement; (2) that common issues of law do not predomi-

nate because there are material differences between California

law and the consumer protection laws of the 43 other jurisdic-

tions in which class members purchased or leased their Acura

RLs; (3) that common issues of fact do not predominate

because resolution of these claims requires an individualized

inquiry into whether consumers were exposed to, and actually

relied on, various advertisements; and (4) that some members

of the proposed class lack Article III standing because they

were not injured.

We have jurisdiction pursuant to 28 U.S.C. § 1292, and we

vacate the class certification order. We hold that the district

court erred because it erroneously concluded that California

law could be applied to the entire nationwide class, and

because it erroneously concluded that all consumers who pur-

chased or lease the Acura RL can be presumed to have relied

on defendant’s advertisements, which allegedly were mislead-

ing and omitted material information.

I

The CMBS was part of an optional technology package for

Honda’s Acura RL vehicles released in 2005. Honda said that

the CMBS detects the proximity of other vehicles, assesses

MAZZA v. AMERICAN HONDA 191

the equipped car’s speed, and implements a three-stage pro-

cess of warning, braking, and stopping to minimize the dam-

age from rear-end collisions. At Stage 1, the system sounds a

tone and flashes a “BRAKE” warning sign on the dashboard.

At Stage 2, the system also brakes lightly and tightens the

driver’s seat belt. At Stage 3, while continuing the other warn-

ings, the system increases the braking force and tightens both

the driver’s and the front-end passenger’s seat belts. Honda

promoted the CMBS as a way to make rear-end collisions less

common and to minimize the consequences of collision. The

CMBS was sold as part of a technology package that also

included adaptive cruise control and run-flat tires, and added

$4,000 to the price of the car. To advertise the CMBS, Honda

prepared marketing materials describing the system’s func-

tionality.

In 2006, Honda released a product brochure stating that the

CMBS “is designed to help alert the driver of a pending colli-

sion or — if it’s unavoidable — to reduce the severity of

impact by automatically applying the brakes if an impending

collision is detected.” The brochure described the CMBS sys-

tem’s three-step process of alerting, lightly braking, and

strongly braking if a crash is imminent:

If the system senses a vehicle, it determines the dis-

tance and closing speed. If the closing speed goes

above a programmed threshold, the system will

immediately alert the driver with an audible alarm

and a flashing indicator on the instrument panel. If

the driver takes no action to reduce speed, the system

will automatically tug at the driver’s seat belt and

lightly apply the brakes. When the system senses

that a frontal collision is unavoidable and the driver

still takes no action, the front seat belts are retracted

tightly and strong braking is applied automatically to

lower impact speed and help reduce damage and the

severity of injury.

192 MAZZA v. AMERICAN HONDA

The brochure showed a picture of an Acura behind a truck

with three labels. Stage 1 was farthest from the truck and

stated “RECOGNITION OF POSSIBLE COLLISION.” Stage

2 was in the middle and stated “BELTS TIGHTEN AND

LIGHT BRAKING.” and Stage 3 was nearest the truck and

stated “STRONG BRAKING.” The 2007 and 2008 product

brochures were similar and were available at dealerships.

Honda also released television commercials describing the

system’s operation. One ran for a week in November 2005

and another ran from February to September 2006. In the

2005 commercial, a voice states, “The driver is warned, and

warned again. If necessary, the system even applies the brakes

to lessen the potential impact.” A voice in the 2006 commer-

cial states, “The driver is warned so he can react. If necessary,

the system would have even applied the brakes to lessen a

potential impact.”

From March to September 2006, Honda released a “What

Might Happen” advertisement in some magazines. This

advertisement said that “the system can react. It can give you

auditory and visual warnings, a tug on the seat belt, and when

necessary, even initiate strong braking.” Honda ceased mass

advertising for the CMBS in 2006.

However, Honda still pursued smaller-scale marketing

efforts. Honda posted on its intranet two commercials stating

that the CMBS’s “various alert stages can overlap depending

on the rate of closure of your vehicle and the vehicle ahead

. . . . The system does have limitations, and will not detect all

possible accident causing situations.” These videos were

viewable on kiosks at Acura dealerships, and dealers were

encouraged to show them to potential customers. The parties

have not indicated how many people saw these videos, and

Honda discontinued the use of intranet kiosks in March 2008.

Honda also operated an “Owner Link” website that contained

video clips describing the CMBS. Although this site was

developed for car owners, the site was available to any cus-

MAZZA v. AMERICAN HONDA 193

tomer via www.ahm-ownerlink.com until 2008 and via

www.myacura.com thereafter. Also, Acura Style magazine, a

periodical sent to Acura dealerships, subscribing Acura own-

ers, and interested consumers twice each year, reported in a

summer 2007 article that the CMBS responds “with any or all

of three increasingly dramatic imperatives.”

Finally, the Acura RL owner’s manual explained that the

CMBS might shut off in certain conditions, including bad

weather conditions, mountainous driving, driving with the

parking brake applied, and when an abnormal tire condition

is detected. The owner’s manual stated that when this auto-

matic shut off is triggered, a “CHECK CMBS SYSTEM”

message appears in the instrument panel for five seconds to

alert the driver that the system has turned off.

In 2007, Michael and Janet Mazza purchased a 2007 Acura

RL from an authorized Acura dealership in Orlando, Florida.

That same year, Deep Kalsi bought a 2007 Acura RL from an

authorized Acura dealership in Gaithersburg, Maryland. Both

vehicles were equipped with the CMBS System. In December

2007, the Mazzas and Kalsi filed a class action complaint

against American Honda Motor Co., Inc. (“Honda”) alleging

that Honda misrepresented and concealed material informa-

tion in connection with the marketing and sale of Acura RL

vehicles equipped with the CMBS.

According to Plaintiffs, Honda did not warn consumers (1)

that its CMBS collision avoidance system’s three separate

stages may overlap, (2) that the system may not warn drivers

in time to avoid an accident, and (3) that it shuts off in bad

weather. Appellees brought claims under California Law, spe-

cifically the California Unfair Competition Law (UCL), Cal.

Bus. & Prof. Code § 17200 et seq., False Advertising Law

(FAL), Cal. Bus. & Prof. Code § 17500 et seq., the Consumer

Legal Remedies Act (CLRA), Cal. Civil Code § 1750 et seq.,

and a claim for unjust enrichment.

194 MAZZA v. AMERICAN HONDA

On September 24, 2008, the district court denied Plaintiffs’

motion for class certification without prejudice. The district

court requested that the Plaintiffs provide clearer notice of the

proposed class and subclasses, that Honda provide more

detailed information regarding the propriety of applying out-

of-state law, and that Plaintiffs clearly identify the alleged

omissions and/or misrepresentations. On December 16, 2008,

the district court granted Plaintiffs’ renewed motion for class

certification, finding that they met the requirements of Federal

Rules of Civil Procedure 23(a) and 23(b)(3). The district court

certified a nationwide class of people in the United States

who, between August 17, 2005 and the date of class certifica-

tion, purchased or leased new or used Acura RL vehicles

equipped with the CMBS.1

The district court held that the following common questions

of law and fact satisfied Rule 23(a):

(1) whether Honda had a duty to Plaintiffs and the

prospective class members to disclose that: the three

stages of the CMBS System overlap; the CMBS will

not warn drivers in time to avoid an accident; and

that the CMBS shuts off in bad weather;

(2) whether Honda had exclusive knowledge of

material facts regarding the CMBS System, facts not

known to the Plaintiffs and the prospective class

members before they purchased the RL equipped

with the CMBS System;

(3) whether a reasonable consumer would find the

omitted facts material; and

1

These class members purchased or leased their cars in 44 different

states. Twelve states account for roughly 76% of class members: Califor-

nia accounts for 20%, Florida for 10%, and New York, Virginia, New Jer-

sey, Texas, Pennsylvania, Washington, Illinois, Maryland, Massachusetts,

and Ohio account for 3-6% each.

MAZZA v. AMERICAN HONDA 195

(4) whether Honda’s omissions were likely to

deceive the public.

The district court also held that common issues predomi-

nate and that California “as the forum state, has enough sig-

nificant contact or aggregation of contacts to the claims

asserted, given Defendants’ contacts with the state, to ensure

that the choice of California law is not arbitrary or unfair to

nonresident class members.” (citations omitted).

The district court concluded that California Law can be

applied to all class members because Honda did not show

how the differences in the laws of the various states are mate-

rial, how other states have an interest in applying their laws

in this case, and how these interests are implicated in this liti-

gation. It also held that class members were entitled to an

inference of reliance under California Law. It is these rulings

that form the crux of the decisions material to class certifica-

tion that are challenged on this appeal.

Honda sought permission to appeal immediately after the

decision granting class certification. That request was granted.

This case was initially argued and submitted for decision on

June 9, 2010, but submission was deferred on December 7,

2010 pending the Supreme Court’s decision in Wal-Mart

Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Following the

Supreme Court’s Wal-Mart decision, this appeal was resub-

mitted on June 22, 2011, and our decision follows.

II

“Before certifying a class, the trial court must conduct a

‘rigorous analysis’ to determine whether the party seeking

certification has met the prerequisites of Rule 23.” Zinser v.

Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended

273 F.3d 1266 (9th Cir. 2001). The trial court’s factual deter-

minations will be reviewed for abuse of discretion so long as

it remains within the framework of Rule 23. Id. When the trial

196 MAZZA v. AMERICAN HONDA

court’s application of the facts to the law “requires reference

to the values that animate legal principles” we review that

application de novo. US v. Hinkson, 585 F.3d 1247, 1259 (9th

Cir. 2009) (en banc).

The party seeking class certification has the burden of affir-

matively demonstrating that the class meets the requirements

of Federal Rule of Civil Procedure 23. Wal-Mart, 131 S. Ct.

at 2551. Rule 23(a) requires that plaintiffs demonstrate

numerosity, commonality, typicality and adequacy of repre-

sentation in order to maintain a class action. The district court

concluded that Plaintiffs met their burden as to all four

requirements. Honda only challenges the district court’s find-

ing of commonality under 23(a)(2).

[1] The Supreme Court has recently emphasized that com-

monality requires that the class members’ claims “depend

upon a common contention” such that “determination of its

truth or falsity will resolve an issue that is central to the valid-

ity of each [claim] in one stroke.” Id. The plaintiff must dem-

onstrate “the capacity of classwide proceedings to generate

common answers” to common questions of law or fact that

are “apt to drive the resolution of the litigation.” Id. (quoting

Nagareda, Class Certification in the Age of Aggregate Proof,

84 N.Y.U.L.Rev. 97, 131-132 (2009)).

[2] Honda contends that the Plaintiffs did not meet their

burden under Wal-Mart affirmatively to demonstrate that

there is a common question of fact or law that can resolve

important issues “in one stroke.” Honda argues that the “cru-

cial question” of “which buyers saw or heard which advertise-

ments” is not susceptible to common resolution. It also asserts

that a showing of a “greater propensity to purchase” is “the

same type of abstract question of potential peripheral signifi-

cance that the Court in Dukes held was not common” under

Rule 23(a)(2). But commonality only requires a single signifi-

cant question of law or fact. Id. at 2556. Even assuming

arguendo that we were to agree with Honda’s “crucial ques-

MAZZA v. AMERICAN HONDA 197

tion” contention, the individualized issues raised go to pre-

ponderance under Rule 23(b)(3), not to whether there are

common issues under Rule 23(a)(2). Honda does not chal-

lenge the district court’s findings that common questions exist

as to whether Honda had a duty to disclose or whether the

allegedly omitted facts were material and misleading to the

public. We hold that the Plaintiffs satisfied their limited bur-

den under Rule 23(a)(2) to show that there are “questions of

law or fact common to the class.”

III

[3] Under Rule 23(b)(3), a plaintiff must demonstrate the

superiority of maintaining a class action and show “that the

questions of law or fact common to class members predomi-

nate over any questions affecting only individual members.”

Fed. R. Civ. Pro. 23(b)(3). We have held that “there is clear

justification for handling the dispute on a representative rather

than an individual basis” if “common questions present a sig-

nificant aspect of the case and they can be resolved for all

members of the class in a single adjudication . . . .” Hanlon

v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (quot-

ing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Fed. Prac. & Proc. § 1778 (2d ed. 1986)).

Honda contends that common issues of law do not predom-

inate because California’s consumer protection statutes may

not be applied to a nationwide class with members in 44 juris-

dictions. It further contends that common issues of fact do not

predominate because the court impermissibly relies on pre-

sumptions that all class members were exposed to the alleg-

edly misleading advertising, that they relied on misleading

information in making their purchasing decision, and that they

were damaged as a result. We consider each argument in turn.

A. Choice of Law

[4] Honda first argues that the district court erred by mis-

applying California’s choice of law rules and certifying a

198 MAZZA v. AMERICAN HONDA

nationwide class under California’s consumer protection and

unjust enrichment laws. “A federal court sitting in diversity

must look to the forum state’s choice of law rules to deter-

mine the controlling substantive law.” Zinser, 253 F.3d at

1187. We review the district court’s choice of law determina-

tion de novo, but “review factual findings underlying a choice

of law determination pursuant to the ‘clearly erroneous’ stan-

dard.” Id.

Under California’s choice of law rules, the class action pro-

ponent bears the initial burden to show that California has

“significant contact or significant aggregation of contacts” to

the claims of each class member. Wash. Mut. Bank v. Supe-

rior Court, 24 Cal. 4th 906, 921 (Cal. 2001) (citations omit-

ted). Such a showing is necessary to ensure that application

of California law is constitutional. See Allstate Ins. Co. v.

Hauge, 449 U.S. 302, 310-11 (1981). Once the class action

proponent makes this showing, the burden shifts to the other

side to demonstrate “that foreign law, rather than California

law, should apply to class claims.” Wash. Mut. Bank, 24 Cal.

4th at 921.

[5] California law may only be used on a classwide basis

if “the interests of other states are not found to outweigh Cali-

fornia’s interest in having its law applied.” Id. (citations omit-

ted). To determine whether the interests of other states

outweigh California’s interest, the court looks to a three-step

governmental interest test:

First, the court determines whether the relevant law

of each of the potentially affected jurisdictions with

regard to the particular issue in question is the same

or different.

Second, if there is a difference, the court examines

each jurisdiction’s interest in the application of its

own law under the circumstances of the particular

case to determine whether a true conflict exists.

MAZZA v. AMERICAN HONDA 199

Third, if the court finds that there is a true conflict,

it carefully evaluates and compares the nature and

strength of the interest of each jurisdiction in the

application of its own law to determine which state’s

interest would be more impaired if its policy were

subordinated to the policy of the other state, and then

ultimately applies the law of the state whose interest

would be more impaired if its law were not applied.

McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 81-82 (Cal.

2010) (citations and quotations omitted).

[6] California has a constitutionally sufficient aggregation

of contacts to the claims of each putative class member in this

case because Honda’s corporate headquarters, the advertising

agency that produced the allegedly fraudulent misrepresenta-

tions, and one fifth of the proposed class members are located

in California. See Clothesrigger, Inc. v. GTE Corp., 236 Cal.

Rptr. 605, 612-13 (Cal. Ct. App. 1987). Honda does not dis-

pute that there are sufficient contacts in this sense, but con-

tends that the district court misapplied the three-step

governmental interest test and erroneously concluded that

California law could be applied to the whole class.2 We agree,

and hold that the district court abused its discretion in certify-

ing a class under California law that contained class members

who purchased or leased their car in different jurisdictions

with materially different consumer protection laws.

2

Plaintiffs contend that Honda’s argument is precluded by their actions

in Browne v. American Honda Motor Corp., Inc. (C.D. Cal. No. CV 2:09-

6750), where Honda settled with plaintiffs bringing an unrelated nation-

wide class action which alleged CLRA and UCL claims under California

law. This contention lacks merit. Honda settled with plaintiffs in that case

before an answer had been filed, and without addressing whether the

application of California law to a nationwide class is appropriate.

200 MAZZA v. AMERICAN HONDA

1) Conflict of Laws

[7] “The fact that two or more states are involved does not

itself indicate that there is a conflict of law problem.” See

Wash. Mut. Bank, 24 Cal. 4th at 919 (2001). A problem only

arises if differences in state law are material, that is, if they

make a difference in this litigation. Id. at 919-20; See In re

Complaint of Bankers Trust Co., 752 F.2d 874, 882 (3d Cir.

1984) (“Any differences in [the states’] laws must have a sig-

nificant effect on the outcome of the trial in order to present

an actual conflict in terms of choice of law.”). In its briefing,

Honda exhaustively detailed the ways in which California law

differs from the laws of the 43 other jurisdictions in which

class members reside. The district court acknowledged that

differences existed, but it found that Honda had not met its

burden of demonstrating that any of these differences were

material.

[8] With respect for the district court’s judgment, we are

persuaded that at least some differences that Honda identifies

are material. For example, the California laws at issue here

have no scienter requirement, whereas many other states’ con-

sumer protection statutes do require scienter. See, e.g., Colo.

Rev. Stat. 6-1-105(1)(e), (g), (u) (knowingly); N.J. Stat. Ann.

§ 56:8-2 (knowledge and intent for omissions); Debbs v.

Chrysler Corp., 810 A.2d 137, 155 (Pa. Super. 2002) (knowl-

edge or reckless disregard).3 California also requires named

class plaintiffs to demonstrate reliance, while some other

states’ consumer protection statutes do not. See, e.g., Egwuatu

v. South Lubes, Inc., 976 So.2d 50, 53 (Fla. App. 2008);

DaBosh v. Mercedes Benz USA, Inc., 874 A.2d 1110, 1121

(N.J. Super. App. 2005); Stutman v. Chem. Bank, 731 N.E.2d

608, 611-12 (N.Y. 2000).

3

Appellees do not contest these differences in scienter and instead rely

on California’s permissive recovery for consumers to conclude, errone-

ously, that these differences are not relevant to this litigation.

MAZZA v. AMERICAN HONDA 201

[9] We conclude that these are not trivial or wholly imma-

terial differences. In cases where a defendant acted without

scienter, a scienter requirement will spell the difference

between the success and failure of a claim. In cases where a

plaintiff did not rely on an alleged misrepresentation, the reli-

ance requirement will spell the difference between the success

and failure of the claim. Consumer protection laws are a crea-

ture of the state in which they are fashioned. They may

impose or not impose liability depending on policy choices

made by state legislatures or, if legislators left a gap or

ambiguity, by state supreme courts.

Moreover, even once violation is established, there are also

material differences in the remedies given by state laws.

Under the CLRA, a plaintiff can recover actual damages (at

least $1000), an injunction, restitution, punitive damages and

“any other relief that the court deems proper,” Cal Civ Code

§ 1780(a)(1)-(5), while a plaintiff can only recover restitution

and injunctive relief under the UCL, Cal. Bus. & Prof. Code

§ 17203. The remedies permitted by other states vary and may

depend on the wilfulness of the defendant’s conduct. E.g.,

Mich. Comp. Laws Ann. § 445.911(6) (limiting recovery to

actual damages if the violation was a result of bona fide

error); N.J. Stat. Ann. § 56:8-19 (requiring treble damages

and attorney’s fees). The elements necessary to establish a

claim for unjust enrichment also vary materially from state to

state. See Candace S. Kovacic, A Proposal to Simplify Quan-

tum Meruit Litigation, 35 Am. U. L. Rev. 547, 558-60 (1986).

Because some of the above differences are material we now

move on to the test’s second step.

2) Interests of Foreign Jurisdictions

[10] It is a principle of federalism that “each State may

make its own reasoned judgment about what conduct is per-

mitted or proscribed within its borders.” State Farm Mut.

Auto Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003).

“[E]very state has an interest in having its law applied to its

202 MAZZA v. AMERICAN HONDA

resident claimants.” Zinser, 253 F.3d at 1187. California law

also acknowledges that “a jurisdiction ordinarily has “the pre-

dominant interest” in regulating conduct that occurs within its

borders . . . .” McCann, 48 Cal. 4th at 97 (citations omitted).

The automobile sales at issue in this case took place within 44

different jurisdictions, and each state has a strong interest in

applying its own consumer protection laws to those transac-

tions.

[11] In our federal system, states may permissibly differ on

the extent to which they will tolerate a degree of lessened pro-

tection for consumers to create a more favorable business cli-

mate for the companies that the state seeks to attract to do

business in the state. In concluding that no foreign state has

“an interest in denying its citizens recovery under California’s

potentially more comprehensive consumer protection laws,”

the district court erred by discounting or not recognizing each

state’s valid interest in shielding out-of-state businesses from

what the state may consider to be excessive litigation. As the

California’s Supreme Court recently re-iterated, each state has

an interest in setting the appropriate level of liability for com-

panies conducting business within its territory. McCann, 48

Cal. 4th at 91.

Maximizing consumer and business welfare, and achieving

the correct balance for society, does not inexorably favor

greater consumer protection; instead, setting a baseline of cor-

porate liability for consumer harm requires balancing the

competing interests. Cf. Holloway v. Bristol-Myers Corp., 485

F.2d 986, 997 (D.C. Cir. 1973) (holding, in consumer false

advertising class action, that there is no private right of action

under the Federal Trade Commission Act, and rejecting pro-

tests that private enforcement was needed to achieve “mean-

ingful consumer protection” because the Act is “the product

of a legislative balance which took into account not only con-

sumer protection but also interests of the businesses affect-

ed”).

MAZZA v. AMERICAN HONDA 203

Getting the optimal balance between protecting consumers

and attracting foreign businesses, with resulting increase in

commerce and jobs, is not so much a policy decision commit-

ted to our federal appellate court, or to particular district

courts within our circuit, as it is a decision properly to be

made by the legislatures and courts of each state. More expan-

sive consumer protection measures may mean more or greater

commercial liability, which in turn may result in higher prices

for consumers or a decrease in product availability. See White

v. Ford Motor Co., 312 F.3d 998, 1017-18 (9th Cir. 2002) (“A

national company sometimes limits its sales according to vari-

ations in risk”); Amy J. Schmitz, Embracing Unconsciona-

bility’s Safety Net Function, 58 Ala. L. Rev. 73, 109 (2006)

(arguing that broad consumer protection statutes may increase

prices and decrease overall consumer welfare). As it is the

various states of our union that may feel the impact of such

effects, it is the policy makers within those states, within their

legislatures and, at least in exceptional or occasional cases

where there are gaps in legislation, within their state supreme

courts, who are entitled to set the proper balance and bounda-

ries between maintaining consumer protection, on the one

hand, and encouraging an attractive business climate, on the

other hand.

Each of our states has an interest in balancing the range of

products and prices offered to consumers with the legal pro-

tections afforded to them. Each of our states also has an inter-

est in “being able to assure individuals and commercial

entities operating within its territory that applicable limita-

tions on liability set forth in the jurisdiction’s law will be

available to those individuals and businesses in the event they

are faced with litigation in the future.” McCann, 48 Cal. 4th

at 97-98. These interests are squarely implicated in this case.

3) Which State Interest is Most Impaired

California’s governmental interest test is designed to “[ac-

commodate] conflicting state policies, as a problem of allocat-

204 MAZZA v. AMERICAN HONDA

ing domains of law-making power in multi-state contexts.

. . .” McCann, 48 Cal. 4th at 97. It is not intended to “ ‘weigh’

the conflicting governmental interests in the sense of deter-

mining which conflicting law manifested the ‘better’ or the

‘worthier’ social policy on the specific issue. . . .” Id. The test

recognizes the importance of our most basic concepts of fed-

eralism, emphasizing the “the appropriate scope of conflicting

state policies,” not evaluating their underlying wisdom. Id.

The importance of federalism when applying choice of law

principles to class action certification is reinforced by the

Class Action Fairness Act of 2005. Pub. L. 109-2, 119 Stat.

4. A key purpose of the Act was to correct what former Act-

ing Solicitor General Walter Dellinger labeled a wave of

“false federalism.” “[T]he problem is that many state courts

faced with interstate class actions have undertaken to dictate

the substantive laws of other states by applying their own

laws to other states, resulting in a breach of federalism princi-

ples.” S. Rep. No. 109-14, at 61 (2005) (quotation marks and

ellipses omitted). Accordingly, “courts should not attempt to

apply the laws of one state to behaviors that occurred in other

jurisdictions.” Id. at 62-63 (summarizing Supreme Court

cases).

The district court did not adequately recognize that each

foreign state has an interest in applying its law to transactions

within its borders and that, if California law were applied to

the entire class, foreign states would be impaired in their abil-

ity to calibrate liability to foster commerce. That this concept

was missed or given inadequate weight was error. The district

court’s reasoning elevated all states’ interests in consumer

protection to a superordinate level, while ignoring or giving

too little attention to each state’s interest in promoting busi-

ness. This presents a mode of analysis that the Class Action

Fairness Act was aimed at stopping. See Findings, Class

Action Fairness Act § 2(a)(4), Pub. L. No. 109-2, 119 Stat. 4,

5 (2005) (categorizing as an “abuse[ ]” of the class action sys-

tem the practice of state courts “making judgments that

MAZZA v. AMERICAN HONDA 205

impose their view of the law on other States and bind the

rights of the residents of those States”).

[12] California recognizes that “with respect to regulating

or affecting conduct within its borders, the place of the wrong

has the predominant interest.” See Hernandez v. Burger, 102

Cal. App. 3d 795, 902 (1980), cited with approval by Aboga-

dos v. AT&T, Inc., 223 F.3d 932, 935 (9th Cir. 2000). Califor-

nia considers the “place of the wrong” to be the state where

the last event necessary to make the actor liable occurred. See

McCann, 48 Cal. 4th at 94 n.12 (pointing out that the geo-

graphic location of an omission is the place of the transaction

where it should have been disclosed); Zinn v. Ex-Cell-O

Corp., 148 Cal. App. 2d 56, 80 n.6 (1957) (concluding in

fraud case that the place of the wrong was the state where the

misrepresentations were communicated to the plaintiffs, not

the state where the intention to misrepresent was formed or

where the misrepresented acts took place). Here, the last

events necessary for liability as to the foreign class members

—communication of the advertisements to the claimants and

their reliance thereon in purchasing vehicles—took place in

the various foreign states, not in California. These foreign

states have a strong interest in the application of their laws to

transactions between their citizens and corporations doing

business within their state.

Conversely, California’s interest in applying its law to resi-

dents of foreign states is attenuated. See Edgar v. MITE Corp,

457 U.S. 624, 644 (1982) (“While protecting local investors

is plainly a legitimate state objective, the State has no legiti-

mate interest in protecting nonresident shareholders.” (empha-

sis added)). Plaintiffs contend that California “is connected to

both sides of the dispute,” with interests both in protecting it

citizens and in regulating Honda, a California corporation. We

recognize that California has an interest in regulating those

who do business within its state boundaries, and foreign com-

panies located there, but we disagree with the dissent that

applying California law to the claims of foreign residents con-

206 MAZZA v. AMERICAN HONDA

cerning acts that took place in other states where cars were

purchased or leased is necessary to achieve that interest in this

case. We also note that Plaintiffs’ argument that California

law is the best choice for this nationwide class is based on a

false premise that one state’s law must be chosen to apply to

all 44 jurisdictions.

[13] Under the facts and circumstances of this case, we

hold that each class member’s consumer protection claim

should be governed by the consumer protection laws of the

jurisdiction in which the transaction took place. Accordingly,

we vacate the district court’s class certification order and

remand for further proceedings consistent with this opinion.

We express no view whether on remand it would be correct

to certify a smaller class containing only those who purchased

or leased Acura RLs in California, or to certify a class with

members more broadly but with subclasses for class members

in different states, with different jury instruction for materi-

ally different bodies of state law. See, e.g., In re Computer

Memories Sec. Litig., 111 F.R.D. 675, 685-86 (N.D. Cal.

1986).

B) Predominance of Common Factual Questions

Honda contends that common issues of fact do not predom-

inate because this case necessarily involves an individualized

determination as to whether class members were exposed to

misleading advertisements and whether they relied on those

advertisements in purchasing or leasing cars with a CMBS.

Honda further argues that presuming common exposure and

reliance sweep in class members who did not suffer an injury

in fact, and thus do not meet Article III standing requirements.

We hold that California class members have Article III stand-

ing but that the district court abused its discretion in finding

that common issues of fact predominate because the small

scale of the advertising campaign does not support a presump-

tion of reliance.

MAZZA v. AMERICAN HONDA 207

1) Standing

[14] “[N]o class may be certified that contains members

lacking Article III standing.” Denney v. Deutsche Bank AG,

443 F.3d 253, 264 (2d Cir. 2006). “[S]tanding requires that

(1) the plaintiff suffered an injury in fact . . . (2) the injury is

fairly traceable to the challenged conduct, and (3) the injury

is likely to be redressed by a favorable decision.” Bates v.

United Parcel Svc., Inc., 511 F.3d 974, 985 (9th Cir. 2007)

(quotations omitted). Under California’s UCL, restitution is

available to absent class members without individualized

proof of deception, reliance, or injury. In re Tobacco II Cases,

46 Cal. 4th 298, 320 (Cal. 2009). Honda contends that this

means the class includes individuals who have no injury in

fact, and therefore no Article III standing.

[15] Plaintiffs contend that class members paid more for

the CMBS than they otherwise would have paid, or bought it

when they otherwise would not have done so, because Honda

made deceptive claims and failed to disclose the system’s lim-

itations. To the extent that class members were relieved of

their money by Honda’s deceptive conduct—as Plaintiffs

allege—they have suffered an “injury in fact.” Stearns v.

Ticketmaster Corp., 655 F.3d 1013, 1021 (9th Cir. 2011).

Although it is not a simple or a clear cut matter, we conclude,

in the light of our prior precedent, that Honda’s objection

“that state law gives a right to ‘monetary relief to a citizen

suing under it’ without a more particularized proof of injury

and causation . . . is not enough to preclude class standing

here.” Id. (quoting Cantrell v. City of Long Beach, 241 F.3d

674, 684 (9th Cir. 2001)).

2) Reliance

[16] While we reject Honda’s contention that Tobacco II

impermissibly allows a class to “include members who suf-

fered no injury in fact” in violation of Article III, we agree

with Honda’s contention that the misrepresentations at issue

208 MAZZA v. AMERICAN HONDA

here do not justify a presumption of reliance. This is so pri-

marily because it is likely that many class members were

never exposed to the allegedly misleading advertisements,

insofar as advertising of the challenged system was very lim-

ited. Davis-Miller v. Automobile Club of Southern California,

201 Cal. App. 4th 106, 125 (2011) (“An inference of clas-

swide reliance cannot be made where there is no evidence that

the allegedly false representations were uniformly made to all

members of the proposed class.”); Cohen v. DirecTV, Inc.,

178 Cal. App. 4th 966, 980 (2009) (“[California law does not]

authorize an award . . . on behalf of a consumer who was

never exposed in any way to an allegedly wrongful business

practice.”). The district court found that an inference of reli-

ance was appropriate, relying on Massachusetts Mutual Life

Insurance Co. v. Superior Court, 97 Cal. App. 4th 1282 (Cal.

App. 4th. 2002). In doing so, the court found it significant that

Honda’s advertisements were allegedly misleading because of

the information they omitted, rather than the information they

claimed, and that while the omitted information may have

been available, there was no evidence that customers received

it.

In Mass. Mutual, plaintiffs were allegedly induced to buy

“vanishing premium” life insurance policies through sales

presentations that misrepresented the extent to which premi-

ums would decrease over time by failing to disclose that Mass

Mutual intended to “ratchet down” the discretionary divi-

dends it paid to offset premium costs. Id. at 1286. The Cali-

fornia Court of Appeals found that an inference of reliance

was proper under these facts, in part because the information

“provided to prospective purchasers appears to have been

broadly disseminated.” Id. at 1294. After the district court’s

decision, the California Supreme court reconfirmed that class

members do not need to demonstrate individualized reliance,

and that Proposition 64 imposes its reliance requirements only

on the named plaintiff, not unnamed class members. Tobacco

II, 46 Cal. 4th at 324-27. But Tobacco II’s holding was in the

context of a “decades-long” tobacco advertising campaign

MAZZA v. AMERICAN HONDA 209

where there was little doubt that almost every class member

had been exposed to defendants’ misleading statements, and

defendants were not just denying the truth but representing

the opposite.

Honda’s product brochures and TV commercials fall short

of the “extensive and long-term [fraudulent] advertising cam-

paign” at issue in Tobacco II, 46 Cal. 4th at 328, and this dif-

ference is meaningful. And while Honda might have been

more elaborate and diligent in disclosing the limitations of the

CMBS system, its advertising materials do not deny that limi-

tations exist. A presumption of reliance does not arise when

class members “were exposed to quite disparate information

from various representatives of the defendant.” See Stearns,

655 F.3d at 1020 (9th Cir. 2011). California courts have rec-

ognized that Tobacco II does not allow “a consumer who was

never exposed to an alleged false or misleading advertising

. . . campaign” to recover damages under California’s UCL.

Pfizer Inc. v. Superior Court, 182 Cal. App. 4th 622, 632

(Cal. Ct. App. 2010); Davis-Miller, 201 Cal. App. 4th at

124-25. For everyone in the class to have been exposed to the

omissions, as the dissent claims, it is necessary for everyone

in the class to have viewed the allegedly misleading advertis-

ing. Here the limited scope of that advertising makes it unrea-

sonable to assume that all class members viewed it. Pfizer Inc.

182 Cal. App. 4th at 633-34.

[17] In the absence of the kind of massive advertising cam-

paign at issue in Tobacco II, the relevant class must be

defined in such a way as to include only members who were

exposed to advertising that is alleged to be materially mis-

leading. The relevant class must also exclude those members

who learned of the CMBS’s allegedly omitted limitations

before they purchased or leased the CMBS system. The dis-

trict court certified a class that included all persons who pur-

chased or leased an Acura RL with the CMBS between

August 2005 and class certification. This class is overbroad.

We vacate the class certification decision on this ground

210 MAZZA v. AMERICAN HONDA

because common questions of fact do not predominate where

an individualized case must be made for each member show-

ing reliance.

IV

[18] Because the law of multiple jurisdictions applies here

to any nationwide class of purchasers or lessees of Acuras

including a CMBS system, variances in state law overwhelm

common issues and preclude predominance for a single

nationwide class. And even if the class was restricted only to

those who purchased or leased their car in California, com-

mon issues of fact would not predominate in the class as cur-

rently defined because it almost certainly includes members

who were not exposed to, and therefore could not have relied

on, Honda’s allegedly misleading advertising material. We

vacate the district court’s class certification and remand for

further proceedings consistent with this opinion. As we make

clear above, we express no opinion whether a differently

defined class may meet the requirements of Federal Rule of

Civil Procedure 23(b)(3).4

The Order Granting Plaintiffs’ Renewed Motion for

Class Certification is VACATED and the matter is

remanded for further proceedings consistent with this

opinion.

4

A crucial difference between our views and those of the dissent con-

cerns the importance of the individualized questions of law or fact over

which any common questions must predominate. On reliance, the dissent

gives inadequate weight to the fact that the Honda advertisements of the

CMBS were limited in nature such that many class members were likely

never exposed to them. On choice of law, the dissent gives inadequate

weight to the differences in state consumer protection laws and the inter-

ests of each of our states in a federal system being able to have its own

laws apply to purchases made by consumers within its borders. Finally,

our opinion does not foreclose in an appropriate case the use of smaller

statewide classes of those purchasing in a particular state, or the use of

subclasses within a larger class.

MAZZA v. AMERICAN HONDA 211

D.W. NELSON, Senior Circuit Judge, dissenting:

I respectfully dissent. Because common factual and legal

issues predominate, I would affirm the district court.

First, the majority holds that the facts do not justify a pre-

sumption of reliance. Majority Opinion at 207-210. I disagree.

Both California’s Consumer Legal Remedies Act and its

Unfair Competition Law allow for a presumption of reliance.

Vasquez v. Superior Court, 484 P.2d 964, 973 n.9 (Cal. 1971);

In re Tobacco II Cases, 207 P.3d 20, 39-41 (Cal. 2009). The

district court concluded correctly that the focus of the inquiry

should not be on which class members saw the advertisements

and relied on them. Rather, the broadly disseminated adver-

tisements omitted potentially material information about the

limitations of the CMBS system. Mass. Mut. Life Ins. v. Supe-

rior Court, 119 Cal. Rptr. 2d 190, 198 (2002). Appellees

allege that everyone in the class was exposed to those omis-

sions. While the omitted information may have been available

to consumers from other sources, Honda has not shown that

consumers actually received the information prior to pur-

chase. Mass. Mut., 119 Cal. Rptr. 2d at 198-99 (2002); see

also Occidental Land, Inc. v. Sup. Ct., 556 P.2d 750, 754

(Cal. 1976) (“[A]n inference of reliance arises if a material

false representation was made to persons whose acts thereaf-

ter were consistent with reliance upon the representation.”).

Plaintiffs have alleged that the named plaintiffs and class

members would not have paid for the CMBS system had

Honda disclosed the omitted information. The district court

correctly imputed reliance to the class.

Next, I concur with the majority that Honda has sufficient

contacts with California to satisfy constitutional concerns. All-

state Ins. Co. v. Hague, 449 U.S. 302, 310-11 (1981); Wer-

shba v. Apple Computer, Inc., 110 Cal. Rptr. 2d 145, 159

(Cal. Ct. App. 2001). Honda, a California corporation, has

made Torrance, California its principal place of business and

its corporate headquarters for sales, marketing, research and

212 MAZZA v. AMERICAN HONDA

development. Honda hired an advertising agency in Santa

Monica, California to create print, radio and television ads for

the CMBS system and an advertising agency in Culver City,

California for its internet-based ads.

I disagree, however, with the majority’s choice of law anal-

ysis pursuant to California’s three-step governmental interest

test. McCann v. Foster Wheeler LLC, 225 P.3d 516, 527 (Cal.

2010). First, the majority concludes that material differences

exist between California law and that of the 43 jurisdictions

in which class members reside. Majority Opinion at 201-202.

I find only one potentially material difference: Louisiana,

Georgia, Mississippi, Kentucky, Virginia and Alabama pro-

hibit class actions that allege unfair trade practices under state

law. La. Rev. Stat. Ann. § 51:1409(A) (2008); Ga. Code Ann.

§ 10-1-399(a); Miss. Code Ann. § 75-24-15(4) (West 2007);

Arnold v. Microsoft Corp., No. 00 Cv. 123, 2001 WL 193765,

at *6 (Ky. Cir. Ct. July 21, 2000); Va. Code Ann. § 59.1-204;

Ala. Code § 8-19-10(f) (1981). Because California contem-

plates such class actions, I must consider next whether each

of these states has an interest in applying its laws to this litiga-

tion. McCann, 225 P.3d at 527. They do not.

The majority holds that applying California law to a nation-

wide class would discount each state’s interest in achieving an

optimal balance between consumer protection and business

friendliness. Majority Opinion at 202-204. But pro-business

legislation does not speak to the specific interest states have

in imposing their laws on this litigation. Honda has not shown

how a state’s general interest in prohibiting class actions

brought under its own consumer protection laws translates

into an interest in having its laws apply to this litigation.

Unmistakably, California has a keen interest in deterring Cali-

fornia corporations, with their principal places of business in

California, from engaging in tortious conduct within the state.

Clothesrigger, Inc. v. GTE Corp., 236 Cal. Rptr. 605, 609

(Cal. Ct. App. 1987) (“California’s interest in deterring fraud-

ulent conduct by businesses headquartered within its borders

MAZZA v. AMERICAN HONDA 213

and protecting consumers from fraudulent misrepresentations

emanating from California would override any possible inter-

est of any other state in application of its own laws to its resi-

dents’ claims.”).

In assessing “which state’s interests would be more

impaired if its policy were subordinated to the policy of the

other state,” Clothesrigger, 236 Cal. Rptr. at 609, the majority

concludes both that applying California law would impair for-

eign states’ ability to foster commerce and that California has

an attenuated interest in applying its law to nonresidents,

Majority Opinion at 204-206. I strongly disagree. Each state

with a material conflict has an interest in having its consumer

protection laws apply to transactions taking place within that

state’s borders. However, California’s interest would be most

significantly impaired if its laws were not applied to this liti-

gation. Honda is incorporated and headquartered in Califor-

nia; the advertisements at issue emanated from the state.

California has a compelling interest in regulating the conduct

of corporations operating within the state and availing them-

selves of the state’s privileges. Clothesrigger, 236 Cal. Rptr.

at 614; Wershba, 110 Cal. Rptr. 2d at 159 (noting that Califor-

nia Business and Professions Code Section 17500 addresses

deception of nonresident class members deceived by repre-

sentations disseminated from California).

Thus, California law should govern. In fact, California

courts themselves have held that “a California court may

properly apply the same California statutes at issue here to

non-California members of a nationwide class where the

defendant is a California corporation and some or all of the

challenged conduct emanates from California.” Wershba, 110

Cal. Rptr. 2d at 160; see also Clothesrigger, 236 Cal. Rptr. at

615-16 (applying California law to nationwide class).

The majority’s holding will prove devastating to consum-

ers. Individual claimants will not bring actions to recover the

$4,000 paid for the CMBS systems. Even if consumers did

214 MAZZA v. AMERICAN HONDA

pursue these claims, and even if these claims proved success-

ful, they “would not only unnecessarily burden the judiciary,

but would prove uneconomic for potential plaintiffs” because

“litigation costs would dwarf potential recovery.” Hanlon v.

Chrysler Corp., 150 F.3d 1011, 1023 (9th Cir. 1998). Without

certification of a nationwide class to which California law

applies, Honda becomes free to avail itself of the benefits

offered by California without having to answer to allegations

by consumers nationwide that it has violated the consumer

protection laws of its forum state. This situation will allow

corporations to take advantage of a forum state’s hospitable

business climate on the one hand, while simultaneously dis-

counting the potential for litigation by nationwide consumers

in response to a particular profit-motivated but harmful action

on the other. If the harm to individual consumers is small

enough to create a disincentive to individual litigation, and if

a nationwide class action is not a potential consequence, cor-

porations can choose increased revenues over the consumer

with impunity. Thus, corporations like Honda will be able to

act without accountability for past behavior and without a

check on future profit-motivated actions that may risk con-

sumer harm.

The district court did not abuse its discretion in certifying

a nationwide class to which California law applies. I respect-

fully dissent.