With respect to Commonality: “The defendant points out several aspects of proof on which it believes its evidence will defeat the plaintiffs’ claims on the merits, either by negating crucial elements or successfully establishing an affirmative defense to liability. But the prospect that the answer to a common question may favor the defendant rather than the plaintiffs certainly does not mean that class litigation of the issue is barred. In fact, it weighs in favor of addressing the issue expeditiously in a single proceeding to avoid the needless expense of adjudicating the same question in thousands of individual cases that might be doomed to founder on the same common shoal.”

With respect to Predominance: “There are three readily discernible common questions that are crucial to the pleaded causes of action in every jurisdiction where class certification has been sought. Those are (1) whether the 8L45 and 8L90 transmission design has one or more defects that render the class vehicles unsuitable for the ordinary use of providing safe and reliable transportation, (2) whether the defendant knew about the defects and concealed its knowledge from buyers of class models, and (3) whether the information withheld would have been material to a reasonable car buyer. Those issues all are amenable to proof by common evidence on a class-wide basis, some of which already has been presented in the record. The answers to each of those questions will feature prominently in the disposition of this case, outweighing the importance of any ancillary individualized issues.”

GM argues that the proposal by plaintiffs to compute damages on an “average” basis precludes certification because their “actual damages” suffered will vary in accordance with the prices paid by them and other factors. “It is settled, of course, that any model purporting to serve as evidence of damages in a class action must measure only those damages attributable to that theory, and if the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).  Calculations need not be exact, but at the class-certification stage (as at trial), any model supporting a plaintiff’s damages case must be consistent with its liability case. The plaintiffs have satisfied that standard here. They plausibly postulate that all class members were affected by the same omissions, since the information about the alleged defects allegedly was not disclosed to any of them. They also have put forth proofs suggesting that the defects either have surfaced or inevitably will manifest in all or nearly all class vehicles over their useful lifetime. At trial, they will seek to recover the difference in price paid by them as a result of overpaying for defective cars at the point of sale. The plaintiffs’ experts have proffered reliable statistical means for estimating the overpayment. Such a showing has been held sufficient to warrant certification of a damages class under Rule 23(b)(3) in similar auto defect cases.”

GM also argues that “design variations” among class models preclude class certification. “However, the plaintiffs have argued persuasively that the problematic elements of the 8L design are universal and inherent despite any such variations. The question is not whether every single aspect of the design is common – only those aspects that allegedly caused the problems.”

GM also argues that variations in GM’s and class members’ knowledge of the defect over time preclude certification. “However, there is substantial evidence in the record that GM had knowledge of the defect from even before the class models were launched, that it rapidly accumulated irrefutable evidence of a widespread defect as a result of a years-long – and apparently still ongoing – investigation, and that it never disclosed any of its findings to prospective purchasers before this litigation was well underway. Moreover, the determination of the materiality of that information will turn on objective rules that are unconcerned with individual knowledge or preferences….

“The fact that the alleged defect has ‘not yet’ (according to the defendant) caused any serious accidents similarly is immaterial to the assessment of whether it poses a safety risk for drivers. Moreover, there already is some evidence in the record suggesting that GM has received reports of accidents caused by shifting problems, which it elected to ignore.”

Finally, GM argues that the fact that some class members may have sold their vehicles precludes certification. “However, for the reasons discussed above, the proposed assessment of class-wide point-of-sale damages on a representative basis is proper notwithstanding such individual circumstances, and as other courts have observed, the fact of resale is immaterial because the injury occurred when class members paid a price premium at the time of lease or purchase.”


Speerly v. General Motors, 343 F.R.D. 493 (E.D.Mich. 2023).