George Tershakovec, et al v. Ford Motor Company, Inc.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10575
____________________
GEORGE TERSHAKOVEC,
DIANA TERSHAKOVEC,
JACQUES RIMOKH,
HERBERT ALLEY,
individually and on behalf of all others similarly situated,
MICHAEL DELAGARZA, et al.,
Plaintiffs-Appellees,
versus
FORD MOTOR COMPANY, INC.,
Defendant-Appellant.
____________________
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2 Opinion of the Court 22-10575
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:17-cv-21087-FAM
____________________
Before NEWSOM , L UCK , and TJOFLAT, Circuit Judges.
NEWSOM , Circuit Judge:
Ford Motor Company advertised its Shelby GT350 Mustang
as “track ready.” But some Shelby models weren’t equipped for
long track runs, and when the cars overheated, they would rapidly
decelerate. A group of Shelby owners sued Ford on various state-
law fraud theories and sought class certification, which the district
court granted in substantial part. Ford challenges class certification
on the ground that proving each plaintiff’s reliance on the alleged
misinformation requires individualized proof and, therefore, that
common questions don’t “predominate” within the meaning of
Federal Rule of Civil Procedure 23(b)(3).
For reasons we will explain, the predominance inquiry turns
on the specifics of the state laws under which plaintiffs have sued—
and, in particular, on (1) whether those laws require proof of reli-
ance, (2) if so, whether they permit reliance to be presumed, and
(3) if so, under what circumstances. Having considered those ques-
tions, we hold that some of plaintiffs’ claims may be certified for
class treatment, that others may not, and that some require the dis-
trict court to take a closer look at applicable state-law require-
ments.
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22-10575 Opinion of the Court 3
I
A
The putative class representatives hail from seven states—
California, Florida, Missouri, New York, Tennessee, Texas, and
Washington. Each purchased one of two models of Ford’s Shelby
GT350 Mustang.
The Shelby is an upgrade of the standard Mustang and, im-
portantly here, was advertised as “an all-day track car that’s also
street legal.”1 Track-capability refers to the vehicle’s capacity to
perform at higher-than-normal speeds in a controlled environ-
ment—like, say, on a racetrack. Track-readiness was a central
theme in Ford’s Shelby advertising. For example, in a race-day in-
vitation to Shelby owners, Ford’s marketing manager touted the
Shelby’s “exceptional racetrack capabilities” and said that he was
“sure” they were “one of the reasons you purchased your GT350—
perhaps the main reason.” Other Shelby ads included descriptions
like “track capable,” “track ready,” and “tested endlessly on the
most challenging roads and tracks in the world,” as well as state-
ments like, “[W]e wanted to build the best possible Mustang for the
places we most love to drive—challenging back roads with a variety
of corners and elevation changes—and the track on weekends.”
1 The designer for whom the Shelby was named, Carroll Shelby, was por-
trayed by Matt Damon in the 2019 blockbuster Ford v. Ferrari. FORD V . FERRARI
(Twentieth Century Fox 2019).
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4 Opinion of the Court 22-10575
The Shelby comes in five trims. Plaintiffs are purchasers of
the “Base” and “Technology” trims. Those trims lack “transmis-
sion and differential coolers,” a feature—originally included as
standard on all Shelbys—that is designed to prevent engine over-
heating. Without these coolers, the Shelbys compensate at high
RPMs by reverting to “limp mode,” a self-preservation status that
reduces the vehicle’s power, speed, and performance to avoid en-
gine damage. “Limp mode” presents a problem for car enthusiasts
who want to take Ford up on its promise of “track capab[ility].”
One way that Shelby owners indulge their need for speed is
by participating in “Track Days,” organized events at which drivers
can take their Shelbys around controlled racetracks at triple-digit
clips. According to some plaintiffs, though, “limp mode” set in af-
ter six or seven laps—about ten minutes of track time—resulting
in rapid deceleration and rendering the vehicles “essentially unusa-
ble for sustained track driving,” which, they say, was “the main rea-
son many [of them] bought the car.”
B
Plaintiffs filed this putative class action alleging, among
other things, common-law fraud claims and state-specific statutory
violations. Plaintiffs alleged that Ford falsely advertised all Shelbys
as being track-capable, that those representations induced them to
buy Shelbys, but that their Shelbys couldn’t perform as billed.
Following discovery and a hearing, the district court granted
plaintiffs’ request for class certification. In particular, the court
chose to create multiple state-law classes within a single class-
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22-10575 Opinion of the Court 5
action case. Although it acknowledged that, as thus structured, the
case “look[ed] more like a Multi-District Litigation than a standard
class action,” the court thought that this framework would “avoid
the choice of law issues concomitant with a proposed nationwide
class (an issue that would almost certainly defeat [Rule 23(b)(3)]
predominance).” The district court separately dismissed Ford’s
concerns about “the . . . difficulties in managing a class action,”
Fed. R. Civ. P. 23(b)(3)(D), on the grounds that the proposed classes
were “small enough” and that variations among state laws could be
addressed through “appropriate jury instructions” and “multiple
verdict forms that tick[ed] through the elements of the nine certi-
fied state class[es’] statutory and common law fraud claims.”
The district court certified classes of plaintiffs whose claims
arose under the common and/or statutory law of California, Flor-
ida, Illinois, Missouri, New York, Oregon, Tennessee, Texas, and
Washington.2 The district court also certified two classes—one in
California and another in Texas—stemming from alleged breaches
of implied warranties and violations of the Magnuson-Moss War-
ranty Act, 15 U.S.C. § 2301 et seq. On appeal, twelve separate claims
2 Each class consisted of “[a]ll persons who purchased a Class Vehicle from a
Ford-authorized dealer or distributor located in [insert state here] before April
[27], 2016.” Doc. 231 at 28; see also Tershakovec v. Ford Motor Co., No. 17-21087-
CIV, 2021 WL 3711444, at *1 (S.D. Fla. Aug. 20, 2021) (amending the “class
certification order to reflect a class cut-off date of April 27, 2016” instead of
April 1). The “Class Vehicles” cover Ford’s Shelby GT350 Base and Technol-
ogy trims purchased during the relevant period. Plaintiffs estimate that there
are 1,668 Class Vehicles nationwide.
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6 Opinion of the Court 22-10575
remain, arising under the laws of seven states: California, Florida,
Missouri, New York, Tennessee, Texas, and Washington.3
We granted Ford’s Rule 23(f ) petition to appeal the district
court’s class-certification order.
II
We review a district court’s decision granting or denying
class certification for abuse of discretion. See Local 703, I.B. of T.
Grocery & Food Emps. Welfare Fund v. Regions Fin. Corp., 762 F.3d
1248, 1253 (11th Cir. 2014). The district court abuses its discretion
if it “applies the wrong legal standard, follows improper procedures
in making its determination, bases its decision on clearly erroneous
findings of fact, or applies the law in an unreasonable or incorrect
manner.” Id. At the class-certification stage, “the trial court can
and should consider the merits of the case to the degree necessary
to determine whether the requirements of Rule 23 will be satis-
fied.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188
n.15 (11th Cir. 2003).
III
Federal Rule of Civil Procedure 23 governs class actions. In
addition to satisfying Rule 23(a)’s four familiar “[p]rerequisites”—
numerosity, commonality, typicality, and adequacy of representa-
tion—a proposed class must fit within one of the three “[t]ypes”
specified in Rule 23(b). Plaintiffs here sought class certification
3 Plaintiffs are no longer pursuing their claims under Oregon and Illinois law.
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22-10575 Opinion of the Court 7
under Rule 23(b)(3), which requires both that “questions of law or
fact common to class members predominate over any questions af-
fecting only individual members” and that a class action be “supe-
rior to other available methods for fairly and efficiently adjudicat-
ing the controversy.” Fed. R. Civ. P. 23(b)(3).
We must decide whether plaintiffs’ proposed class satisfies
Rule 23(b)(3)’s requirements. We’ll consider in turn 23(b)(3)’s two
prongs—predominance and superiority, the latter of which entails
an inquiry into a class action’s manageability.
A
First, predominance. Common questions “predominate”
within the meaning of Rule 23(b)(3) when the substance and quan-
tity of evidence necessary to prove the class claims won’t vary sig-
nificantly from one plaintiff to another. See Brown v. Electrolux
Homes Prods., 817 F.3d 1225, 1234 (11th Cir. 2016). The first step in
assessing predominance is to “identify the parties’ claims and de-
fenses and their elements” and to categorize “these issues as com-
mon questions or individual questions by predicting how the par-
ties will prove them at trial.” Id. A common issue is one that will
likely be proved using the same evidence for all class members; an
individualized issue, by contrast, is one that will likely be proved
using evidence that “var[ies] from member to member.” Id. (cita-
tion and internal quotation marks omitted).
In general, a fraud-related claim comprises the following el-
ements: a misrepresentation or omission, materiality, reliance, cau-
sation, and injury. See Restatement (Second) of Torts §§ 525, 550
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8 Opinion of the Court 22-10575
(Am. L. Inst. 1977); W. Prosser, The Law of Torts §§ 108, 110, at
714, 731–32 (4th ed. 1971). The parties vigorously dispute whether
the reliance element—that is, the question whether Shelby owners
relied on, and were induced to buy their cars based on, Ford’s ad-
vertisements—is capable of class-wide proof or whether reliance
issues are instead inherently individualized. Because the parties fo-
cus only on the reliance element, so do we.4
In granting class certification over Ford’s objection that the
issues pertaining to plaintiffs’ reliance were too individualized, the
4 Our dissenting colleague disagrees that we can focus solely on reliance be-
cause he views two traditionally separate elements—reliance and causation—
as inextricably intertwined. See Dissenting Op. at 32 (“[C]ausation inherently
requires reliance.”). Respectfully, we think that conflation overlooks relevant
state law. As explained below, see infra at 16–20, each of the states whose class
certification the dissent disputes expressly distinguishes the two elements. See,
e.g., Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983, 986 (11th Cir. 2016) (Florida)
(holding that plaintiffs “need not show actual reliance on the representation
or omission at issue,” even when causation is an element); Hess v. Chase Man-
hattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. 2007) (Missouri) (holding
that a claim under the Missouri Merchandising Practices Act “expressly does
not” require proof of reliance, though it does require causation); Thornell v.
Seattle Serv. Bureau, Inc., 363 P.3d 587, 592 (Wash. 2015) (Washington) (reject-
ing “the principle that reliance is necessarily an element of” a consumer-fraud
claim, even when causation is); Pelman ex rel. Pelman v. McDonald’s Corp., 396
F.3d 508, 511 (2d Cir. 2005) (citing Stutman v. Chem. Bank, 731 N.E.2d 608, 612
(N.Y. 2000)) (New York) (holding that statutory consumer-fraud claims do
“not require proof of actual reliance,” but do require causation); Walker v. Life
Ins. Co. of the Sw., 953 F.3d 624, 631 (9th Cir. 2020) (California) (requiring proof
of reliance only under certain circumstances). Because we think the dissent
mistakes the meaning of reliance, we needn’t further discuss its critiques—or
the manifold constitutional violations it alleges.
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22-10575 Opinion of the Court 9
district court leaned heavily on the notion that reliance can some-
times be presumed. Although the court acknowledged that “a pre-
sumption of . . . reliance is only appropriate in some states and in
some fact patterns,” one of those “fact patterns,” it said, was “when
a [d]efendant’s representations to the entire class were uniform.”
The court reasoned that “Ford’s representations to Plaintiffs were
uniform” and that “the evidence appears to show that no class
member could possibly have known [about the defect] from
Ford[.]” Accordingly, it concluded that a presumption of reliance
was appropriate in this case—and, therefore, that individualized re-
liance issues didn’t present a predominance-related barrier to class
certification.
The root of the district court’s error was in overgeneralizing
the presumption-of-reliance issue. The court’s task was to “pre-
dict[] how the parties will prove” common and individualized ques-
tions. Brown, 817 F.3d at 1234. But doing so requires carefully ex-
amining the particular state laws on which plaintiffs’ claims in this
case are based. True, a presumption that a plaintiff or group of
plaintiffs relied on Ford’s misstatements may apply—but only if the
relevant state’s common-law-fraud cause of action or deceptive-
practices statute allows for that presumption. And while the dis-
trict court seemed to appreciate that the presumption was “only
appropriate in some states,” it never seriously investigated whether
and under what circumstances each of the various state-law claims
at issue permit the presumption. See, e.g., Doc. 231 at 43 (Califor-
nia); id. at 44 (Missouri); id. at 45 (Tennessee); id. at 45 (Texas).
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10 Opinion of the Court 22-10575
In fact, as we’ll see, states’ fraud-based causes of action
meaningfully differ in terms of both whether proof of reliance is
necessary and, if it is, how it is established. Reliance is often,
though not uniformly, an essential element of a fraud-based claim.
Where it is, it sometimes must be affirmatively proved; in other cir-
cumstances, it may be presumed. Affirmatively proving reliance is
a very individualized inquiry, the kind that would predominate
over other common questions in a class action. By contrast, where
the presumption of reliance applies, it does so generally and can
therefore be resolved on a class-wide basis.
Bottom line: To assess Rule 23(b)(3)’s predominance re-
quirement, we must consider whether each cause of action at issue
here requires proof of reliance and, if so, whether and under what
circumstances a presumption of reliance is appropriate.
B
So a (perhaps the) key issue in this case is whether each of
the several state-law causes of action that plaintiffs have alleged per-
mits a presumption of reliance and, if it does, under what circum-
stances. That’s a question that we’ll need to decide on a state-by-
state (and claim-by-claim) basis, and we’ll get to those details soon
enough. But first, a more general, preliminary point. All seem to
recognize—and we agree—that the permissibility of a presump-
tion of reliance will often turn on whether a fraud-based claim pri-
marily alleges affirmative misrepresentations, omissions (or non-
disclosures), or, perhaps, a mixture of both.
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22-10575 Opinion of the Court 11
While not strictly applicable here, cases decided under the
federal securities laws illustrate the distinction between misrepre-
sentations and omissions, as well as the effect that distinction can
have on the operation of the presumption of reliance. Here’s a
brief summary: In Affiliated Ute Citizens of Utah v. United States, the
Supreme Court held, in a case arising under Rule 10b-5, that
“[u]nder the circumstances of th[e] case” before it, which “in-
volv[ed] primarily a failure to disclose, positive proof of reliance is
not a prerequisite to recovery,” but rather may be presumed. 406
U.S. 128, 153 (1972). Significantly, though, we have since clarified
that the Ute presumption applies only to cases “involving primarily
a failure to disclose in which defendants who had an affirmative
duty to disclose stood mute, leaving plaintiffs with absolutely noth-
ing upon which to rely.” Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749,
755 (11th Cir. 1984); see also Huddleston v. Herman & MacLean, 640
F.2d 534, 547 (5th Cir. Unit A March 1981), aff’d in part and rev’d in
part on other grounds, 459 U.S. 375 (1983) (“If a person who has an
‘affirmative duty under [Rule 10b-5] to disclose’ a material fact”
fails to disclose “material facts that reasonably could be expected to
influence [a security-holder’s] decision to sell, positive proof of re-
liance . . . is not a prerequisite to recovery.”). No presumption of
reliance applies, we have emphasized, either in cases primarily al-
leging affirmative misrepresentations or in those “mixing allega-
tions of omissions and misstatements.” Cavalier Carpets, 746 F.2d
at 757. So, for instance, in a securities case where plaintiffs “alleged
three omissions and three misstatements,” the “mixed case rule of
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12 Opinion of the Court 22-10575
Huddleston” applied—meaning that a presumption of reliance did
not. Id.5
So, what kind of claims have plaintiffs alleged here? Perhaps
not surprisingly, especially given Ute and its underlying principles,
plaintiffs insist that their case is solely about omissions. See Br. of
Appellees at 4 (“[T]he fraud-based class claims are based solely on
omissions.”). Equally unsurprisingly, Ford counters that this is fun-
damentally a case about affirmative misrepresentations or, at the
very least, a “mixed” case. See Reply Br. of Appellants at 1 (“The
record in this case could not be clearer that plaintiffs’ fraud-based
claims rest on Ford’s alleged affirmative misrepresentations con-
cerning the track capabilities of plaintiffs’ vehicles.”). Having con-
sidered plaintiffs’ own framing of their claims, the basic facts
5 We implemented this framework in the class-action context in Kirkpatrick v.
J.C. Bradford & Co., 827 F.2d 718 (11th Cir. 1987). There, as here, the parties
debated whether individual reliance issues defeated Rule 23(b)(3)’s predomi-
nance requirement, and there, as here, the answer to that question depended,
in part, on whether a Ute-like presumption of reliance applied. We held that
the plaintiffs’ claims there couldn’t “be properly characterized as omissions
cases” under Ute because they didn’t allege that “‘[t]he defendants . . . st[ood]
mute in the face of a duty to disclose.’” Id. at 722 (quoting Cavalier Carpets, 746
F.2d at 749 n.22). Rather, we explained, the plaintiffs asserted that “the de-
fendants ‘undertook . . . to disclose relevant information . . . alleged to contain
certain misstatements of fact and [that] fail[ed] to contain other facts necessary
to make the statements made, in light of the circumstances, not misleading.’”
Id. (quoting Cavalier Carpets, 746 F.2d at 749 n.22) (alterations in original). Ac-
cordingly, we held that “the complaints at most allege[d] mixed claims of mis-
representations and omissions,” that Ute’s “presumption of reliance d[id] not
apply,” and, therefore, that (at least on that ground) the presumption couldn’t
eliminate individualized reliance issues. Id.
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22-10575 Opinion of the Court 13
underlying those claims, and the district court’s treatment of the
various allegations in the case, we conclude that Ford has the better
of the argument: At its core, this case is about misrepresentations,
not omissions.
For starters, plaintiffs’ own complaint repeatedly targets
Ford’s “marketing” and “advertising.” Doc. 43 at 69–86. Indeed,
the complaint’s first factual allegation concerns plaintiffs’ shared
love of track racing—the very subject of Ford’s alleged misrepre-
sentation about the Shelby’s track-readiness. Id. at 69–70. Plain-
tiffs’ motion for class certification and their response to Ford’s Rule
23(f ) petition likewise both repeatedly complain about Ford’s “mar-
keting communications.” See Doc. 122 at 8, 10–11, 15–18; Br. of
Plaintiff-Respondents in Response to Petition for Permission to Ap-
peal at 3–5, Ford Motor Company v. George Tershakovec, et al., No. 21-
90019 (11th Cir. Feb. 28, 2022). Even before us, plaintiffs continue
to focus on Ford’s “advertising.” Br. of Appellees at 12–14. And
that focus makes sense. Plaintiffs’ grievance, fundamentally, is that
Ford misled them to believe that their Shelbys could zip around
racetracks for hours. And they arrived at that belief not as a result
of Ford’s mere silence but, rather, they claim, as a result of Ford’s
boasting about the Shelby’s track-readiness.
The district court itself treated plaintiffs’ claims as primarily
alleging affirmative misrepresentations. In its order granting class
certification, for instance, the court described plaintiffs’ theory as
follows: “Ford advertised all Shelbys as track-capable, the advertis-
ing induced Plaintiffs to purchase the car, and then the car did not
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14 Opinion of the Court 22-10575
perform as advertised.” Doc. 231 at 3. Contrast that with a claim
that plaintiffs pleaded in their complaint but that the district court
later dismissed. There, plaintiffs separately alleged that their Shel-
bys can enter “limp mode” even during non-track conditions, when
being driven normally. See Doc. 43 at 72. Notably, the district court
referred to this as “the omission claim[]”—and rejected it on the
ground that there was no evidence that Ford was aware of the de-
fect and thus couldn’t have fraudulently concealed it. Doc. 231 at
13–15 (emphasis added).
In the end, even interpreted charitably, plaintiffs’ current
claims allege an omission only derivatively: Ford affirmatively mis-
represented the Shelbys as track-capable, which entailed an implicit
“omission” that the cars can enter “limp mode” under track condi-
tions. In the language of our securities cases, plaintiffs don’t allege
that Ford “st[ood] mute in the face of a duty to disclose”; rather,
they contend that it made misstatements of fact and then failed to
include “other facts necessary to make the statements . . . not mis-
leading.” Kirkpatrick, 827 F.2d at 722 (quotation omitted). And as
already explained, that means that plaintiffs’ complaint “at most al-
lege[s] mixed claims of misrepresentations and omissions.” Id.
Having established that plaintiffs’ case is fundamentally
about misrepresentations—or, at most, a mix of misrepresenta-
tions and corollary omissions—we’re ready to dive into the central
question: Which of the various fraud-based causes of action that
plaintiffs have alleged requires proof of reliance, and which among
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22-10575 Opinion of the Court 15
those permits reliance to be presumed—and under what circum-
stances?6
C
On, then, to the core of our analysis. Because different
states’ fraud-related causes of action—both statutory and com-
mon-law—treat reliance differently, we have to get into the specifics
of those laws. We find that we can group plaintiffs’ claims into
6 One final bit of housekeeping: Echoing the district court, plaintiffs cite our
decision in Klay v. Humana, 382 F.3d 1241 (11th Cir. 2004), abrogated in part on
other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008), for the
proposition that common evidence can be used to prove reliance on a class-
wide basis. Klay is distinguishable in important respects. True, we held there
that a class of physicians who brought a RICO-based action against an HMO
for misrepresenting that it would pay for medically necessary procedures had
to prove reliance. And true, we held that their reliance could be proved
through common evidence. Id. at 1257. But we did so for two reasons unique
to the transactions at issue there, neither of which applies here. First, we em-
phasized that the doctors relied on the HMO’s standardized misrepresentation
that they would be reimbursed for medically necessary services provided to
insureds and that the HMO’s nationwide conspiracy to underpay doctors was
the “very gravamen of the RICO claims.” Id. And second, we stressed that
the transactional exchange between the physicians and the HMO hinged on
the latter’s payment guarantees, which served as the “heart of the[] agree-
ments” and was the “very consideration upon which those agreements are
based.” Id. at 1259 (emphasis added). As the Second Circuit has observed,
contractual financial transactions between a purchaser and provider of medi-
cal services don’t implicate “the same type or degree of personal idiosyncratic
choice as does a consumer purchase.” McLaughlin v. American Tobacco Co., 522
F.3d 215, 225 n.7 (2d Cir. 2008). While one who provides services in exchange
for a payment relies only on the payment guarantee, a purchaser of a car may
choose to rely on any of a number of marketing and branding representations.
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16 Opinion of the Court 22-10575
three categories. First, some causes of action don’t require proof
of reliance at all. Needless to say, reliance poses no predominance-
related barrier to class treatment of those claims. Second—at the
other end of the spectrum, so to speak—some claims require indi-
vidual plaintiffs to prove reliance affirmatively, without the benefit
of any presumption. Rule 23(b)(3)’s predominance requirement
will bar class treatment of those claims, as the facts pertinent to
reliance will have to be proved on a plaintiff-by-plaintiff basis. Fi-
nally—in the middle—under some causes of action, proof of reli-
ance is required but may be presumed, at least under certain cir-
cumstances. Whether the predominance requirement can be satis-
fied for those claims depends on details specific to this case, some
of which the district court will need to investigate on remand.
In the sections that follow, we’ll sort the claims that plaintiffs
have alleged into these three categories.
1
The first category comprises state causes of action that don’t
require proof of reliance. Rule 23(b)(3)’s predominance require-
ment poses no barrier to class treatment of these claims because
it’s unnecessary to make any individualized inquiry into what each
plaintiff knew and relied on in purchasing his or her Shelby. Four
of plaintiffs’ claims fall into this category.
Three are easy. First, the district court certified a class of
plaintiffs who sued under the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. § 501.201 et seq. To establish a consumer
claim for damages under FDUTPA, a plaintiff must show (1) a
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22-10575 Opinion of the Court 17
deceptive act or unfair practice, (2) causation, and (3) actual dam-
ages. Carriuolo v. General Motors Co., 823 F.3d 977, 983 (11th Cir.
2016) (citing City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla.
4th Dist. Ct. App. 2008)). Dispositively here, “a plaintiff asserting a
FDUTPA claim need not show actual reliance on the representa-
tion or omission at issue.” Id. at 985 (quotation omitted). Because
a FDUTPA plaintiff needn’t prove that he or she relied on any al-
leged misstatement, Ford’s reliance-based predominance objection
fails.
Second, the district court certified a class of plaintiffs alleg-
ing claims under New York’s consumer-fraud statute, N.Y. Gen.
Bus. Law § 349(a) (McKinney). As the Second Circuit has ex-
plained, a “§ 349 claim has three elements: (1) the defendant’s chal-
lenged acts or practices must have been directed at consumers, (2)
the acts or practices must have been misleading in a material way,
and (3) the plaintiff must have sustained injury as a result.” Cohen
v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007); see also
Oswego Laborers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A.,
647 N.E.2d 741, 744–45 (N.Y. 1995). Again, dispositively, private ac-
tions brought under § 349 do “not require proof of actual reliance.”
Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.
2005) (citing Stutman v. Chemical Bank, 731 N.E.2d 608, 612 (N.Y.
2000)). So there can be no reliance-based predominance objection
to class treatment of plaintiffs’ § 349 claims, either.
Third, the district court certified a class of plaintiffs alleging
claims under Washington’s consumer-fraud statute, which
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18 Opinion of the Court 22-10575
prohibits “[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce.” Wash.
Rev. Code § 19.86.020. Washington courts have held that a plaintiff
suing under the statute must prove “a causal link between the act
and the injury.” Peoples v. United Servs. Auto. Ass’n, 452 P.3d 1218,
1221 (Wash. 2019). But they have clarified that reliance is merely
one way to establish causation—reliance is not itself a necessary
element. Thornell v. Seattle Serv. Bureau, Inc., 363 P.3d 587, 592
(Wash. 2015) (“[I]n Indoor Billboard this court rejected the principle
that reliance is necessarily an element of plaintiff’s CPA claim.”)
(citing Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc.,
170 P.3d 10 (Wash. 2007)); see also Young v. Toyota Motor Sales, U.S.A.,
472 P.3d 990, 996 (Wash. 2020) (“We rejected the company’s argu-
ment that as a matter of law, any false or deceptive act it committed
could not be the cause of the plaintiff’s injury because the customer
could not show he relied on the deceptive act in deciding to pay the
bill.”). Accordingly, as with the statutory claims arising under Flor-
ida and New York law, Ford’s reliance-based predominance objec-
tion to certifying the Washington consumer-fraud claims fails.
A final claim also belongs in this category. The Missouri
Merchandising Practices Act prohibits “deception, fraud, . . . mis-
representation, . . . or the concealment, suppression, or omission
of any material fact in connection with the sale or advertisement
of any merchandise in trade or commerce.” Mo. Rev. Stat.
§ 407.020.1 (2020). As Ford has acknowledged, the MMPA does not
by its terms require a plaintiff to prove that he or she relied on for-
bidden misrepresentations. See Oral Arg. at 7:22–7:35. And indeed,
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22-10575 Opinion of the Court 19
Missouri courts have repeatedly observed that “[a] consumer’s reli-
ance on an unlawful practice is not required under the MMPA.”
Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. Ct. App.
2016) (quotation omitted); accord, e.g., Hess v. Chase Manhattan Bank,
USA, N.A., 220 S.W.3d 758, 774 (Mo. 2007) (“[A] fraud claim re-
quires both proof of reliance and intent to induce reliance; the
[M]MPA claim expressly does not.”).
Even so, citing State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d
855 (Mo. 2008), Ford asks us to imply a reliance element for MMPA
claims. But Coca-Cola isn’t quite on point. There, plaintiffs sought
to certify a class of consumers who alleged that they wouldn’t have
purchased certain Diet Coke products had they known that they
contained both saccharin and aspartame, rather than just aspar-
tame as advertised. Id. at 858. Evidence showed, however, that the
“proposed class undoubtedly include[d] an extremely large number
of uninjured class members, that is, those who did not care if the
Diet Coke they purchased contained saccharin.” Id. at 862. The
Missouri Supreme Court declined to “imply” harm with respect to
those “uninjured” plaintiffs and affirmed the district court’s denial
of class certification on the ground that the class was “overbroad.”
Id. at 862–63. Although we understand Ford’s point, Coca-Cola was
concerned about an altogether different element—injury—and the
proper definition of classes, not the existence or non-existence of a
reliance requirement.
Nor does White v. Just Born, Inc., No. 2:17-cv-04025-NKL,
2018 WL 3748405 (W.D. Mo. Aug. 7, 2018), persuade us that the
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20 Opinion of the Court 22-10575
MMPA entails an implicit reliance requirement. In fact, the White
court cited the Missouri Court of Appeals’s decision in Murphy, al-
ready noted, for the proposition that “[a] consumer’s reliance on an
unlawful practice is not required under the MMPA.” Id. at *4. It’s
true that the federal district court in White held that class certifica-
tion was improper there because individualized issues concerning
plaintiffs’ injuries and causation would predominate over common
ones. See id. But state courts in Missouri have held that the injury-
and causation-related elements of an MMPA claim can be estab-
lished class-wide under what those courts call a “benefit-of-the-bar-
gain rule.” See, e.g., Plubell v. Merck & Co., 289 S.W.3d 707, 714–15
(Mo. Ct. App. 2009); Craft v. Phillip Morris Companies, Inc., No. 002-
00406A, 2003 WL 23355745, at *8–9 (Mo. Cir. Ct. Dec. 31, 2003)
(“[T]he necessary causation element is satisfied under § 407.025, as
is the economic harm element, whenever a plaintiff can simply
show that he purchased a product that was falsely represented, and
that he thereby received a product that would have been worth
more money if it had truly been as represented.”). Accordingly, we
reject Ford’s contention that individualized reliance issues prevent
certification of plaintiffs alleging MMPA claims.
2
The second category occupies the opposite pole—it com-
prises those causes of action (1) that require a plaintiff to prove that
he or she relied on a defendant’s misinformation and (2) that don’t
recognize a presumption of reliance. Plaintiffs’ claims brought un-
der these causes of action can’t be certified for class treatment be-
cause proving an individual’s reliance will necessarily require
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22-10575 Opinion of the Court 21
individualized evidence. We conclude that, as relevant here, this
category includes four claims.
Proving a negative—here, that the causes of action in this
group don’t allow reliance to be presumed—can be tricky, of
course. Some state courts have simplified our task by expressly in-
terpreting their own law to exclude the presumption. More often,
though, our research has revealed decisions that (1) clearly require
proof of reliance and (2) then contain no suggestion that reliance
may be presumed or otherwise inferred. Absent any indication that
a presumption is permissible, we decline to expand state law to in-
clude one. See, e.g., Salinero v. Johnson & Johnson, 995 F.3d 959, 967
(11th Cir. 2021) (“For us to create a wholly new doctrine, virtually
out of whole cloth, would work a profound change in Florida’s
law.”).
The district court certified a class of plaintiffs who sued un-
der the Texas Deceptive Trade Practices-Consumer Protect Act.
That statute prohibits “[f ]alse, misleading, or deceptive acts or
practices in the conduct of any trade or commerce,” Tex. Bus. &
Com. Code § 17.46(a), and expressly requires a plaintiff to prove,
among other things, that he or she “relied on” an enumerated act
or practice “to [his or her] detriment,” id. § 17.50(a)(1)(B). Im-
portantly here, we have previously held that the Texas statute re-
quires a plaintiff to prove that he or she “actually did rely” on the
“statement or omission.” Brown, 817 F.3d at 1236 (quotation and
emphasis omitted). Because a plaintiff must prove actual reliance—
seemingly without the benefit of any presumption—claims
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22 Opinion of the Court 22-10575
brought under the Texas statute will turn on individualized issues
that make them inappropriate for class treatment.
The district court also certified a class of plaintiffs who al-
leged common-law fraud claims under Washington law. Washing-
ton courts have held that a fraud plaintiff must prove, among other
things, “the listener’s reliance on the false representation, [] the lis-
tener’s right to rely on the representation, and [] damage from re-
liance on the false representation.” Landstar Inway Inc. v. Samrow,
325 P.3d 327, 337 (Wash. App. 2014) (citing Baertschi v. Jordan, 413
P.2d 657, 660 (Wash. 1966)). To be sure, that description doesn’t
expressly foreclose a presumption of reliance, but neither it nor any
other that we’ve found expressly authorizes one, and we decline to
graft one onto Washington law.7 So plaintiffs’ Washington com-
mon-law fraud claims are not appropriate for class treatment.
The district court’s certification of plaintiffs’ New York com-
mon-law fraud claims was also improper. According to the New
York Court of Appeals, the elements of a New York common-law
fraud claim include, among others, “justifiable reliance by the
plaintiff.” Eurycleia Partners, LP v. Seward & Kissel, LLP, 910 N.E.2d
976, 979 (N.Y. 2009). Indeed, that court has emphasized that
7 Plaintiffs point to a pure-omission case, in which they say that the court (in
accordance with the rules that typically apply in federal-law cases, see supra at
11–12) approved a rebuttable presumption of reliance on the ground that “it
is virtually impossible to prove reliance in cases alleging nondisclosure of ma-
terial facts.” Morris v. International Yogurt Co., 729 P.2d 33, 41 (Wash. 1986).
For reasons already explained, though, this is not a pure-omission case. See
supra at 12–14. Morris is therefore inapposite.
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22-10575 Opinion of the Court 23
“[j]ustifiable reliance is a ‘fundamental precept’ of a fraud cause of
action.” Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 106
N.E.3d 1176, 1182 (N.Y. 2018) (quoting Danann Realty Corp. v. Har-
ris, 157 N.E.2d 597, 599 (N.Y. 1959)). Absent support for presuming
reliance under New York law—of which we have been shown
none—individualized issues prevent class treatment.
So too with respect to plaintiffs’ Tennessee common-law
fraud claims. “In an action for fraudulent misrepresentation”
brought under Tennessee law, “a plaintiff must show,” among other
elements, that he or she “acted reasonably in relying on the repre-
sentation.” City State Bank v. Dean Witter Reynolds, Inc., 948 S.W.2d
729, 738 (Tenn. Ct. App. 1996). And courts applying Tennessee law
have looked to a whole host of factors “in determining whether a
party reasonably relied,” all of which turn on individualized facts
about the plaintiff, the defendant, and the specifics of their relation-
ship. See, e.g., Boynton v. Headwaters, Inc., 737 F. Supp. 2d 925, 931
(W.D. Tenn. 2010) (citing City State Bank, 948 S.W.2d at 737). Ac-
cordingly, plaintiffs’ Tennessee common-law claims will turn on in-
dividualized issues that make class treatment inappropriate.
3
The third category includes causes of action that require
proof of reliance but allow it to be presumed in certain circum-
stances. Class certification may be appropriate with respect to
plaintiffs pursuing claims in this category—but only if the circum-
stances support the presumption’s application. This category, we
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24 Opinion of the Court 22-10575
conclude, covers the California claims, both statutory and com-
mon-law.
First, what we’ll call the California statutory claim. Techni-
cally, plaintiffs have presented claims under three different Califor-
nia statutes—the Unfair Competition Law, Cal. Bus. & Prof. Code
§ 17200, the False Advertising Law, id. § 17500, and the Consumer
Legal Remedies Act, Cal. Civ. Code § 1770. But because all three
have similar reliance requirements, we treat them together. See
Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020)
(“Any violation of the FAL necessarily violates the UCL.”); see also
Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1068 (9th Cir. 2014)
(discussing reliance in the context of both the UCL and FAL). Cal-
ifornia’s UCL prohibits “any unlawful, unfair or fraudulent busi-
ness act or practice and unfair, deceptive, untrue or misleading ad-
vertising.” Cal. Bus. & Prof. Code § 17200.8 Courts applying Cali-
fornia law have held that a presumption of reliance may be appro-
priate for statutory claims, but only when “the defendant so perva-
sively disseminated material misrepresentations that all plaintiffs
must have been exposed to them.” Walker v. Life Ins. Co. of the Sw.,
953 F.3d 624, 631 (9th Cir. 2020) (UCL and FAL presumption); see
also Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1022 (9th Cir. 2011)
(likewise applying a reliance presumption under the CLRA where
“the trial court finds that material misrepresentations have been
8 The False Advertising Law, Cal. Bus. & Prof. Code § 17500, and Consumer
Legal Remedies Act, Cal. Civ. Code § 1770, prohibit similar misrepresenta-
tions in commercial transactions.
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22-10575 Opinion of the Court 25
made to the entire class”) (quotation omitted). So far as we can tell,
the district court never considered whether that precondition to the
presumption’s application obtained here. On remand, the court
must therefore determine whether plaintiffs have established that
Ford “pervasively disseminated” material misrepresentations.
Second, the California common-law claim. “The necessary
elements of fraud” under California law include, among others,
proof (1) that the defendant “inten[ded] to defraud (i.e., to induce
reliance [by])” the plaintiff and (2) that the plaintiff “justifiabl[y]
reli[ed]” on the defendant’s misinformation. Alliance Mortg. Co. v.
Rothwell, 900 P.2d 601, 608 (Cal. 1995). “California courts have al-
ways required plaintiffs in actions for deceit to plead and prove the
common law element of actual reliance.” Mirkin v. Wasserman, 858
P.2d 568, 572 (Cal. 1993) (citations omitted). As in the statutory
context, though, California courts have permitted a presumption
of reliance “when the same material misrepresentations have actu-
ally been communicated to each member of a class.” Id. at 575
(emphasis omitted). Because the district court didn’t consider
whether that precondition to the reliance presumption was satis-
fied, it will need to make that determination on remand.
D
Finally, we turn to the two certified classes—one in Califor-
nia, one in Texas—for breach-of-implied-warranty claims and vio-
lations of the federal Magnuson-Moss Warranty Act. The Mag-
nuson-Moss Act merely “supplement[s] state-law implied warran-
ties” by “affording a federal remedy for their breach,” Richardson v.
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26 Opinion of the Court 22-10575
Palm Harbor Homes, Inc., 254 F.3d 1321, 1325 (11th Cir. 2001) (inter-
nal citations omitted), so the Magnuson-Moss claims can be certi-
fied only if the state-law breach-of-implied-warranty claims are also
certified. See 15 U.S.C. § 2308; see also Brown, 817 F.3d at 1231 (“The
claims under the Magnuson-Moss Act are identical to the other
warranty claims because they are also based on state law.”).
In Brown, we held that to certify California and Texas im-
plied-warranty classes, like those here, the district court first
needed to decide “whether California and Texas law require pre-
suit notice, an opportunity to cure, and manifestation of the de-
fect.” 817 F.3d at 1237. The answers to these questions were im-
portant, we explained, as they “bear on predominance.” Id. at 1238.
As we have explained:
If California and Texas law do not excuse pre-suit no-
tice and an opportunity to cure when the defendant
had prior knowledge of the design defect, as the dis-
trict court speculated, then each class member will
need to prove that he gave [the defendant] pre-suit no-
tice and an opportunity to cure. This showing could
require individual proof. And if California and Texas
law require the defect to manifest, then each class
member will need to prove that his washing machine
actually grew mildew during the warranty period.
This showing could also require individual proof. Be-
cause the answers to these preliminary questions of
California and Texas law could affect whether Rule
23(b)(3) is satisfied, the district court had a duty to re-
solve them.
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22-10575 Opinion of the Court 27
Id. (citations and quotation marks omitted).
The district court here said only (1) that “notice is an indi-
vidual issue,” (2) that the notice issue “is a simple one” that could
be determined by a claims administrator, and (3) that the “big ques-
tion of whether the product was defective at the time it was sold is
a common one.” Brown requires more than that. Here, nothing
indicates that the district court determined “what the law is in Cal-
ifornia and Texas,” which would, in turn, “help it identify the over-
all mix of individual versus common questions for purposes of pre-
dominance.” Id.
For this reason, we must “remand to the district court so it
can answer these questions of state law in the first instance.” Id.
We express no view on whether the implied-warranty claims will
ultimately satisfy the predominance requirement for class certifica-
tion.
IV
Having tackled the predominance inquiry, we turn to supe-
riority. Under Rule 23(b)(3), a class action must be “superior to
other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). The superiority requirement
includes consideration of “the likely difficulties in managing a class
action.” Fed. R. Civ. P. 23(b)(3)(D). Ford contends that the class
action that the district court certified isn’t the superior means of
adjudicating plaintiffs’ claims because it’s unmanageable. In partic-
ular, Ford fears that jurors will have to remember testimony from
multiple witnesses, all while keeping track of the class members’
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28 Opinion of the Court 22-10575
states, the applicable common-law rules and statutes, and burdens
of proof.
The district court acknowledged that authorizing a single
trial for eleven proposed state-law classes was “unusual,” but it as-
serted that it could deal with the complexity by issuing “appropri-
ate jury instructions” and “multiple verdict forms that tick through
the [varying] elements of [the] certified state class[es]’ statutory
and common law fraud claims.” We aren’t so confident.
“Rule 23 demands an early consideration of class certifica-
tion, including its practical implications for case manageability.”
Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1279 (11th Cir. 2009). For
reasons we have already explained, Rule 23(b)(3) certification was
improper for classes that require individualized proof of each plain-
tiff’s reliance on Ford’s alleged misstatements. Our vacatur of the
district court’s certification of several classes and our ensuing re-
mand will necessarily affect the scope and course of the proceed-
ings—and with it, the manageability of those proceedings. The
district court should consider the manageability challenges anew
on remand and should more clearly articulate a plan for addressing
them to ensure that the difficulties of managing the class action do
not impede the fair and efficient adjudication of the case.
V
In summary, we affirm the district court’s certification of the
statutory classes in Florida, New York, Missouri, and Washington.
We reverse certification of the Texas statutory consumer-fraud
claim and the Tennessee, New York, and Washington common-law
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22-10575 Opinion of the Court 29
fraud claims. And we remand for the district court to consider
whether the facts in this case support a presumption of reliance for
the California statutory and common-law fraud claims and
whether the California- and Texas-based breach-of-implied-war-
ranty claims satisfy state-law requirements. Finally, we instruct the
district court on remand to reconsider the manageability issue.9
AFFIRMED in part, REVERSED in part, and VACATED
and REMANDED in part.
9 Plaintiffs’ motion to dismiss Ford’s appeal as improvidently granted is DE-
NIED.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 1
TJOFLAT, Circuit Judge, concurring in part and dissenting in part:
I agree with the Majority that required proof of reliance
makes class certification of the Texas Deceptive Trade Practices-
Consumer Protect Act claim, and the Tennessee, Washington, and
New York common law fraud claims inappropriate.1 I part com-
pany with the Majority, however, regarding the certification of the
classes for the Florida, New York, Missouri, California, and Wash-
ington statutory claims, as well as the California common law
claim. I do not believe these six classes satisfy Rule 23(b)(3)’s pre-
dominance requirement, and I would decertify them.
My reasoning derives from lifting the hood and examining
the various parts of the law before this Court on appeal. At first
glance, the six claims with which I disagree with the Majority look
ready to drive off the lot, but in fact, they are lemons. Here is the
User’s Manual for this opinion as we engage in a multi-point diag-
nostic. This opinion (1) begins by surveying the consumer protec-
tion scheme provided by the Federal Trade Commission Act (the
“FTC Act”); (2) compares and contrasts that scheme to the mecha-
nisms established by Florida, New York, Missouri, Washington,
and California’s respective consumer protection statutes; (3) iden-
tifies the inherent causal mechanism required for misrepresenta-
tion causes of action; (4) outlines four constitutional defects—First
1 I also concur with the Majority’s treatment of the California and Texas im-
plied warranty classes. Those classes are properly remanded to the District
Court under Brown v. Electrolux Homes Prods., 817 F.3d 1225, 1234 (11th Cir.
2016).
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2 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
Amendment, due process, Article III standing, and separation of
powers—inherent in allowing certification of claims under these
statutes; and (5) explains why none of the cases cited by the Major-
ity ought to bind or persuade this Court.
I.
The FTC Act declares unlawful “[u]nfair methods of compe-
tition in or affecting commerce, and unfair or deceptive acts or
practices in or affecting commerce.” 15 U.S.C. § 45(a)(1). That
which the FTC Act declares unlawful is vague. How will a business
know how to conduct its affairs? How will it know what consti-
tutes an unfair method of competition or an unfair or deceptive act
or practice prohibited under the act? The Federal Trade Commis-
sion (the “FTC”) will tell it. See id. § 45(a)(2) (empowering and di-
recting the FTC “to prevent persons, partnerships, or corporations .
. . from using unfair methods of competition in or affecting com-
merce and unfair or deceptive acts or practices in or affecting com-
merce” (emphasis added)). But the way the FTC tells businesses
that they are violating the FTC Act provides notice before punish-
ment. To get a sense of this process, let us walk through a hypo-
thetical FTC action as outlined by the FTC Act.
Charlie owns Brown’s Gas and an attached hamburger
stand—called the Chuck Wagon and run by his business partner,
Patty—off a state highway between fictional towns Riverton and
Clifton. Travelers from Clifton pass Brown’s Gas on their way out
of town and never fuel up—even though they love Patty’s burg-
ers—because Charlie consistently charges $3 more per gallon than
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 3
the average price in Clifton. Travelers from Riverton, on the other
hand, pass Brown’s Gas after having driven 120 miles with no gas
station, and those travelers cannot see that Clifton lies just on the
other side of a hill. The Riverton travelers consistently fill up with
Charlie’s inflated fuel.
Enter the FTC. The FTC determines that this sort of behav-
ior “causes or is likely to cause substantial injury to consumers
which is not reasonably avoidable by consumers themselves and
not outweighed by countervailing benefits to consumers or to
competition.” Id. § 45(n). Having “reason to believe” Charlie is
violating one of the FTC’s definitions of a practice that violates the
FTC Act, the FTC serves Charlie with a complaint and schedules a
hearing—which must be at least thirty days later. Id. § 45(b). Char-
lie has the “right to appear” at this hearing and “show cause why a[
forward-looking cease and desist] order should not be entered by
the Commission.” Id.
The FTC ultimately issues Charlie a cease and desist order,
which Charlie can appeal to a United States court of appeals.2 Id.
§ 45(c). Charlie has not yet been punished for his business practice.
He has merely been told that he cannot continue it in the future.
Any further engagement in the practice—assuming the court of
2 “To the extent that the order of the Commission is affirmed, the court shall
thereupon issue its own order commanding obedience to the terms of such
order of the Commission.” 15 U.S.C. § 45(c).
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4 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
appeals affirms the FTC—is punishable by the court’s contempt
power.
After the cease and desist order “has become final,”3 Charlie
continues to charge $3 more per gallon than other Clifton estab-
lishments, and so, the Attorney General can now file a civil action
against Charlie for a monetary penalty.4 Id. § 45(l). With that final
order—Charlie is therefore already on notice that his actions vio-
late the FTC Act—United States district courts are empowered to
grant “equitable relief” in addition to mandatory injunctions and
civil penalties. Id. This equitable relief may include restitution. Id.
§ 45(a)(4)(B).
Importantly for the claims against Ford, the FTC Act does
not allow for damages and contains no private right of action. See
Holloway v. Bristol-Myers Corp., 485 F.2d 986, 987 (D.C. Cir. 1973)
(“[P]rivate actions to vindicate rights asserted under the Federal
Trade Commission Act may not be maintained.”); id. at 999–1000
(recognizing that “the FTC has no power to award damages” and
3 Relevantly, the order becomes final at the judgment and decree of an affirm-
ing court, id. § 45(c), unless the Supreme Court grants certiorari. Id.
§ 45(g)(2)(C), (3)(C) & (4)(C); id. § 45(h). Or the order becomes final if the time
to appeal the FTC’s order to a court of appeals lapses, id. § 45(g), with time
built in to allow for petitions for review. Id. § 45(i).
4 The FTC would also be able to recover civil penalties from Charlie before
issuing a final order if Charlie committed an unfair or deceptive act or practice
“with actual knowledge or knowledge fairly implied on the basis of objective
circumstances.” Id. § 45(m)(1)(A), (B)(2). The mental state here constitutes
the notice that Charlie was performing a bad act.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 5
that the “1938 amendments [to the FTC Act] relied instead on the
FTC’s cease and desist procedures, and their provision of oppor-
tunity for voluntary compliance and informal administrative con-
flict resolution”); Fulton v. Hecht, 580 F.2d 1243, 1249 n.2 (5th Cir.
1978) (“[T]here is no private cause of action for violation of the
FTC Act.”);5 Am. Airlines v. Christensen, 967 F.2d 410, 414 (10th Cir.
1992) (“[T]here is no private right of action under [the FTC Act].”).
Rather, section 5 of the FTC Act empowers the FTC itself or the
Attorney General—both arms of the government—to pursue vio-
lators for forward-looking relief and, after notice and opportunity
to be heard, civil penalties.
While the state consumer protection statutes at issue in this
appeal derive from the FTC Act, the differences cause problems
that we will come back to later.
A.
Florida’s analogous consumer protection statute, the Florida
Deceptive and Unfair Trade Practices Act (the “FDUTPA”) de-
clares a similarly vague set of acts unlawful.6 Fla. Stat. § 501.204(1).
Interestingly, the FDUTPA’s text clearly directs the courts and the
executive branch to give “due consideration and great weight . . .
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the Former Fifth Cir-
cuit handed down prior to October 1, 1981.
6 The FDUTPA outlaws “[u]nfair methods of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the conduct of any
trade or commerce.” Fla. Stat. § 501.204(1).
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6 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
to the interpretations of the Federal Trade Commission and the
federal courts relating to s. 5(a)(1) of the Federal Trade Commis-
sion Act.”7 Id. § 501.204(2) (citing 15 U.S.C. § 45(a)(1)). This
means, despite the vague language in the FDUTPA, a person in
Charlie’s shoes could be on notice about his behavior if a success-
ful, similar action was brought against someone else either under
the FDUTPA, or federally under the FTC Act.
Florida’s Department of Legal Affairs, like the FTC, has
power to issue cease and desist orders; a defendant business has the
right (1) to respond to the complaint at a hearing and (2) to judicial
review of the ultimate agency decision. Id. §§ 501.208(1),
501.208(3) (citing Fla. Stat. § 120.68). After a cease and desist order
becomes final, the Department of Legal Affairs may pursue civil pen-
alties for violations.8 Id. § 501.208(7). Finally, the Department of
Legal Affairs9 may pursue three remedies in court: (1) a forward-
7 The state’s Department of Legal Affairs possesses rulemaking authority to
administer the FDUTPA, but all substantive rules must conform with the
“rules, regulations, and decisions of the [FTC] and the federal courts in inter-
preting the provisions of s. 5(a)(1) of the [FTC] Act.” Id. § 501.205.
8 The Department of Legal Affairs—or the “office of the state attorney if a
violation of this part occurs in or affects the judicial circuit under the office’s
jurisdiction,” id. § 501.203(2)—may also pursue civil penalties prior to a final
cease and desist order if the defendant “is willfully using, or has willfully used,
a method, act, or practice declared unlawful under [Fla. Stat. § 501.204], or
who is willfully violating any of the rules of the department adopted under
this part.” Id. § 501.2075. Much like with the FTC Act, the mental state serves
as the notice.
9 Or the office of the state attorney. See supra n.8.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 7
looking declaratory judgment that an act or practice violates the
FDUTPA; (2) a forward-looking injunction against a defendant busi-
ness “who has violated, is violating, or is otherwise likely to vio-
late” the FDUTPA; or (3) a suit on behalf of one or more consum-
ers to recover “actual damages caused by” a violating act or prac-
tice. Id. § 501.207. Until this last remedy, the FDUTPA follows the
FTC Act’s pattern of only preventing future action unless the defend-
ant has been placed on notice that a particular act or practice vio-
lates the statute.
The FDUTPA continues differentiating itself from the FTC
Act by providing two private rights of action. Anyone “aggrieved
by a violation of” the FDUTPA can bring a declaratory judgment
action and enjoin a “person who has violated, is violating, or is oth-
erwise likely to violate” the FDUTPA. Id. § 501.211(1). While pri-
vate, this cause of action is still forward-looking. Additionally,
someone “who has suffered a loss as a result of a violation of” the
FDUTPA “may recover actual damages, plus attorney’s fees and
court costs.” Id. § 501.211(2). Therefore, despite closely hewing to
the FTC Act and its interpretations, the FDUTPA has two features
the FTC Act does not: private rights of action and backward-look-
ing damages provisions.
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8 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
B.
New York’s consumer protection law also utilizes vague lan-
guage.10 The statute authorizes the state attorney general to enjoin
(forward-looking) unlawful acts or practices by anyone who “has
engaged in or is about to engage in any of the acts or practices
stated to be unlawful.” N.Y. Gen. Bus. Law § 349(b). The attorney
general can also “obtain restitution of any moneys or property ob-
tained directly or indirectly” by the unlawful acts or practices. Id.
The statute requires the attorney general “to give the person
against whom such proceeding is contemplated notice . . . and an
opportunity to show in writing . . . why proceedings should not be
instituted against him.”11 Id. § 349(c).
In addition to enforcement actions by the attorney general,
“any person who has been injured by reason of any violation of this
section may bring an action in his own name to enjoin such unlaw-
ful act or practice, an action to recover his actual damages or fifty
dollars, whichever is greater, or both such actions.” Id. § 349(h).
10 The statute declares unlawful “[d]eceptive acts or practices in the conduct
of any business, trade or commerce or in the furnishing of any service in this
state.” N.Y. Gen. Bus. Law § 349(a).
11 The statute provides an exception to the notice and opportunity to be heard
when the attorney general seeks preliminary relief and finds “that to give such
notice and opportunity is not in the public interest.” Id. § 349(c).
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Much like the FDUTPA, the New York statute adds private rights
of action and backward-looking relief to the FTC Act scheme.12
C.
The Missouri Merchandising Practices Act (the “MMPA”)
more specifically defines the prohibited acts under the statute than
do the Florida and New York statutes, including specifically prohib-
iting “misrepresentation.”13 Mo. Rev. Stat. § 407.020(1).14 The
state attorney general may issue and serve “an order prohibiting” a
person from “engaging or continuing to engage in” a violation of
the MMPA after notifying the defendant business of the supposed
violation and allowing two business days from receipt of the noti-
fication for the business to answer.15 Id. § 407.095(1).
The MMPA authorizes the attorney general to pursue for-
ward-looking injunctions against further violations of the MMPA
and authorizes courts in such actions to award restitution “as may
12 The New York statute specifically allows for acting in conformance with the
rules, regulations, and statutes administered and interpreted by the FTC to
serve as a complete defense to claims under the New York consumer protec-
tion law. Id. § 349(d).
13 The MMPA declares unlawful “any deception, fraud, false pretense, false
promise, misrepresentation, unfair practice or the concealment, suppression,
or omission of any material fact in connection with the sale or advertisement
of any merchandise.” Mo. Rev. Stat. § 407.020(1).
14 The MMPA makes the willful and knowing violation of the act a felonious
criminal offense. Id. § 407.020(3).
15 The attorney general may also initiate an investigation of any suspected vi-
olation of the MMPA. Id. § 407.040.
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10 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
be necessary to restore to any person who has suffered any ascer-
tainable loss . . . which may have been acquired by means of any”
violation of the MMPA. Id. § 407.100(1), (4). The MMPA also au-
thorizes civil penalties where the defendant is already on notice of
its conduct: for violations of voluntary compliance agreements be-
tween the business and the attorney general, id. § 407.030(2), or for
violations of the “terms of an injunction, an order to make restitu-
tion, or any other judgment or order issued under section
407.100.”16 Id. § 407.110.
Much like the Florida and New York statutes, the MMPA
authorizes a private cause of action to recover damages to those
who “suffer[] an ascertainable loss of money or property, real or
personal, as a result of” an MMPA violation. Id. § 407.025. In so
doing, the MMPA endorses an objective test for damages.17 Id.
§ 407.025(1)(2). The MMPA also specifically authorizes class
16 Willfully and knowingly violating an attorney general’s order under the
MMPA carries a felony criminal penalty. Id. § 407.095(3).
17 The elements of an MMPA private cause of action are:
(a) That the person acted as a reasonable consumer would
in light of all circumstances;
(b) That the method, act, or practice declared unlawful by
[the MMPA] would cause a reasonable person to enter into the
transaction that resulted in damages; and
(c) Individual damages with sufficiently definitive and ob-
jective evidence to allow the loss to be calculated with a rea-
sonable degree of certainty.
Id. § 407.025(1)(2).
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 11
actions for damages, id. § 407.025(5)–(9), and states that unnamed
class members “shall establish individual damages in a manner de-
termined by the court.” Id. § 407.025(5).
D.
The Washington consumer protection statute also uses
vague language to outlaw conduct.18 Wash. Rev. Code
§ 19.86.020. The statute authorizes the state attorney general to
bring a forward-looking action “to restrain and prevent the doing
of any act” prohibited by the statute. Id. § 19.86.080(1). And in
such an action, a court “may make such additional orders or judg-
ments as may be necessary to restore to any person in interest any
moneys or property, real or personal, which may have been ac-
quired by means of” a prohibited act. Id. § 19.86.080(2). Much like
some of the other statutes, this statute provides for civil penalties
for the violation of an injunction issued pursuant to this statute. Id.
§ 19.86.140.
In addition to the attorney general’s remedies, “[a]ny person
who is injured in his or her business or property by a violation” of
the consumer protection statute “may bring a civil action in supe-
rior court to enjoin further violations, to recover the actual dam-
ages sustained by him or her, or both.” Id. § 19.86.090.
18 The statute prohibits “[u]nfair methods of competition and unfair or decep-
tive acts or practices in the conduct of any trade or commerce.” Wash. Rev.
Code § 19.86.020.
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12 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
E.
Finally, the California Unfair Competition Law19 (the
“UCL”) defines unfair competition as “any unlawful, unfair or
fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by” Cal. Bus. & Prof.
Code § 17500 et seq. Cal. Bus. & Prof. Code § 17200. The UCL
authorizes forward-looking injunctive relief as well as “such orders
or judgments” by a court “as may be necessary to restore to any
person in interest any money or property, real or personal, which
may have been acquired by means of such unfair competition.” Id.
§ 17203.
The same section provides for a private cause of action by
stating, “Any person may pursue representative claims or relief on
behalf of others only if the claimant meets the standing require-
ments of Section 17204.” Id. That standing section authorizes ac-
tions for relief under the UCL by various public parties, such as the
state attorney general, or “a person who has suffered injury in fact
and has lost money or property as a result of the unfair competi-
tion.” Id. § 17204.
Much like the other five statutes, the UCL authorizes civil
penalties. Id. § 17206. Unlike those other statutes, it does not ap-
pear that the statute provides for civil penalties only after a business
has violated a court order, final agency order, or agreement; rather,
19 Like the Majority and for the sake of simplicity, this opinion treats all three
separate California statutes together. See Maj. Op. at 24 n.8.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 13
the UCL authorizes civil penalties for the bare violation of the stat-
ute itself.20 Id.
To summarize, though each of the five state consumer pro-
tection laws closely resemble the FTC Act in certain respects, they
differ as well. All five authorize damages. All five authorize a pri-
vate right of action. All five apparently allow the respective state
attorneys general to recover restitution in the initial injunctive pro-
ceeding against an alleged violator. Missouri and California each
define unlawful conduct more specifically than the FTC Act does.
Missouri, Washington, and California do not have provisions that
suggest the state law must conform with FTC law. Missouri spe-
cifically authorizes class actions and provides for an objective test
to obtain private damages. California penalizes violators without
a preliminary injunctive or cease and desist step. Finally, as a gen-
eral matter, the statutes award damages only to the extent that
such damages function like restitution—requiring actual damage.
II.
With the statutory landscape before us, we must now define
the claims with which I disagree with the Majority and determine
where they fit in with that landscape. This is an important step
because these state consumer protection statutes, on their faces,
cover the waterfront of prohibited conduct by outlawing anything
qualified as an “unfair business practice.”
20 The UCL also provides for a civil penalty to punish violations of an injunc-
tion issued under the statute. Cal. Bus. & Prof. Code § 17207.
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14 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
The claims against Ford have three features that make them
what I define as “Misrepresentative Advertising Class Actions.”
First, the claims assert that Ford’s alleged unlawful conduct was
contained in its advertising. See Maj. Op. at 4. Second, the claims
against Ford assert that Ford misrepresented something in its ad-
vertisements, making the claims specifically about misrepresenta-
tion as opposed to some other type of unfair business practice. See
id. at 13. Third, the complaint alleges harm against a class rather
than against an individual or named individuals.
The significance of the class action nature will become clear
in part III, and that of the advertising element in part III.A. For
now, the nature of the claims asserted against Ford as involving
misrepresentation carries two significances: (1) the deleterious ef-
fects of the vague statutes are reduced and (2) misrepresentation
comes with an inherent causal mechanism.
As mentioned in part I, supra, the consumer protection stat-
utes at issue here—with the possible exceptions of the MMPA and
the UCL—including the FTC Act itself, are written very broadly to
capture much ill-defined “unfair” or “deceptive” acts in business.
As part III.A will further flesh out, these statutes, standing alone,
pose a notice problem. The statute itself does not alert Charlie that
what he is doing is prohibited by the statute. To avoid the notice
problem, we must find further definition of the prohibited conduct
elsewhere. There are two places to look.
First, we can look to prior decisions under the statute. “Un-
fair business practice” might not in itself tell a cruise ship company
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 15
that it cannot charge customers an additional fee, label it a “port
charge,” then pocket some of that extra money as profit. See, e.g.,
Latman v. Costa Cruise Lines, N.V., 758 So. 2d 699 (Fla. 3d Dist. Ct.
App. 2000). But a previous case decided by a court under the con-
sumer protection statute dealing with that situation would.21
Second, we might solve the notice issue by importing the
common law definition of fraudulent misrepresentation. In that
regard, if a defendant’s conduct rises to the level of common law
fraudulent misrepresentation, the defendant gets his notice from
the common law. But the plaintiff would then need to make out a
prima facie statutory claim by making out a prima facie misrepre-
sentation claim—proving a misrepresentation, materiality, reli-
ance, causation, and injury. See Restatement (Second) of Torts
§ 525 (1977).
Therefore, to get around the notice problem inherent in the
vaguely worded statutes before us, plaintiffs in a Misrepresentative
Advertising Class Action have two options: present the district
court with a case on point adjudicating similar behavior as violating
the statute or satisfy the common law elements of misrepresenta-
tion. Utilizing either option, a misrepresentation allegation comes
with a built-in causal mechanism: reliance. The latter option
21 The FDUTPA goes one step further. By requiring “due consideration and
great weight . . . to the interpretations of the Federal Trade Commission and
the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act,”
Fla. Stat. § 501.204(1), the FDUTPA also allows FTC decisions to guide the
definition of prohibited conduct.
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16 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
requires it explicitly while the former must require it unless a plain-
tiff need not prove causation.
Misrepresentation only causes harm if the misrepresentee
relies on the misrepresentation of the misrepresentor. For in-
stance, take the instant case. Some of the class members (1) may
not have seen the advertisements at issue, (2) may not have wanted
a track-ready car, or (3) wanted merely to collect the car without
ever driving it around the track. None of these three kinds of class
members could have relied on Ford’s alleged misrepresentation.
Either they did not see the misrepresentation, or the misrepresen-
tation did not play any part in their decision to buy this car. The
alleged misrepresentation therefore could not have caused any
complained-of harm. Insofar as these three kinds of class members
suffered an injury, it remains independent of any misrepresentation
on the part of Ford. Therefore, in a misrepresentation case, reli-
ance is the causal mechanism. No reliance inherently means no
causation.
None of the consumer protection statutes at issue here—
Florida, Missouri, New York, Washington, or California—explic-
itly disclaims a reliance element.22 That is to say, none of those
22 The Missouri Code of State Regulations says, “Reliance, knowledge that the
assertion is false or misleading, intent to defraud, intent that the consumer rely
upon the assertion, or any other capable mental state such as recklessness or
negligence, are not elements of misrepresentation as used in section
407.020.1.” Mo. Code Regs. Ann. Tit. 15, § 60-9.070(2). While this language
appears in the regulation, the regulation merely adopts language from state
court decisions. Therefore, we also treat Missouri as if nothing in that statute
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 17
statutes say, “reliance is not an element of a cause of action under”
the statute. Rather, state court cases have interpreted the con-
sumer protection statutes as not requiring reliance. See Maj. Op. at
16–20, 23–25. As discussed in part III.D, infra, by reading out a re-
liance element in all cases, a court usurps the legislature’s power
and attempts to bind future courts in a way inconsistent with our
conception of judicial power.
III.
Now that we have laid out the statutory frameworks and
shown that misrepresentation claims require a showing of reliance,
this opinion now explains why a Misrepresentative Advertising
Class Action cannot be certified. Certifying such a class runs afoul
of the United States Constitution in four ways creating four distinct
but related problems: the Free Speech Problem, the Due Process
Problem, the Separation of Powers Problem, and the Standing
Problem.
A.
We begin with the Free Speech Problem. This case involves
speech because it involves advertising. The plaintiffs claim Ford’s
advertisements misrepresented something to them. While the
First Amendment does not protect untruthful commercial speech,
see Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425
U.S. 748, 771, 96 S. Ct. 1817, 1830 (1976), the judicial elimination of
explicitly disclaims a reliance element. Any removal of the reliance element is
a judicial removal.
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18 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
a causation element makes a speaker liable for speech with or with-
out the speech actually harming anyone. This chills protected
speech. Let us go back to our hypothetical from part I.A.
Clifton has an ordinance that prohibits unfair business prac-
tices and enforces it by the FTC Act model. Lucy, a resident of
Clifton, needs to sell her blue car. She takes out an advertisement
in the Clifton Chronicle that says, “Buy my red car.” Lucy thus en-
gages in speech—albeit unprotected speech. If Lucy did not know
the Clifton ordinance prohibited her false advertisement, that
would still be ok under the FTC Act model. Before any damages
or penalties could be assessed against her, the Clifton authorities
would have to tell her to stop, and if Lucy did not want to stop, she
could get a court to weigh in.
Now, suppose Clifton instead has an ordinance that prohib-
its unfair business practices and allows for private damages. This
is closer to the state models. Lucy advertises her blue car as a red
car. Sally agrees to buy Lucy’s car on Monday and pays Lucy. On
Tuesday, Lucy delivers the car and Sally discovers it is blue. Sally
sues under the Clifton ordinance alleging misrepresentation and
can either (1) rescind the contract, or (2) recover the difference be-
tween the value of a blue car and the value of a red car—the two
possible remedies for fraud. Lucy’s speech would not be protected.
Lucy could not claim she was not on notice that her conduct vio-
lated the ordinance, even if a previous case dealing with similar
conduct had not yet been decided. That is because Sally proved
the elements of common law fraud, including that she relied on
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 19
Lucy’s misrepresentation about the car’s color. See supra part II
(naming two ways in which a defendant may have notice under
vague consumer protection statutes).
Finally, imagine Clifton has just enacted the same ordinance;
it is new so there are no prior decisions to define prohibited con-
duct. A state court has interpreted the ordinance as not requiring
a plaintiff to prove reliance (and therefore causation). Lucy, now
the owner of a car dealership that only sells blue cars, places an
advertisement in the Clifton Chronicle that says, “Our cars are red
hot!” accompanied by a cartoon picture of a red car. Sally, who
wants to purchase a red car, sees the advertisement and purchases
a car over the phone only to later discover that it is blue. Sally
begins a class action against Lucy on behalf of everyone who has
ever bought a car from Lucy’s car dealership. Because Lucy en-
gaged in an unfair business practice and all her customers bought
less valuable blue cars, Judge Franklin decides that Lucy’s adver-
tisement violated the ordinance and orders her to pay the differ-
ence in value between a red car and a blue car to every class mem-
ber.23
Where is the free speech problem here? For one, Lucy was
not on notice that her advertisement fell under the ambit of the
ordinance. Perhaps she thought she was merely puffing. The or-
dinance used vague language, and neither of our two workarounds
apply. See supra part II. Sally could not use a prior decision to prove
23 In so holding Lucy liable, Judge Franklin would inherently need to find that
Lucy engaged in unprotected misrepresentative commercial speech.
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20 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
the advertisement was prohibited because the ordinance was new,
and the common law analogy could not help because nobody had
to prove reliance (and therefore causation). This notice problem
already implicates the Due Process Problem. See infra part III.B.
The First Amendment concern comes due to the almost certain
consequence of Judge Franklin’s ruling.
In engaging in speech that Judge Franklin would later deem
violated the statute and fell outside the First Amendment’s protec-
tion, what sanction did Lucy incur? She was not merely told to
stop through a cease and desist order. See supra part I.A. That
would be fine. She was not even held liable for the actual damage
her advertisement caused Sally.24 Rather, Lucy had to pay dam-
ages to all of her customers irrespective of whether (1) they saw the
advertisement, (2) they thought the advertisement was advertising
red cars, or (3) they wanted a red car. Class member Snoopy could
recover damages because he bought a blue car from Lucy despite
having never seen the advertisement and the fact that he shopped
at Lucy’s car dealership specifically because he wanted a blue car.
This is troubling in and of itself, as part of the Due Process Prob-
lem. See infra part III.B. But now we get to the Free Speech Prob-
lem.
What would a rational businessperson do if faced with a
vague statute that might penalize her advertising with runaway
damages liability to an unforeseeable number of plaintiffs? Not
24 A question remains whether this scenario would also implicate the Due Pro-
cess Problem.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 21
advertise, or at least severely restrict her advertising. So, while the
ordinance on its face only prohibits unprotected speech, any ra-
tional businessperson would stand so far away from the ill-defined
line between outlawed advertising and permissible advertising—
thus chilling protected speech—to avoid the potentially cata-
strophic consequences of damages to all. This is the Free Speech
Problem.
All the consumer protection statutes at issue in this case
touch speech in some way by barring misrepresentation—either
explicitly like Missouri, or implicitly like the other four statutes.
While, again, forbidding such misrepresentative commercial
speech generally falls within the ambit of a state’s police power, a
court that allows unforeseeable damages to unforeseeable plaintiffs
through a reliance-less cause of action, in effect, prophylactically
prohibits potentially misleading—and therefore protected—speech.
And chilling that extra, protected speech goes well beyond that nec-
essary to further a state’s interest in protecting consumers from
misrepresentation. See Cen. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 569–70, 100 S. Ct. 2343, 2353 (1980).
B.
Though we have already touched on the Due Process Prob-
lem, let us hit a couple more points.
Class actions can be an efficient method by which to resolve
a great quantity of legal claims. A class action can benefit putative
plaintiffs by allowing many individuals with meritorious claims—
though perhaps small—to pool their resources to vindicate their
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22 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
injuries against a common defendant. A class action can benefit
defendants by allowing them to defend against many similar legal
claims in one fell swoop as opposed to defending individually
against death by a thousand cuts.
But efficiency is not the be-all-end-all, especially in a justice
system. In addition to the First Amendment interests explored in
part III.A, supra, interests in efficiency must yield to due process
concerns when they arise. See Graham v. R.J. Reynolds Tobacco Co.,
857 F.3d 1169, 1218 (11th Cir. 2017) (en banc) (Tjoflat, J., dissent-
ing) (highlighting the due process dangers that serve as a backstop
to the efficiency of issue and claim preclusion); see also Rollins, Inc.
v. Butland, 951 So. 2d 860, 874–75 (Fla. 2d Dist. Ct. App. 2006) (ex-
plaining that (a) “considerations of administrative convenience do
not trump the class action defendant’s right to due process of law”
and (b) the argument that “ordinary standards concerning rules of
evidence, burdens of proof, or proof of the elements of a cause of
action must be relaxed in the class action context” is circular be-
cause it “assumes what remains to be proved: that the individual
members of the putative class have a right to recovery in the first
place” (citation omitted)).
The predominance requirement of Federal Rule of Civil
Procedure 23(b)(3) serves as one layer of protection for the due pro-
cess rights of class action defendants.25 If a class sues under a claim
25 “A class action may be maintained if Rule 23(a) is satisfied and if . . . the court
finds that the questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a class action
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 23
that—by its elements—ought to require too much of an individual
inquiry, a class action that reaches a jury risks ironing over the dif-
ferences within a class. These ironed-over differences may have
made the difference between one class member’s successful prima
facie case (like Sally’s) from another class member’s failed one (like
Snoopy’s). This ironing, in effect, leaves defendants liable to (1)
plaintiffs who would not have a meritorious individual claim
against the defendant and (2) plaintiffs who were simply not held
to their burdens of proof and persuasion due to their riding the
coattails of other plaintiffs.
Much as a court eliminating causation from the traditional
elements of negligence would deprive a defendant of property
without notice—thus denying the defendant due process—so
would excusing the reliance (and therefore causation) element in
these state consumer protection statutes. All a plaintiff needs to
prove under a causation-less cause of action is that the defendant
committed an act prohibited by the statute and the plaintiff suf-
fered some sort of recoverable injury, whether or not any causal
connection exists between the two. That would be like if defend-
ant Linus—under a duty not to leave his blanket on the ground for
fear of creating a slip hazard and yet breaching that duty—was held
is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3).
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24 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
liable to plaintiff Schroeder for his injury sustained from a falling
piano on the other side of Clifton.26
C.
Any elimination of a reliance (and thus causation) element
in a Misrepresentative Advertising Class Action also poses a Stand-
ing Problem. It is hard for me to believe that—especially after
TransUnion—any class action scheme in a Misrepresentative Adver-
tising context can pass muster under Article III standing law if the
cause of action contains no reliance or causation requirement or
allows a class to ride the coattails of named class representatives as
to reliance or causation. See TransUnion LLC v. Ramirez, 141 S. Ct.
2190 (2021). While two of the three standing requirements allow
a plaintiff to enter the courthouse on probabilities, one does not.
The Supreme Court identified three standing requirements: (1)
“that the injury was likely caused by the defendant”; (2) “that the
injury would likely be redressed by judicial relief”; but (3) that the
plaintiff “suffered an injury in fact that is concrete, particularized,
and actual or imminent.” Id. at 2203 (emphasis added) (citing Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136
(1992)). Therefore, an objective test that asks something along the
lines of, “is the defendant’s conduct likely to cause injury to the rea-
sonable consumer” cannot excuse a standing requirement of actual
injury in a backward-looking damages suit in federal court.
26 Add to this hypothetical the idea that it may not be clear that Linus had such
a duty, and the Due Process Problem only grows.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 25
Contrast such a suit to an objective test for a forward-look-
ing injunction. See City of L.A. v. Lyons, 461 U.S. 95, 105, 103 S. Ct.
1660, 1667 (1983) (evaluating injunctive standing using a “likely to
suffer future injury” standard). For forward-looking relief, only
one plaintiff need show an actual injury because, with injunctive
relief, whether the suit is brought by one plaintiff or one million
plaintiffs, the injunction preventing future conduct remains the
same.
Any use of the state legislative power does not solve the
standing problem. “[E]ven though ‘Congress [or a state legislature]
may elevate harms that exist in the real world before [the legisla-
ture] recognized them to actionable legal status, it may not simply
enact an injury into existence.’” TransUnion, 141 S. Ct. at 2205 (in-
ternal quotations omitted) (quoting Hagy v. Demers & Adams, 882
F.3d 616, 622 (6th Cir. 2018)). And the Supreme Court has already
rejected the idea that “a plaintiff automatically satisfies the injury-
in-fact requirement whenever a statute grants a person a statutory
right and purports to authorize that person to sue to vindicate that
right.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341, 136 S. Ct. 1540, 1549
(2016). “[T]he public interest that private entities comply with the
law cannot ‘be converted into an individual right by a statute that
denominates it as such, and that permits all citizens . . . to sue.’”27
TransUnion, 141 S. Ct. at 2206 (quoting Lujan, 504 U.S. at 576–77,
112 S. Ct. at 2145).
27 This particular point goes to the heart of the justification for the California
statutory claim as discussed infra part V.D.
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26 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
Further, vindicating the public interest ought to be in the
hands of a democratically accountable enforcing party, such as a
state attorney general, not private parties with no standing. “Pri-
vate plaintiffs are not accountable to the people and are not
charged with pursuing the public interest in enforcing a defendant’s
general compliance with regulatory law.” Id. at 2207 (citation
omitted).
Importantly for a Misrepresentative Advertising Class Action,
“[e]very class member must have Article III standing in order to
recover individual damages.” Id. at 2208. In other words, un-
named class members cannot get into court using the named plain-
tiff’s ticket.28
D.
Finally, the way these statutory causes of action are pre-
sented in the Majority opinion presents a Separation of Powers
Problem.
Each and every statutory cause of action—Florida, New
York, Washington, and Missouri—requires causation as an ele-
ment. See City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th
Dist. Ct. App. 2008) (requiring “causation”); Cohen v. JP Morgan
Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007) (requiring the plaintiff
to have sustained an injury “as a result” of defendant’s act or prac-
tice); Peoples v. United Servs. Auto. Ass’n, 452 P.3d 1218, 1221 (Wash.
28 This also strikes at the heart of the California statutory claim. See infra part
V.D.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 27
2019) (requiring “a causal link between the act and the injury”);
Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. Ct. App.
2016) (requiring the plaintiff’s injury to occur “as a result of” a vio-
lation of the statute); Kwikset Corp. v. Superior Ct., 246 P.3d 877, 887
(Cal. 2011) (requiring causation for standing under the UCL).
As shown in part II, supra, the inherent causal mechanism in
a misrepresentation claim is reliance. Therefore, any state court
that announces that the respective state statute does not require a
showing of reliance must have done one of two things.
One, it might be that the case before that state court, though
brought under the state consumer protection statute, was not a
misrepresentation case. Perhaps then, a causal mechanism other
than reliance might suffice and the plaintiff in fact does not need to
prove reliance. If so, an announcement that the statute does not
require a showing of reliance has nothing to say about this case—a
Misrepresentative Advertising Class Action—where reliance is the
causal mechanism.
Two, the state court might have usurped the state legisla-
ture’s power and rewrote the statute. Separation of powers princi-
ples in all five of the states at issue here forbid such a usurpation.
See Hawkins v. Ford Motor Co., 748 So. 2d 993, 1000 (Fla. 1999)
(“[T]his Court may not rewrite statutes contrary to their plain lan-
guage.”); In re Chase Nat’l Bank of City of N.Y., 28 N.E.2d 868, 871
(N.Y. 1940) (“[I]t is not within the province of this court to rewrite
the enactments of the Legislature.”); City of Charleston ex rel. Brady
v. McCutcheon, 227 S.W.2d 736, 739 (Mo. 1950) (“To so rewrite this
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28 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
statute would be but judicial usurpation of the legislative function.
That we cannot do.”); Millay v. Cam, 955 P.2d 791, 795 (Wash. 1998)
(“Courts do not amend statutes by judicial construction . . . nor
rewrite statutes to avoid difficulties in construing and applying
them.” (internal quotation marks and citations omitted)); Seaboard
Acceptance Corp. v. Shay, 5 P.2d 882, 885 (Cal. 1931) (“This court
cannot . . . in the exercise of its power to interpret, rewrite the stat-
ute.”).
This Separation of Powers Problem is further exacerbated
by the Free Speech Problem. While state legislatures can exercise
their police power to proscribe unprotected speech, if the govern-
ment has an interest in protecting the populace from some sort of
injury, it is a completely different matter if courts, which do not
possess police power, do so. Compare Gitlow v. New York, 268 U.S.
652, 670, 45 S. Ct. 625, 631 (1925) (finding that an enactment by the
state legislature did not exceed the police power and violate the
defendant’s free speech right), with Cantwell v. Connecticut, 310 U.S.
296, 307–308, 60 S. Ct. 900, 905 (1940) (coming to the opposite con-
clusion because a state court rather than the legislature attempted
to engage in the police power by weighing the state’s interest
against the First Amendment interest).
As stated in part III.A, supra, in reading out the causation el-
ement of these statutes on its own initiative, the state court creates
a prophylactic ban on protected and unprotected speech alike out
of whole cloth. If a state desires to penalize unprotected speech,
the state legislature can craft a prohibition by utilizing the police
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 29
power. But the state court cannot so exercise the police power. See
Gandy v. Borras, 154 So. 248, 249 (Fla. 1934) (“When a subject lies
within the police power of the state, debatable questions as to rea-
sonableness of the exercise of the power are not for the courts but
for the Legislature.”); People v. Munoz, 172 N.E.2d 535, 539 (N.Y.
1961) (“It is for the courts to determine, not how the police power
should be exercised, but whether there is reasonable relation be-
tween the statute or ordinance and the object sought to be at-
tained.”); Star Square Auto Supply Co. v. Gerk, 30 S.W.2d 447, 462
(Mo. 1930) (“The propriety, wisdom, and expediency of legislation
enacted in pursuance of the police power is exclusively a matter for
the Legislature. The single question which lies within the province
of the judiciary for its determination is whether the Legislature, in
the exercise of the police power, has exceeded the limits imposed
by the Constitution, federal or state.”); Granat v. Keasler, 663 P.2d
830, 832 (Wash. 1983) (implying that the police power rests outside
the judiciary because “[a]n exercise of the police power . . . is sub-
ject to judicial review”); Frost v. City of L.A., 183 P. 342, 345 (Cal.
1919) (“The Legislature is possessed of the entire police power of
the state . . . .”).
Normally, the legislature exercises the police power, and the
courts serve as backstops to ensure the legislature’s use of the
power does not violate the state or federal constitutions. The situ-
ation we have here turns this on its head. In reading out a neces-
sary element of a Misrepresentative Advertising Class Action,
courts usurp the police power and do so not to remedy constitu-
tional deficiencies, but to create them.
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30 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
IV.
With these four constitutional problems, how could these
six Misrepresentative Advertising Class Actions go forward? These
four constitutional problems, see supra part III, can remain hidden
under the hood if a court adopts state court language wholesale.
The Majority opinion illustrates this point. The Majority frames
the predominance inquiry of the state laws at issue here as asking
“(1) whether those laws require proof of reliance, (2) if so, whether
they permit reliance to be presumed, and (3) if so, under what cir-
cumstances.” Maj. Op. at 2.
The Majority correctly sets off on the proper inquiry under
the predominance requirement:
The first step in assessing predominance is to “iden-
tify the parties’ claims and defenses and their ele-
ments” and to categorize “these issues as common
questions or individual questions by predicting how
the parties will prove them at trial.” Id. A common
issue is one that will likely be proved using the same
evidence for all class members; an individualized is-
sue, by contrast, is one that will likely be proved using
evidence that “var[ies] from member to member.”
Id. at 7 (quoting Brown v. Electrolux Homes Prods., 817 F.3d 1225,
1234 (11th Cir. 2016)). The Majority also correctly states that if the
plaintiffs had to prove reliance, that would be “a very individual-
ized inquiry, the kind that would predominate over other common
questions in a class action.” Id. at 10. For the reasons discussed in
part III, supra, the Majority errs by not essentially ending its analysis
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 31
there. To recap, in a Misrepresentative Advertising Class Action,
(1) causation inherently requires a showing of reliance, (2) each
statute (and the California common law claim) requires a showing
of causation, and (3) no state court could possibly possess the
power to eliminate that causation element.
Instead of ending its analysis, however, the Majority splits
the claims before us into three buckets: Bucket One—the Florida,
Missouri, Washington, and New York statutory claims—includes
the class certifications which the Majority affirms; Bucket Two—
the Texas statutory claim and Tennessee, Washington, and New
York common law fraud claims—includes the class certifications
which the Majority reverses;29 and Bucket Three—the California
statutory and common law claims—which the Majority remands
for further factual findings. Maj. Op. at 16. In apparent reference
to all three buckets, the Majority suggests that “a (perhaps the) key
issue in this case is whether each of the several state-law causes of
action that plaintiffs have alleged permits a presumption of reliance
and, if it does, under what circumstances.” Id. at 10 (emphasis in
original).
But the Majority’s analyses of the Bucket One claims do not
rely on a presumption because that bucket “comprises state causes
of action that don’t require proof of reliance.” Id. at 16. It therefore
appears a presumption analysis only plays a part in the Buckets
Two and Three analyses. Id. at 20–25. As to the Bucket One
29 Again, I agree with the Majority’s disposition of the claims in Bucket Two.
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32 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
claims, in a Misrepresentative Advertising Class Action, causation
inherently requires reliance. See supra part II.B. And just as state
courts cannot pluck the causation element out of a statutory cause
of action, see supra part III.D, the Majority cannot do the same in
this Court without itself violating the four constitutional principles
outlined in part III, supra.
What about the two California claims in Bucket Three? The
Majority identifies the Bucket Three claims as those causes of ac-
tion that rely on the presence of a presumption. Maj. Op. at 23.
Presumptions come in two flavors: what I will call classical and
conclusive. A classical presumption, which generally applies to a
fact the plaintiff must prove to establish a claim, temporarily ex-
cuses the plaintiff’s burden of proving such a fact to establish a
claim sufficient to withstand a motion for judgment as a matter of
law at the close of the plaintiff’s case. The defendant can rebut the
presumption and, if successful, the plaintiff has the burden of prov-
ing the presumed fact at trial.
The classical presumption could not possibly apply to any of
the claims asserted in this case. The classical presumption works
when a defendant possesses evidence the plaintiff needs to establish
a prima facie case. Therefore, the plaintiff needs evidence of the
presumed fact to avoid a judgment as a matter of law. The classical
presumption temporarily relieves the plaintiff until the defend-
ant—the party with control over the evidence necessary to prove
or disprove the presumed element—rebuts the presumption.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 33
A conclusive presumption, on the other hand, operates as a
matter of policy—if enacted in a statute itself—or interpretation—
if a court creates the presumption through a judicial decision “de-
claring” common law—and serves as a prophylactic. Essentially,
because it permanently relieves a party of the burden to prove an
element, the conclusive presumption erases the element. For ex-
ample, if a cause of action requires (1) a false statement, (2) an eco-
nomic injury, and (3) reliance, a judicially created conclusive pre-
sumption as to reliance makes a defendant liable whether or not a
plaintiff relied, despite the statute requiring a showing of reliance.
The constitutional problems, therefore, that accompany a court
reading out an element of a claim discussed in part III, supra, all
apply to a judicially created conclusive presumption as well.
With the conclusive presumption a non-starter, what about
the classical version? The classical presumption makes absolutely
no sense in the context of reliance. Between the purchasing cus-
tomer and the manufacturing seller, who is more likely to possess
evidence of the reliance or non-reliance of any given purchaser?
Obviously, the purchaser him or herself. What could the seller—
defendant Ford in this case—possibly have to offer the factfinder
by way of getting to the truth of whether a plaintiff relied on al-
leged misrepresentations? A rebuttable presumption also does lit-
tle to change these claims into those where common issues pre-
dominate. It only changes the order of proof. The defendant will
need to produce individual evidence to rebut the presumption for
each individual class member and, if the defendant succeeds, each
class member will then need to individually prove reliance at trial.
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34 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
Even if the burden to prove or disprove reliance properly and tem-
porarily shifted to Ford going forward with the evidence, Ford
would need to rebut—or at least have the opportunity to rebut—
reliance for each individual plaintiff. This would still make a class
action inappropriate and unmanageable because each individual
case would still need to be tried by a jury to determine (1) if Ford
presented sufficient evidence to rebut the presumption, and (2) if
each individual plaintiff ultimately proved his or her case.30
So, the Majority, in focusing on a presumption of reliance
for the Bucket Three claims, must mean a conclusive presumption.
As for the California statutory claim, a presumption—let alone a
conclusive presumption—does not derive from the statute. See su-
pra part I.E. Rather, “Courts applying California law” have de-
clared the statute implies it. Maj. Op. at 24. Likewise, the Majority
indicates that the California common law claim includes reliance
as an element, but that courts apply a presumption to those com-
mon law claims as well. Id. at 25. The Majority says that they do
this where “the same material misrepresentations have actually
been communicated to each member of a class.” Id. (quoting
Mirkin v. Wasserman, 858 P.2d 568, 575 (Cal. 1993)). The fact that
courts interpreting California law had to create and apply a
30 In addition to a potential trial being unmanageable, discovery would be an
unmitigated mess. At bottom, with a rebuttable presumption, either the plain-
tiffs will have to produce evidence of each individual class member’s reliance,
or the defendant will have to depose each individual class member and each
individual class member would have to produce evidence of reliance once the
defendant rebuts the presumption.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 35
presumption (thus excusing proof of reliance) suggests that the de-
fault prior to the court-created presumption, even for the common
law misrepresentation claim, required plaintiffs to plead and prove
reliance. Thus, the judicial elimination of an element—despite be-
ing labelled a presumption—runs afoul of the four constitutional
problems explained in part III, supra.31
V.
The Majority’s analysis integrates two errors: (1) it interprets
state cases about non-Misrepresentative Advertising Class Actions
as issuing guidance (though in dicta) for decisions involving Mis-
representative Advertising Class Actions; and (2) it allows state
court cases that involve Misrepresentative Advertising Class Ac-
tions but that do not wrestle with the four constitutional problems,
see supra part III, to bind this Court, when we should refuse to give
full faith and credit to those decisions. The Majority cites other
federal courts and state courts interpreting the consumer protec-
tion statutes in this case and, at first glance, they seem to say that
for the Florida, New York, Washington, Missouri, and California
statutory claims and the California common law claims, there is no
need for each individual plaintiff to plead and prove individual reli-
ance. But these prior cases do not cure the four constitutional ills
discussed in part III, supra.
31 Of course, the Separation of Powers Problem does not exist for the common
law cause of action, but the Standing, Due Process, and Free Speech Problems
do.
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36 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
Normally, we defer to state courts in interpreting their own
state law. But we need not give credit and follow state court cases
that violate the United States Constitution. “A State may not grant
preclusive effect in its own courts to a constitutionally infirm judg-
ment, and other state and federal courts are not required to accord
full faith and credit to such a judgment.” Kremer v. Chem. Constr.
Corp., 456 U.S. 461, 482, 102 S. Ct. 1883, 1898 (1982) (footnote omit-
ted); see also U.S. Const. art. IV, § 1; Old Wayne Mut. Life Ass’n v.
McDonough, 204 U.S. 8, 15, 27 S. Ct. 236, 238 (1907) (“The constitu-
tional requirement that full faith and credit shall be given in each
state to the public acts, records, and judicial proceedings of every
other state is necessarily to be interpreted in connection with other
provisions of the Constitution, and therefore no state can obtain in
the tribunals of other jurisdictions full faith and credit for its judicial
proceedings if they are wanting in the due process of law enjoined
by the fundamental law.”). If such is the case for a constitutionally
infirm state court judgment, how much more so for constitutionally
infirm state court precedent? In fact, this Court is duty-bound by the
United States Constitution to inquire whether we ought to afford
a case full faith and credit. See Graham v. R.J. Reynolds Tobacco Co.,
857 F.3d 1169, 1288 (11th Cir. 2017) (en banc) (Tjoflat, J., dissent-
ing). If this Court ought not to give credit, and it does, then this
Court violates the Constitution in the ways discussed in part III, su-
pra.
The remainder of part V looks to each state and the case or
cases where the Majority finds either a state law presumption of
reliance (for Bucket Three) or an elimination of a reliance
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 37
requirement (for Bucket One). Then, for each state court case, I
provide an explanation why either (1) the proposition the Majority
cites the case for is dicta due to the case being so different from the
Misrepresentative Advertising Class Action we have here, or (2) the
state court case was constitutionally deficient and should therefore
not be followed, or (3) both.
A.
We begin with New York. The Majority correctly identifies
a claim under N.Y. Gen. Bus. Law § 349(a) as having three ele-
ments: “(1) the defendant’s challenged acts or practices must have
been directed at consumers, (2) the acts or practices must have
been misleading in a material way, and (3) the plaintiff must have
sustained an injury as a result.” Maj. Op. at 17–18 (quoting Cohen
v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007)). The
Majority also correctly notes that private actions under § 349—at
least as interpreted by the Second Circuit32—do not require proof
of actual reliance. Id. at 18 (quoting Pelman ex rel. Pelman v. McDon-
ald’s Corp., 396 F.3d 508, 511 (2d Cir. 2005) (citing Stutman v. Chem.
Bank, 731 N.E.2d 608, 611 (N.Y. 2000))).
Does Stutman control here? In short, no. In Stutman,
[The] plaintiffs allege[d] that defendant violated sec-
tion 349 by promising . . . that there would be no
32 We, of course, need not follow a sister circuit’s interpretation of state law
even if said state is encompassed by that sister circuit. The only potentially
binding precedent for this Court (other than our own and that of the United
States Supreme Court) are decisions rendered by the state’s own courts.
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38 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
“prepayment charge,” but then assessing a $275 “at-
torney’s fee” when plaintiffs sought to refinance their
loan. Plaintiffs contend that the $275 fee was a “pre-
payment charge” in disguise and that the note was de-
ceptive for not revealing that fee.
Stutman, 731 N.E.2d at 612. The New York Court of Appeals rec-
ognized that while a § 349(a) cause of action has no reliance ele-
ment, it does have a causation element. See id. (“The plaintiff, how-
ever, must show that the defendant’s material deceptive act caused
the injury.” (emphasis added) (internal quotations and citation
omitted)).33
The New York court stated that the Stutmans and their as-
sociated class members “allege[d] that defendant’s material decep-
tion caused them to suffer a $275 loss” by “alleg[ing] that because
of defendant’s deceptive act, they were forced to pay a $275 fee that
they had been led to believe was not required.” Id. at 612–13 (em-
phasis added). According to the New York court, they did not also
need to “additionally allege that they would not otherwise have
entered into the transaction.” Id. at 613. For the Stutmans’ claim,
causation and reliance could be separated. In a Misrepresentative
Advertising Class Action, however, causation inherently requires
33 The Stutman court also stated, “Reliance and causation are twin concepts,
but they are not identical. In the context of fraud, they are often intertwined.”
Stutman v. Chem. Bank, 731 N.E.2d 608, 612 (N.Y. 2000). Even the Stutman
court implicitly recognized, therefore, that when the § 349(a) claim sounds in
fraud, like in a Misrepresentative Advertising Class Action, the causation re-
quirement becomes intertwined with a showing of reliance.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 39
reliance. See supra part II. Stutman’s general statements about reli-
ance cannot bind this Court now.
Further, the entire reliance discussion in Stutman is dicta. As
soon as the New York court declared that the plaintiffs adequately
alleged causation, it held, “Nevertheless, we uphold the Appellate
Division’s dismissal of plaintiffs’ claim, for a different reason: plain-
tiffs have failed to show that defendant committed a deceptive act.”
Stutman, 731 N.E.2d at 613. The Majority’s look to New York state
court precedent does not change the analysis in parts I–III, supra.
Individual issues will predominate for the New York claim class be-
cause each plaintiff will need to individually establish reliance.
B.
Let us move on to Missouri. The MMPA requires a plaintiff
to prove that he has “(1) purchased merchandise (which includes
services) from defendants; (2) for personal, family or household
purposes; and (3) suffered an ascertainable loss of money or prop-
erty; (4) as a result of an act declared unlawful under the [MMPA].”
Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. Ct. App.
2016) (citing Hess v. Chase Manhattan Bank, USA, 220 S.W.3d 758,
773 (Mo. 2007)). Just as with the New York statute, “there is no
denying that causation is a necessary element of an MMPA claim.”
Owen v. Gen. Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008).
Murphy likely could not guide this Court even without any
concern over not following constitutionally deficient state court
cases. In Murphy, the intermediate appellate court in Missouri re-
versed the trial court’s dismissal of Murphy’s MMPA claim that
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40 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
asserted the defendant misrepresented that “its cupcake mix was
‘all natural’ when it contained the ingredient of sodium acid pyro-
phosphate (SAPP), a chemical that acts as a leavening agent and is
found in commercial baking powders.” Murphy, 503 S.W.3d at 310.
In its reasoning, the Murphy court declaims a reliance requirement
and uses an objective test.34 Id. at 311–12. But the court made such
declarations not in discussing causation or reliance, but rather in
discussing the primary question on appeal: whether the defendant
actually violated the MMPA. Id. at 312 (“[M]ore discovery is re-
quired regarding whether SAPP is an artificial or natural ingredient,
whether SAPP is ordinarily expected to be included in such a cup-
cake mix, whether an ordinary consumer would be misled by the
term ‘all natural,’ and whether labeling the mix as ‘all natural’ was
deceptive.” (emphasis added)).
In actually addressing the “ascertainable loss” prong, the
Murphy court briefly remarked that Murphy adequately pled an as-
certainable loss under the “benefit-of-the-bargain rule.” Id. at 313.
In so doing, however, the Murphy court explicitly recognized that
the “plaintiff’s loss should be a result of the defendant’s unlawful
practice.” Id. (emphasis added). In a Misrepresentative Advertising
Class Action, such causation requires reliance. See supra part II. I
also note that, though Murphy filed the complaint as a putative
34 The Murphy court specifically states, a “consumer’s reliance on an unlawful
practice is not required under the MMPA.” Murphy v. Stonewall Kitchen, LLC,
503 S.W.3d 308, 311 (Mo. Ct. App. 2016) (citing Hess v. Chase Manhattan Bank,
USA, 220 S.W.3d 758, 774 (Mo. 2007)).
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class action, the opinion suggests that no court had yet analyzed
whether a putative class could be certified and therefore no court
had yet wrestled with the predominance questions we wrestle with
here. Therefore, Murphy seems to be inapposite, especially in its
adoption of a reliance-less causation standard and objective test for
causation. Insofar as Murphy is on point, however, we need not
give it weight as the court would have overstepped constitutionally
by not requiring a showing of reliance (and thus causation) in a
misrepresentation case.
Further, I do not think the benefit-of-the-bargain rule can ap-
ply to a case like that which the instant plaintiffs allege against Ford.
The Majority notes that “state courts in Missouri have held that the
injury- and causation-related elements of an MMPA claim can be
established class-wide under what those courts call a ‘benefit-of-
the-bargain rule.’” Maj. Op. at 20 (citing Plubell v. Merck & Co., 289
S.W.3d 707, 714–15 (Mo. Ct. App. 2009)).35 While that may work
for some types of MMPA claims, in my view the “benefit-of-the-
35 The benefit-of-the-bargain theory mirrors one of two options for damages
in a fraud action: contract recission or the difference between the value bar-
gained for and the value received. Even if a fraud cause of action could go
forward as a class action, the contract recission option would be unmanagea-
ble because it would require all the unnamed plaintiffs to return their cars at
the end of successful litigation. The benefit-of-the-bargain option is more
manageable, but only if the raw value received (value of car minus price paid)
was uniform among the class. Further, a benefit-of-the-bargain theory, when
properly applied, can perhaps solve the damages predominance problem, but
I am not convinced that it solves the causation predominance problem where,
as here, the causal mechanism is reliance.
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42 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
bargain” theory does not work when it comes to products like cars
and houses. Unlike most other products, the final price of a car or
home results from negotiations between a buyer and a seller. The
price is not taken as a given like with most products one picks up
at the local big box store. For plaintiffs to show they did not receive
the benefit of their bargain, they would need to show what they
specifically bargained for with the seller, here, the Ford dealership.
This would cause the same predominance problems as an individ-
ual reliance requirement. And if we were to allow a presumption
that the plaintiff did not receive the benefit of their bargain without
giving Ford a chance to respond or rebut, we would violate Ford’s
due process rights.36 Therefore, Missouri case law, as cited by the
Majority, does not change the analysis in parts I–III, supra. Individ-
ual issues will predominate for the Missouri claim class because
each plaintiff will need to individually establish reliance.
C.
Now, we move to Washington. Even the Majority recog-
nizes that such a Washington statutory claim explicitly requires “a
36 It is a closer call whether a benefit-of-the-bargain theory or price-inflation
theory could solve the predominance conundrum if all Ford Shelby GT350
Mustangs sell in Missouri for $50,000, but track-ready Shelbys go for $55,000.
In that scenario, the inflated price is clearly $5,000—an extra premium every
purchaser pays. But cars are different. Some pay sticker price. Some pay less.
There is no indication that every purchaser paid the same amount of price
premium here, however. Therefore, causation, injury, and damages, are all
still individualized inquiries, complicated by individual negotiations, represen-
tations, and reliance.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 43
causal link between the act and the injury.” Peoples v. United Servs.
Auto. Ass’n, 452 P.3d 1218, 1221 (Wash. 2019); Maj. Op. at 18. The
Washington Supreme Court adopted a proximate cause standard
that requires a plaintiff to “establish that, but for the defendant’s
unfair or deceptive practice, the plaintiff would not have suffered
an injury.” Schnall v. AT&T Wireless Servs., Inc., 259 P.3d 129, 137
(Wash. 2011) (emphasis added) (quoting Indoor Billboard/Wash.,
Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 22 (Wash. 2007)).
This sounds like the Washington high court recognizes that in a
Misrepresentative Advertising Class Action, reliance would be re-
quired to prove causation.
The Majority relies on Thornell v. Seattle Serv. Bureau, Inc. for
the proposition that reliance is not necessarily required to make out
a cause of action under Washington’s consumer protection statute.
363 P.3d 587 (Wash. 2015). This case involved answering two cer-
tified questions from the United States District Court for the West-
ern District of Washington. First, the Washington court said the
Washington consumer protection act “allows a cause of action for
a plaintiff residing outside Washington to sue a Washington corpo-
rate defendant for allegedly deceptive acts.” Id. at 589. Any discus-
sion of this point cannot have any bearing on the instant analysis
except via dicta. Second, the Washington court said, “the [con-
sumer protection statute] supports a cause of action for an out-of-
state plaintiff to sue an out-of-state defendant for the allegedly
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44 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
deceptive acts of its in-state agent.” Id. Again, any discussion on
this holding relevant to our discussion would have to be in dicta.37
Because the Washington consumer protection claim re-
quires a showing of causation and causation means reliance in a
Misrepresentative Advertising Class Action, see supra part II, the
Washington class claim fails the predominance requirement.
Washington case law, as cited by the Majority, does not change the
analysis in parts I–III, supra. Individual issues will predominate for
37 In dicta, the Thornell court cites to Indoor Billboard for the proposition that
reliance is not required to make out a claim under the Washington consumer
protection statute. In that case, plaintiffs alleged that the defendant “engaged
in an unfair or deceptive act or practice by assessing its Washington local ex-
change customers a surcharge known as a presubscribed interexchange carrier
charge.” Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d
10, 12 (Wash. 2007). The Washington court adopted a proximate cause stand-
ard. Id. at 22. In so doing, the court “reject[ed] [the plaintiff’s] argument that
causation may be established merely by a showing that money was lost.” Id.
at 21. Further, the court—though having before it a class action—did not ad-
dress how such a proximate cause standard fit in with the predominance re-
quirement. The court also did not necessarily indicate whether the plaintiffs
satisfied the proximate cause test, it just reversed summary judgment because
proximate cause is for the finder of fact to decide. Id. at 22.
Finally, even though the Washington court characterized the Indoor
Billboard claim as an affirmative misrepresentation claim, it is not analogous
to the instant facts. The extra charge alleged to violate the statute in Indoor
Billboard is more akin to a fraud on the market cause of action, whereas the
instant plaintiffs’ claims against Ford are akin to traditional fraud. Either way,
to the extent Indoor Billboard is analogous to the instant facts, we need not give
weight to constitutionally deficient state court precedent.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 45
the Washington claim class because each plaintiff will need to indi-
vidually establish reliance.
D.
The California statutory claim’s deficiency cannot be cured
by additional factual findings on remand. The Majority points to a
possible court-created presumption of reliance where “the defend-
ant so pervasively disseminated material misrepresentations that
all plaintiffs must have been exposed to them.” Walker v. Life Ins.
Co. of the Sw., 953 F.3d 624, 631 (9th Cir. 2020); Maj. Op. at 24. But
the instant case, at bottom, involves the plaintiffs asserting that
Ford falsely or misleadingly advertised the Shelby GT350. Such a
claim is encapsulated by the “untrue or misleading advertising”
prong of the UCL. Cal. Bus. & Prof. Code § 17200. This sounds in
fraud. As the Majority acknowledges, fraud requires reliance. Maj.
Op. at 20–23. In creating “‘a conclusive presumption’ of reliance in
UCL cases,” Walker, 953 F.3d at 630 (citation omitted), as applied
to a claim sounding in fraud, the court effectively eliminates the
causation element in the statute, see supra parts II, IV, causing the
four constitutional problems discussed in part III, supra.
The supposed conclusive presumption of reliance derives
from a case in which the Supreme Court of California constitution-
ally overstepped. In re Tobacco II Cases, 207 P.3d 20 (Cal. 2009). In
that iteration of the wide-ranging tobacco class action litigation, the
California high court held (1) “that standing requirements [under
the UCL] are applicable only to the class representatives” and (2)
“a class representative proceeding on a claim of misrepresentation
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46 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
as the basis of his or her UCL action must demonstrate actual reli-
ance on the allegedly deceptive or misleading statements, in ac-
cordance with well-settled principles regarding the element of reli-
ance in ordinary fraud actions.” Id. at 25–26. The California court,
quoting its previous cases, concluded, “[T]o state a claim under ei-
ther the UCL or the false advertising law, based on false advertising
or promotional practices, it is necessary only to show that mem-
bers of the public are likely to be deceived.” Id. at 29 (alteration in
original) (internal quotation marks and citation omitted). This
probabilistic objective test would be troubling by itself, but the
court goes on, again quoting itself, “A UCL action is equitable in
nature; damages cannot be recovered. . . . We have stated under
the UCL, [p]revailing plaintiffs are generally limited to injunctive
relief and restitution.” Id. (alteration in original) (internal quota-
tion marks and citation omitted). The California court seems to
miss the difference between forward-looking injunctive relief and
backward-looking damages, and creates Due Process, Standing,
and Free Speech Problems for future California class litigants.
The court continues by differentiating a fraudulent business
practice UCL claim from common law fraud. “None of these ele-
ments[, including reliance,] are required to state a claim for injunc-
tive relief under the UCL.” Id. (emphasis added) (internal quotation
marks and citation omitted). Despite recognizing that an objective
test springs from relief under the UCL being injunctive, the Tobacco
II court appears to adopt the objective test for damages actions as
well, at least as far as unnamed plaintiffs go:
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 47
Similarly, the language of section 17203 with respect
to those entitled to restitution—“to restore to any
person in interest any money or property, real or per-
sonal, which may have been acquired ” . . . by means of
the unfair practice—is patently less stringent than the
standing requirement for the class representative—
“any person who has suffered injury in fact and has
lost money or property as a result of the unfair compe-
tition.” . . . This language, construed in light of the
“concern that wrongdoers not retain the benefits of
their misconduct” . . . has led courts repeatedly and
consistently to hold that relief under the UCL is avail-
able without individualized proof of deception, reli-
ance and injury.
Id. at 35 (emphases in original) (citations omitted). Even if the Cal-
ifornia court correctly interpreted the statute as a linguistic mat-
ter,38 excusing such proof of reliance runs afoul of the four consti-
tutional problems discussed in part III, supra.
Named class members must still prove actual reliance. To-
bacco II, 207 P.3d at 39. Excusing the unnamed class members from
this burden causes a practical problem in addition to the constitu-
tional problems. How is an unnamed class member to obtain
38 I note that the cases the Supreme Court of California cites for this proposi-
tion were all decided before the California citizens revised the UCL in 2004 to
“eliminate frivolous unfair competition lawsuits” and “prevent uninjured pri-
vate persons from suing for restitution on behalf of others” by adding the
standing requirement. In re Tobacco II Cases, 207 P.3d 20, 31, 33 (Cal. 2009)
(internal quotations and citation omitted).
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48 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
restitution without an individual inquiry into injury and damages?
For this reason, California’s interpretation of the UCL is erroneous,
at least as applied to a misrepresentation case like we have here.
For all the reasons just discussed, we should not follow the Califor-
nia court’s lead in not requiring an individual showing of reliance
because such a holding would violate the United States Constitu-
tion. Because California case law, as cited by the Majority, does
not change the analysis in parts I–III, supra, individual issues will
predominate for the California statutory claim class because each
plaintiff will need to individually establish reliance.
I briefly note that, even without the Separation of Powers
Problem, the same reasoning above applies to the California com-
mon law fraud claim. Even California courts recognize that “there
is no doubt that reliance is the causal mechanism of fraud.” Tobacco
II, 207 P.3d at 39. For the reasons discussed above, California
courts cannot constitutionally skirt this required element of fraud
by deploying a conclusive presumption. See Mirkin v. Wasserman,
858 P.2d 568, 572 (Cal. 1993) (requiring actual reliance for a com-
mon law deceit cause of action). Therefore, this claim should also
be reversed.
E.
1.
Finally, we come to the FDUTPA claim. This claim suffers
from the same deficiencies as many of the other claims we have
discussed. A FDUTPA claim requires a plaintiff to show (1) a de-
ceptive act or unfair practice, (2) actual damages, and (3) causation.
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Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983 (11th Cir. 2016) (citing
City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th Dist. Ct.
App. 2008)). In a Misrepresentative Advertising Class Action, cau-
sation inherently requires a showing of reliance. See supra part II.
Because Florida is geographically within this Circuit and we often
have cause to interpret Florida law, the FDUTPA claim merits ad-
ditional attention. The Majority finds it dispositive that we said in
Carriuolo that “a plaintiff asserting a FDUTPA claim need not show
actual reliance on the representation or omission at issue.” Carri-
uolo, 823 F.3d at 985 (internal quotations and citation omitted). We
have followed Florida case law in adopting this objective test for
FDUTPA claims in a few other cases as well. But all the Eleventh
Circuit cases excusing a reliance requirement for a FDUTPA claim
rely on the same erroneous interpretation of federal law, and this
Court sitting en banc ought to reconsider our precedent.
To begin, almost all roads lead back to Davis v. Powertel, Inc.,
a case out of the Florida First District Court of Appeal. 776 So. 2d
971 (Fla. 1st Dist. Ct. App. 2000). In Davis, the plaintiffs alleged that
Powertel sold cell phones without informing purchasers that the
phones “had been programmed to work only with Powertel’s wire-
less communication service,” despite looking identical to cell-
phones from the same brands one could buy at other retail outlets.
Id. at 972. The plaintiffs sought damages because they argued the
nondisclosure of this modification “reduced the value of the phone
in each case,” even for those who actually desired Powertel’s wire-
less service. Id. at 973. The court held that a class action for dam-
ages under the FDUTPA does not require “an allegation that
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50 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
individual members of the class relied on the act or omission that
is alleged to be unlawful.” Id. at 972. In reaching this conclusion,
though, the Davis court incorrectly interpreted federal law. There-
fore, despite Davis being a Florida court’s interpretation of Florida
law—and in addition to the reasons discussed in part IV, supra, for
not crediting state courts’ unconstitutional statutory interpreta-
tions—the Davis court incorrectly interpreted federal law to inter-
pret the FDUTPA and this federal Court need not have accepted
the Florida court’s incorrect interpretation of federal law. I explain.
The FDUTPA explicitly requires courts to interpret the stat-
ute by giving “‘due consideration and great weight’ to Federal
Trade Commission and federal court interpretations of section
5(a)(1) of the Federal Trade Commission Act.” Davis, 776 So. 2d at
974 (quoting Fla. Stat. § 501.204(2)). Davis says that because the
FTC Act allows suits without proving reliance, so should the
FDUTPA. Id. at 974–75 (citing three FTC cases in support of adopt-
ing an objective “likely to mislead” test). That makes no sense.
The FTC Act only allows for forward-looking relief (ini-
tially) pursued by an arm of the government. See supra part I.A.
The FDUTPA, however, allows for damages through a private
right of action. Fla. Stat. § 501.211(2). Hypothetically, if a Florida
court interpreted the FDUTPA, through its common law powers,
to not require a showing of reliance where doing so does not run
afoul of the part III constitutional problems—so, not in a misrepre-
sentation context—we might be right in crediting the Florida
court’s interpretation in other non-misrepresentation cases. But
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 51
the Davis court did not use its common law powers. It explicitly
recognized that the FDUTPA guides courts to interpret the dam-
ages provision in light of the FTC Act and its federal interpreta-
tions. Davis, 776 So. 2d at 974. That would have been an impossi-
ble task. How the FTC Act treats reliance has nothing to say about
the FDUTPA’s damages provision.
In sum, the FTC Act does not require reliance because suits
are brought by the government and offer only prospective relief or
civil damages. Retrospective private damages are a completely dif-
ferent animal. The FDUTPA does not deputize every Florida citi-
zen to police false advertising violations. See TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2207 (2021). It only offers damages to
remedy an injury. Without causation (which requires reliance in a
misrepresentation claim), there are no damages. Therefore, the
FTC Act is inapposite for interpreting the FDUTPA’s damages pro-
vision, and the Davis court incorrectly interpreted federal law in
interpreting the FDUTPA. While we are bound by Florida courts’
interpretations of Florida law, we are not bound to follow Florida
courts’ (incorrect) interpretations of federal law. I therefore call on
this Court sitting en banc to overturn those cases from our Circuit
that relied on this erroneous interpretation to reach their conclu-
sions.
2.
Unfortunately, our survey of the shaky ground on which Da-
vis sits continues. The Davis court cited a case from another Florida
District Court and further confuses the difference between
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52 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
damages and injunctive relief. Davis, 776 So. 2d at 974 (citing Mil-
lennium Commc’ns & Fulfillment, Inc. v. Off. of the Att’y Gen., 761 So.
2d 1256 (Fla. 3d Dist. Ct. App. 2000)). One can tell merely from the
title of the case that Millennium was not a damages action by a pri-
vate plaintiff, but rather an enforcement action by the Florida at-
torney general under the FDUTPA; a situation actually analogous
to the actions under section five of the FTC Act. But let us not
judge a book by its cover or a case by its title. In fact, Millennium
was an appeal of a temporary injunction (equitable relief) in a case
brought by the Attorney General’s Department of Legal Affairs,
not a private party. Millennium, 761 So. 2d at 1257. The Depart-
ment ultimately sought only “an injunction, civil penalties and
other statutory relief,” not damages. Id. at 1258.
Next, the Davis court enlisted the help of another case from
Florida’s Third District Court of Appeal for the objective test; this
one seemingly more relevant. Davis, 776 So. 2d at 974 (citing Lat-
man v. Costa Cruise Lines, N.V., 758 So. 2d 699 (Fla. 3d Dist. Ct. App.
2000)). In Latman, the District Court of Appeal reversed denials of
class certification. Latman, 758 So. 2d at 700–01. Plaintiffs, cruise
ship passengers, alleged claims under the FDUTPA against defend-
ant cruise lines related to “port charges” that cruise lines included
in the ticket price and allegedly kept for themselves. Id. at 701. The
Latman court analogized the cruise lines’ alleged behavior to a hy-
pothetical company before adopting an objective, reliance-free test
under the FDUTPA. Id. at 703.
Suppose that a company systematically overcharges
its customers on sales tax. The hypothetical company
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 53
pays the state the sales tax that it owes, and then keeps
the overcharge for itself.
We would not hesitate to say that an intentional over-
charge of sales tax, which is kept by the company it-
self, is an unfair and deceptive trade practice and that
the consumer must be repaid. That is so even though
the consumers clearly were willing to pay the price
charged—in the hypothetical example, they actually
paid the sales tax overcharges—nor would it make a
difference that the consumers paid no attention to the
sales tax amount.
Id. This hypothetical differs vastly from a situation like the instant
case where the alleged misrepresentation derived from multiple
sources and a plaintiff class member may not have actually suffered
damages depending on his or her intended use of the vehicle or
negotiations prior to purchasing the vehicle. In fact, the analogous
circumstance in the instant case would be if Ford charged 1% addi-
tional sales tax and pocketed that money. That deception would
be uniform, and damages would be, if not uniform, easily ascer-
tainable by a formula. The Latman court’s broad adoption of an
objective test under FDUTPA goes beyond its holding. Id. In fact,
as the same district court of appeal has said in distinguishing Lat-
man, the “FDUTPA requires proof of each individual plaintiff’s ac-
tual (not consequential) damage and defendant’s causation of dam-
age, requiring evidence regarding how specific misrepresentations
to individual [plaintiffs] decreased the value of their deal for a car.”
Mia. Auto. Retail, Inc. v. Baldwin, 97 So. 3d 846, 857 (Fla. 3d Dist. Ct.
App. 2012). Therefore, insofar as Davis relies on Latman for
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54 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
adopting the objective test to obtain FDUTPA damages, it extends
the holding beyond what it can bare.39
The Davis court tries to strengthen its citation to Latman by
pointing to one other jurisdiction where a court favorably cited the
case and three other jurisdictions that also adopted an objective test
under their respective consumer protection statutes. History has
not been kind to these citations.
First, Davis says Washington adopted Latman’s objective
test. Davis, 776 So. 2d at 974 (citing Pickett v. Holland Am. Line-Wes-
tours, Inc., 6 P.3d 63 (Wash. Ct. App. 2000)). However, after Davis,
the Supreme Court of Washington reversed the Pickett court’s “de-
ciding the merits of the trial court’s denial of class certification,”
which included that court’s approval of Latman. Pickett v. Holland
Am. Line-Westours, Inc., 35 P.3d 351, 360, 362 (Wash. 2001).
Second, Davis looks to an Illinois court’s rejection of a reli-
ance element in that state’s consumer protection statute. Davis,
776 So. 2d at 974 (citing Oliveira v. Amoco Oil Co., 726 N.E.2d 51 (Ill.
App. Ct. 2000)). Again, after Davis, the Supreme Court of Illinois
reversed the Oliveira court’s decision, explicitly stating that the Illi-
nois consumer protection statute requires something akin to reli-
ance. Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 161 (Ill. 2002). The
plaintiff in that case did not successfully allege the statute’s
39 Further, this Court has never cited directly to Latman for its objective
FDUTPA test holding.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 55
proximate cause element because he did not allege he was deceived
by the advertisements in that case. Id. at 164.
Third, Davis tries Pennsylvania. Davis, 776 So. 2d at 974 (cit-
ing Weinberg v. Sun Co., 740 A.2d 1152 (Pa. Super. Ct. 1999)). But
again, after Davis, the Supreme Court of Pennsylvania reversed the
Weinberg court in part, holding that the state consumer protection
statute “clearly requires, in a private action, that a plaintiff suffer an
ascertainable loss as a result of the defendant’s prohibited action.
That means . . . a plaintiff must allege reliance.” Weinberg v. Sun
Co., 777 A.2d 442, 446 (Pa. 2001) (emphasis in original).
Fourth and finally, Davis points to Michigan’s objective test.
Davis, 776 So. 2d at 974 (citing Dix v. Am. Bankers Life Assurance Co.
of Fla., 415 N.W.2d 206 (Mich. 1987)). Admittedly, Dix has not been
overturned and directly states, “We hold that members of a class
proceeding under the [Michigan] Consumer Protection Act need
not individually prove reliance on the alleged misrepresentations.
It is sufficient if the class can establish that a reasonable person
would have relied on the representations.” Dix, 415 N.W.2d at 209
(footnote omitted). Not only is Dix in no way binding on either
this Circuit or the Florida courts, but its reasoning implicates all the
constitutional concerns discussed in part III, supra. Further, the Dix
holding resides in a discussion of the “convenient administration of
justice” prong of a Michigan class action, after incredibly brief men-
tions of common questions of law and fact and common relief, as
well as no discussion of due process concerns for the defendant.
Dix, 415 N.W.2d at 209. Therefore, the Michigan high court’s
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56 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
reasoning ought to have no influence on our discussion here. As
the United States Supreme Court has often stated, “the fact that a
given law or procedure is efficient, convenient, and useful in facili-
tating functions of government, standing alone, will not save it if it
is contrary to the Constitution.” TransUnion, 141 S. Ct. at 2207
(quoting I.N.S. v. Chadha, 462 U.S. 919, 944, 103 S. Ct. 2764, 2781
(1983)).
3.
While Davis recognizes that “the ‘likely to mislead’ standard
was developed for use with the Federal Trade Commission Act,
which has no provision for a suit by a private citizen,” it still adopts
the test, absent more specific guidance about the interpretative
clause of the FDUTPA. Davis, 776 So. 2d at 974. This was errone-
ous. And because the Davis court explicitly looked to federal law
to interpret Florida law, this issue falls within our bailiwick and we
need not blindly follow this Florida court’s holding. Hopefully, the
preceding analysis shows that Davis is a thin reed to lean on, the
Davis court misinterpreted the FTC Act, and we should not have
relied on that case to interpret the FDUTPA in this Court. Again,
I call on the court en banc to address our erroneous cases that adopt
Florida’s supposed objective test and correct the case law in this
Circuit. Let us now examine the Eleventh Circuit cases that seem
to adopt the objective test and determine whether or not they can
stand.
In Zlotnick v. Premier Sales Group, Inc., a plaintiff appealed the
dismissal for failure to state a claim of his class action complaint
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alleging FDUTPA violations against real estate companies for
“market[ing a] condominium complex, solicit[ing] deceptive reser-
vation agreements to secure financing and then terminat[ing] the
reservation agreements with the sole purpose of reaping the bene-
fits of a rising real estate market.” 480 F.3d 1281, 1283–84 (11th Cir.
2007). The Zlotnick court adopted the objective test from Millen-
nium Commc’ns—which we have already seen is inapposite to a
damages claim—rather than from Davis. Id. at 1284 (citing 761 So.
2d at 1263). The erroneous reading of Florida law did not nega-
tively impact the outcome, however, because the Court found
Zlotnick failed to state a claim even under the objective test. Id. at
1287.
In Fitzpatrick v. General Mills, Inc., this Court considered an
interlocutory appeal of class certification. 635 F.3d 1279, 1280 (11th
Cir. 2011). The plaintiffs in that case claimed to have been duped
by General Mills’s advertisements touting the digestive health ben-
efits of YoPlus yogurt and filed a FDUTPA claim. Id. at 1281.
While remanding for a new definition of the class, this Court
agreed with the District Court and praised its analysis that con-
cluded the class members did not need to individually prove reli-
ance, specifically that they purchased YoPlus “to obtain its claimed
digestive health benefits.” Id. at 1282–83. In reaching this conclu-
sion, the Court cited the objective test prescribed by Davis as well
as in another Florida state court case. Id. (citing Davis, 776 So. 2d
at 973 and State, Off. of Att’y Gen. v. Com. Com. Leasing, 946 So. 2d
1253, 1258 (Fla. 1st Dist. Ct. App. 2007)). We have already dis-
cussed Davis at length. But Com. Com. Leasing serves as a bad guide
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58 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
as well. That case involved the Florida Attorney General suing to
enforce the FDUTPA, not a class action under the FDUTPA. Com.
Com. Leasing, 946 So. 2d at 1255. Therefore, the en banc Court
should overturn Fitzpatrick as erroneously adopting the objective
test for the FDUTPA.
In Carriuolo v. General Motors Co., this Court considered an
interlocutory appeal of class certification. 823 F.3d 977, 980–81
(11th Cir. 2016). The nub of the claim in that case was that the
National Highway Traffic Safety Administration had not yet as-
signed safety ratings to the 2014 Cadillac CTS sedan, despite the
cars being sold with a sticker touting its five-star rating on certain
features. Id. at 981–82. General Motors argued that common is-
sues did not predominate because “some class members may have
known that the safety ratings were inaccurate; some may not have
been aware of the Monroney sticker; and each member negotiated
the purchase or lease price individually with the dealer from whom
the member purchased or leased the vehicle.” Id. at 985. But this
Court relevantly held that the District Court did not abuse its dis-
cretion in certifying the plaintiff class for the FDUTPA claim be-
cause Davis instructs that plaintiffs do not need to show actual reli-
ance. Id. at 985, 990 (citing Davis, 776 So. 2d at 973). Carriuolo also
looks to Com. Com. Leasing, and Fitzpatrick. As already discussed,
all three of these cases led the Carriuolo court astray, and the en
banc Court ought to overturn Carriuolo as well.
In Debernardis v. IQ Formulations, LLC, plaintiffs appealed the
dismissal of their complaint on grounds that they lacked standing.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 59
942 F.3d 1076, 1080 (11th Cir. 2019). The complaint sought class
action certification and alleged that the defendants sold dietary sup-
plements that were “adulterated” as defined by the Federal Food,
Drug, and Cosmetic Act. Id. at 1081–82. We remanded that case,
id. at 1089, finding standing because the plaintiffs alleged that they
“would not have purchased” the supplements “had they known
that sale of the supplements was banned,” thus eliminating “the
entire benefit of their bargain,” and establishing economic loss
standing. Id. at 1088. The Debernardis opinion cites Carriuolo for
the benefit-of-the-bargain theory under the FDUTPA. Id. at 1084
(citing 823 F.3d at 986–87). While Carriuolo did not in itself taint
Debernardis, and thus, the case likely need not be addressed en banc,
I again warn against utilizing the benefit-of-the-bargain theory in
misrepresentation cases involving negotiated products. See supra
part V.B.
The plaintiff in Marrache v. Bacardi U.S.A., Inc. filed a putative
class action against Bacardi and Winn-Dixie asserting, relevantly, a
FDUTPA claim that defendants “adulterat[ed] Bombay [Sapphire
Gin] with grains of paradise.” 17 F.4th 1084, 1089–90 (11th Cir.
2021). The District Court dismissed the amended complaint, and
we affirmed. Id. This Court affirmed the dismissal “because Mar-
rache’s FDUTPA claims fall under FDUTPA’s safe harbor provi-
sion,” and in the alternative “because Marrache failed to state a
plausible claim for actual damages under FDUTPA.” Id. at 1101.
Though Marrache takes the objective test from Carriuolo and Zlot-
nick, id. at 1097–98, the erroneous reading of the FDUTPA did not
negatively impact this decision, as the Court ultimately concluded
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60 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
none of the class members alleged actual damages. Id. at 1101.
Therefore, Marrache also likely need not be addressed en banc.
4.
I take a moment now to discuss another Florida District
Court of Appeal case cited in Carriuolo, Debernardis, and Marrache
for the benefit-of-the-bargain theory under FDUTPA: Rollins, Inc.
v. Heller, 454 So. 2d 580 (Fla. 3d Dist. Ct. App. 1984). Heller was an
appeal of a final judgment awarding the plaintiffs damages on their
claims for gross negligence and deceptive and unfair trade prac-
tices. Id. at 582. The claims arose out of the installation of an alarm
system by defendant and the subsequent burglary of the plaintiffs’
home. Id. This case was not a class action. While that distinction
itself makes the case less relevant in the class action context, there
are two other reasons our Court’s use of Heller in Carriulo, Mar-
rache, and Debernardis perhaps merited more reasoning before ap-
plication.
First, the benefit-of-the-bargain damages measurement Hel-
ler adopted from Texas (and for which our Court cites Heller), was
used to limit, the plaintiff’s damages in Heller itself. Id. at 585–86.
The Hellers originally won damages for the property stolen during
the burglary, but the District Court of Appeal limited the FDUTPA
damages to “the difference in the market value of the [alarm sys-
tem] in the condition in which it was delivered and its market value
in the condition in which it should have been delivered according
to the contract of the parties.” Id. at 585 (citation omitted). Absent
other Florida courts independently adopting the test, we should
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 61
hesitate before leaning too heavily on this case to expand liability
and damages in the class action context. Second, before adopting
the Texas test for damages, the Heller court recognized erroneously
that the Florida “legislature specifically provided that great weight
was to be given to the federal courts’ interpretations of the Federal
Trade Commission Act.” Id. at 584. Of course, this is only errone-
ous because Heller involved a FDUTPA damages claim, see supra
V.D.1, not an injunctive FDUTPA claim.
5.
Before signing off, I also would like to point out that a Flor-
ida state court has recognized the dangers of rolling over due pro-
cess rights in the interest of class action efficiency.
In Rollins Inc. v. Butland, plaintiffs filed a class action com-
plaint in part under the FDUTPA, alleging violations “arising from
Orkin’s contractual undertakings related to the control of subterra-
nean termites.” 951 So. 2d 860, 865 (Fla. 2d Dist. Ct. App. 2006).
Plaintiffs sought actual damages for payments made to Orkin as
well as property damage caused by subterranean termites. Id. at
866. “[M]embership in the proposed class was not limited to cus-
tomers who sustained damage to their residences as a result of an
infestation of subterranean termites,” but members who did not
suffer damages were limited to the actual damages from payments
to Orkin. Id. The District Court of Appeal reversed class certifica-
tion, id. at 882, specifically finding that individual questions pre-
dominated both to prove the deceptive acts and unfair practices
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62 TJOFLAT, J., Concurring and Dissenting in Part 22-10575
themselves (prong one of the FDUTPA), id. at 871, and to prove
causation and damages. Id. at 873.
The court lucidly stated the following regarding the trial
court’s attempt to utilize the class-wide proof for this complex con-
tract case alleging fourteen separate deceptive acts, id. at 870:
In a case such as this, authorizing class-wide proof to
be made based on alleged company-wide pervasive
schemes and business practices is not only incon-
sistent with established Florida precedent, but it also
has the potential to deny the Appellants substantive
due process of law. Under the substantive law appli-
cable to the FDUTPA damages claim, each member
of the putative class must establish that the Appellants
committed a deceptive act or unfair practice that
caused their actual loss. Under the circumstances pre-
sent here, collective proof cannot satisfy the class
members’ burden. However, if the Appellees are per-
mitted to establish the putative class members’ claims
by proof of common schemes or patterns of behavior,
the Appellants will be unable to defend against indi-
vidual claims where there may be no liability. By any
standard, this would amount to a violation of substan-
tive due process of law.
Id. at 873–74.
VI.
In sum, I concur in the Majority’s handling of the Texas stat-
utory class, the Washington, New York, and Tennessee common
law classes, and the California and Texas implied warranty classes.
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22-10575 TJOFLAT, J., Concurring and Dissenting in Part 63
I dissent with respect to the Majority’s position on the Florida, Cal-
ifornia, Missouri, New York, and Washington statutory classes and
the California common law class. Rather than affirming them, I
would have held the District Court abused its discretion when it
certified those classes.
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