Langan v. Johnson & Johnson Consumer Cos. 1 In the

17‐1605
Langan v. Johnson & Johnson Consumer Cos.
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2017 7
8
A RGUED: FEBRUARY 6, 2018 9
D ECIDED: JULY 24, 2018 10
11
No. 17‐1605 12
13
H EIDI L ANGAN, on behalf of herself and all others similarly situated, 14
Plaintiff‐Appellee, 15
16
v. 17
18
JOHNSON & JOHNSON C ONSUMER C OMPANIES , INC., 19
Defendant‐Appellant. 20
________ 21
22
Appeal from the United States District Court 23
for the District of Connecticut. 24
No. 13 Civ. 1471 – Jeffrey A. Meyer, Judge. 25
________ 26
27
Before: WALKER , L YNCH , and C HIN, Circuit Judges. 28
________ 29
30
Connecticut resident Heidi Langan sued Johnson & Johnson 31
Consumer Companies, Inc. (“Johnson & Johnson”) on behalf of 32
herself and “all others similarly situated” for deceptive labeling. 33

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Plaintiff alleged that several of the company’s baby products were 1
labeled “natural” when they were not. Langan claimed that this 2
labeling violated the Connecticut Unfair Trade Practices Act 3
(CUTPA), as well as the state consumer protection laws of twenty 4
other states, and sought to certify a plaintiff class. After both parties 5
moved for summary judgment, the district court denied both 6
motions, and certified a class of consumers who purchased two baby 7
bath products in eighteen states. We granted Johnson & Johnson leave 8
to appeal the class certification. On appeal, Johnson & Johnson 9
principally challenges the district court’s conclusions that (1) Langan 10
has Article III standing to bring a class‐action claim on behalf of 11
consumers in states other than Connecticut and (2) the state laws in 12
the other states are sufficiently similar to support certifying the class. 13
Although we hold that Langan has Article III standing, on the record 14
before us, it is not clear that the district court undertook the requisite 15
considered analysis of the material differences in the state laws at 16
issue before concluding that their similarities predominated over 17
their differences. We therefore VACATE the district court’s grant of 18
certification, and REMAND for further proceedings consistent with 19
this opinion. 20
________ 21
22

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MARK P. K INDALL, Izard, Kindall & Raabe, LLP, 1
West Hartford, CT (Nicole A. Veno, Simsbury, CT, 2
on the brief), for Plaintiff‐Appellee. 3
H AROLD P. W EINBERGER (Eileen M. Patt, Benjamin 4
M. Arrow, on the brief), Kramer Levin Naftalis & 5
Frankel LLP, New York, NY, for Defendant‐ 6
Appellant. 7
________ 8
9
JOHN M. WALKER , JR ., Circuit Judge: 10
Connecticut resident Heidi Langan sued Johnson & Johnson 11
Consumer Companies, Inc. (“Johnson & Johnson”) on behalf of 12
herself and “all others similarly situated” for deceptive labeling. 13
Plaintiff alleged that several of the company’s baby products were 14
labeled “natural” when they were not. Langan claimed that this 15
labeling violated the Connecticut Unfair Trade Practices Act 16
(CUTPA), as well as the state consumer protection laws of twenty 17
other states, and sought to certify a plaintiff class. After both parties 18
moved for summary judgment, the district court denied both 19
motions, and certified a class of consumers who purchased two baby 20
bath products in eighteen states.1 We granted Johnson & Johnson 21
leave to appeal the class certification. On appeal, Johnson & Johnson 22
principally challenges the district court’s conclusions that (1) Langan 23
1 Although the district court inadvertently omitted Alaska from the list
of relevant states on page 26 and in n.3 of its opinion, the district court did
include Alaska in the list of states for which it certified a class. Accordingly,
we refer to a plaintiff class in eighteen states.

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has Article III standing to bring a class‐action claim on behalf of 1
consumers in states other than Connecticut and (2) the state laws in 2
the other states are sufficiently similar to support certifying the class. 3
Although we hold that Langan has Article III standing, on the record 4
before us, it is not clear that the district court undertook the requisite 5
considered analysis of the material differences in the state laws at 6
issue before concluding that their similarities predominated over 7
their differences. We therefore VACATE the district court’s grant of 8
certification, and REMAND for further proceedings consistent with 9
this opinion. 10
BACKGROUND 11
Connecticut resident Heidi Langan purchased several Johnson 12
& Johnson sunscreens and bath products for her baby in 2012. Langan 13
alleges that she purchased those products in part because their labels 14
said they contained “natural” ingredients. In reality, the products 15
were made up of a high percentage of non‐natural, non‐water 16
ingredients. 17
In October 2013, Langan sued Johnson & Johnson on behalf of 18
herself and “all others similarly situated” alleging that the company’s 19
labeling was deceptive and violated CUTPA as well as the “mini‐FTC 20
acts” of twenty other states. Langan sought to certify a plaintiff class 21
and requested compensatory and punitive damages as well as 22
attorney’s fees. Both parties moved for summary judgment. 23

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The district court denied both parties’ motions for summary 1
judgment and certified a class as to two bath products, but not the 2
sunscreens. The two products, sold under the Aveeno Baby Brand, 3
were the “Calming Comfort Bath” (“bath”) and the “Wash and 4
Shampoo” (“wash”). App’x 197. Johnson & Johnson petitioned for 5
permission to appeal pursuant to Federal Rules of Civil Procedure 6
23(f), and we granted leave. On appeal, Johnson & Johnson 7
principally challenges the district court’s conclusions that (1) Langan 8
has Article III standing to bring a class‐action claim on behalf of 9
consumers in states other than Connecticut, and (2) the state laws in 10
the other states are sufficiently similar to support certifying the class.2 11
2 Johnson & Johnson also argues that that the district court erred by not
requiring Langan to demonstrate that the proposed class was
“administratively feasible.” This argument is foreclosed by In re Petrobras
Sec., 862 F.3d 250, 267–70 (2d Cir. 2017) (rejecting the argument that
proposed classes must be “administratively feasible” and holding that the
class was “clearly objective” and “sufficiently definite” where it included
people who acquired specific securities during a specific period in
“domestic transactions” because class was “identified by subject matter,
timing, and location,” which made it “objectively possible” to ascertain
members (emphasis omitted)). Since the class at issue here is identified by
subject matter (purchasers of the two products), timing (before November
2012 and 2013 respectively), and location (the eighteen identified states), it
is likewise “clearly objective” and “sufficiently definite” such that
determining who purchased the products is undoubtedly “objectively
possible.” Id. at 269–70. Moreover, we think Johnson & Johnson’s
identification concerns are overstated. In Petrobas, we cited approvingly the
district court’s grant of certification where the district court allowed
putative class members to provide a sworn affidavit indicating when and
where they purchased the olive oil at issue (862 F.3d at 267 (citing Ebin v.

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DISCUSSION 1
“We review a district court’s decision to certify a class under 2
Rule 23 for abuse of discretion, the legal conclusions that informed 3
its decision de novo, and any findings of fact for clear error.” Sykes v. 4
Mel S. Harris & Assocs. LLC, 780 F.3d 70, 79 (2d Cir. 2015) (internal 5
quotation marks omitted). 6
I. Article III Standing 7
Johnson & Johnson argues that Langan lacks constitutional 8
standing to represent putative class members whose claims are 9
governed by the laws of states other than Connecticut. Because a 10
plaintiff’s standing to sue implicates our power to hear the case, we 11
must consider the issue even though it was barely raised in and not 12
addressed by the district court. See Keepers, Inc. v. City of Milford, 807 13
F.3d 24, 39 (2d Cir. 2015) (noting that standing may be raised “for the 14
first time on appeal”). 15
“Article III, Section 2 of the Constitution limits the jurisdiction 16
of the federal courts to the resolution of ‘cases’ and ‘controversies.’” 17
Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (internal 18
Kangadis Food Inc., 297 F.R.D. 561, 567 (S.D.N.Y. 2014)). Since we think it is
more likely that a consumer would remember the time frame in which he
purchased a bath or wash for his baby—that is, when his child was still a
baby—than when he purchased a bottle of olive oil, we see no
ascertainability problem with having the class members submit sworn
affidavits describing the circumstances under which the purchases were
made.

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quotation marks omitted). “To ensure that this bedrock case‐or‐ 1
controversy requirement is met, courts require that plaintiffs establish 2
their standing as the proper parties to bring suit.” Id. (internal 3
quotation marks and alterations omitted). To have standing to sue, “a 4
plaintiff must demonstrate (1) a personal injury in fact (2) that the 5
challenged conduct of the defendant caused and (3) which a favorable 6
decision will likely redress.” Id. 7
Unremarkably, the parties agree that Connecticut’s consumer 8
protection statute, CUTPA, does not apply to the purchase of bath and 9
wash products in other states. Likewise, the parties agree that Langan 10
herself has standing to sue Johnson & Johnson under CUTPA because 11
she alleged that she paid a premium in Connecticut for the products, 12
based on Johnson & Johnson’s representations that they were natural, 13
and that those injuries can be redressed by an order compelling 14
Johnson & Johnson to pay Langan money damages. See Mahon, 683 15
F.3d at 62. 16
The only point of contention is whether Langan has standing to 17
bring a class action on behalf of unnamed, yet‐to‐be‐identified class 18
members from other states under those states’ consumer protection 19
laws. Because there has been considerable disagreement over this 20
question in the district courts, we write to make explicit what we 21
previously assumed in In re Foodservice Inc. Pricing Litigation, 729 F.3d 22
108 (2d Cir. 2013): as long as the named plaintiffs have standing to sue 23

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the named defendants, any concern about whether it is proper for a 1
class to include out‐of‐state, nonparty class members with claims 2
subject to different state laws is a question of predominance under 3
Rule 23(b)(3), id. At 126–27, not a question of “adjudicatory 4
competence” under Article III, Morrison v. YTB Intʹl, Inc., 649 F.3d 533, 5
536 (7th Cir. 2011). Compare Richards v. Direct Energy Servs., LLC, 120 6
F. Supp. 3d 148, 154–56 (D. Conn. 2015) (denying certification as to 7
out‐of‐state class members for lack of standing), with In re Bayer Corp. 8
Combination Aspirin Prods. Mktg. & Sales Practices Litig., 701 F. Supp. 9
2d 356, 376–77 (E.D.N.Y. 2010) (distinguishing standing from the Rule 10
23 inquiry and certifying class action brought under laws of multiple 11
states after finding no standing problem). 12
“[A]s the Supreme Court has acknowledged, there is some 13
‘tension’ in its case law as to whether ‘variation’ between (1) a named 14
plaintiff’s claims and (2) the claims of putative class members ‘is a 15
matter of Article III standing . . . or whether it goes to the propriety of 16
class certification . . . .’” NECA‐IBEW Health & Welfare Fund v. Goldman 17
Sachs & Co., 693 F.3d 145, 160 (2d Cir. 2012) (quoting Gratz v. Bollinger, 18
539 U.S. 244, 263 & n.15 (2003)). To understand why variations in state 19
law present a class certification problem and not a constitutional 20
standing problem, it is helpful to consider the complicated 21

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9 No. 17‐1605
relationship between the standing requirement and class actions 1
generally. 2
The doctrine of standing tests whether a prospective litigant 3
may properly invoke the power of the federal courts. See Spokeo, Inc. 4
v. Robins, 136 S. Ct. 1540, 1547 (2016). The standing requirement 5
acknowledges that not all injuries can be remedied by courts, and that 6
even some injuries that could are the responsibility of the political 7
branches instead. See id. (“The law of Article III standing serves to 8
prevent the judicial process from being used to usurp the powers of 9
the political branches.” (internal quotation marks and alterations 10
omitted)); Steel Co. v. Citizens for a Better Envʹt, 523 U.S. 83, 107 (1998). 11
To avoid giving advisory opinions, we require that parties that come 12
before us have a sufficient stake in the outcome of the case to render 13
it a case or controversy. See Steel Co., 523 U.S. at 97, 101; see also U.S. 14
Const. art. III, § 2. 15
Class actions under Rule 23 of the Federal Rules of Civil 16
Procedure are an exception to the general rule that one person cannot 17
litigate injuries on behalf of another. See Wal‐Mart Stores, Inc. v. Dukes, 18
564 U.S. 338, 348 (2011). Through Rule 23, Congress has authorized 19
plaintiffs to bring, under limited circumstances, a suit in federal court 20
on behalf of, not just themselves, but others who were similarly 21
injured. See id. at 348–49. Such suits result in efficiencies of cost, time, 22
and judicial resources and permit a collective recovery where 23

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10 No. 17‐1605
obtaining individual judgments might not be economically feasible. 1
See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (“The 2
policy at the very core of the class action mechanism is to overcome 3
the problem that small recoveries do not provide the incentive for any 4
individual to bring a solo action prosecuting his or her rights.” 5
(internal quotation marks omitted)); Gen. Tel. Co. of the Sw. v. Falcon, 6
457 U.S. 147, 155 (1982). Although a named class action plaintiff has 7
not actually suffered the injuries suffered by her putative class 8
members (and therefore would not normally have standing to bring 9
those suits), Congress has said that the fact that the parties “possess 10
the same interest” and “suffer[ed] the same injury” gives the named 11
plaintiff a sufficient stake in the outcome of her putative class 12
members’ cases. Wal‐Mart, 564 U.S. at 348–49. 13
This requirement is easy enough to satisfy when the would‐be 14
class members’ cases are substantially identical. For example, a 15
plaintiff who purchased the same product, on the same day, at the 16
same place, from the same defendant, because of the same misleading 17
offer as many other purchasers would plainly have standing to sue 18
on behalf of those similarly situated purchasers. 19
In reality, it rarely happens that the circumstances surrounding 20
one plaintiff’s claim end up being identical to the claims of another 21
putative class member, let alone all of the others. Anticipating this, 22
some of Rule 23’s requirements (e.g., commonality and typicality 23

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11 No. 17‐1605
under 23(a), and predominance under 23(b)) exist to prevent courts 1
from certifying classes that do not share sufficiently similar 2
characteristics. See Wal‐Mart, 564 U.S. at 349. At some point, however, 3
a named plaintiff’s claims can be so different from the claims of his 4
putative class members that they present an issue not of the prudence 5
of certifying a class under Rule 23 but of constitutional standing. See 6
Mahon, 683 F.3d at 62–63. The question for our purposes is at what 7
point the claim of a named plaintiff is so different from the claims of 8
her would‐be class members that the exception that we make to the 9
general standing requirements for class actions should not apply. Our 10
caselaw supplies a few answers. 11
We have held that the claims of putative class members are too 12
dissimilar to support standing against a particular defendant when 13
that defendant did not actually injure a named plaintiff. In Mahon, we 14
considered a putative consumer class action against title insurance 15
companies that allegedly concealed the availability of reduced rates. 16
See id. at 60. The district court denied certification as to one of the 17
defendant companies that had not actually sold insurance to the 18
plaintiff, and we affirmed. See id. at 60–61. Even though the company 19
used forms and practices that were similar to those used by the 20
company that did sell to the plaintiff and was owned by the same 21
parent company, we held that the plaintiff lacked standing to sue the 22
company that had not actually misled her because, “with respect to 23

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12 No. 17‐1605
each asserted claim” against each defendant, “a plaintiff must always 1
have suffered a distinct and palpable injury to herself.” Id. at 64 2
(alterations, quotation marks, and emphasis omitted). 3
On the other hand, non‐identical injuries of the same general 4
character can support standing. See NECA, 693 F.3d at 148–49. In 5
NECA, we held that the plaintiff, a purchaser of mortgage‐backed 6
certificates, could certify a class including certificate holders outside 7
the specific tranche from which the named plaintiff purchased 8
certificates, even though the certificates from each tranche varied in 9
their payout priority. See id. at 164. We reasoned that these different 10
payment priorities did not render a certificate holder who would be 11
paid sooner incapable of representing a certificate holder who would 12
be paid later, or vice versa, because all certificate holders had “the 13
same necessary stake in litigating whether [the] lenders . . . 14
abandoned their” responsibilities to follow underwriting guidelines. 15
Id. (internal quotation marks omitted). Compare Gratz, 539 U.S. at 262– 16
63 (finding no standing problem even though factual differences 17
existed between the challenged race‐based transfer policy applied to 18
plaintiff and the freshman admissions policy applicable to others in 19
class), with Blum v. Yaretsky, 457 U.S. 991, 1001–02 (1982) (holding that 20
plaintiffs in state‐run facilities who were threatened with transfers to 21
facilities with lower levels of care did not have standing to sue on 22
behalf of patients who were threatened with transfers to higher levels 23

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of care because the conditions of the transfers were “sufficiently 1
different” such that “judicial assessment of their procedural adequacy 2
would be wholly gratuitous and advisory”). 3
The question in this case is whether there is a standing problem 4
when a plaintiff attempts to sue on behalf of those who may have 5
claims under different states’ laws that generally prohibit the same 6
conduct. Although we have not expressly resolved this question, we 7
have previously assumed that this is an issue best addressed under 8
Rule 23, rather than as a standing issue. See In re Foodservice, 729 F.3d 9
at 112. For example, in In re Foodservice, we considered a consumer 10
class action against a food distributor that, the plaintiffs alleged, 11
fraudulently overbilled its customers. See id. The defendants appealed 12
the district court’s certification of the class, claiming that certification 13
was improper because the class action implicated the distinct contract 14
laws of multiple states. See id. at 126. We rejected that argument and 15
affirmed the certification, reasoning that “putative class actions 16
involving the laws of multiple states are often not properly certified 17
pursuant to Rule 23(b)(3) because the variation in the legal issues to be 18
addressed overwhelms the issues common to the class.” Id. at 126–27 19
(emphasis added). 20
This approach of considering variations in state laws as 21
questions of predominance under Rule 23(b)(3), rather than standing 22
under Article III, makes sense. For one, it acknowledges the obvious 23

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truth that class actions necessarily involve plaintiffs litigating injuries 1
that they themselves would not have standing to litigate. See In re 2
Bayer Corp., 701 F. Supp. 2d at 377 (“Whether the named plaintiffs 3
have standing to bring suit under each of the state laws alleged is 4
‘immaterial’ because they are not bringing those claims on their own 5
behalf, but are only seeking to represent other, similarly situated 6
consumers in those states.”). Since class action plaintiffs are not 7
required to have individual standing to press any of the claims 8
belonging to their unnamed class members, it makes little sense to 9
dismiss the state law claims of unnamed class members for want of 10
standing when there was no requirement that the named plaintiffs 11
have individual standing to bring those claims in the first place. See 12
id. 13
This approach also accords with the Supreme Court’s 14
preference for dealing with modest variations between class 15
members’ claims as substantive questions, not jurisdictional ones. See 16
Gratz, 539 U.S. at 266 (explaining that differences in use of race 17
between transfer‐ and freshman‐admissions policies “clearly ha[d] no 18
effect on petitioners’ standing to challenge the [policies]” but “might 19
be relevant to a narrow tailoring analysis”); see also Lewis v. Casey, 518 20
U.S. 343, 358 n.6 (1996) (“The standing determination is quite separate 21
from certification of the class.”). 22

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Finally, the only other circuit to have addressed this issue has 1
reached the same conclusion. See Morrison, 649 F.3d at 536 (explaining 2
that whether plaintiff could bring putative class action on behalf of 3
out‐of‐state class members “ha[d] nothing to do with standing, though 4
it may affect whether a class should be certified—for a class action 5
arising under the consumer‐fraud laws of all 50 states may not be 6
manageable, even though an action under one state’s law could be”). 7
We are not convinced by the reasoning of those district courts 8
that have addressed the issue we confront as a standing issue. For 9
example, in Richards v. Direct Energy Servs., LLC, the district court 10
concluded that a Connecticut plaintiff that alleged that the defendant 11
energy company had attracted customers with misleading promises 12
of low rates lacked standing to sue on behalf of Massachusetts 13
consumers who were injured by the same defendant. 120 F. Supp. 3d 14
at 151. The court reasoned that “[w]ithout an allegation that [the 15
named plaintiff] personally was injured in Massachusetts,” the 16
plaintiff’s claim was essentially that, like the plaintiffs in 17
Massachusetts, he had “suffered in some indefinite way in common 18
with people generally.” Id. at 155 (internal quotation marks and 19
alteration omitted). This reasoning falters upon its premise: the harm 20
the plaintiff alleged was not a general grievance common to people 21
generally; it was a specific grievance based on the defendant’s falsely 22
advertised rates, suffered by specific people (Connecticut and 23

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Massachusetts customers of the defendant), under a specific set of 1
circumstances. See id. We fail to see how the fact that the defendant’s 2
wrongful conduct impacted customers in two states rendered the 3
injuries of the Massachusetts consumers somehow more indefinite 4
than the identical injuries of the Connecticut consumers.3 5
Accordingly, we conclude that whether a plaintiff can bring a 6
class action under the state laws of multiple states is a question of 7
predominance under Rule 23(b)(3), not a question of standing under 8
Article III. Since Langan’s individual standing to sue is not in doubt, 9
we turn to the question of whether the district court correctly 10
determined that the predominance requirement of Rule 23(b)(3) was 11
satisfied. 12
II. Predominance 13
Langan attempted to certify a class under Rule 23(b)(3), the 14
provision that allows for the common “opt‐out” class action, a class 15
action designed to bind all class members except those who 16
3 Johnson & Johnson’s argument that Mahon, discussed earlier, requires
a different result is unpersuasive. First, Mahon’s rejection of “analyz[ing]
class certification before Article III standing” only requires that a district
court first determine that the party plaintiff was actually injured by each of
the named defendants before proceeding to the Rule 23 inquiry. See Mahon,
683 F.3d at 64. Second, because the redressability and fundamental fairness
concerns that arise when a plaintiff attempts to haul a non‐injurious
defendant into court are not present when a plaintiff initiates a class action
under various state laws prohibiting similar conduct by the same
defendant, this case is distinguishable from Mahon. See id. at 65– 66.

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affirmatively choose to be excluded. See Amchem, 521 U.S. at 614–15; 1
see also Scott Dodson, An Opt‐In Option for Class Actions, 115 Mich. L. 2
Rev. 177–79 (2016). To ensure that binding absent class members is 3
fair, see Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013), before a district 4
court may certify a class under Rule 23(b)(3) the party seeking 5
certification must show that “questions of law or fact common to class 6
members predominate over any questions affecting only individual 7
members.” Fed. R. Civ. P. 23(b)(3). This predominance requirement 8
“tests whether proposed classes are sufficiently cohesive to warrant 9
adjudication by representation.” Mazzei v. Money Store, 829 F.3d 260, 10
272 (2d Cir. 2016) (internal quotation marks omitted). The 11
predominance requirement is satisfied if “resolution of some of the 12
legal or factual questions that qualify each class member’s case as a 13
genuine controversy can be achieved through generalized proof,” and 14
“these particular issues are more substantial than the issues subject 15
only to individualized proof.” Roach v. T.L. Cannon Corp., 778 F.3d 401, 16
405 (2d Cir. 2015). 17
Variations in state laws do not necessarily prevent a class from 18
satisfying the predominance requirement. See In re U.S. Foodservice, 19
729 F.3d at 127 (holding that there was no predominance problem 20
with a putative class action brought under the state contract law of 21
various states where all of the jurisdictions had adopted the Uniform 22
Commercial Code). As with all Rule 23 requirements, the party 23

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18 No. 17‐1605
seeking certification has the ultimate burden to demonstrate that any 1
variations in relevant state laws do not predominate over the 2
similarities. See Wal‐Mart, 564 U.S. at 350; In re U.S. Foodservice, 729 3
F.3d at 127 (finding no predominance issue where defendant had 4
alleged but not proffered evidence to support its claim that variation 5
in evidentiary standards among states overwhelmed the similarities). 6
The decision to certify a class is a discretionary determination, 7
which we will only overturn if the district court abused its discretion. 8
See In re U.S. Foodservice, 729 F.3d at 116. To be afforded this deference, 9
however, the certification must be sufficiently supported and 10
explained. See In re Hyundai & Kia Fuel Econ. Litig., 881 F.3d 679, 690 11
(9th Cir. 2018); Walsh v. Ford Motor Co., 807 F.2d 1000, 1006 (D.C. Cir. 12
1986) (“[I]t is unquestionably the role of an appellate court to ensure 13
that class certification determinations are made pursuant to 14
appropriate legal standards.”). 15
The district court found that Langan had shown predominance 16
since there was no indication that any of the minor differences 17
Johnson & Johnson identified between the various state consumer 18
protection laws “should overwhelm the questions common to the 19
class” given that “[a]ll the states have a private right of action for 20
consumer protection violations, allow class actions, and have various 21
other important similarities.” App’x 195–96. On appeal, Johnson & 22
Johnson argues that the district court erred by failing to engage in a 23

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19 No. 17‐1605
rigorous analysis of the similarities and differences in the various 1
state laws at issue. We agree. 2
Under Rule 23(b)(3), the district court has a “duty,” before 3
certifying a class, to “take a close look” at whether the common legal 4
questions predominate over individual ones. Comcast, 569 U.S. at 34 5
(internal quotation marks omitted). Although, to date, we have not 6
explained what such a “close look” requires, out‐of‐circuit precedent 7
offers helpful guidance. 8
To begin, district courts must do more than take the plaintiff’s 9
word that no material differences exist. See Walsh, 807 F.2d at 1016 10
(refusing to accept “on faith” the plaintiffs’ claims on appeal that “no 11
variations in state . . . laws relevant to [the] case exist[ed]”). Rather, 12
district courts themselves must undertake a considered analysis of the 13
differences in state laws. See Sacred Heart Health Sys., Inc. v. Humana 14
Military Healthcare Servs., Inc., 601 F.3d 1159, 1180 (11th Cir. 2010). In 15
Sacred Heart, the Eleventh Circuit reversed the district court’s 16
certification of a class of hospitals that claimed they were underpaid 17
for medical services by a health maintenance organization. See id. The 18
district court, in discussing the potential predominance issue 19
regarding certain differences in relevant state laws, had stated only 20
that there were “some variations” but that since the laws of “only six 21
states” were involved, common issues would not be overwhelmed. 22
Id. The Eleventh Circuit found this cursory explanation not to be a 23

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20 No. 17‐1605
“serious analysis of the variations in applicable state law,” and that 1
by certifying a class based on it, the district court abused its discretion. 2
Id. 3
As part of its analysis, a district court that relies on subclasses 4
to cure predominance issues as a prerequisite to certification must 5
identify the required subclasses and explain why they are necessary. 6
See id. at 1183. In Sacred Heart, the district court had also suggested in 7
passing that identifying subclasses could be a way to address 8
predominance problems. The district court, however, had not 9
identified any potential subclasses, nor discussed how those 10
subclasses would cure the predominance issues. See id. The Eleventh 11
Circuit concluded that the district court’s oblique reference to 12
subclasses failed to explain how subclasses would prevent “the 13
proliferation of disparate factual and legal issues,” given that, in 14
addition to the state law variations, material provisions of the 15
individual contracts for legal services varied as well. Id. Because these 16
factual and legal differences suggested a need for multiple sets of 17
subclasses, the district court’s mere mention of subclasses was not an 18
“adequate response.” Id. 19
We are not convinced that the district court here undertook the 20
requisite considered analysis of the variations in state law and the 21
potential need for subclasses that might result from those variations. 22
Although both parties submitted complicated and conflicting 23

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summaries of the state consumer protection laws in eighteen states, 1
the district court’s analysis consisted of one paragraph. In that 2
paragraph, it is our view that the district court did not sufficiently 3
engage with Johnson & Johnson’s arguments about reliance, instead 4
concluding that “it appears” that none of the states’ high courts have 5
insisted on reliance. See App’x at 195. The other identified 6
differences—including whether intent to deceive is required, and 7
whether causation can be presumed—were not discussed. As in 8
Sacred Heart, the district court only stated generally that the identified 9
differences were “minor” and “should [not] overwhelm the questions 10
common to the class.” App’x at 195. We believe that more precise and 11
greater depth of analysis is required to comport with the “close look” 12
required by the precedent. 13
Accordingly, we remand the case to the district court to 14
conduct a more thorough analysis. See In re Am. Intʹl Grp., Inc. Sec. 15
Litig., 689 F.3d 229, 243 (2d Cir. 2012) (vacating grant of class 16
certification and remanding for further consideration as to 17
predominance where it was not clear from the record on appeal 18
“whether variations in state law might cause class members’ interests 19
to diverge”); Walsh, 807 F.2d at 1019 (remanding to the district court 20
after clarifying the Rule 23(b)(3) predominance inquiry so the district 21
court could redo the analysis). Although this court is free to consider 22
variations in state laws in the first instance, see, e.g., Johnson v. Nextel 23

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22 No. 17‐1605
Commcʹns Inc., 780 F.3d 128, 146–48 (2d Cir. 2015), the judgment 1
whether to certify a class under Rule 23(b)(3) is a discretionary 2
determination that we think is best made by the district court upon 3
appropriate analysis of the circumstances of the case. See generally In 4
re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 31 (2d Cir. 2006), decision 5
clarified on denial of rehʹg, 483 F.3d 70 (2d Cir. 2007). Out of respect for 6
the district court’s comparative advantage at weighing whether, 7
under the circumstances of this case, state law similarities or 8
differences will predominate, we remand the case to the able district 9
judge to carefully analyze the relevant state laws, decide whether 10
subclasses are appropriate, reconsider the predominance question, 11
and explain in greater detail its conclusion on that question. 12
CONCLUSION 13
For these reasons, we VACATE the district court’s grant of 14
certification, and REMAND for further proceedings consistent with 15
this opinion. 16

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