                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2008

Danvers Mtr Co Inc v. Ford Mtr Co
Precedential or Non-Precedential: Precedential

Docket No. 07-2287




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                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 07-2287


     DANVERS MOTOR CO., INC., a Massachusetts
corporation; BOB CHAMBERS FORD, d/b/a Augusta Ford,
                    a Maine corporation;
       CONCORD FORD-LINCOLN-MERCURY,
                  a New York corporation;
      FETTE FORD INC., a New Jersey corporation;
     SENATOR FORD, INC., a Delaware corporation;
      ROSEVILLE MIDWAY FORD COMPANY,
                  a Minnesota corporation;
       FULLERS' WHITE MOUNTAIN MOTORS,
                   an Arizona corporation;
       CONDON FORD, INC., an Iowa corporation;
        G. & S. MANAGEMENTCORPORATION,
  on behalf of themselves and all others similarly situated,
     d/b/a Tilton Ford, a New Hampshire corporation,

                              v.

               FORD MOTOR COMPANY,

                                         Appellant.
      On Appeal from the United States District Court
              for the District of New Jersey
                 (D. C. No. 02-cv-02197)
       District Judge: Hon. Dennis M. Cavanaugh




                 Argued on March 6, 2008


Before: FISHER, GREENBERG and ROTH, Circuit Judges

            (Opinion filed : September 12, 2008)


James F. Hibey, Esquire (ARGUED)
Lisa K. Hsiao, Esquire
Howrey
1299 Pennsylvania Avenue, N. W.
Washington, DC 20004

Romeo S. Quinto, Jr., Esquire
Howrey
321 North Clark Street
Suite 3400
Chicago, IL 60610

             Counsel for Appellant


                                2
Eric L. Chase, Esquire (ARGUED)
Bressler, Amery & Ross
325 Columbia Turnpike
P. O. Box 1980
Florham Park, NJ 07932

              Counsel for Appellee Fette Ford, Inc.

Barry S. Goodman, Esquire (ARGUED)
Greenbaum, Rowe, Smith & Davis
P. O. Box 5600
Metro Corporate Campus One
Woodbridge, NJ 07095

              Counsel for Appellee Danver Motor Co., Inc.




                        OPINION


ROTH, Circuit Judge:

       Ford Motor Company appeals the certification of a class
of Ford dealers in an action alleging violations of the Robinson-
Patman Act, the Automobile Dealer’s Day in Court Act, and
numerous state franchise laws, as well as breach of contract and
the covenant of good faith and fair dealing. We hold that the
prerequisites for a class action are not met in this case.
Accordingly we will vacate the order of the District Court and
remand for decertification of the class and further proceedings.

                               3
I. Factual and Procedural Background

        In November 2000, some of the current plaintiffs, on
behalf of a proposed class of Ford dealers, filed suit, alleging
that Ford’s Blue Oval Program (BOP) violated state and federal
law. The District Court for the District of New Jersey dismissed
the case without prejudice for lack of standing. Danvers Motor
Co. v. Ford Motor Company, 186 F. Supp. 2d 530 (D.N.J.). The
plaintiffs did not appeal this ruling.

       The current plaintiffs filed a revised complaint in May
2002 and, of relevance to this appeal, an amended and
supplemented complaint in January 2003. The District Court
again held that eight of the nine named plaintiffs lacked
standing. On appeal, we reversed. Danvers Motor Co. v. Ford
Motor Company, 432 F.3d 286 (3d Cir. 2005). Plaintiffs then
moved to certify a class of Ford franchisees who were affected
by Ford’s BOP. The District Court granted plaintiffs’ motion
and certified a class. We granted Ford leave to appeal pursuant
to Rule 28 U.S.C. § 1292(b).

        The Blue Oval Program was instituted by Ford in April
2000 and terminated in March 2005. Ford created the BOP to
improve dealer performance and customer satisfaction. The
BOP provided cash bonus payments and other benefits to Ford
dealers who improved customer satisfaction according to certain
criteria. The BOP was voluntary but was available to all Ford
dealers.

      The BOP established requirements in a number of areas:
Leadership, Concern Resolution, Sales, Service, Facilities, and

                               4
Customer Sales and Service Satisfaction as determined by the
survey process. In addition, all Ford dealers were required to
pay a 1% assessment on all Ford vehicles, although there was no
increase in the Manufacturer’s Suggested Retail Price (MSRP).
Dealers who obtained Blue Oval Certification under the BOP
were eligible to receive certain monetary and non-monetary
benefits. Dealers who met the initial certification requirements
by April 17, 2001, received a reimbursement from Ford of
1.25% of the MSRP for each vehicle sold. Dealers who
qualified for certification prior to April 17, 2002, received a
1.0% reimbursement.1 In addition to these rebates, certified
dealers received an increase in After-Warranty Adjustment
Allowance Levels, a ten-percent increase in Ford’s
transportation assistance allowance, a fifty-percent discount on
all retail invoice messages, up to fifty-percent tuition reduction
on finance and insurance-related courses, a 401K plan for dealer
employees, the Blue Oval Certified Healthcare Plan, and Blue
Oval National Advertising.

        The BOP established the Voice of the Customer (VOC)
Index, which used survey responses from a dealer’s sales and
service customers to measure that dealer’s customer satisfaction
levels. The target VOC Score for a particular dealer depended
on factors such as dealer size and location. Some dealers met
their target score with relatively little effort. Others had to work


   1
   The percentage of the rebates was subsequently reduced.
Rebates were scheduled to drop from 1% or 1.25% initially to
1% in April 2003, 0.75% in April 2004, and 0.50% in April
2005.

                                 5
over a period of time to increase the VOC score to the target
level to apply for certification. If a dealer’s VOC score was
high enough, that dealer was entitled to automatic certification.
Dealers with a lower score could become certified by satisfying
certain sales, service, and facilities criteria. Large dealers were
evaluated by an independent contractor. Small and/or rural
dealers were able to self-evaluate.

        Plaintiffs contend that because of the differences in
certification standards and processes, the requirements to
achieve certification varied. In their amended complaint,
plaintiffs allege that, through the BOP, Ford violated three
provisions of the Robinson-Patman Act, 15 U.S.C. §§ 13(a),
13(d), and 13(e), the Automobile Dealer’s Day in Court Act, 15
U.S.C. §§ 1221-25, and various state franchise laws. They also
allege breach of their Sales and Service Agreement with Ford
and of the implied covenant of good faith and fair dealing.
Plaintiffs seek both injunctive relief and damages on behalf of
approximately 4,000 Ford dealers.

         Plaintiffs assert that the BOP was meant “to determine
the size and makeup of [Ford’s] dealer distribution system
without regard to the dealers’ rights.” They claim that dealers,
who were not certified, faced in effect the constructive
termination of their franchises; further, because dealers were
required to re-certify every year and Ford could unilaterally
change both the VOC Index and the Blue Oval Program, all
dealers faced the risk of not being certified. Plaintiffs allege
that all of them made significant investments to comply with the
requirements of certification and re-certification under the BOP.


                                6
        However, given that some dealers were certified and
other were not and that dealers expended different efforts with
respect to certification, the dealers were impacted by the BOP in
different ways. Specific injuries alleged by the nine named
plaintiffs demonstrate these differences:

        1) Danvers Motor Co. became Blue Oval Certified on
April 5, 2002. Danvers spent tens of thousands of dollars in
management time to become certified and to maintain
certification. Danvers did not receive either the 1% or the
1.25% rebate during the period that it was not certified.
Certified dealers in Danvers’ market allegedly told Danvers
customers not to buy from Danvers because it was not certified.

        2) Bob Chambers Ford (Augusta Ford) became certified
on November 9, 2001, at which point it became eligible for the
1% rebate. Augusta Ford spent nineteen months and had to
engage outside assistance to obtain certification. During this
time, Ford dealers in the same market had been automatically
certified or able to certify earlier because of the VOC Index.
After obtaining initial certification, Augusta Ford incurred
additional costs to re-certify based on the independent contractor
evaluation.

        3) Concord Ford-Lincoln-Mercury certified automatically
on December 23, 2000, because its VOC scores were already
above target. Concord automatically re-certified for 2002.
Concord was therefore qualified to receive the 1.25% rebate.
Concord alleges, however, that its profit margin was reduced, it
lost sales to other makes of automobiles, and it suffered from
underallocation of vehicles. Concord also claims that in the

                                7
future it might not be able to certify based solely on the VOC
Index, at which point it would need to satisfy other BOP criteria.

        4) Condon Ford certified on December 10, 2000, making
it eligible for the 1.25% rebate. However, Condon lost its
certification on March 11, 2002, because it failed to meet its
VOC Index. Condon spent thousands of dollars to re-certify.
Condon believes that other dealers (related to or financed by
Ford) in the same market had lower VOC targets. Condon
alleges that, as a result of de-certification, not only has it lost the
1.25% rebate, but it also has decreased profits and sales
effectiveness, as well as lost sales to other Ford and non-Ford
dealers.

        5) Fette Ford qualified and applied for certification on
April 17, 2001. Fette was certified on June 26, 2001, and
received a 1.25% rebate. Fette did not have to make “any major
process changes” to obtain certification. However, Fette made
significant expenditures to obtain certification, including hiring
additional personnel, and incurred further costs for re-
certification. Fette believes that Ford dealers are losing business
to other makes of automobiles because of the BOP.

        6) Senator Ford became certified on January 25, 2001,
and received a 1.25% rebate. Senator incurred expenses to
certify and to re-certify, including increased personnel costs.
Senator expects that it will eventually have to remodel its
dealership, at a cost of over $1 million.

      7) Midway Ford Company obtained certification on
February 13, 2001, thereby qualifying for the 1.25% rebate, but

                                  8
at a cost of hundreds of thousands of dollars.          Ford
representatives reportedly told Midway management that there
were too many Ford dealers in the area and that the BOP was a
way to eliminate some of those dealers.

        8) Fullers’ White Mountain Motors never certified,
despite significant expenditures and changes in its business
model. Fullers spent thousands of dollars trying to obtain
certification. The VOC Index of Fullers, a rural dealership, was
higher than that of dealers in a nearby metropolitan area. Fullers
believes that it has been undersold by a BOP certified dealer.

        9) G&S Management Corporation (Tilton Ford) has not
obtained certification although it hired an outside consultant and
made other investments of time and money to do so. Tilton
claims that Ford assisted other local dealers to obtain
certification but ignored Tilton. Tilton also claims that it has
been unable to compete with local BOP certified dealers or with
dealers of other makes of automobiles.

       As noted above, plaintiffs claim that, through its Blue
Oval Program, Ford has violated Sections 13(d), 13(e), and
13(a) of the Robinson-Patman Act, the Automobile Dealer’s
Day in Court Act, and state franchise statutes, and is liable for
breach of contract and the implied covenants of good faith and
fair dealing.

       Section 13(d) of the Robinson-Patman Act prohibits a
payment or contract for the payment of anything of value . . . in
connection with the processing, handling, sale or offering for
sale of any products or commodities manufactured, sold or

                                9
offered for sale by such person, unless such payment or
consideration is available on proportionally equal terms to all
other customers competing in the distribution of such products
or commodities.

15 U.S.C. § 13(d).

       Plaintiffs allege that Ford’s “payments to and on behalf
of dealers it deemed Certified under the Blue Oval Program, as
reimbursement of a percentage of the purchase price and as
national advertising” were not intended to be available to all
dealers on proportionally equal terms, as required by the
Robinson-Patman Act. With respect to the cash reimbursements
provided only to certified dealers, plaintiffs claim,

       This deliberately differential treatment dependent
       on Blue Oval Certification adversely affects
       competition because Plaintiffs and other Ford
       dealers who did not receive or do not receive
       1.25% of MSRP, 1% of MSRP .75% of MSRP, or
       even .5% of MSRP, or who lose Certification, as
       the case may be, cannot compete fairly with other
       dealers in their respective markets for the
       purchase of like products from Ford and the sale
       of such products to consumers; consequently,
       uncertified dealers who cannot compete face the
       constructive termination of their franchises.

       Plaintiffs also allege a violation of Section 13(e).
       Section 13(e) prohibits discriminat[ion] in favor
       of one purchaser against another purchaser or

                               10
       purchasers of a commodity bought for resale . . .
       by contributing to the furnishing of, any services
       or facilities connected with the processing,
       handling, sale, or offering for sale of such
       commodity so purchased upon terms not accorded
       to all purchasers on proportionally equal terms.

15 U.S.C. § 13(e).

        Plaintiffs claim that the benefits provided only to
certified dealers under the BOP constitute “services or facilities
. . . not accorded to all purchasers on proportionally equal
terms.” They reiterate that, because some dealers must submit
to evaluation by an independent contractor while others are
permitted to self-certify, certification is not available to all
dealers on proportionally equal terms. Plaintiffs allege that

       This deliberately differential treatment dependent
       on Blue Oval Certification adversely affects
       competition because these Plaintiffs and other
       Ford dealers who do not receive or lose the
       benefits . . . cannot compete with dealers in their
       respective markets for the purchase of like
       products from Ford and the sale of such products
       to consumers; consequently, the dealers who
       cannot compete face the constructive termination
       of their franchises.

              Plaintiffs claim that Ford also
              violated Section 13(a).
              Section13(a)        prohibits

                               11
             discriminat[ion] in price between
             different purchasers of
             commodities of like grade and
             quality . . . where the effect of such
             discrimination may be substantially
             to lessen competition or tend to
             create a monopoly in any line of
             commerce, or to injure, destroy, or
             prevent competition . . ..

15 U.S.C. § 13(a).

      Plaintiffs allege that

      The disparate Certification requirements for
      dealers coupled with a reimbursement of a 1.25%
      of MSRP to dealers achieving Certification
      eligibility prior to April 17, 2001, a
      reimbursement of a 1% of MSRP to dealers
      achieving Certification eligibility after April 17,
      2001 and prior to April 17, 2002 and 1.25%
      prospectively; and no reimbursement to dealers
      who fail to achieve or lose Certification eligibility
      prior to April 17, 2002 or who do not enroll in the
      Blue Oval Program, constitute unlawful price
      discrimination pursuant to the Robinson-Patman
      Act, 15 U.S.C. § 13(a).

Plaintiffs allege further that the Blue Oval Program
“discriminates among dealers by making the benefits available
only to Certified dealers and their employees.”

                               12
       The Automobile Dealer’s Day in Court Act permits
dealers to bring suit against a manufacturer for “failure . . . to act
in good faith in performing or complying with any of the terms
or provisions of the franchise, or in terminating, canceling, or
not renewing the franchise with said dealer . . . .” 15 U.S.C. §
1222. Plaintiffs allege that

       The ‘choices’ contemplated in the Blue Oval
       Program are facially coercive in that, to become
       Certified and then Recertified annually, Plaintiff
       dealers have committed substantial investments of
       time, effort, personnel and dollars (with no
       certainty of Certification, Recertification, or the
       consistency of the rewards and requirements
       therefor), while dealers who do not or cannot seek
       Certification will continue to pay significantly
       higher prices for their vehicles than Certified
       dealers.

Plaintiffs allege further that “Ford has professed an intention to
leverage its coercive program into a device for selecting dealers
for termination, or otherwise causing them constructively or
actually to fail . . ..”

       With respect to their state franchise law claims, plaintiffs
allege that the Blue Oval Program “is an illegal means of
constructive termination or attempted termination of Plaintiffs’
franchises” in violation of state franchise statutes and public
policies. They allege that the BOP also violates prohibited
practices provisions in state statutes and policies. Plaintiffs


                                 13
claim that the BOP violates the statutes and policies of all states
against the termination of a franchise without good or just cause.

        Plaintiffs also assert that Ford breached the Sales and
Service Agreement. In particular, they claim that the Sales and
Service Agreement does not permit either the “coercive and
arbitrary control” of dealers, multi-tier pricing, or de facto
termination imposed by the BOP. Plaintiffs claim that the BOP
constitutes an impermissible material unilateral amendment to
the Agreement.

       Finally, plaintiffs allege that Ford has violated its duty of
good faith and fair dealing by imposing the BOP, including by
imposing commitments and requirements not contemplated by
the Sales and Service Agreement. Plaintiffs allege that Ford has
prevented them from enjoying the fruits of the Agreement.

II. Discussion

        The District Court had jurisdiction over plaintiffs’ claims
under 28 U.S.C. § 1331, 28 U.S.C. § 1337, and 27 U.S.C. §
1367. We have jurisdiction to review the District Court’s
certification of a class pursuant to 28 U.S.C. § 1292. See also
Fed. R. Civ. Proc. 23(f).

        We review the District Court’s decision to certify a class
for an abuse of discretion. Beck v. Maximus, Inc., 457 F.3d 291,
295 (3d Cir. 2006). The District Court abuses its discretion
where “its decision rests upon a clearly erroneous finding of
fact, an errant conclusion of law or an improper application of
law to fact.” Id. (internal quotations omitted).

                                14
        A class may be certified only if the prerequisites of Rule
23(a) have been satisfied and the parties seeking class action
have shown that the action is maintainable under Rule 23(b). Id.
at 297. Failure to meet any of Rule 23(a) or 23(b)’s
requirements precludes certification. In re LifeUSA Holding
Inc., 242 F.3d 136, 147 (3d Cir. 2001).

       Under Rule 23(a), a class may be certified only if
       (1) the class is so numerous that joinder of all
       members is impracticable, (2) there are questions
       of law or fact common to the class, (3) the claims
       or defenses of the representative parties are
       typical of the claims or defenses of the class, and
       (4) the representative parties will fairly and
       adequately protect the interests of the class.2

        In addition to those requirements, one of the provisions
of Rule 23(b), subsection (b)(1), (b)(2), or (b)(3), must be met.
Here the plaintiffs sought class certification under Rule
23(b)(3). Rule 23(b)(3) provides that a class may only be
certified if, in addition to the requirements of Rule 23(a), “the
questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members, and . . . a class action is superior to other available



   2
    Because the court below issued its decision before the
December 2007 Amendments to the Federal Rules of Civil
Procedure became effective, we cite to the Rules as they existed
prior to the Amendments.

                               15
methods for the fair and efficient adjudication of the
controversy.”

        Plaintiffs’ claims, as alleged in their complaint, reflect
diverse and conflicting interests within the proposed class of
Ford dealers. Some dealers benefitted from the BOP, while
others were harmed. For example, plaintiffs allege that certified
dealers (including, for at least some periods of time, Augusta,
Concord, Condon, Danvers, Fette, Midway, and Senator) were
eligible to receive reimbursement of a percentage of the MSRP
(which could offset the 1% assessment) as well as additional
benefits, while others (including Fullers and Tilton) were not.
Plaintiffs allege further that some dealers (such as Condon,
Fullers, and Tilton) lost sales to other certified dealers.

       With respect to plaintiffs’ Robinson-Patman Act claims
in particular (which appear to be the principal claims), this
diversity and conflict within the proposed class defeat the
requirements for class certification. “Rule 23(a)(2) requires that
‘there are questions of law or fact common to the class.’”
Georgine v. Amchem Prods., Inc., 83 F.3d 610, 626 (3d Cir.
1996), aff’d sub nom Amchem Prods., Inc. v. Windsor, 521 U.S.
591 (1997). However, where an action is to proceed under Rule
23(b)(3), the commonality requirement “is subsumed by the
predominance requirement.” Id. at 627. Under Rule 23(b)(3),
“[i]ssues common to the class must predominate over individual
issues . . ..” In re Prudential Ins. Co. of Am. Sales Practice
Litigation Agent Actions, 148 F.3d 283, 313-14 (3d Cir. 1998).
The predominance requirement “tests whether the class is
sufficiently cohesive to warrant adjudication by representation,
and mandates that it is far more demanding than the Rule

                               16
23(a)(2) commonality requirement.” In re LifeUSA Holding
Inc., 242 F.3d at 144.

        The rules and requirements of the BOP, standing alone,
may, as plaintiffs allege and as the District Court found, reflect
a common course of conduct. However, this action involves
many non-common issues based on Ford’s conduct in
implementing the BOP and each proposed class member’s
treatment under the BOP. Such individualized issues include,
for example, whether the dealer was certified; during what time
period the dealer was certified; whether the dealer incurred
expenses in attempting to obtain certification; whether the dealer
received reimbursement as a result of certification; whether
other dealers in the same market were treated differently under
the BOP; and whether Ford’s conduct vis-a-vis a particular
dealer violated the dealer’s state’s franchise laws. These non-
common issues overtake any common issues so that as a result
the latter do not predominate.

        Even plaintiffs acknowledge that, as implemented, the
BOP impacted individual dealers differently.            Although
plaintiffs allege that all Ford dealers expended money in
attempting to obtain certification or re-certification, they also
allege that some Ford dealers were much closer to their VOC
target, and therefore had an easier time than others in obtaining
certification. Moreover, with respect to discrimination in
pricing or the provision of services – the conduct that the
Robinson-Patman Act is designed to prevent – some members
of the proposed class were in fact “favored” purchasers who
benefitted from the alleged discrimination. Some Ford dealers
apparently gained sales from other non-certified dealers, as a

                               17
result of the Program. Conversely, some members of the
proposed class (and even within the group of named plaintiffs)
lost sales to other, certified dealers and did not receive the
benefits of certification. These dealers, those who were certified
and those who were not, those who might have gained sales and
those who might have lost sales, are in very different positions
with respect to their Robinson-Patman Act claims.3 Indeed,
plaintiffs repeatedly allege that “the dealers who cannot compete
face the constructive termination of their franchises.”

        The individualized and diverse issues suggested by
plaintiffs’ Robinson-Patman Act claims also subsume any
commonality with respect to their other claims. Even assuming
that the Automobile Dealer’s Day in Court Act, breach of


 3
   In concluding that the predominance requirement is satisfied,
the District Court reasoned that, because plaintiffs are entitled
to an inference of injury under the test established by the
Supreme Court in FTC v. Morton Salt Co., 334 U.S. 37, 49-51
(1948), the fact that plaintiffs must show actual competitive
injury does not defeat predominance. See Volvo Trucks North
America, Inc. v. Reese-Simco GMC, Inc., 546 U.S. 164, 177
(2006) (“[A] permissible inference of competitive injury may
arise from evidence that a favored competitor received a
significant price reduction over a substantial period of time.”).
Even allowing the inference, common issues do not
predominate. Plaintiffs’ allegations themselves, as detailed in
the complaint, present numerous individualized issues that will
have to be resolved, including whether and which particular
dealers benefitted under the BOP.

                               18
contract, and breach of the covenant of good faith and fair
dealing claims are all based on a single franchise agreement and
single course of conduct, we cannot ignore the non-common
issues that would require consideration in order to resolve
plaintiffs’ claims. For example, some plaintiffs were reportedly
directly threatened with termination, and others suffered from an
underallocation of vehicles. With respect to plaintiffs’ claims
for violations of state franchise laws, determining Ford’s
liability under these laws will require a state-by-state
adjudication, based on the law of each state and the facts of the
dealers located in that state. On these facts, we cannot say that
any common issues of law or fact predominate.

        Having determined that commonality and predominance
are lacking, we need not address at length the remaining
requirements of Rule 23, as failure to meet any one of them
precludes class certification. In re LifeUSA Holding Inc., 242
F.3d at 147. However, the diversity of interests and issues that
defeat the commonality and predominance requirements compel
the conclusion that the superiority requirement is likewise not
met.

       The superiority inquiry requires us to “balance, in terms
of fairness and efficiency, the merits of a class action against
those of alternative available methods of adjudication.”
Georgine, 83 F.3d at 632 (internal quotations omitted). There
are four nonexclusive factors that we should consider under the
provisions of Rule 23(b)(3): (1) the interest of individual
members of the class in controlling the prosecution of the action,
(2) the extent of litigation commenced elsewhere by class
members, (3) the desirability of concentrating claims in a given

                               19
forum, and (4) the management difficulties likely to be
encountered in pursuing the class action.

        The fourth factor counsels strongly against finding that
a class action would be superior in this case. The multitude of
individualized issues presented in plaintiffs’ claims would entail
complicated mini-litigations within the class action itself. On
these facts, it would be neither more fair nor more efficient to
proceed with this matter as a class action.

        Nor can the proposed class satisfy the Rule 23
requirements of typicality and adequacy of representation. The
typicality and adequacy inquiries “both look to the potential for
conflicts in the class.” Georgine, 83 F.3d at 632. “The
[typicality] inquiry assesses whether the named plaintiffs have
incentives that align with those of absent class members so that
the absentees’ interest will be fairly represented.” Id. at 631.
Factual differences will not defeat typicality if the named
plaintiffs’ claims arise from the same event or course of conduct
that gives rise to the claims of the class members and are based
on the same legal theory. Beck, 457 F.3d at 296. Similarly, the
adequacy inquiry “assures that the named plaintiffs’ claims are
not antagonistic to the class and that the attorneys for the class
representatives are experienced and qualified to prosecute the
claims on behalf of the entire class.” Id.

       Plaintiffs’ own allegations make clear that their claims,
although ostensibly all arising from the Blue Oval Program, are
rooted in a variety of actions Ford took pursuant to the BOP.
Ford is alleged, among other things, to have denied certification
to some plaintiffs, awarded certification to others, set higher

                               20
VOC targets for some plaintiffs than for others, assisted some
dealers in obtaining certification while abandoning others, and
underallocating vehicles to certain dealers.

        The fact that named plaintiffs include among their ranks
both certified and non-certified dealers increases the atypicality
of their claims. See Georgine, 83 F.3d at 632. As reflected by
the allegations of just the named plaintiffs, the postures of each
Ford dealer and proposed class member with respect to the BOP
are quite diverse. It follows that proposed class members will
likely need to pursue different, and possibly conflicting, legal
theories to succeed. Again, for example, some members of the
proposed class received benefits under the BOP, while others
did not; some had to comply with directives set by the
independent contractor, and others did not. The wide range of
interests among members of the proposed class precludes a
finding of typicality or adequacy in this case.

IV. Conclusion

        For the reasons stated above, we conclude that the
prerequisites of class certification set forth in Rule 23 are not
satisfied in this case. Accordingly, we will vacate the District
Court’s order granting class certification and remand the case to
the District Court for decertification of the class and further
proceedings consistent with this opinion.




                               21
