[00:00:05] Speaker 01:
Go right ahead, please.

[00:00:08] Speaker 04:
Good morning, I think.

[00:00:08] Speaker 04:
Are we in the afternoon?

[00:00:09] Speaker 04:
Good afternoon, Your Honors.

[00:00:11] Speaker 04:
May it please the Court, John Hacker for Appellant Ford Motor Company.

[00:00:13] Speaker 04:
I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 04:
Sure.

[00:00:17] Speaker 04:
Thank you, Your Honors.

[00:00:19] Speaker 04:
Our briefs identify a number of errors in the class certification ruling under review, but its most basic error is that the Court essentially

[00:00:28] Speaker 04:
ignored its own summary judgment ruling on the named plaintiff's own claims, which relied almost entirely on owner-specific evidence that would be required to adjudicate

[00:00:38] Speaker 04:
on multiple, a core element to multiple claims.

[00:00:42] Speaker 04:
The same kind of individualized evidence that would be required to adjudicate the same claims when asserted by absent class members.

[00:00:48] Speaker 01:
But why is that true?

[00:00:49] Speaker 01:
Why is that true, counsel?

[00:00:50] Speaker 01:
You made that argument in your briefing and I appreciate it and I understand that you knocked out some claims, some individual claims along the way.

[00:00:56] Speaker 01:
But we're looking at 23B3 and predominance and so just flesh this out for me.

[00:01:01] Speaker 01:
Why is it necessarily the case that the district court erred for this reason?

[00:01:04] Speaker 01:
I don't follow.

[00:01:05] Speaker 04:
Well, so the error ultimately is in the classification ruling itself, because what the summary judgment ruling reflects is the necessity of relying on owner-specific evidence in order to adjudicate the claims across multiple elements.

[00:01:21] Speaker 01:
OK, so one plaintiff, if you could just play this out for me.

[00:01:24] Speaker 01:
One plaintiff, I think it was discovered in her deposition that she had used her vehicle for commercial purposes, for a horse business or something.

[00:01:31] Speaker 04:
Right.

[00:01:32] Speaker 01:
All right.

[00:01:33] Speaker 01:
OK.

[00:01:34] Speaker 01:
And I understand, you know, that one was knocked out, but what they have to show, right, is that they could establish commercial purposes, I'm sorry, personal use with common evidence could accomplish that.

[00:01:46] Speaker 01:
Correct.

[00:01:47] Speaker 01:
Right.

[00:01:47] Speaker 01:
And so they pointed to some evidence that they think could accomplish that on a class-wide basis.

[00:01:53] Speaker 01:
What are they missing there?

[00:01:55] Speaker 04:
So they have to do more than just point to some evidence.

[00:01:58] Speaker 04:
And that's what that shows, is that just pointing to something won't establish it, because that's exactly what happened with respect to, I think it was plaintiff Hamilton?

[00:02:07] Speaker 01:
I think it's Hamilton, and I think she had a declaration.

[00:02:09] Speaker 01:
But they've pointed, I am speaking in shorthand to be sure, but they have to demonstrate that this is possible, and I think they had.

[00:02:16] Speaker 01:
indicated that there might be fleet records or certificates or tax records indicating personal commercial use?

[00:02:25] Speaker 01:
Why isn't that enough?

[00:02:26] Speaker 04:
Yeah, exactly.

[00:02:27] Speaker 04:
I think it sort of proves the point because the fleet records establish nothing because that doesn't tell you anything for an individual purchase.

[00:02:36] Speaker 04:
What's that person is purchasing it for?

[00:02:38] Speaker 04:
The other thing they point to, and I think it's the only other thing, is the title might include a commercial name on it, and that would, you know, maybe tell you something, but that was true of Plaintiff Hamilton, and it took a long deposition and then, you know, lawyerly fights to determine and make it get to a ruling as to whether or not she was using it primarily for personal purposes.

[00:02:58] Speaker 04:
So the only evidence that they cite that's class-wide is the Fleets, which is just a non-sequitur,

[00:03:05] Speaker 04:
And then the fact that the title might say something, that just doesn't tell you anything about personal use.

[00:03:09] Speaker 00:
Why couldn't you just require the class members to submit declarations about whether it is or isn't personal use?

[00:03:16] Speaker 04:
Right.

[00:03:16] Speaker 04:
So two related points.

[00:03:17] Speaker 04:
One is that's essentially what happened with Hamilton.

[00:03:19] Speaker 04:
She alleged, and I assume she wasn't lying in her complaint, that she used it primarily for personal use.

[00:03:25] Speaker 04:
And it just turned out not to be true.

[00:03:27] Speaker 04:
So somebody could submit.

[00:03:29] Speaker 00:
That's always a risk in any sort of action like this.

[00:03:32] Speaker 00:
But the district court has discretion here.

[00:03:34] Speaker 00:
and we review it for abuse of discretion and the district court identified something that seems like a logical solution, our case law suggests that if a district court can anticipate and come up with ways that you could actually do common proof or simplify the analysis, then

[00:03:50] Speaker 00:
It's not an abuse of discretion.

[00:03:52] Speaker 04:
Well, with respect, I disagree.

[00:03:54] Speaker 04:
In particular, the way you articulate it, Your Honor, I think illustrates the point.

[00:03:58] Speaker 04:
The standard seems like a logical solution.

[00:04:00] Speaker 04:
What it requires is a rigorous scrutiny of the actual evidence.

[00:04:05] Speaker 04:
Here we have the actual evidence.

[00:04:07] Speaker 04:
And the evidence that they're putting forward is the fleets, which doesn't do anything, and the titles, which doesn't do anything.

[00:04:13] Speaker 04:
Now, I did have a second point.

[00:04:14] Speaker 00:
I think that's a decent argument, but that doesn't get to the declaration.

[00:04:17] Speaker 00:
that the district court also said which I have suggested and you have great I mean you can point to one great example and say see it didn't work there but one great example does that undermine the whole ability to do a class action?

[00:04:28] Speaker 04:
Well I mean it shows exactly the one time it happened it illustrated this but this gets to my second point which is in many other consumer product cases this is not going to be the same kind of issue because such products are presumptively going to be you know used for

[00:04:44] Speaker 04:
personal purposes.

[00:04:45] Speaker 04:
It's not that hard.

[00:04:46] Speaker 04:
It's easy to say, my coffee maker, my hairdryer.

[00:04:49] Speaker 01:
But not this kind of Ford truck.

[00:04:50] Speaker 04:
The problem here is this kind of Ford truck is overwhelmingly used for business purposes.

[00:04:56] Speaker 04:
And again, people aren't lawyers.

[00:04:58] Speaker 04:
They don't know what it means to primarily use if you're a farmer, you drive your kids to school some day, you go to the grocery store, but you also use it

[00:05:06] Speaker 04:
that certification, their representation that they use it primarily for personal purposes has to get investigated because this kind of truck, this kind of product, unlike other products, is so overwhelmingly used by individuals who purchase it as individuals but for business purposes.

[00:05:24] Speaker 01:
So now you've used a third of your time and we've got there about 1 out of 10 issues.

[00:05:29] Speaker 01:
I understand.

[00:05:30] Speaker 04:
The one I want to turn, I mean, I'm happy to talk about any of them, because I'm obviously most interested in what you're most interested in, but I want to spend at least a moment on the issue of Ford's pre-sale knowledge of the defect, because I think it really illustrates the problems.

[00:05:46] Speaker 01:
In the fraud claims, right?

[00:05:47] Speaker 04:
Yeah, on the fraud claims, right?

[00:05:49] Speaker 04:
There's implied warranty claims, there's express warranty claims, and then there's what we refer to as the fraud type claims, because some of them are consumer statutes, right?

[00:05:57] Speaker 04:
Right.

[00:05:58] Speaker 04:
And so on the fraud type claims, the problem, as your honors are aware, a fraud type claim requires proof of Ford's pre-sale knowledge of the defect.

[00:06:07] Speaker 04:
It's not enough to say, here's the defect and we're going to prove a defect.

[00:06:11] Speaker 04:
You have to establish to any one of these absent class members that they walked into court,

[00:06:15] Speaker 04:
They would have to prove that Ford was aware of whatever defect they eventually lied on.

[00:06:20] Speaker 04:
They never really identified a defect.

[00:06:22] Speaker 04:
But they have to prove them.

[00:06:24] Speaker 04:
And their defects theory, generally, for the whole case, encompasses 15 years and four different vehicle platforms.

[00:06:33] Speaker 04:
And they say, they allege, and they want to try to prove that they all had the same common defect.

[00:06:38] Speaker 01:
Well, they do allege a common defect, and then they talk about the kitchen sink fix.

[00:06:42] Speaker 01:
And I'm interjecting here, so you can just sort of.

[00:06:45] Speaker 04:
Well, I'll get to the kitchen sink fix if I could.

[00:06:49] Speaker 01:
Well, it does seem to be a pretty strong indication that it's a common defect, just so you know where I'm going.

[00:06:53] Speaker 04:
Absolutely understood, and I don't mean to be talking about the absence of uniform evidence on the common defect right now.

[00:07:00] Speaker 04:
I'm talking about the knowledge.

[00:07:01] Speaker 04:
What a knowledge of fraud and what the court itself said and this is what's critical they alleged this common defect But the fraud classes certified by the court only include the first platform the p131 and the last platform the p558 Skipping over nine years where they're supposedly a common defect through all 15 years in all four platforms so the theory the court adopted a

[00:07:26] Speaker 04:
in order to certify a fraud class is that a jury could permissively find that Ford had knowledge of this common defect for two years at the beginning.

[00:07:38] Speaker 04:
didn't have knowledge, forgot something for nine years, and then somehow got knowledge again at the last end of the last chapter of the class.

[00:07:47] Speaker 04:
It's just nonsensical on its face, but there's more formally huge problems with certifying a class that way.

[00:07:54] Speaker 04:
First of all, knowledge of a defect, again, assuming they proved through evidence that a defect existed in the P558, if a plaintiff showed up,

[00:08:05] Speaker 04:
with the P131 owner and said, I want to prove this defect, it would be categorically irrelevant to that case.

[00:08:13] Speaker 04:
It would be excluded as a matter of law, any evidence going towards knowledge of a defect in the P558.

[00:08:19] Speaker 04:
But the court mushed them together, puts that all before the jury impermissibly.

[00:08:25] Speaker 04:
On the flip side, conversely, essentially the same would be true that if you showed up with a P558 vehicle,

[00:08:34] Speaker 04:
and said I want to prove Ford's knowledge.

[00:08:36] Speaker 04:
You wouldn't be able to rely on knowledge of the P131 vehicle because the evidence is so different with respect to them.

[00:08:43] Speaker 04:
The chassis are different, the frames are different, the setup is different.

[00:08:46] Speaker 04:
It's all very technical.

[00:08:47] Speaker 04:
The reasons for oscillation are myriad.

[00:08:51] Speaker 04:
It can happen for lots of different reasons.

[00:08:53] Speaker 04:
And so you've got a completely different factual record with respect to the P131 and the 531 as shown by it.

[00:08:58] Speaker 00:
I have a question sort of right in that space, and that is this manifestation

[00:09:03] Speaker 00:
of a problem with the vehicle issue.

[00:09:05] Speaker 00:
I'm trying to figure out how that makes sense in this scenario where over the course of time, as I understand the facts, the actual part that we're worried about this damper was changing.

[00:09:19] Speaker 00:
And so if that's true, I guess I would like to hear, I mean I've read it, but I would like to hear you speak to your argument about Wolin and its application here on this manifestation of

[00:09:31] Speaker 00:
A problem.

[00:09:32] Speaker 04:
Right, so a few points.

[00:09:33] Speaker 04:
We're not actually talking about like one part.

[00:09:35] Speaker 04:
They have different stories about what is causing the fact, but it's a performance.

[00:09:40] Speaker 04:
The proof of the defect is based on performance.

[00:09:42] Speaker 04:
By their own account, the defect is that the oscillation is insufficiently dampened.

[00:09:49] Speaker 00:
Right.

[00:09:50] Speaker 04:
And there's just various reasons for that.

[00:09:51] Speaker 04:
We understand that part.

[00:09:51] Speaker 00:
We understand that.

[00:09:52] Speaker 04:
No, I understand.

[00:09:53] Speaker 04:
And so Wolin is not relevant to the problem of whether or not

[00:10:01] Speaker 04:
Common evidence can be used to establish a common defect across the four different platforms because this is undisputed when you look at the expert report of dr. Lennox and you'll see it at Er 1 1 2 0 she's got a chart, but there's an explanation around again.

[00:10:18] Speaker 04:
This isn't contradicted and

[00:10:19] Speaker 04:
For each platform, the manifestation rates vary wildly.

[00:10:25] Speaker 04:
I mean, it's incredible.

[00:10:26] Speaker 04:
And it varies tenfold between the P131 at the beginning and that P558 at the end, and a hundredfold within different platforms and different model years.

[00:10:37] Speaker 04:
The best model year with the fewest complaints was 0.25%.

[00:10:42] Speaker 04:
and the worst one was, I think, 30%, completely different.

[00:10:48] Speaker 04:
You know, it's impossible for one jury to say it's the same defect in all of those different models and all of those different platforms based on that kind of evidence.

[00:10:56] Speaker 00:
Well, that's the question, right?

[00:10:57] Speaker 00:
Does that go to is there or is there not a defect, or does that go to is there or is there not injury?

[00:11:03] Speaker 00:
Because I think that the answer to that question matters about whether woolen applies.

[00:11:07] Speaker 04:
Yeah, absolutely.

[00:11:07] Speaker 04:
And it goes to whether or not it's

[00:11:12] Speaker 04:
It's not the merits of the question whether it's a defect.

[00:11:14] Speaker 04:
It's how they're going to prove it.

[00:11:15] Speaker 04:
The evidence is going to be based on four different platforms, 50 different model years, that is completely, indisputably, wildly different.

[00:11:23] Speaker 00:
So again, if- Was there ever any suggestion below to do subclasses based on these different platforms?

[00:11:27] Speaker 04:
They have not moved for that.

[00:11:29] Speaker 04:
And the court analyzed them entirely.

[00:11:32] Speaker 04:
And the court, sort of on its own, in the fraud classes, took out the middle two platforms because there was just no evidence.

[00:11:38] Speaker 04:
The reason the court took it out

[00:11:40] Speaker 04:
was that there is no... No, no, I'm not pointing to the clock.

[00:11:43] Speaker 01:
Right there, sorry to interrupt, but before you... Is it just as to the fraud classes?

[00:11:48] Speaker 01:
So the court certifies A and D, right, chronologically, but not B and C. That's correct.

[00:11:54] Speaker 01:
And is that just as to the fraud claims?

[00:11:56] Speaker 04:
That's correct.

[00:11:57] Speaker 01:
Okay, sorry.

[00:11:58] Speaker 04:
And just to be clear, this goes to the question of defect, and I think to answer your question on Wolin, the reason the court took them out is there wasn't any evidence

[00:12:07] Speaker 04:
that Ford was aware of any defects because there wasn't any evidence of any increased customer complaints or warranty.

[00:12:15] Speaker 04:
And this is a defect that's based on whether or not it's adequately dampening.

[00:12:18] Speaker 01:
But he did not certify those.

[00:12:19] Speaker 01:
He didn't certify the middle two.

[00:12:21] Speaker 04:
On the frog clips, that's correct.

[00:12:23] Speaker 01:
Right.

[00:12:23] Speaker 01:
OK.

[00:12:23] Speaker 04:
Right.

[00:12:25] Speaker 04:
And he didn't certify them because there was no evidence that for those nine years when they were using a different damper from a different company that there was any elevated

[00:12:35] Speaker 04:
reports of this oscillation.

[00:12:38] Speaker 00:
Those periods were certified for other claims, right?

[00:12:42] Speaker 04:
That's correct, and there's other problems with those claims.

[00:12:44] Speaker 00:
I guess what I'm trying to get at is this manifestation question.

[00:12:47] Speaker 00:
I'm sort of seeing that as a perhaps a foundational issue that then bleeds into all the different claims, but I'm not quite sure I'm seeing that correctly.

[00:12:55] Speaker 04:
So manifestation is really

[00:13:00] Speaker 04:
First of all, on the merits, it's relevant to the implied warranty claim because in South Carolina, you have to have manifestation of the defect.

[00:13:08] Speaker 04:
And that wasn't true in Wolin.

[00:13:09] Speaker 01:
And Maine.

[00:13:10] Speaker 04:
South Carolina and Maine.

[00:13:12] Speaker 04:
In Maine, it's also true, but they lost their name plaintiff in Maine, so they don't have a name plaintiff.

[00:13:16] Speaker 01:
But it's also true.

[00:13:17] Speaker 01:
It was contingently certified.

[00:13:18] Speaker 01:
They have to come up with another.

[00:13:19] Speaker 01:
Yes.

[00:13:20] Speaker 01:
Okay, so.

[00:13:20] Speaker 04:
Not fighting that at all.

[00:13:22] Speaker 01:
All right.

[00:13:22] Speaker 04:
Absolutely agree.

[00:13:23] Speaker 04:
In both of those states, you have to have manifestation.

[00:13:26] Speaker 04:
That wasn't true in Wolin.

[00:13:27] Speaker 04:
that wasn't a substantive requirement.

[00:13:28] Speaker 01:
So because of Wolin or because of what may have been a misreading of Wolin, they made no effort to show manifestation, is that right?

[00:13:36] Speaker 04:
Right, they said we don't have to because of Wolin, so they didn't even try.

[00:13:42] Speaker 01:
What's the right answer then, Council?

[00:13:43] Speaker 01:
Forgive me for interrupting, but we have a time issue here.

[00:13:47] Speaker 01:
So I'm trying to figure out what the right answer is.

[00:13:48] Speaker 01:
If they have misread Wolin to understand that manifestation is irrelevant, do we send

[00:13:56] Speaker 00:
this one issue out of so very many issues in this case are they entitled to take another run at that well we wouldn't think so I mean they put on their best shot and and they they didn't even argue not only you know that I guess I'm not quite sure I understand that because then the just we would be saying the district court misapplied the law and why wouldn't we send it back to the district court with a correction of the law and then say reanalyze this

[00:14:17] Speaker 01:
But it's not their best shot if they misunderstood the line.

[00:14:19] Speaker 01:
In fact, in my understanding, the record is they took no shot because they thought it was irrelevant.

[00:14:23] Speaker 01:
They didn't try to prove manifestation or that they could prove that in a comma.

[00:14:30] Speaker 04:
If the court wanted to send it back, they're not going to be able to show that where manifestation is required, that they can get a class certified.

[00:14:38] Speaker 04:
That would be... That's above our pay grade.

[00:14:39] Speaker 04:
And they could have argued it below, right?

[00:14:40] Speaker 04:
They could have said there's two reasons.

[00:14:42] Speaker 04:
One, it's common.

[00:14:44] Speaker 04:
And two, it's not required, or vice versa.

[00:14:45] Speaker 04:
They didn't even try to make that argument.

[00:14:47] Speaker 04:
I do want to save some time to rebuttal if that's... You're out of time.

[00:14:51] Speaker 01:
But we'll give you a little bit of time for a rebuttal, but I don't think we're done with you yet.

[00:14:55] Speaker 01:
Oh, yeah, please.

[00:14:55] Speaker 04:
I mean, it's your time.

[00:14:56] Speaker 01:
Judge Smith, do you have additional questions?

[00:14:59] Speaker 01:
No.

[00:15:00] Speaker 01:
Judge Forrest?

[00:15:03] Speaker 01:
Hang on just one minute.

[00:15:04] Speaker 00:
So does manifestation relate at all to the express warranty claim?

[00:15:08] Speaker 04:
That's not an argument we're making now.

[00:15:10] Speaker 04:
The express warranty claim is non-certifiable, we submit, because it requires, in all of the states, evidence that the individual owner presented their car for repair and did not get it repaired after multiple efforts.

[00:15:26] Speaker 00:
And that is an individualized proof, as shown again by the... So my understanding from your argument, then, is manifestation is relevant to some degree or another as to the implied warranty and to fraud?

[00:15:36] Speaker 04:
That's correct.

[00:15:37] Speaker 00:
Anything else?

[00:15:38] Speaker 04:
And just to clarify on the fraud, it's not a required element of proving fraud, that's not what we're saying.

[00:15:44] Speaker 04:
What we're saying is given the way they're trying to prove the defect, then you have to understand the manifestation rates to know if it's working or not.

[00:15:51] Speaker 01:
Thank you, Counsel.

[00:16:05] Speaker 01:
Also, forgive me for jumping right in, but maybe I'll let you state your appearance first and then I'll jump right in.

[00:16:11] Speaker 03:
Thank you, Your Honor.

[00:16:11] Speaker 03:
Good afternoon.

[00:16:12] Speaker 03:
May it please the Court?

[00:16:13] Speaker 03:
My name is David Wright.

[00:16:14] Speaker 03:
I represent the class plaintiffs and the class members in this action.

[00:16:17] Speaker 01:
There's an inconsistency between the original order and then the motion, sorry, the order on reconsideration, and I want to make sure we have this right.

[00:16:26] Speaker 01:
I just want to make sure that you agree with the opposing counsel's statement for the fraud-based claims, that the Court certified the first and the last

[00:16:35] Speaker 01:
Model I guess it is a and D so certified p356 and p473 but only as to the fraud based claims is that right?

[00:16:47] Speaker 03:
Yes, although I guess with one clarification I think your honor was talking about the motion for reconsideration there was there was only one change in the motion for reconsideration there had been a Texas cause of action that had been dismissed at the pleading stage That wasn't properly accounted for the court in its class cert ruling

[00:17:02] Speaker 03:
did with regard to the fraud claim only certify the class as to the first generation, P131, and the last generation, P558.

[00:17:12] Speaker 01:
I wasn't talking about the previously dismissed claim.

[00:17:15] Speaker 01:
I just want to make sure that we're clear on the other what may have been a typographical error or a Scrivener's error.

[00:17:23] Speaker 01:
And that's not being contested by Ford.

[00:17:26] Speaker 01:
We'll talk when you come back.

[00:17:29] Speaker 01:
Do you know what I'm talking about?

[00:17:30] Speaker 01:
I think the court flipped the certified classes and the uncertified only in the second order.

[00:17:38] Speaker 03:
The certified class for the fraud claim and for the statutory consumer protection claims was the first generation 131 and the last generation 558.

[00:17:51] Speaker 03:
All right.

[00:17:55] Speaker 03:
Thank you, Your Honor.

[00:17:58] Speaker 03:
May I please the court?

[00:17:59] Speaker 03:
Ford's argument here is not that the district court misunderstood or misapplied Rule 23.

[00:18:05] Speaker 03:
Ford's argument is that Rule 23 itself, the class action procedure, violates due process.

[00:18:13] Speaker 03:
And it does so in this way.

[00:18:16] Speaker 03:
Ford challenges essentially the very nature of the predominance requirement of Rule 23B3.

[00:18:23] Speaker 03:
It has, what it has done is said, look, the district court

[00:18:27] Speaker 03:
considered all of our defenses in the summary judgment motion, made findings on that.

[00:18:37] Speaker 03:
And because it considered plaintiff-specific evidence, it necessarily then means that plaintiff-specific evidence must be considered in the class action.

[00:18:49] Speaker 03:
But the court didn't rule that there weren't individualized inquiries that may still need to be made.

[00:18:55] Speaker 03:
What the court did was made a very careful analysis of all the plaintiff's claims and found that the claims for which there is common proof, the claims for which there is a common theory and common evidence, predominate.

[00:19:13] Speaker 03:
Those include claims of

[00:19:20] Speaker 03:
the common defect, the manifestation.

[00:19:25] Speaker 03:
It even included presentment, that that could be done with Ford's repair records.

[00:19:30] Speaker 03:
It included a common fix.

[00:19:34] Speaker 03:
And that's a really important aspect here, is that we're not dealing with, and it crosses over into merits a little, I guess, but we're not dealing with a theoretical defect.

[00:19:45] Speaker 03:
Ford knew since 2005

[00:19:48] Speaker 03:
that its vehicles were prone to and susceptible to violent shaking suddenly at freeway speeds for no reason other than the vehicle would contact either an expansion joint in the road or a pothole or some other irregularity that would set up a violent shaking, not just a transitory violent shaking, a self-sustaining oscillation.

[00:20:12] Speaker 01:
We understand.

[00:20:14] Speaker 01:
I'm concerned about this being, unlike many of our cases,

[00:20:17] Speaker 01:
where the statute of limitations or facially claims that appear to be facially too old, too stale, don't defeat class certification because we're talking about almost 20 years here.

[00:20:30] Speaker 01:
Yes.

[00:20:30] Speaker 01:
It's a very long time.

[00:20:31] Speaker 01:
And I think you're relying on tolling theories.

[00:20:34] Speaker 01:
And this is one part of your claim where I'm not sure I understand what the court relied upon or what you offered in the district court to show that tolling or the basis for tolling could be established with common proof.

[00:20:47] Speaker 03:
So the establishment for common proof would be Ford's concealment.

[00:20:52] Speaker 03:
And the court actually did expressly in its order deal with it because first in the summary judgment.

[00:20:56] Speaker 01:
Well, Ford's concealment, are we talking about the technical service bulletins?

[00:21:00] Speaker 03:
I'm sorry?

[00:21:00] Speaker 01:
Are you talking about the technical service bulletins?

[00:21:02] Speaker 01:
What evidence is it?

[00:21:04] Speaker 03:
What is it?

[00:21:04] Speaker 03:
Oh, what specific comment evidence would there be?

[00:21:07] Speaker 03:
Yes.

[00:21:07] Speaker 03:
It would be A, Ford's knowledge of the danger of sustained steering oscillation.

[00:21:14] Speaker 03:
its misinformation to its consumers and to the public.

[00:21:18] Speaker 01:
Is that about the entire the tire inflating bulletins?

[00:21:21] Speaker 03:
That includes the tire inflating bulletin, that includes Ford's statements through its dealers to customers that this is because of the wear of parts, lack of maintenance, aftermarket modifications.

[00:21:34] Speaker 03:
It had a laundry list of things.

[00:21:36] Speaker 03:
Ford did not admit until

[00:21:39] Speaker 03:
until 2020 when it announced its customer service program.

[00:21:44] Speaker 03:
That was the first time Ford acknowledged to any of its customers that its vehicles had a problem with sustained steering wheel oscillation.

[00:21:53] Speaker 01:
We appreciate that.

[00:21:53] Speaker 01:
It's in your briefing.

[00:21:54] Speaker 01:
But I'm still concerned.

[00:21:56] Speaker 01:
This is, you know, many different models, many different years over a 20-year span.

[00:22:01] Speaker 01:
And I'm trying to figure out if there's a place in the record where there was an attempt to just chronologically

[00:22:08] Speaker 01:
walk this out, play this out, the allegations of common proof that you show would have suffice to establish tolling.

[00:22:19] Speaker 03:
And we presented those to the... Is it in the district court record?

[00:22:23] Speaker 03:
We presented them to the district court.

[00:22:27] Speaker 03:
In the motion for class certification, it's very detailed.

[00:22:33] Speaker 03:
You have the exhibits in the excerpt of record.

[00:22:36] Speaker 03:
We lay out the evidence of what Ford knew, when Ford knew it, and the when Ford knew it.

[00:22:41] Speaker 01:
And so where do I look for that in that?

[00:22:44] Speaker 03:
Well, it would be in the declaration of David Seawright in support of plaintiffs' motion for class certification.

[00:22:52] Speaker 00:
So I'll just say, I mean, I alluded to this in a question from opposing counsel, but it's hard to understand how all of these required things are subject to common proof when all of these models from all of these years are in one class together, because there are admitted differences between the models.

[00:23:14] Speaker 00:
the manufacturer of the concern that we have in this case, the part is changing and apparently there's failure rates or manifestation rates that change, correlated to that change.

[00:23:28] Speaker 00:
So there are differences between the models.

[00:23:31] Speaker 00:
And so how is it that you're going to prove defect, manifestation, knowledge of a problem when those things have changed over time with the model changing?

[00:23:40] Speaker 03:
Because it's a common design defect, it's a common front suspension architecture.

[00:23:44] Speaker 00:
I understand we're talking about one part.

[00:23:47] Speaker 00:
One part, same part over time, still not working right.

[00:23:50] Speaker 00:
But there have been changes to how it's configured or where it's manufactured from or whatever that is impacting performance.

[00:23:58] Speaker 03:
And I guess my response to that is,

[00:24:01] Speaker 03:
It is a design of the front suspension.

[00:24:04] Speaker 03:
To say it's one part is a... The gloss that opposing counsel keeps shaking his head no about every time you say it.

[00:24:11] Speaker 01:
So, yeah.

[00:24:12] Speaker 03:
Each of these four generation of vehicles have the same mono-beam front suspension.

[00:24:18] Speaker 03:
That means it's a single shaft between the front two wheels.

[00:24:22] Speaker 03:
That's significant because mono-beam suspension architecture is susceptible to sustained steering wheel oscillation.

[00:24:29] Speaker 03:
also known as death wobble, where energy is introduced into the system and that's what makes the wheels shake violently and you have to slow or stop the vehicle to, or dramatically slow the vehicle to get it to stop.

[00:24:42] Speaker 03:
So the way you manage that is with a steering damper, okay?

[00:24:46] Speaker 03:
The steering damper is what absorbs the energy that's introduced into the system.

[00:24:50] Speaker 01:
Council, we have read the briefing, but I don't think you're answering Judge Forrest's question.

[00:24:53] Speaker 00:
That's the thing that you want to say is a defect, is the damper wasn't effective.

[00:24:57] Speaker 00:
how it was put in there, how it was working, if it's a part, whatever, isn't working correctly.

[00:25:02] Speaker 00:
But that is changing over time.

[00:25:05] Speaker 03:
And this goes, not to jump to the end of the story, they changed it in a series of efforts secretly, because they're not disclosing to anybody that the damper's behind this from 2005 until 2020.

[00:25:17] Speaker 03:
They are modifying the damper through the three generations, unsuccessfully preventing, unsuccessfully attempting

[00:25:26] Speaker 03:
to prevent sustained steering oscillation.

[00:25:28] Speaker 01:
Maybe I could ask it this way.

[00:25:30] Speaker 01:
To what extent are you relying on the kitchen sink fix at the end?

[00:25:33] Speaker 03:
So that's what I was getting.

[00:25:35] Speaker 01:
Cut to that choice, please.

[00:25:36] Speaker 03:
That's what I was getting to, which is in 2020, Ford finally, after this lawsuit was filed, after the William Clay Ford got involved, finally put its resources and developed a kitchen sink damper.

[00:25:49] Speaker 03:
And what they found was the kitchen sink damper

[00:25:52] Speaker 03:
which is what they ultimately in 2022 developed and implemented in their customer service program, was the first damper since 2005 to effectively eliminate sustained steering wheel oscillation.

[00:26:09] Speaker 03:
And they made it retroactive to each of the generations.

[00:26:12] Speaker 03:
They didn't just do it for the 558, they did it for the 473, the 356, and the 151.

[00:26:19] Speaker 03:
and made a conversion part because that is what addressed it.

[00:26:22] Speaker 01:
The question is how, given that there were all of these differences along the way over the course of 20 years and it's an important question, how are you going to offer common proof?

[00:26:32] Speaker 01:
Is it just the kitchen sink that you're going to rely upon, the kitchen sink fix and then ask the jury to sort of reverse engineer that this was the common defect or what are you going to do?

[00:26:45] Speaker 03:
No, Your Honor, we're going to show, we're going to present to the jury

[00:26:48] Speaker 03:
Ford's automobile designer's own discussions, their own email and their own frustrations about the problem of sustained steering wheel oscillation that these cars were having, these vehicles were having throughout all four generations.

[00:27:03] Speaker 03:
We're going to show from Ford's warranty claim rates that sustained steering oscillation, which is a condition that Ford has a zero tolerance for,

[00:27:11] Speaker 03:
existed throughout all four generations of vehicles and that these conversations with its design engineers and these warranty claim rates were known to Ford from the time of the 2005, launch of the 2005 on through they're finally addressing it in the customer service program.

[00:27:31] Speaker 02:
I take your position to be that yes there were changes over time but it was like a great continuum.

[00:27:39] Speaker 02:
Basically the same problem

[00:27:41] Speaker 02:
dealing with the same thing, but it's like it's all bound together.

[00:27:44] Speaker 02:
The fact that you have a little thing here, a little thing there, it's still part of the same initial problem.

[00:27:50] Speaker 02:
And from your perspective, that is a common problem.

[00:27:52] Speaker 03:
Is that correct?

[00:27:53] Speaker 03:
That is exactly correct.

[00:27:54] Speaker 03:
We have identified one common defect.

[00:27:57] Speaker 03:
We have a single definition for it.

[00:27:59] Speaker 03:
It manifests in the same way, one way.

[00:28:03] Speaker 03:
This says we don't, we're not throwing everything at the wall.

[00:28:06] Speaker 03:
There's a single common defect and it exists as important.

[00:28:09] Speaker 03:
That single common defect exists at the point of sale.

[00:28:13] Speaker 01:
So is it your, was it not your position that you didn't need to show manifestation because of Woolen?

[00:28:19] Speaker 03:
We did not need to show manifestation because of Woolen.

[00:28:21] Speaker 01:
What if we say otherwise?

[00:28:22] Speaker 01:
What if we think you're misreading Woolen?

[00:28:24] Speaker 01:
Then what happens?

[00:28:26] Speaker 03:
If there were to be a change in the law and manifestation were to be required,

[00:28:30] Speaker 03:
then we, or if we misread Wollin and manifestation would be required, we would be using things like Ford's repair records to establish manifestation, Ford's warranty claim rates to establish manifestation.

[00:28:46] Speaker 03:
We could still take on that evidentiary burden on a common basis based on common evidence that's in Ford's possession.

[00:28:53] Speaker 01:
Okay, so I don't know the answer to this question.

[00:28:58] Speaker 01:
Would I be correct in understanding that you haven't tried to do that yet?

[00:29:02] Speaker 01:
That is, not prove it, but offer the types of common evidence that would allow you to show manifestation because you understood you didn't have to?

[00:29:13] Speaker 01:
Opposing counsel argues that your position in the district court was that manifestation was irrelevant because of Woolen.

[00:29:20] Speaker 01:
I'm paraphrasing.

[00:29:22] Speaker 03:
We do believe that manifestation was irrelevant because of Wolin.

[00:29:25] Speaker 01:
I know that.

[00:29:26] Speaker 01:
My question is not that, sir.

[00:29:27] Speaker 01:
My question is not that.

[00:29:29] Speaker 01:
I know that is your read of Wolin, but my hypothetical, just hypothetical, if we think that is not correct, is it the case that the trial court heard how you would have your theory about what combat evidence could be used to show manifestation, or is it the case that you haven't taken a run at that yet?

[00:29:50] Speaker 03:
So when you say we haven't taken a run, in the record, we do have implied, we do have warranty claim rates.

[00:29:57] Speaker 03:
In the record, we do have customer complaints to Ford.

[00:30:03] Speaker 03:
All of those would be related to manifestation.

[00:30:06] Speaker 01:
I didn't ask a good question.

[00:30:07] Speaker 01:
It's not that I think the evidence isn't there.

[00:30:10] Speaker 01:
My question is really going to what argument did you make because I don't see it in this order that the district court relied on, you know,

[00:30:18] Speaker 01:
It's irrelevant but even if it weren't irrelevant, they can do it.

[00:30:21] Speaker 01:
They have the common evidence that's available.

[00:30:24] Speaker 03:
And the answer that we really didn't, I don't think that manifestation argument was developed.

[00:30:29] Speaker 03:
There wasn't a oral argument on the class cert motion so it was ruled on the papers and there was no further record developed outside of the papers themselves.

[00:30:40] Speaker 01:
That's helpful.

[00:30:41] Speaker 01:
Thank you.

[00:30:47] Speaker 03:
I think to conclude,

[00:30:49] Speaker 03:
What is important here is, again, the idea of predominance and the idea of the district court made a meticulous record balancing the individual issues versus common proof issues, found that there was predominantly common issues, found that this was manageable and that the court could develop an efficient way to deal with any individual issues that remained.

[00:31:15] Speaker 03:
If the court decertifies the class, that will,

[00:31:19] Speaker 03:
prevent tens of thousands or hundreds of thousands of plaintiffs from having their claim heard because of the practical impediments to bringing in complex action like this when you're dealing with a flaw that while it may cost thousands of dollars, and there's a lot of consumers that have spent thousands of dollars,

[00:31:37] Speaker 03:
It's not sufficient for the individual plaintiffs to pursue this type of action on its own.

[00:31:42] Speaker 03:
And that's why Rule 23 and its predominance requirement is so important and why the individual issues here do not predominate.

[00:31:49] Speaker 03:
Because if they don't predominate for this class, there's not many classes they would.

[00:31:53] Speaker 03:
If we're going to say personal use,

[00:31:55] Speaker 03:
defeats class certification, then we're going to say any consumer protection statute that has as an element personal use can no longer be educated with the class action device.

[00:32:07] Speaker 03:
And that would be incredibly injurious to consumers across the nation.

[00:32:13] Speaker 01:
Anything further?

[00:32:14] Speaker 01:
Looks like not.

[00:32:15] Speaker 01:
Thank you, Council.

[00:32:16] Speaker 03:
Thank you.

[00:32:24] Speaker 04:
Thank you for your indulgence.

[00:32:25] Speaker 04:
To answer your question about the typo, it was a typo.

[00:32:28] Speaker 04:
Clearly on page seven, the court said only the 356 and 473s are certified.

[00:32:32] Speaker 04:
Those are the ones that were not certified.

[00:32:34] Speaker 01:
They flipped.

[00:32:35] Speaker 01:
I think we all agree with that.

[00:32:36] Speaker 04:
It was flipped.

[00:32:37] Speaker 04:
OK.

[00:32:37] Speaker 04:
Yes.

[00:32:37] Speaker 04:
The two issues I just want to address briefly are this kitchen sink theory that Ford somehow admitted its knowledge in 2020.

[00:32:42] Speaker 04:
The new Hitachi damper that Ford adopted in 2020 was a new damper that wasn't available before.

[00:32:49] Speaker 04:
That's what the evidence shows that Ford adopted it because the Teneco damper

[00:32:54] Speaker 04:
uniquely, unlike the prior dampers, had a manufacturing defect problem.

[00:32:58] Speaker 04:
There's too much air, so it didn't work the way it was supposed to.

[00:33:00] Speaker 04:
So Ford corrected that problem, got a Hitachi damper, and then said anybody who comes in who's got a problem, you know, who says they've got oscillation can

[00:33:12] Speaker 04:
You have this damper.

[00:33:13] Speaker 00:
It doesn't establish any of the models for all of the years that we care about.

[00:33:16] Speaker 04:
I think that's right.

[00:33:17] Speaker 04:
But that doesn't show that that's not a concession.

[00:33:18] Speaker 04:
There was a defect.

[00:33:19] Speaker 04:
There's all kinds of owner issues, right?

[00:33:22] Speaker 04:
A warranty claim, a fraud claim are not consumer report, you know, consumer bureau claims.

[00:33:28] Speaker 04:
Owners may not be, you know, satisfied with the oscillation.

[00:33:31] Speaker 04:
You bring it in and you fix it.

[00:33:32] Speaker 04:
And that's what they did.

[00:33:33] Speaker 04:
That's not a concession that they were defective before.

[00:33:36] Speaker 04:
Because in real time, the evidence shows, there's basically no reports of any problems.

[00:33:42] Speaker 04:
As to the common defect, Judge Smith's question about it being the same problem over time, that's just not what the evidence shows.

[00:33:50] Speaker 04:
For nine years, nine years, there was just no complaints, there were no warranty rates that were different from sort of any other vehicle.

[00:33:58] Speaker 04:
It just didn't exist.

[00:33:59] Speaker 04:
It wasn't like your case in Nguyen, Judge Smith, where you had one clutch with one problem that existed throughout the vehicles, and the court said that that kind of thing didn't prevent at least this to the damages.

[00:34:10] Speaker 04:
didn't prevent a classification.

[00:34:12] Speaker 04:
This is a completely different situation.

[00:34:14] Speaker 02:
And similarly, from your perspective, then, the fact that the issue was, if you will, of a common nature, the shimmy and so on, doesn't allow the plaintiffs to tie this all together.

[00:34:29] Speaker 02:
Is that correct?

[00:34:30] Speaker 04:
In this case, with this evidence, that's correct because what they're alleging is that they shimmy, have the sustained oscillation.

[00:34:39] Speaker 04:
Well, all 100% of cars that have been sold for 100 years that have a mono-beam front axle have sustained oscillation.

[00:34:46] Speaker 04:
You just have to prevent it.

[00:34:47] Speaker 04:
And lots of things can cause it.

[00:34:49] Speaker 04:
Right?

[00:34:49] Speaker 04:
All kinds of things, worn tires, wear on the axle.

[00:34:52] Speaker 04:
And so when somebody comes in and says, I just had this experience, you can fix it lots of different ways depending on what has just caused it.

[00:34:59] Speaker 04:
That's the problem here.

[00:35:00] Speaker 04:
It's architecture.

[00:35:01] Speaker 04:
So many things can contribute to it, both the performance overall and individual instances of it.

[00:35:08] Speaker 04:
So it's not like one problem with one component.

[00:35:11] Speaker 02:
I think you're the one that mentioned you had a damper that didn't work.

[00:35:14] Speaker 02:
It was defective.

[00:35:16] Speaker 02:
Ford substituted something else to correct the problem, but the problem was still the same.

[00:35:21] Speaker 02:
It was just manifested in different ways.

[00:35:23] Speaker 02:
Ford tried to fix it, but it was the same problem.

[00:35:26] Speaker 02:
Isn't that correct?

[00:35:27] Speaker 04:
Not over the class period for sure, your honor.

[00:35:29] Speaker 04:
It was a completely different, to the extent there were higher reports in the 2005-2007 period that had zero to do with the nonexistent tentacle damper that was later not working the way it was supposed to.

[00:35:42] Speaker 04:
Then you have basically no problems, conceitedly, for nine years.

[00:35:45] Speaker 04:
There's just nothing is going on.

[00:35:47] Speaker 04:
Everything is working just as it's supposed to.

[00:35:49] Speaker 04:
And then a new damper comes in that demonstrates some problems.

[00:35:52] Speaker 04:
And Ford immediately responds by fixing that problem.

[00:35:55] Speaker 04:
the same problem in the sense of the same defect, right?

[00:35:58] Speaker 04:
You're not talking about, you know, a clutch that just fails, where the evidence shows that it's substantially certain to fail, as some courts will say.

[00:36:06] Speaker 04:
You can statistically show that, and then you can get, you know, it's the same problem.

[00:36:10] Speaker 04:
This is just something that's inherent.

[00:36:11] Speaker 04:
Their own expert says it's inherent to the existence of a monobib axle.

[00:36:15] Speaker 04:
Lots of things can cause a given instance of it, and lots of things can be done to prevent that.

[00:36:23] Speaker 04:
And so they're just not the kind of evidence here that they can cite.

[00:36:28] Speaker 04:
They're trying to cite that would establish a common problem, certainly not one that Ford was aware of for the entire period.

[00:36:36] Speaker 04:
Thank you, Your Honors.

[00:36:37] Speaker 01:
Thank you all for your advocacy.

[00:36:38] Speaker 01:
We appreciate it very much.

[00:36:39] Speaker 01:
We'll take that case under advisement.

[00:36:41] Speaker 01:
We'll stand in recess for the day.

[00:36:57] Speaker 01:
This court for this session stands adjourned.