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Boyle v. Progressive Specialty Insurance Co.

United States District Court, E.D. Pennsylvania

June 7, 2018

JAMES BOYLE, SR., on behalf of himself and others similarly situated
v.
PROGRESSIVE SPECIALTY INSURANCE COMPANY

          MEMORANDUM OPINION

          Savage, J.

         Plaintiff, James Boyle, Sr., [1] moves to certify this putative class action filed on behalf of all Pennsylvania policyholders of the defendant automobile insurer Progressive Specialty Insurance Company whose cars were equipped with passive antitheft devices and did not receive the statutorily mandated ten percent discount on their premium for comprehensive coverage for the period from 2005 to 2018. He alleges that Progressive violated the passive antitheft device discount provision of Pennsylvania's Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa. Cons. Stat. Ann. § 1799.1. He also contends that Progressive breached the implied terms of its insurance contracts when it failed to give the antitheft device discount as promised in its rate filings with the Pennsylvania Insurance Commissioner.

         Opposing certification, Progressive argues that the plaintiff cannot satisfy the commonality, typicality, adequacy, predominance, and superiority requirements of Federal Rule of Civil Procedure 23. It also contends that the plaintiff has not met the ascertainability standard because he “cannot identify any reliable sources from which to determine, class-wide, which vehicles are equipped with qualifying antitheft devices, ” improperly shifting “ the burden to [Progressive] to identify all insureds whose vehicles are equipped with qualifying antitheft devices.”[2]

         Contrary to Progressive's contentions, the requirements of Rule 23(a) are satisfied, and a class action is superior to other methods for the fair and efficient adjudication of the issues. Also, class members can be reliably and easily identified using objective criteria. Therefore, because this action qualifies for class certification under Rule 23(b)(3), the motion will be granted.

         Procedural Background

         This action was one of twelve putative class actions filed at the same time against automobile insurers based on the same statutory and state law claims.[3] After the cases were consolidated, two actions were voluntarily dismissed. In the remaining cases, the plaintiffs and the defendants each filed cross-motions for summary judgment, and the plaintiffs moved to certify a class in each action.

         Although a ruling on the motions for class certification would typically precede disposition of the motions for summary judgment, the parties requested a decision on the summary judgment motions before considering the class certification motions. See Willisch v. Nationwide Ins. Co. of Am., 852 F.Supp.2d 582, 587 (E.D. Pa. 2012). After the summary judgment decision, the plaintiffs submitted amended class certification motions.[4] While these motions were pending, an additional action was filed against another Nationwide insurer.[5] The parties then engaged in extensive settlement negotiations and mediation. Ten insurers reached pre-certification settlement agreements, which were approved in nine of those cases. The remaining case was dismissed under Local R. Civ. P. 41.1(b). Progressive is the only insurer that did not settle.

         Before embarking on an analysis of the class certification issues, it is necessary to discuss the summary judgment ruling. It is central to the dispositive factual and legal issues that bear on the Rule 23(a) and (b)(3) requirements.

         The Pennsylvania antitheft device discount provision reads:

§ 1799.1. Antitheft devices
(a) General rule.-- All insurance companies authorized to write private passenger automobile insurance within this Commonwealth shall provide premium discounts for motor vehicles with passive antitheft devices. These discounts shall apply to the comprehensive coverage and shall be approved by the commissioner as part of the insurer's rate filing, provided that such discounts shall not be less than 10%. Some or all of the premium discounts required by this subsection may be omitted upon demonstration to the commissioner in an insurer's rate filing that the discounts are duplicative of other discounts provided by the insurer.
(b) Definitions.-- As used in this subsection, the following words and phrases shall have the meanings given to them in this subsection unless the context clearly indicates otherwise:
Passive antitheft device.” Any item or system installed in an automobile which is activated automatically when the operator turns the ignition key to the off position and which is designed to prevent unauthorized use, as prescribed by regulations of the commissioner. The term does not include an ignition interlock provided as a standard antitheft device by the original automobile manufacturer.

75 Pa. Cons. Stat. Ann. § 1799.1.

         On summary judgment, the parties interpreted the statute differently. The plaintiffs contended that their vehicles were equipped with “passive antitheft devices” as defined in the statute, and the insurers did not give them the discount. The insurers argued that they were not required to give the plaintiffs the discount because their vehicles were not equipped with qualifying devices and they did not request the discount.

         Ruling on the cross-motions for summary judgment, we held that automobile insurers must give a ten percent discount on the premium for comprehensive coverage to all insureds whose vehicles are equipped with qualifying antitheft devices - whether or not the insured requests it. Willisch, 852 F.Supp.2d at 587, 594. Accordingly, any insurer who fails to apply the antitheft discount to an insured whose insured vehicle is equipped with a passive antitheft device as defined in § 1799.1(b) violates the statute. We also concluded that the failure to give the discount to those insureds whose vehicles contain passive antitheft devices as defined in the insurers' rate filings constitutes a breach of the implied terms of the insurance contracts. Id. at 609- 10.

         In each of the ten related putative class actions, we determined that thirteen of the plaintiffs' sixteen vehicles were equipped with passive antitheft devices[6] as defined in the antitheft device discount statute, qualifying them for the discount. In conducting the analysis, we considered evidence, [7] including the insurers' two experts' reports, [8]showing how and when the engine immobilizer devices installed as original equipment in the sixteen vehicles were armed or activated.[9]

         The 1997 Cadillac Eldorado, 2002 Buick Rendezvous, 2000 Chevy Blazer, 2004 Chrysler Pacifica, 2005 Jeep Liberty Renegade, 2003 Dodge Neon, 2001 Ford Taurus LX, 2004 Ford Explorer, 2008 Ford Expedition, 2008 Ford Expedition, 2000 Lincoln Town Car, 2006 Mercedes CLK 350, 2007 Mercedes GL 450 and 2007 Nissan Murano each were equipped with one of those types of qualifying devices as standard equipment. Accordingly, we held that the named plaintiffs who insured those vehicles were entitled to the discount. Willisch, 852 F.Supp.2d at 605-06.[10] In short, once we found that one manufacturer's device in a vehicle qualified, we concluded that all vehicles equipped with that same type device qualified.

         We determined that one system did not qualify, and we were unable to determine whether another did. Specifically, we found that the alarm system on the 2006 Hyundai Sonata did not qualify as “passive” because the vehicle's doors had to be locked to activate the alarm. Id. at 607. We also found there was insufficient evidence to determine if the Honda Immobilizer System in the 2008 Accord qualified as “passive” because the owner's manual did not describe how it activates. Id. at 606.

         With respect to the plaintiff's motion for class certification and the identification of class members, Progressive has a database identifying each vehicle, by make, model and year, that it insured for comprehensive loss during the class period and which did not receive the discount.[11] Thus, identifying Progressive's insureds who had comprehensive coverage and did not receive a passive antitheft device discount is easily done.

         It is not so easy, however, to identify which class members' vehicles contain a qualifying engine immobilizer as standard, as opposed to optional, equipment. Nevertheless, it can be done. At the time of oral argument on the motion for class certification, the plaintiff's trial plan did not articulate a method for determining whether a particular vehicle came equipped with a qualifying antitheft device. The plaintiff has supplemented the record to address this deficiency by amending the proposed class definition and creating a chart, which we shall refer to as the Chart of Qualifying Vehicles, listing vehicles containing qualifying devices as standard equipment.[12]

         The plaintiff's proposed amended class definition limits qualifying vehicles to those equipped with one of the five types of passive antitheft devices that we identified in our summary judgment opinion as qualifying for the discount under the statute.[13] It provides as follows:

All policyholders of Progressive who, within the six years before the commencement of this case [November 19, 2009] through the date of the class certification order, had automobile insurance that included comprehensive insurance coverage on a vehicle registered in Pennsylvania, but did not receive at least a 10 percent antitheft discount on the premiums for that comprehensive insurance coverage, and: (a) who insured a make, model and year vehicle that has as standard equipment a Pass-Key or PassLock system, SecuriLock/PATS system, Sentry Key Immobilizer System, Nissan Vehicle Immobilizer System, or Mercedes Immobilizer system, as identified on the list of qualifying vehicles attached to the Goldstein Declaration; and (b) antitheft data available to Progressive from Polk, as supplemented by HLDI antitheft data if Polk codes the vehicle's antitheft device as “Unknown” or as having an unspecified “Antitheft Device, ” identifies the vehicle as having an engine immobilizer as standard equipment; and (c) Progressive's records show that it has given an antitheft discount in Pennsylvania to the same make, model, and year of vehicle.[14]

         To compile the Chart of Qualifying Vehicles, the plaintiff used owner's manuals, manufacturers' spreadsheets, manufacturers' specifications, product brochures and NHTSA notices.[15] To verify the information on the Chart of Qualifying Vehicles and to perform the “rigorous analysis” required, we ordered the plaintiff to amend it by adding citations to the specific sources that support placing each make, model, and year vehicle on it.[16] Progressive filed a response explaining why it contends that certain model year vehicles do not qualify.[17]

         Against this backdrop, we shall address the class certification requirements. In ruling on the summary judgment motions, we have decided several common legal and factual issues, informing the analysis.

         Analysis

         For a class action to be certified, the plaintiff must demonstrate that: (1) the size of the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims or defenses are typical of the class; and (4) the representatives will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 459 (2013). Additionally, the proposed class action must be one of the types recognized by Rule 23(b). City Select Auto Sales, Inc. v. BMW Bank of N. Am., Inc., 867 F.3d 434, 438 (3d Cir. 2017). Here, the plaintiff has moved for certification under subsection (b)(3), which requires that common questions of law or fact predominate over questions affecting only individual class members, and that the “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3); Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012) (citing In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010)). Additionally, a Rule 23(b)(3) class must be “currently and readily ascertainable based on objective criteria.” City Select, 867 F.3d at 439 (quoting Marcus, 687 F.3d at 593).

         The Rule 23 requirements are “not mere pleading rules.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 316 (3d Cir. 2008) (citation omitted). Each requirement must be “satisf[ied] through evidentiary proof.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). The plaintiff must do more than make a threshold showing. Reyes v. Netdeposit, LLC, 802 F.3d 469, 484 (3d Cir. 2015) (quoting Hydrogen Peroxide, 552 F.3d at 307). In other words, the plaintiff must make his case for certification when he moves for class certification. A promise that he will do so later is insufficient. Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 354, 358 (3d Cir. 2013); Hydrogen Peroxide, 552 F.3d at 318 (citing Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 191 (3d Cir. 2001)).

         Determining whether the plaintiff has established, by a preponderance of the evidence, facts necessary to satisfy the Rule 23(a) and 23(b)(3) prerequisites for class certification demands a “rigorous analysis.” Comcast Corp., 569 U.S. at 33; Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013) (quoting Hydrogen Peroxide, 552 F.3d at 309). The analysis looks beyond the pleadings. It entails a critical review of the elements of the cause of action through the “prism of Rule 23.” Hydrogen Peroxide, 552 F.3d at 311 (quoting Newton, 259 F.3d at 181). Resolving factual and legal disputes necessarily requires some inquiry into the merits. Carrera, 727 F.3d at 306 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011)). Oftentimes, resolving conflicts among experts will be necessary. Id. at 323-24; Hydrogen Peroxide, 552 F.3d at 323-24.

         The Four Requirements of Rule 23(a)

         Numerosity

         Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” Hayes, 725 F.3d at 356 (quoting Fed.R.Civ.P. 23(a)(1)).

         Numerosity is not an issue. During the class period, Progressive insured hundreds of thousands of vehicles in Pennsylvania for comprehensive loss that did not receive the antitheft device discount.

         Commonality

         Before the certification motion was filed, dispositive common and typical issues had already been determined. Consequently, commonality and typicality are satisfied. Nevertheless, we shall address them.

         The plaintiff must share a question of law or fact with the prospective class members. Commonality means “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (emphasis in original) (citation omitted).

         The commonality threshold is low. It “does not require identical claims or facts among class member[s].” Marcus, 687 F.3d at 597 (citation omitted). A single common question is sufficient. Dukes, 564 U.S. at 359 (citation omitted). So long as the plaintiff shares at least one question of fact or law with the grievances of the prospective class, the existence of individual facts and circumstances will not defeat commonality. In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 597 (3d Cir. 2009) (citation omitted).

         In this case, there are several common legal and factual questions. We have decided controlling common legal issues. We answered the question whether § 1799.1 mandates that Progressive give a ten percent discount on the premium for comprehensive coverage to all of its insureds whose vehicles are equipped with qualifying antitheft devices, even if they did not request it. We also answered the question of whether an insurer violates the antitheft device discount statute when it fails to give the discount to an insured whose vehicle is equipped with a passive device as defined in § 1799.1(b).

         All class members have these dispositive issues in common. Each had insured a vehicle equipped with a qualifying device for comprehensive coverage and did not receive the discount. Therefore, the commonality requirement has been met.

         Typicality

         The typicality prong of Rule 23(a) requires that the claims or the defenses of the plaintiff are typical of the class. Fed.R.Civ.P. 23(a)(3). While the “concepts of typicality and commonality are closely related and often tend to merge, ” typicality differs from commonality in “its ability to screen out class actions in which the legal or factual position of the representatives is markedly different from that of other members of the class even though common issues of law or fact are present.” Marcus, 687 F.3d at 597-98 (citations omitted).

         There are three distinct, but related, parts to the typicality assessment: (1) the class representative and the members of the class must share both the legal theory and the factual circumstances supporting that theory; (2) the class representative must not be subject to a defense that is both inapplicable to many members of the class and likely to become a major focus of the litigation; and (3) the class representative's interests and incentives must be sufficiently aligned with those of the class. Marcus, 687 F.3d at 598 (quoting Schering Plough, 589 F.3d at 598-99).

         Typicality requires a strong similarity of legal theories to ensure that the class representative's pursuit of his own goals will work to benefit the entire class. Barnes v. Am. Tobacco Co., 161 F.3d 127, 141 (3d Cir. 1998) (citing Baby Neal v. Casey, 43 F.3d 48, 57-58 (3d Cir. 1994)). Typicality is undermined where the plaintiff's claims are subject to unique defenses that may become the focus of the litigation. Schering Plough, 589 F.3d at 598 (quoting Beck v. Maximus, Inc., 457 F.3d 291, 301 (3d Cir. 2006)). Nevertheless, factual differences will not necessarily defeat typicality. As long as the claim arises from the same practice or course of conduct that affects the class members, or there is a “strong similarity of legal theories, ” typicality is satisfied. In re Nat'l Football League Players Concussion Injury Litig., 821 F.3d 410, 428 (3d Cir. 2016) (quoting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 311 (3d Cir. 1998)).

         Because we “cannot assess whether an individual is sufficiently similar to the class as a whole without knowing something about both the individual and the class, ” we must consider the attributes of the proposed representative and the class as a whole, and examine the similarity between the proposed representative and the class. Schering Plough, 589 F.3d at 597-98.

         Boyle, like the class members, claims he insured a vehicle for comprehensive insurance coverage and Progressive did not give him an antitheft device discount even though he qualified for one. Boyle insured two vehicles with Progressive, a 2001 Ford Taurus and a 1999 Jeep Grand Cherokee Limited. As addressed in more detail later, [18]both vehicles came equipped with a qualifying device. Boyle's 2001 Ford Taurus had a SecuriLock passive antitheft system and his 1999 Jeep Grand Cherokee had a “Vehicle Theft Security System with security alarm and Sentry Key Engine Immobilizer” as standard equipment. Thus, Boyle's claim is typical of the putative class.

         Adequacy of Representation

         Rule 23(a)(4) aims to protect the interests of the class members by ensuring that they are adequately represented. There are two parts to the adequacy test. One assesses the class representative's motivation and ability to protect the interests of the class members. The other goes to the competency of counsel.

         Testing the adequacy of the class representative assures that there are no divergent or conflicting interests between the class representative and the class members. Schering Plough, 589 F.3d at 602 (quoting In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 532 (3d Cir. 2004)). Additionally, the court must be confident that the “putative named plaintiff has the ability and the incentive to represent the claims of the class vigorously.” Larson v. AT & T Mobility LLC, 687 F.3d 109, 132 (3d Cir. 2012) (quoting Cmty. Bank of N. Va., 622 F.3d at 291). This part of the adequacy test tends to merge with the typicality requirements that the interests and incentives of the representative be sufficiently aligned with those of the class and the class representative and not be subject to defenses unique to the class representative. Schering Plough, 589 F.3d at 602 (citing Beck, 457 F.3d at 296).

         There are no conflicts or divergent interests between Boyle and the class members. Nothing will impair his ability to adequately protect the interests of the absent class members. Their interests are the same. Protecting his interest necessarily protects their interests. Therefore, Boyle has satisfied this part of the adequacy requirement.

         Turning to the adequacy of counsel, Rule 23(g) governs the analysis. It provides that in appointing class counsel, the court must consider four factors:

(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class.

Cmty. Bank of N. Va., 622 F.3d at 292 (quoting Fed.R.Civ.P. 23(g)(1)(A)). See also Sheinberg v. Sorensen, 606 F.3d 130, 132-33 (3d Cir. 2010). The court must also determine if counsel will fairly and adequately represent the interests of the class, Fed.R.Civ.P. 23(g)(4), and “may consider any other matter pertinent to counsel's ability” in order to do so. Fed.R.Civ.P. 23(g)(1)(B).

         Counsel is qualified to represent the class. They are experienced in handling class actions. We have observed their expertise and comprehensive knowledge of the law and the facts in the handling of this case and the related cases through class certification and settlement. They have already spent a significant amount of time working on this case and the related cases. They have conducted extensive investigation, drafting of pleadings, discovery, litigation of motions for summary judgment and motions for class certification, settlement negotiations, and mediations. They are knowledgeable of the applicable law. Counsel successfully negotiated settlement agreements with ten of the insurance companies in the related cases. They achieved court approval of pre-certification settlements in nine of those cases. Therefore, the adequacy of representation requirement is satisfied.

         The Requirements of Rule 23(b)(3) - Predominance and Superiority

         In addition to meeting the four requirements of Rule 23(a), the action must also qualify as one of the types of class actions described in Rule 23(b). In this case, the plaintiff has moved for certification under subsection (b)(3), which requires that common questions of law or fact predominate over questions affecting only individual class members, and that a “class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The plaintiff must satisfy both the predominance and the superiority elements of Rule 23(b)(3).

         In determining whether the action fits within Rule 23(b)(3), we consider the interest of class members in individually controlling the litigation, the status of ongoing litigation brought by members of the class, the desirability of concentrating the litigation in the particular forum, and likely management difficulties. Fed.R.Civ.P. 23(b)(3)(A)-(D). In the end, it is the interests of the individual members in controlling their own litigation that drives the predominance inquiry. The superiority analysis focuses on the advantages and disadvantages of using the class-action device in relation to other litigation methods.

         Predominance

         In a class action brought under Rule 23(b)(3), common questions of law or fact must predominate over questions affecting only individual members and must be a significant part of the individual cases. The predominance inquiry focuses on whether the elements of the claims of the class can be proven at trial with “common, as opposed to individualized, evidence.” Taha v. County of Bucks, 862 F.3d 292, 308 (3d Cir. 2017) (quoting Hayes, 725 F.3d at 359). Class certification is not appropriate if proof of the essential elements of the cause of action requires individual fact finding or application of different legal principles. In re Constar Int'l Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009) (citing Hydrogen Peroxide, 552 F.3d at 311). The evidence needed to prove each element of the plaintiff's legal claim must be capable of common proof rather than individualized proof. Marcus, 687 F.3d at 600. In other words, we must determine whether the claims can be proven with common, class-wide evidence. Id.

         The predominance standard under Rule 23(b)(3) is “even more demanding” than the requirements under Rule 23(a). Hayes, 725 F.3d at 359 (citing Comcast Corp., 569 U.S. at 34). See also Hydrogen Peroxide, 552 F.3d at 311 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). The plaintiff must “demonstrate that the element of [the legal claim] is capable of proof at trial through evidence that is common to the class rather than individual to its members.” Marcus, 687 F.3d at 600 (quoting Hydrogen Peroxide, 552 F.3d at 311). In conducting the predominance inquiry, the court must examine each element of a legal claim “through the prism of Rule 23(b)(3).” Marcus, 687 F.3d at 600 (citation omitted). Thus, we must predict how specific issues will play out at trial “in order to determine whether common or individual issues predominate in a given case.” Malack v. BDO Seidman, LLP, 617 F.3d 743, 746 (3d Cir. 2010) (quoting Hydrogen Peroxide, 552 F.3d at 311).

         The plaintiff is not required to prove his claims for purposes of the predominance inquiry. He need only show that he can establish the elements of his claim at trial by common, not individualized, proof. Sullivan v. DB Invs., Inc., 667 F.3d 273, 305 (3d Cir. 2011). “Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.” Amgen, 568 U.S. at 459 (emphases in original). The merits underlying the cause of action need be considered only to the extent that they are “enmeshed” with the certification inquiry. Comcast Corp., 569 U.S. at 34 (citations omitted). Although the plaintiff must submit some evidence that the elements of Rule 23(a) and (b)(3) are met, the plaintiff is not required to prove that the class will succeed.

         Boyle's claim is that the class members were entitled to the passive antitheft device discount under 75 Pa. Con. Stat. Ann. § 1799.1 and Progressive did not give it to them. The elements of the claim are: (1) the plaintiff insured a vehicle equipped with a passive antitheft device for comprehensive loss; (2) the device qualified under the statute for a discount; and (3) Progressive did not give him the discount. Each of these elements can be established by common proof. The evidence entitling him to relief is the same evidence applicable to the class members.

         Progressive has a database identifying each vehicle, by make, model and year that it insured for comprehensive loss during the class period. The Chart of Qualifying Vehicles identifies, by the make, model and year, the vehicles equipped with a type of passive antitheft device that we identified as qualifying for the discount under the statute. Comparing Progressive's database with the Chart of Qualifying Vehicles, the plaintiff can prove which insureds' vehicles with qualifying devices did not receive the discount.

         Progressive argues that determining what passive antitheft devices qualify under the statute and which vehicles have them requires individualized inquiries, rendering the case inappropriate for class-wide adjudication. Mischaracterizing our summary judgment analysis and holding, Progressive erroneously claims that we “employed . . . individualized analysis to deny summary judgment.”[19] It argues that determining whether the device on a given vehicle meets the statutory definition, “necessitates an individual, vehicle-by-vehicle, device-by-device analysis, just as the Court undertook in its summary judgment decision; it cannot be done on a class-wide basis through common proof.”[20] It further contends that “the Court reviewed separately each vehicle insured by each Plaintiff, analyzed separately how each vehicle's antitheft device activates, and determined separately whether each device ‘activates when the operator turns the ignition key to the off position.' Moreover, the Court's individualized analysis produced varying results among the Plaintiffs.”[21]

         Progressive misapprehends the analysis we conducted to determine whether the plaintiffs' vehicles were equipped with qualifying passive antitheft devices. We determined what particular devices qualified, not what vehicles qualified. Then, we determined whether a particular make, model and year of vehicle was equipped with one of those devices, qualifying it for the discount. Although we looked at each named plaintiff's vehicle in the ten cases, we did so only to determine if each vehicle contained an antitheft device that we had already determined qualified as passive under the statute. Thus, every insured vehicle having the device, not just the plaintiffs' vehicles, qualify for the discount.

         Applying this method on a class wide basis will not be difficult. Once the plaintiff amends the Chart of Qualifying Vehicles, we can ascertain which make, model and year vehicles contain, as standard equipment, a qualifying device, and every insured with a vehicle of that make, model and year qualifies for the discount. No. examination of class members' individual vehicles or the individual antitheft device in each vehicle is required.

         Progressive relies upon Marcus, [22] a case unlike this one. In Marcus, the plaintiffs were unable to prove, through common evidence, the defect that caused each class member's run-flat tire to go flat. There were different reasons why each class member's run-flat tire went flat, sometimes for reasons unrelated to a defect in the tire. 687 F.3d at 604. In order to determine why a particular class member's tire had gone flat and been replaced, each class member's tire had to be individually examined. Consequently, the court held that these individual inquiries were “incompatible with Rule 23(b)(3)'s predominance requirement.” Id.

         Nor is this case like the antitrust price-fixing case in Hydrogen Peroxide. There, the district court had failed to consider the degree to which individualized factors influenced pricing and whether every class member suffered the same damages. The Third Circuit held that the plaintiffs had failed to meet their burden to show that they had the ability to assess class-wide antitrust injuries using common, as opposed to individualized, proof. 552 F.3d at 311-314, 325. Here, the measurement of damages is simple. It is ten percent of the comprehensive coverage premium the insured paid in each year during the class period.

         Superiority

         Class certification is the superior method to adjudicate this case fairly and efficiently. Class members are not likely to file individual actions-the cost of litigation would dwarf any potential recovery. See Amgen, 568 U.S. at 418; Amchem Prods., Inc., 521 U.S. at 617 (finding that in drafting Rule 23(b)(3), “the Advisory Committee had dominantly in mind vindication of ‘the rights of groups of people who individually would be without effective strength to bring their opponents into court at all'”). The amount each class member would receive is less than one hundred dollars. Certainly, no class member would consider bringing an individual action in light of the cost benefit.

         Because the plaintiff has satisfied the Rule 23(a) requirements and demonstrated that this action qualifies for class certification under Rule 23(b)(3), we address Progressive's argument that class members cannot be ascertained reliably and efficiently.

         Ascertainability

         An “essential prerequisite” to class certification is ascertainability, meaning the class members must be reliably and easily identified from objective criteria. City Select, 867 F.3d at 439 (citing Byrd v. Aaron's Inc., 784 F.3d 154, 163 (3d Cir. 2015)).

         To satisfy the ascertainability standard, the plaintiff must establish that: (1) class members can be identified using objective criteria; and (2) there is a “reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.” City Select, 867 F.3d at 439 (quoting Byrd, 784 F.3d at 163). In short, the plaintiff must show how potential class members can be identified in an accurate and efficient manner. Carrera, 727 F.3d at 307 (citing Marcus, 687 F.3d at 593).

         Ascertainability is a separate requirement considered in conjunction with Rule 23(c)(1)(B)'s requirement.[23] It is not to be conflated with the predominance requirement. Byrd, 784 F.3d at 164 (quoting Grandalski v. Quest Diagnostics, Inc., 767 F.3d 175, 184 (3d Cir. 2014)). Predominance focuses on whether the essential elements of the class claims can be proven at trial by “common, as opposed to individualized, evidence.” Byrd, 784 F.3d at 164 (citing Grandalski, 767 F.3d at 184). Ascertainability, on the other hand, focuses on whether the class members can be identified without resorting to “individualized fact finding.” Byrd, 784 F.3d at 163, 164. In other words, predominance considers the evidence necessary to establish the claims while ascertainability considers the criteria and means necessary to identify class members.

         Additionally, at the certification stage, the plaintiff need not identify the actual class members. He need only show how class members can be identified. City Select, 867 F.3d at 439 (quoting Byrd, 784 F.3d at 163) (emphasis in Byrd).

         Here, the plaintiff has satisfied both elements of the ascertainability requirement. First, he has shown how class members can be identified objectively. Second, his proposed means of identifying them is both reliable and administratively feasible.

         Objective Criteria to Identify the Class

         The criteria for class membership are objective. To be included in the class:

1. the member must have been a policyholder of Progressive during the class period who insured a vehicle registered in Pennsylvania for comprehensive loss;
2. the insured vehicle was of a make, model and year that was equipped with, as standard equipment, one of the five types of engine immobilizer systems[24] that qualify as a passive antitheft device under the statute; and
3. the member did not receive the passive antitheft device discount.

         There is nothing subjective about who is included in the class. Either the putative class member did or did not insure for comprehensive loss a vehicle equipped with a passive antitheft device that qualified for the discount. If he did, he either received the discount or he did not. If he did not get the discount, he falls within the class definition.

         Administrative Feasibility and Reliability

         Even if the task of identifying class members may be difficult and time consuming, it may still be administratively feasible. In Byrd, the Third Circuit made it clear that “ ‘the size of a potential class and the need to review individual files to identify its members are not reasons to deny class certification.'” 784 F.3d at 171 (quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539-40 (6th Cir. 2012)). The Young court explained that the “need to manually review files is not dispositive. If it were, defendants against whom claims of wrongful conduct have been made could escape class-wide review due solely to the size of their businesses or the manner in which their business records were maintained.” Young, 693 F.3d at 540 (quoting the district court opinion).

         Nor is he required to “demonstrate that a single record, or set of records, conclusively establishes class membership.” City Select, 867 F.3d at 441 (citing Byrd, 784 F.3d at 163). Thus, the submission of affidavits from potential class members, in combination with other records, can meet the administrative feasibility standard. Id. at 441 (citing Byrd, 784 F.3d at 170-71).

         Progressive argues that it is not administratively feasible to ascertain class members without engaging in individualized fact finding. It contends that there are no lists or data compilations from manufacturers or third parties that accurately or reliably identify vehicles with qualifying devices. So, it argues, determining what passive antitheft devices qualify under the statute and which vehicles have them will require a separate review of each class member's vehicle and how each individual antitheft device activates.[25]

         Administrative feasibility is not an issue in this case. There is no need for an intensive records search for large numbers of potential class members. In our summary judgment opinion, we identified what types of devices installed in major manufacturers' vehicles qualify under the statute. The plaintiff has compiled the Chart of Qualifying Vehicles that identifies the make, model and year vehicles that are equipped with one of the types of a passive antitheft device that we identified as qualifying. Progressive has a database of policyholders who insured specific vehicles for comprehensive loss and did not receive the passive antitheft device discount. Class members can be identified by matching Progressive's database with the Chart of Qualifying Vehicles. Nothing more needs to be done administratively to ascertain class members. Class members can be readily identified and ascertained without the need to conduct extensive or individualized fact finding.

         The process for identifying class members must also be reliable. But, reliability does not require absolute accuracy. See Young, 693 F.3d at 539. Here, identifying and ascertaining class members can be done reliably. The Chart of Qualifying Vehicles is a reliable source for determining who is in the class.

         In devising the Chart of Qualifying Vehicles, the plaintiff relied on both manufacturer and non-manufacturer-based sources. Manufacturer sources included owner's manuals, vehicle specifications identifying standard vehicle features, [26] and spreadsheets produced by manufacturers.

         When lacking a manufacturer source or a NHTSA notice, [27] the plaintiff uses non-manufacturer sources.[28] For example, if an owner's manual reflects that the antitheft system is optional, the plaintiff sometimes cites a non-manufacturer source to show what submodels, if any, are equipped with the antitheft device as standard equipment. When the plaintiff cannot locate an owner's manual, he relies on several non-manufacturer sources to conclude that a given antitheft device is standard equipment on that particular make and model.

         Manufacturer sources are reliable to identify class members. No. one knows better than the manufacturer what antitheft device is installed in its vehicle and how that device is activated. The owner's manuals, manufacturer's specifications, manufacturer-created spreadsheets, and product brochures describe the passive antitheft devices in sufficient detail for each year, make, and model vehicle to determine whether they are standard equipment. Therefore, the plaintiff may rely on the manufacturers' description of the devices and how they operate to identify what vehicles were equipped with qualifying devices.[29]

         Non-manufacturer sources, other than NHTSA notices which are issued based upon the manufacturer's description of the device, are not reliable for determining whether a manufacturer's device is standard equipment in a vehicle because they are not consistent. Although we stated in our summary judgment opinion that insurers could use third-party vendor sources to determine what vehicles are entitled to the discount, we instructed that these sources were to be used in conjunction with information from manufacturers, the government, and the applicant made available to the insurer at the time of the insurance application. Willisch, 852 F.Supp.2d at 597- 98. We did not say that the insurer could rely solely on non-manufacturer sources.

         Here, in the context of class certification, reliance solely on non-manufacturer sources to identify class members is not acceptable. Neither Progressive nor the plaintiff has access to every non-party vendor's data from past years for all models and years. Additionally, each third-party vendor has its own methods and criteria for reaching its determinations, making review of their data unreliable. Significantly, there are conflicts among the different sources about the same vehicle line.[30] ...


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