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`[PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`
`
`
`
`____________________
`No. 22-10575
`____________________
`
`
`GEORGE TERSHAKOVEC,
`DIANA TERSHAKOVEC,
`JACQUES RIMOKH,
`HERBERT ALLEY,
`individually and on behalf of all others similarly situated,
`MICHAEL DELAGARZA, et al.,
`
` Plaintiffs-Appellees,
`
`versus
`FORD MOTOR COMPANY, INC.,
`
`
` Defendant-Appellant.
`
`
`____________________
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`

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`Opinion of the Court
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`22-10575
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`Appeal from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:17-cv-21087-FAM
`____________________
`
`Before NEWSOM, LUCK, and TJOFLAT, Circuit Judges.
`NEWSOM, Circuit Judge:
`Ford Motor Company advertised its Shelby GT350 Mustang
`as “track ready.” But some Shelby models weren’t equipped for
`long track runs, and when the cars overheated, they would rapidly
`decelerate. A group of Shelby owners sued Ford on various state-
`law fraud theories and sought class certification, which the district
`court granted in substantial part. Ford challenges class certification
`on the ground that proving each plaintiff’s reliance on the alleged
`misinformation requires individualized proof and, therefore, that
`common questions don’t “predominate” within the meaning of
`Federal Rule of Civil Procedure 23(b)(3).
`For reasons we will explain, the predominance inquiry turns
`on the specifics of the state laws under which plaintiffs have sued—
`and, in particular, on (1) whether those laws require proof of reli-
`ance, (2) if so, whether they permit reliance to be presumed, and
`(3) if so, under what circumstances. Having considered those ques-
`tions, we hold that some of plaintiffs’ claims may be certified for
`class treatment, that others may not, and that some require the dis-
`trict court to take a closer look at applicable state-law require-
`ments.
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`Opinion of the Court
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`I
`A
`The putative class representatives hail from seven states—
`California, Florida, Missouri, New York, Tennessee, Texas, and
`Washington. Each purchased one of two models of Ford’s Shelby
`GT350 Mustang.
`The Shelby is an upgrade of the standard Mustang and, im-
`portantly here, was advertised as “an all-day track car that’s also
`street legal.”1 Track-capability refers to the vehicle’s capacity to
`perform at higher-than-normal speeds in a controlled environ-
`ment—like, say, on a racetrack. Track-readiness was a central
`theme in Ford’s Shelby advertising. For example, in a race-day in-
`vitation to Shelby owners, Ford’s marketing manager touted the
`Shelby’s “exceptional racetrack capabilities” and said that he was
`“sure” they were “one of the reasons you purchased your GT350—
`perhaps the main reason.” Other Shelby ads included descriptions
`like “track capable,” “track ready,” and “tested endlessly on the
`most challenging roads and tracks in the world,” as well as state-
`ments like, “[W]e wanted to build the best possible Mustang for the
`places we most love to drive—challenging back roads with a variety
`of corners and elevation changes—and the track on weekends.”
`
`
`1 The designer for whom the Shelby was named, Carroll Shelby, was por-
`trayed by Matt Damon in the 2019 blockbuster Ford v. Ferrari. FORD V. FERRARI
`(Twentieth Century Fox 2019).
`
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`Opinion of the Court
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`The Shelby comes in five trims. Plaintiffs are purchasers of
`the “Base” and “Technology” trims. Those trims lack “transmis-
`sion and differential coolers,” a feature—originally included as
`standard on all Shelbys—that is designed to prevent engine over-
`heating. Without these coolers, the Shelbys compensate at high
`RPMs by reverting to “limp mode,” a self-preservation status that
`reduces the vehicle’s power, speed, and performance to avoid en-
`gine damage. “Limp mode” presents a problem for car enthusiasts
`who want to take Ford up on its promise of “track capab[ility].”
`One way that Shelby owners indulge their need for speed is
`by participating in “Track Days,” organized events at which drivers
`can take their Shelbys around controlled racetracks at triple-digit
`clips. According to some plaintiffs, though, “limp mode” set in af-
`ter six or seven laps—about ten minutes of track time—resulting
`in rapid deceleration and rendering the vehicles “essentially unusa-
`ble for sustained track driving,” which, they say, was “the main rea-
`son many [of them] bought the car.”
`B
`Plaintiffs filed this putative class action alleging, among
`other things, common-law fraud claims and state-specific statutory
`violations. Plaintiffs alleged that Ford falsely advertised all Shelbys
`as being track-capable, that those representations induced them to
`buy Shelbys, but that their Shelbys couldn’t perform as billed.
`Following discovery and a hearing, the district court granted
`plaintiffs’ request for class certification. In particular, the court
`chose to create multiple state-law classes within a single class-
`
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`Opinion of the Court
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`action case. Although it acknowledged that, as thus structured, the
`case “look[ed] more like a Multi-District Litigation than a standard
`class action,” the court thought that this framework would “avoid
`the choice of law issues concomitant with a proposed nationwide
`class (an issue that would almost certainly defeat [Rule 23(b)(3)]
`predominance).” The district court separately dismissed Ford’s
`concerns about “the . . . difficulties in managing a class action,”
`Fed. R. Civ. P. 23(b)(3)(D), on the grounds that the proposed classes
`were “small enough” and that variations among state laws could be
`addressed through “appropriate jury instructions” and “multiple
`verdict forms that tick[ed] through the elements of the nine certi-
`fied state class[es’] statutory and common law fraud claims.”
`The district court certified classes of plaintiffs whose claims
`arose under the common and/or statutory law of California, Flor-
`ida, Illinois, Missouri, New York, Oregon, Tennessee, Texas, and
`Washington.2 The district court also certified two classes—one in
`California and another in Texas—stemming from alleged breaches
`of implied warranties and violations of the Magnuson-Moss War-
`ranty Act, 15 U.S.C. § 2301 et seq. On appeal, twelve separate claims
`
`
`2 Each class consisted of “[a]ll persons who purchased a Class Vehicle from a
`Ford-authorized dealer or distributor located in [insert state here] before April
`[27], 2016.” Doc. 231 at 28; see also Tershakovec v. Ford Motor Co., No. 17-21087-
`CIV, 2021 WL 3711444, at *1 (S.D. Fla. Aug. 20, 2021) (amending the “class
`certification order to reflect a class cut-off date of April 27, 2016” instead of
`April 1). The “Class Vehicles” cover Ford’s Shelby GT350 Base and Technol-
`ogy trims purchased during the relevant period. Plaintiffs estimate that there
`are 1,668 Class Vehicles nationwide.
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`Opinion of the Court
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`remain, arising under the laws of seven states: California, Florida,
`Missouri, New York, Tennessee, Texas, and Washington.3
`We granted Ford’s Rule 23(f) petition to appeal the district
`court’s class-certification order.
`
`II
`We review a district court’s decision granting or denying
`class certification for abuse of discretion. See Local 703, I.B. of T.
`Grocery & Food Emps. Welfare Fund v. Regions Fin. Corp., 762 F.3d
`1248, 1253 (11th Cir. 2014). The district court abuses its discretion
`if it “applies the wrong legal standard, follows improper procedures
`in making its determination, bases its decision on clearly erroneous
`findings of fact, or applies the law in an unreasonable or incorrect
`manner.” Id. At the class-certification stage, “the trial court can
`and should consider the merits of the case to the degree necessary
`to determine whether the requirements of Rule 23 will be satis-
`fied.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188
`n.15 (11th Cir. 2003).
`
`III
`Federal Rule of Civil Procedure 23 governs class actions. In
`addition to satisfying Rule 23(a)’s four familiar “[p]rerequisites”—
`numerosity, commonality, typicality, and adequacy of representa-
`tion—a proposed class must fit within one of the three “[t]ypes”
`specified in Rule 23(b). Plaintiffs here sought class certification
`
`
`3 Plaintiffs are no longer pursuing their claims under Oregon and Illinois law.
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`Opinion of the Court
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`under Rule 23(b)(3), which requires both that “questions of law or
`fact common to class members predominate over any questions af-
`fecting only individual members” and that a class action be “supe-
`rior to other available methods for fairly and efficiently adjudicat-
`ing the controversy.” Fed. R. Civ. P. 23(b)(3).
`We must decide whether plaintiffs’ proposed class satisfies
`Rule 23(b)(3)’s requirements. We’ll consider in turn 23(b)(3)’s two
`prongs—predominance and superiority, the latter of which entails
`an inquiry into a class action’s manageability.
`A
`First, predominance. Common questions “predominate”
`within the meaning of Rule 23(b)(3) when the substance and quan-
`tity of evidence necessary to prove the class claims won’t vary sig-
`nificantly from one plaintiff to another. See Brown v. Electrolux
`Homes Prods., 817 F.3d 1225, 1234 (11th Cir. 2016). The first step in
`assessing predominance is to “identify the parties’ claims and de-
`fenses and their elements” and to categorize “these issues as com-
`mon questions or individual questions by predicting how the par-
`ties will prove them at trial.” Id. A common issue is one that will
`likely be proved using the same evidence for all class members; an
`individualized issue, by contrast, is one that will likely be proved
`using evidence that “var[ies] from member to member.” Id. (cita-
`tion and internal quotation marks omitted).
`In general, a fraud-related claim comprises the following el-
`ements: a misrepresentation or omission, materiality, reliance, cau-
`sation, and injury. See Restatement (Second) of Torts §§ 525, 550
`
`

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`Opinion of the Court
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`22-10575
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`(1977); W. Prosser, The Law of Torts §§ 108, 110, at 714, 731–32
`(4th ed. 1971). The parties vigorously dispute whether the reliance
`element—that is, the question whether Shelby owners relied on,
`and were induced to buy their cars based on, Ford’s advertise-
`ments—is capable of class-wide proof or whether reliance issues
`are instead inherently individualized. Because the parties focus
`only on the reliance element, so do we.4
`In granting class certification over Ford’s objection that the
`issues pertaining to plaintiffs’ reliance were too individualized, the
`
`4 Our dissenting colleague disagrees that we can focus solely on reliance be-
`cause he views two traditionally separate elements—reliance and causation—
`as inextricably intertwined. See Dissenting Op. at 32 (“[C]ausation inherently
`requires reliance.”). Respectfully, we think that conflation overlooks relevant
`state law. As explained below, see infra at 16–20, each of the states whose class
`certification the dissent disputes expressly distinguishes the two elements. See,
`e.g., Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983, 986 (11th Cir. 2016) (Florida)
`(holding that plaintiffs “need not show actual reliance on the representation
`or omission at issue,” even when causation is an element); Hess v. Chase Man-
`hattan Bank, USA, N.A., 220 S.W.3d 758, 774 (Mo. 2007) (Missouri) (holding
`that a claim under the Missouri Merchandising Practices Act “expressly does
`not” require proof of reliance, though it does require causation); Thornell v.
`Seattle Serv. Bureau, Inc., 363 P.3d 587, 592 (Wash. 2015) (Washington) (reject-
`ing “the principle that reliance is necessarily an element of” a consumer-fraud
`claim, even when causation is); Pelman ex rel. Pelman v. McDonald’s Corp., 396
`F.3d 508, 511 (2d Cir. 2005) (citing Stutman v. Chem. Bank, 731 N.E.2d 608, 612
`(N.Y. 2000)) (New York) (holding that statutory consumer-fraud claims do
`“not require proof of actual reliance,” but do require causation); Walker v. Life
`Ins. Co. of the Sw., 953 F.3d 624, 631 (9th Cir. 2020) (California) (requiring proof
`of reliance only under certain circumstances). Because we think the dissent
`mistakes the meaning of reliance, we needn’t further discuss its critiques—or
`the manifold constitutional violations it alleges.
`
`

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`district court leaned heavily on the notion that reliance can some-
`times be presumed. Although the court acknowledged that “a pre-
`sumption of . . . reliance is only appropriate in some states and in
`some fact patterns,” one of those “fact patterns,” it said, was “when
`a [d]efendant’s representations to the entire class were uniform.”
`The court reasoned that “Ford’s representations to Plaintiffs were
`uniform” and that “the evidence appears to show that no class
`member could possibly have known [about the defect] from
`Ford[.]” Accordingly, it concluded that a presumption of reliance
`was appropriate in this case—and, therefore, that individualized re-
`liance issues didn’t present a predominance-related barrier to class
`certification.
`The root of the district court’s error was in overgeneralizing
`the presumption-of-reliance issue. The court’s task was to “pre-
`dict[] how the parties will prove” common and individualized ques-
`tions. Brown, 817 F.3d at 1234. But doing so requires carefully ex-
`amining the particular state laws on which plaintiffs’ claims in this
`case are based. True, a presumption that a plaintiff or group of
`plaintiffs relied on Ford’s misstatements may apply—but only if the
`relevant state’s common-law-fraud cause of action or deceptive-
`practices statute allows for that presumption. And while the dis-
`trict court seemed to appreciate that the presumption was “only
`appropriate in some states,” it never seriously investigated whether
`and under what circumstances each of the various state-law claims
`at issue permit the presumption. See, e.g., Doc. 231 at 43 (Califor-
`nia); id. at 44 (Missouri); id. at 45 (Tennessee); id. at 45 (Texas).
`
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`Opinion of the Court
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`In fact, as we’ll see, states’ fraud-based causes of action
`meaningfully differ in terms of both whether proof of reliance is
`necessary and, if it is, how it is established. Reliance is often,
`though not uniformly, an essential element of a fraud-based claim.
`Where it is, it sometimes must be affirmatively proved; in other cir-
`cumstances, it may be presumed. Affirmatively proving reliance is
`a very individualized inquiry, the kind that would predominate
`over other common questions in a class action. By contrast, where
`the presumption of reliance applies, it does so generally and can
`therefore be resolved on a class-wide basis.
`Bottom line: To assess Rule 23(b)(3)’s predominance re-
`quirement, we must consider whether each cause of action at issue
`here requires proof of reliance and, if so, whether and under what
`circumstances a presumption of reliance is appropriate.
`B
`So a (perhaps the) key issue in this case is whether each of
`the several state-law causes of action that plaintiffs have alleged per-
`mits a presumption of reliance and, if it does, under what circum-
`stances. That’s a question that we’ll need to decide on a state-by-
`state (and claim-by-claim) basis, and we’ll get to those details soon
`enough. But first, a more general, preliminary point. All seem to
`recognize—and we agree—that the permissibility of a presump-
`tion of reliance will often turn on whether a fraud-based claim pri-
`marily alleges affirmative misrepresentations, omissions (or non-
`disclosures), or, perhaps, a mixture of both.
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`Opinion of the Court
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`While not strictly applicable here, cases decided under the
`federal securities laws illustrate the distinction between misrepre-
`sentations and omissions, as well as the effect that distinction can
`have on the operation of the presumption of reliance. Here’s a
`brief summary: In Affiliated Ute Citizens of Utah v. United States, the
`Supreme Court held, in a case arising under Rule 10b-5, that
`“[u]nder the circumstances of th[e] case” before it, which “in-
`volv[ed] primarily a failure to disclose, positive proof of reliance is
`not a prerequisite to recovery,” but rather may be presumed. 406
`U.S. 128, 153 (1972). Significantly, though, we have since clarified
`that the Ute presumption applies only to cases “involving primarily
`a failure to disclose in which defendants who had an affirmative
`duty to disclose stood mute, leaving plaintiffs with absolutely noth-
`ing upon which to rely.” Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749,
`755 (11th Cir. 1984); see also Huddleston v. Herman & MacLean, 640
`F.2d 534, 547 (5th Cir. Unit A March 1981), aff’d in part and rev’d in
`part on other grounds, 459 U.S. 375 (1983) (“If a person who has an
`‘affirmative duty under [Rule 10b-5] to disclose’ a material fact”
`fails to disclose “material facts that reasonably could be expected to
`influence [a security-holder’s] decision to sell, positive proof of re-
`liance . . . is not a prerequisite to recovery.”). No presumption of
`reliance applies, we have emphasized, either in cases primarily al-
`leging affirmative misrepresentations or in those “mixing allega-
`tions of omissions and misstatements.” Cavalier Carpets, 746 F.2d
`at 757. So, for instance, in a securities case where plaintiffs “alleged
`three omissions and three misstatements,” the “mixed case rule of
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`Huddleston” applied—meaning that a presumption of reliance did
`not. Id.5
`So, what kind of claims have plaintiffs alleged here? Perhaps
`not surprisingly, especially given Ute and its underlying principles,
`plaintiffs insist that their case is solely about omissions. See Br. of
`Appellees at 4 (“[T]he fraud-based class claims are based solely on
`omissions.”). Equally unsurprisingly, Ford counters that this is fun-
`damentally a case about affirmative misrepresentations or, at the
`very least, a “mixed” case. See Reply Br. of Appellants at 1 (“The
`record in this case could not be clearer that plaintiffs’ fraud-based
`claims rest on Ford’s alleged affirmative misrepresentations con-
`cerning the track capabilities of plaintiffs’ vehicles.”). Having con-
`sidered plaintiffs’ own framing of their claims, the basic facts
`
`5 We implemented this framework in the class-action context in Kirkpatrick v.
`J.C. Bradford & Co., 827 F.2d 718 (11th Cir. 1987). There, as here, the parties
`debated whether individual reliance issues defeated Rule 23(b)(3)’s predomi-
`nance requirement, and there, as here, the answer to that question depended,
`in part, on whether a Ute-like presumption of reliance applied. We held that
`the plaintiffs’ claims there couldn’t “be properly characterized as omissions
`cases” under Ute because they didn’t allege that “‘[t]he defendants . . . st[ood]
`mute in the face of a duty to disclose.’” Id. at 722 (quoting Cavalier Carpets, 746
`F.2d at 749 n.22). Rather, we explained, the plaintiffs asserted that “the de-
`fendants ‘undertook . . . to disclose relevant information . . . alleged to contain
`certain misstatements of fact and [that] fail[ed] to contain other facts necessary
`to make the statements made, in light of the circumstances, not misleading.’”
`Id. (quoting Cavalier Carpets, 746 F.2d at 749 n.22) (alterations in original). Ac-
`cordingly, we held that “the complaints at most allege[d] mixed claims of mis-
`representations and omissions,” that Ute’s “presumption of reliance d[id] not
`apply,” and, therefore, that (at least on that ground) the presumption couldn’t
`eliminate individualized reliance issues. Id.
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`underlying those claims, and the district court’s treatment of the
`various allegations in the case, we conclude that Ford has the better
`of the argument: At its core, this case is about misrepresentations,
`not omissions.
`For starters, plaintiffs’ own complaint repeatedly targets
`Ford’s “marketing” and “advertising.” Doc. 43 at 69–86. Indeed,
`the complaint’s first factual allegation concerns plaintiffs’ shared
`love of track racing—the very subject of Ford’s alleged misrepre-
`sentation about the Shelby’s track-readiness. Id. at 69–70. Plain-
`tiffs’ motion for class certification and their response to Ford’s Rule
`23(f) petition likewise both repeatedly complain about Ford’s “mar-
`keting communications.” See Doc. 122 at 8, 10–11, 15–18; Br. of
`Plaintiff-Respondents in Response to Petition for Permission to Ap-
`peal at 3–5, Ford Motor Company v. George Tershakovec, et al., No. 21-
`90019 (11th Cir. Feb. 28, 2022). Even before us, plaintiffs continue
`to focus on Ford’s “advertising.” Br. of Appellants at 12–14. And
`that focus makes sense. Plaintiffs’ grievance, fundamentally, is that
`Ford misled them to believe that their Shelbys could zip around
`racetracks for hours. And they arrived at that belief not as a result
`of Ford’s mere silence but, rather, they claim, as a result of Ford’s
`boasting about the Shelby’s track-readiness.
`The district court itself treated plaintiffs’ claims as primarily
`alleging affirmative misrepresentations. In its order granting class
`certification, for instance, the court described plaintiffs’ theory as
`follows: “Ford advertised all Shelbys as track-capable, the advertis-
`ing induced Plaintiffs to purchase the car, and then the car did not
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`perform as advertised.” Doc. 231 at 3. Contrast that with a claim
`that plaintiffs pleaded in their complaint but that the district court
`later dismissed. There, plaintiffs separately alleged that their Shel-
`bys can enter “limp mode” even during non-track conditions, when
`being driven normally. See Doc. 43 at 72. Notably, the district court
`referred to this as “the omission claim[]”—and rejected it on the
`ground that there was no evidence that Ford was aware of the de-
`fect and thus couldn’t have fraudulently concealed it. Doc. 231 at
`13–15 (emphasis added).
`In the end, even interpreted charitably, plaintiffs’ current
`claims allege an omission only derivatively: Ford affirmatively mis-
`represented the Shelbys as track-capable, which entailed an implicit
`“omission” that the cars can enter “limp mode” under track condi-
`tions. In the language of our securities cases, plaintiffs don’t allege
`that Ford “st[ood] mute in the face of a duty to disclose”; rather,
`they contend that it made misstatements of fact and then failed to
`include “other facts necessary to make the statements . . . not mis-
`leading.” Kirkpatrick, 827 F.2d at 722 (quotation omitted). And as
`already explained, that means that plaintiffs’ complaint “at most al-
`lege[s] mixed claims of misrepresentations and omissions.” Id.
`Having established that plaintiffs’ case is fundamentally
`about misrepresentations—or, at most, a mix of misrepresenta-
`tions and corollary omissions—we’re ready to dive into the central
`question: Which of the various fraud-based causes of action that
`plaintiffs have alleged requires proof of reliance, and which among
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`those permits reliance to be presumed—and under what circum-
`stances?6
`
`C
`On, then, to the core of our analysis. Because different
`states’ fraud-related causes of action—both statutory and com-
`mon-law—treat reliance differently, we have to get into the specifics
`of those laws. We find that we can group plaintiffs’ claims into
`
`
`6 One final bit of housekeeping: Echoing the district court, plaintiffs cite our
`decision in Klay v. Humana, 382 F.3d 1241 (11th Cir. 2004), abrogated in part on
`other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008), for the
`proposition that common evidence can be used to prove reliance on a class-
`wide basis. Klay is distinguishable in important respects. True, we held there
`that a class of physicians who brought a RICO-based action against an HMO
`for misrepresenting that it would pay for medically necessary procedures had
`to prove reliance. And true, we held that their reliance could be proved
`through common evidence. Id. at 1257. But we did so for two reasons unique
`to the transactions at issue there, neither of which applies here. First, we em-
`phasized that the doctors relied on the HMO’s standardized misrepresentation
`that they would be reimbursed for medically necessary services provided to
`insureds and that the HMO’s nationwide conspiracy to underpay doctors was
`the “very gravamen of the RICO claims.” Id. And second, we stressed that
`the transactional exchange between the physicians and the HMO hinged on
`the latter’s payment guarantees, which served as the “heart of the[] agree-
`ments” and was the “very consideration upon which those agreements are
`based.” Id. at 1259 (emphasis added). As the Second Circuit has observed,
`contractual financial transactions between a purchaser and provider of medi-
`cal services don’t implicate “the same type or degree of personal idiosyncratic
`choice as does a consumer purchase.” McLaughlin v. American Tobacco Co., 522
`F.3d 215, 225 n.7 (2d Cir. 2008). While one who provides services in exchange
`for a payment relies only on the payment guarantee, a purchaser of a car may
`choose to rely on any of a number of marketing and branding representations.
`
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`three categories. First, some causes of action don’t require proof
`of reliance at all. Needless to say, reliance poses no predominance-
`related barrier to class treatment of those claims. Second—at the
`other end of the spectrum, so to speak—some claims require indi-
`vidual plaintiffs to prove reliance affirmatively, without the benefit
`of any presumption. Rule 23(b)(3)’s predominance requirement
`will bar class treatment of those claims, as the facts pertinent to
`reliance will have to be proved on a plaintiff-by-plaintiff basis. Fi-
`nally—in the middle—under some causes of action, proof of reli-
`ance is required but may be presumed, at least under certain cir-
`cumstances. Whether the predominance requirement can be satis-
`fied for those claims depends on details specific to this case, some
`of which the district court will need to investigate on remand.
`In the sections that follow, we’ll sort the claims that plaintiffs
`have alleged into these three categories.
`1
`The first category comprises state causes of action that don’t
`require proof of reliance. Rule 23(b)(3)’s predominance require-
`ment poses no barrier to class treatment of these claims because
`it’s unnecessary to make any individualized inquiry into what each
`plaintiff knew and relied on in purchasing his or her Shelby. Four
`of plaintiffs’ claims fall into this category.
`Three are easy. First, the district court certified a class of
`plaintiffs who sued under the Florida Deceptive and Unfair Trade
`Practices Act, Fla. Stat. § 501.201 et seq. To establish a consumer
`claim for damages under FDUTPA, a plaintiff must show (1) a
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`deceptive act or unfair practice, (2) causation, and (3) actual dam-
`ages. Carriuolo v. General Motors Co., 823 F.3d 977, 983 (11th Cir.
`2016) (citing City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla.
`4th Dist. Ct. App. 2008)). Dispositively here, “a plaintiff asserting a
`FDUTPA claim need not show actual reliance on the representa-
`tion or omission at issue.” Id. at 985 (quotation omitted). Because
`a FDUTPA plaintiff needn’t prove that he or she relied on any al-
`leged misstatement, Ford’s reliance-based predominance objection
`fails.
`
`Second, the district court certified a class of plaintiffs alleg-
`ing claims under New York’s consumer-fraud statute, N.Y. Gen.
`Bus. Law § 349(a). As the Second Circuit has explained, a “§ 349
`claim has three elements: (1) the defendant’s challenged acts or
`practices must have been directed at consumers, (2) the acts or
`practices must have been misleading in a material way, and (3) the
`plaintiff must have sustained injury as a result.” Cohen v. JP Morgan
`Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007); see also Oswego Labor-
`ers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d
`741, 744–45 (N.Y. 1995). Again, dispositively, private actions
`brought under § 349 do “not require proof of actual reliance.” Pel-
`man ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.
`2005) (citing Stutman v. Chemical Bank, 731 N.E.2d 608, 612 (N.Y.
`2000)). So there can be no reliance-based predominance objection
`to class treatment of plaintiffs’ § 349 claims, either.
`Third, the district court certified a class of plaintiffs alleging
`claims under Washington’s consumer-fraud statute, which
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`prohibits “[u]nfair methods of competition and unfair or deceptive
`acts or practices in the conduct of any trade or commerce.” Wash.
`Stat. § 19.86.020. Washington courts have held that a plaintiff suing
`under the statute must prove “a causal link between the act and the
`injury.” Peoples v. United Servs. Auto. Ass’n, 452 P.3d 1218, 1221
`(Wash. 2019). But they have clarified that reliance is merely one
`way to establish causation—reliance is not itself a necessary ele-
`ment. Thornell v. Seattle Serv. Bureau, Inc., 363 P.3d 587, 592 (Wash.
`2015) (“[I]n Indoor Billboard this court rejected the principle that re-
`liance is necessarily an element of plaintiff’s CPA claim.”) (citing
`Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d
`10 (Wash. 2007)); see also Young v. Toyota Motor Sales, U.S.A., 472 P.3d
`990, 996 (Wash. 2020) (“We rejected the company’s argument that
`as a matter of law, any false or deceptive act it committed could not
`be the cause of the plaintiff’s injury because the customer could
`not show he relied on the deceptive act in deciding to pay the bill.”).
`Accordingly, as with the statutory claims arising under Florida and
`New York law, Ford’s reliance-based predominance objection to
`certifying the Washington consumer-fraud claims fails.
`A final claim also belongs in this category. The Missouri
`Merchandising Practices Act prohibits “deception, fraud, . . . mis-
`representation, . . . or the concealment, suppression, or omission
`of any material fact in connection with the sale or advertisement
`of any merchandise in trade or commerce.” Mo. Rev. Stat.
`§ 407.020.1 (2020). As Ford has acknowledged, the MMPA does not
`by its terms require a plaintiff to prove that he or she relied on for-
`bidden misrepresentations. See Oral Arg. at 7:22–7:35. And indeed,
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`Missouri courts have repeatedly observed that “[a] consumer’s reli-
`ance on an unlawful practice is not required under the MMPA.”
`Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. Ct. App.
`2016) (quotation omitted); accord, e.g., Hess v. Chase Manhattan Bank,
`USA, N.A., 220 S.W.3d 758, 774 (Mo. 2007) (“[A] fraud claim re