Gilles v. Ford Motor Company

Filing 39

ORDER: Parties are to submit, within ten days from the date of this order, supplemental briefing of no more than five pages per side on the narrow question of whether the FTC regulations preempt Mr. Gilles's claims under the doctrine of field preemption. by Judge R. Brooke Jackson on 1/24/14. (rbjcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-00357-RBJ
JOHN A. GILLES, on behalf of himself and all others similarly situated,
Plaintiffs.
v.
FORD MOTOR COMPANY, a Delaware corporation,
Defendant.

ORDER

In response to the order to show cause, Mr. Gilles indicated that his intent was to invoke
28 U.S.C. § 1132(d)(2) which provides the federal district courts have original jurisdiction of any
civil action where the matter in controversy exceeds $5,000,000 and is a class action in which
any member of the plaintiff class is a citizen of a state different from that of the defendant. [ECF
No. 34]. He then provided a complicated analysis of how the amount in controversy would
exceed $5,000,000 if the class is certified. The Court finds that Mr. Gilles has provided
sufficient facts in his response to the order to show cause to demonstrate federal diversity
jurisdiction in this case, at least until the class certification stage.
The Court, however, is concerned that the briefing gave insufficient attention to an
important issue: the possible preemption of Mr. Gilles’s claims by FTC regulations.1

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The Court is satisfied with the parties’ briefing on the issue of preemption by The Energy Policy and Conservation
Act of 1975. That statute and the regulations issued pursuant to it do not purport to regulate advertising of fuel
economy beyond the requirements of the Monroney Sticker and the dealer booklet. Thus, I agree with federal and
state jurisdictions that have held that state law claims akin to those asserted here are not preempted by this body of
federal law. See, e.g., True v. American Honda Motor Co., Inc., 520 F.Supp. 2d 1175, 1180-81 (C.D. Cal. 2007);
Paduano v. American Motors Co., Inc., 169 Cal. App. 4th 1453, 1473-85 (Cal. Ct. App. 2009).
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Mr. Gilles’s Amended Complaint, as this Court understands it, claims that Mr. Gilles saw
advertisements for Ford’s 2013 Escape SE that included EPA estimated fuel economy numbers
but (1) failed to disclose that the advertised fuel economy standard was based on EPA data and
(2) failed to include a disclaimer that actual results may vary.
If true, the first claim would describe behavior that is inconsistent with FTC regulations.
See 16 C.F.R. § 259.2 (requiring that whenever an advertisement makes an express or implied
representation regarding the estimated fuel economy of a vehicle, the advertisement must
disclose that the EPA was the source of that estimate, or if the estimate came from another
source, displaying the EPA estimates alongside the non-EPA estimates). Because plaintiff’s
claim does not rely on state law that conflicts with federal regulations, at least insofar as
identifying that the numbers are EPA estimates is concerned, it appears that the regulations
neither expressly nor impliedly preempt the claim. Rather, Mr. Gilles’s claims under state law,
again at least with respect identifying that the numbers are EPA estimates, would appear to be
consistent with the FTC regulations. It is unclear, however, whether such a claim, even if it does
not conflict with the FTC regulations, might nonetheless be preempted if Congress intended to
occupy the entire field of advertisements about vehicle fuel economy. Neither party addressed
that issue.
The Court therefore requests that the parties submit within ten days from the date of this
order supplemental briefing of no more than five pages per side on the narrow question of
whether the FTC regulations preempt Mr. Gilles’s claims under the doctrine of field preemption.
DATED this 24th day of January, 2014.
BY THE COURT:

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___________________________________
R. Brooke Jackson
United States District Judge

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