Counts et al v. General Motors, LLC

Filing 439

Opinion and Order Vacating 429 Show-Cause Order, Granting and Denying in Part Defendant GM's 345 , 346 Motion for Summary Judgment, and Granting and Denying in Part Defendant Bosch's 338 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (KWin)

Case 1:16-cv-12541-TLL-PTM ECF No. 439, PageID.39387 Filed 06/09/22 Page 1 of 57

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JASON COUNTS et al.,
Plaintiffs,
v.

Case No. 1:16-cv-12541
Honorable Thomas L. Ludington
United States District Judge

GENERAL MOTORS, LLC and
ROBERT BOSCH LLC,

Honorable Patricia T. Morris
United States Magistrate Judge

Defendants.
________________________________________/
OPINION AND ORDER VACATING SHOW-CAUSE ORDER, GRANTING AND
DENYING IN PART DEFENDANT GM’S MOTION FOR SUMMARY JUDGMENT,
AND GRANTING AND DENYING IN PART DEFENDANT BOSCH’S MOTION FOR
SUMMARY JUDGMENT
Plaintiffs are purchasers of a diesel-powered version of the 2014 or 2015 Chevrolet Cruze
who allege that Defendants General Motors and its software developer Robert Bosch committed
mail and wire fraud in developing and installing features that misrepresent the diesel Cruzes’
exhaust emissions. By concealing certain “defeat devices,” Plaintiffs explain, Defendants deceived
them and numerous other consumers into buying a diesel Cruze, which they ostensibly thought
would be more environmentally friendly. Plaintiffs seek the amount that they overpaid for their
defective diesel Cruzes, calculated by three complex yet reliable economic theories.
Plaintiffs’ federal claim is founded on the Racketeer Influenced and Corrupt Organizations
(“RICO”) Act. Under the RICO Act, indirect purchasers cannot sue upstream sellers. Because
Plaintiffs did not purchase their diesel Cruzes directly from GM or Bosch, the RICO claim will be
dismissed.

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Plaintiffs also sue for deception, fraud, unfair competition, or some variation of thereof
under 60 state laws. Five of Plaintiffs’ state claims will also be dismissed, and two state claims
will be dismissed as to only Defendant Bosch.
I.
A.
On June 7, 2016, nine consumers (“Plaintiffs”) filed a 442-page complaint alleging that
GM intentionally or recklessly equipped and sold the 2014 and 2015 diesel Chevrolet Cruze “with
an emissions system that turned off or limited its emissions reduction system during normal driving
conditions.” ECF No. 1 at PageID.18. Plaintiffs added that each consumer “suffered an
ascertainable loss as a result of GM’s omissions and/or misrepresentations associated with the
[diesel] Cruze’s Clean Diesel engine system, including but not limited to, out-of-pocket loss and
future attempted repairs, future additional fuel costs, decreased performance of the vehicle, and
diminished value of the vehicle.” Id. at PageID.19.
In addition to fraudulent concealment and false advertising, Plaintiffs alleged that
Defendants breached contracts with the consumers. Counts v. Gen. Motors LLC, No. 1:16-CV12541, 2021 WL 8014317, at *7 (E.D. Mich. Sept. 1, 2021).
In October 2016, GM filed a motion to dismiss the Complaint for lack of jurisdiction and
failure to state a claim. ECF No. 12. On February 14, 2017, this Court granted in part GM’s Motion
to Dismiss, ECF No. 21, finding that:
•
•

Plaintiffs conceded their breach of contract claims and consensually dismissed
all state law breach of contract claims. ECF No. 21 at PageID.782.
Plaintiffs plausibly alleged an economic injury (overpayment) that was “fairly
traceable” to GM and sufficient to withstand GM’s facial challenge to
Plaintiffs’ standing under Article III. See ECF No. 21 at PageID.766 (“If the
system did not actually provide any value to the vehicle, then Plaintiffs suffered
financial injury through overpayment regardless of whether they relied on
GM’s alleged misrepresentation.”).

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•

•

•

Given the Complaint’s allegations, Plaintiffs’ case was not preempted by § 209
of the Clean Air Act, 42 U.S.C. § 7401 et seq. ECF No. 21 at PageID.778–79
(“Because those factual allegations must be accepted as true when considering
a motion to dismiss, there is no functional difference between the EPA finding
of noncompliance and an allegation of noncompliance. Rather, the gravamen of
Plaintiffs' claims, as in Volkswagen, focus on the deceit about compliance,
rather than the need to enforce compliance.” (internal quotation marks
omitted)).
Plaintiffs could not rely on GM advertisements touting the “cleanliness” and
“high-quality” of the vehicles to plead fraud because such statements amounted
to “nonactionable puffery.” See ECF No. 21 at PageID.790 (“In their
Compliant, Plaintiffs include the advertisements on which they base their
claims. Plaintiffs[ ] cite GM’s representations about the ‘high-quality’ and
‘safety’ of its vehicles. Those assertions are inherently subjective and cannot
form the basis of a fraud action.”).
Plaintiffs plausibly alleged fraudulent concealment to the extent they alleged
that GM concealed the “defeat device” from purchasers. See ECF No. 21 at
PageID.793–94 (“If Plaintiffs’ allegations are true, GM installed a ‘defeat
device’ on the Cruze. The only plausible purpose of such a device is to create
the appearance of low emissions without the reality of low emissions. If GM
were not attempting to deceive regarding the level of emissions produced by
the Cruze, the alleged ‘defeat device’ would not exist.”).

Counts, 2021 WL 8014317, at *7. In sum, Plaintiffs plausibly established their Article III standing
and pleaded a cognizable overpayment injury stemming from Defendants’ fraudulent concealment
of three purported defeat devices.
Plaintiffs then amended their Complaint to include Robert Bosch LLC and Robert Bosch
GmbH (collectively, “Bosch”): German companies that supplied GM with the diesel Cruze’s
emissions software. Plaintiffs also added a RICO claim against all three Defendants. ECF Nos. 94;
95. Plaintiffs later voluntarily dismissed Bosch GmbH, leaving only GM and Robert Bosch LLC
as Defendants. See ECF No. 317.
Defendant Bosch then filed a motion to dismiss the First Amended Complaint for lack of
jurisdiction and failure to state a claim. ECF No. 108. GM concurred with Bosch’s Motion. ECF
No. 109. Addressing Bosch’s Motion to Dismiss, this Court concluded that Plaintiffs pleaded a
cognizable RICO claim against Defendant Bosch under 18 U.S.C. § 1961, because “the allegations

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concerning regulatory violations are collateral allegations which are unnecessary to sustain
Plaintiffs’ RICO claim.” ECF No. 122 at PageID.8311.1
Plaintiffs filed a motion to exclude Defendants’ experts, ECF No. 337 (filed under seal),
and GM filed an omnibus motion to exclude Plaintiffs’ experts, ECF No. 344. Plaintiffs’ Motion
was granted in part and denied in part, and GM’s Motion was denied. ECF No. 438.
GM and Bosch also filed motions for summary judgment, which are the focus of this
Opinion and Order. ECF Nos. 338; 339 (filed under seal); 345 (filed under seal); 346. Defendants
later added a motion to strike Plaintiffs’ expert reports and response briefing to Defendants’
motions for summary judgment. ECF No. 397. Defendants’ Motion to Strike was denied in the last
Order. ECF No. 438.
B.
After discovery ended, this Court noticed stark contrasts between Plaintiffs’ allegations
and the evidence produced during discovery. Given the disparities, the question presented was
whether Plaintiffs have Article III standing and, by extension, whether this Court has jurisdiction.
Several concerns were evident.
First, though this case had existed for nearly six years, neither the EPA nor CARB had
issued violation notices or investigated the diesel Cruze—despite communicating with
Defendants, Plaintiffs, and Plaintiffs’ experts. Counts v. Gen. Motors LLC, No. 1:16-CV-12541,
2021 WL 8014317, at *13 (E.D. Mich. Sept. 1, 2021). For example, GM had at least three meetings
with officials from the EPA and CARB to discuss the statistics from this case and the supplemental
testing that GM conducted in 2016. ECF Nos. 345-14 (filed under seal); 345-15 (filed under seal);

1

Defendants also filed a motion to prevent Plaintiffs from relying on supplemental vehicle testing
conducted after fact discovery concluded and after Defendants deposed Plaintiffs’ primary liability
expert. ECF No. 351. GM’s motion was granted. ECF No. 384 at PageID.30695.
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345-16 (filed under seal). Moreover, in June 2019, GM filed a Freedom of Information Act
(“FOIA”) request seeking all communication, concerning the 2014 and 2015 diesel Cruze, between
CARB and the EPA and: (1) Plaintiffs and Defendants’ law firms, (2) the West Virginia University
researchers, and (3) people affiliated with Juston Smithers. See ECF Nos. 345-19 (filed under seal);
345-20 (filed under seal). But neither the parties’ communications with the EPA or CARB nor
GM’s FOIA request have produced any evidence that the EPA or CARB are investigating GM or
Bosch for misrepresenting the operation of the diesel Cruze.
Second, Plaintiffs’ only evidence of excessive emissions was the testimony of two expert
witnesses: Juston Smithers, who conducted a Portable Emissions Measurement System (“PEMS”)
test of one diesel Cruze purchased by Plaintiffs’ counsel; and Dr. Kirill Levchenko, who analyzed
the diesel Cruze’s emissions software. But Smithers did not test any of Plaintiffs’ diesel Cruzes.
And Dr. Levchenko’s report concerned only the technical operation of the software that modulates
the diesel Cruzes’ emissions; it did not test NOx emissions,2 the focal measurement of Plaintiffs’
allegations. Accordingly, Plaintiffs’ only evidence of an injury was the inference that the NOx
emissions of one certified, preowned diesel Cruze represented the entire fleet’s emissions.
Third, Plaintiffs’ deposition testimony regarding their expectations in purchasing the diesel
Cruze were similarly speculative and reflected little consensus. Six named Plaintiffs (Hayduk,
Hirmiz, Klein, Long, Miskelly, and Rodriguez) testified that they expected the diesel Cruze to
meet the emissions standards of CARB or the EPA, a claim that would be preempted by the Clean
Air Act. Counts, 2021 WL 8014317, at *14 & n.9. And seven named Plaintiffs testified that they

2

“The term ‘NOx’ refers to a number of various oxides of nitrogen, but NO and NO2 are the two
principle air pollution concerns.” Brian H. Potts, Trading Grandfathered Air—A New, Simpler
Approach, 31 HARV. ENV’T L. REV. 115, 135 (2007). “NO is a precursor to NO2.” Id. “Combustion
modification, selective catalytic reduction (SCR), and selective non-catalytic reduction (SCNR)
are the primary methods of reducing NOx coal-fired emissions.” Id.
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expected the diesel Cruzes’ emissions to be lower than a comparable gasoline engine, which would
be unreasonable and based on advertisements that were mere puffery. Id. at *14 & n.10. Further,
two named Plaintiffs (Counts and Long) stated that they expected the diesel Cruzes’ emissions to
match the cars’ Monroney stickers.3 Id. at *16.
Fourth, Plaintiffs’ expectations were seemingly not quantifiable or traceable to GM.
Plaintiffs Hemberger, Hirmiz, Rodriguez, and Zamora expected the diesel Cruze to be good for
the environment and have little to no emissions. Id. Plaintiffs Counts, Hayduk, Silveus, and
Miskelly all stated that they expected that the diesel Cruzes’ emissions would be reduced to some
unknown benchmark. Id. Plaintiffs Miskelly, Counts, and Rodriguez also expected that the diesel
Cruze would be cleaner than previous generations of diesel engines. Id. But none of those Plaintiffs
identified what benchmarks they expected the diesel Cruzes to meet. Id. Indeed, numerous
Plaintiffs had not even heard of NOx before this lawsuit. Id.
Finally, to this Court’s understanding, none of Plaintiffs’ diesel Cruzes were recalled, and
Plaintiffs did not identify any evidence that they had attempted to repair their cars, which they had
alleged in their Amended Complaint. Id. at *18.
For those five reasons, Plaintiffs were directed to show cause why this case should not be
dismissed for lack of Article III standing. See ECF No. 429.
Plaintiffs filed a supplemental brief contending that a reasonable jury could find (1) that
Defendants’ communications with regulators were materially misleading; (2) that the vehicles

3

Monroney stickers “contain[] safety ratings assigned by the National Highway Traffic Safety
Administration (NHTSA) on a five-star scale in six categories.” Thomas M. Byrne & Stacey
McGavin Mohr, Class Actions, 68 MERCER L. REV. 951, 957 (2017). Specifically, Monroney
stickers disclose “information about the vehicles’s price, engine and transmission specifications,
other mechanical and performance specs, fuel economy and emissions ratings, safety ratings, and
standard and optional features.” In re Ford Motor Co. F-150 & Ranger Truck Fuel Econ. Mktg. &
Sales Pracs. Litig., No. 2:19-MD-02901, 2022 WL 551221, at *4 (E.D. Mich. Feb. 23, 2022).
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contain defective emissions treatment hardware and software; (3) that Plaintiffs were deceived;
and (4) that Plaintiffs consequently suffered economic damages. See generally ECF No. 430.
Defendants replied that Plaintiffs lack standing because (1) Plaintiffs did not proffer
enough evidence to quantify their alleged injury; (2) speculation about future regulatory action
cannot confer standing; (3) Plaintiffs’ expectations based on a comparison to gasoline vehicles are
nonactionable; and (4) there is no “injury in fact” because (a) there is no defeat device; (b) there is
no evidence of emissions exceeding reasonable and quantifiable expectations; and (c) a “bundle”
damages theory that does not isolate a price premium for the relevant vehicle feature cannot confer
standing. See generally ECF No. 432.
Thus far, the case has been adjourned 15 times by the parties’ stipulation. ECF Nos. 69;
92; 123; 125; 153; 157; 160; 166; 167; 238; 284; 301; 304; 309; 323. The most recent two
stipulated attempts to adjourn the case were denied. ECF Nos. 329; 333.
Having carefully reviewed the parties’ briefing, this Court finds that a hearing is
unnecessary and will proceed to address Defendants’ Motions on the papers. See E.D. Mich. LR
7.1(f)(2).
II.
Plaintiffs have Article III standing for all their claims against both Defendants.
A.
Although standing was addressed at the pleading stage, it must be reassessed with
Plaintiffs’ heavier burden at the summary-judgment stage. Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992))). The burden of proving jurisdiction falls on the party asserting jurisdiction: Plaintiffs.
Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019). Plaintiffs
must therefore demonstrate that—drawing all reasonable inferences in their favor—they have

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experienced a concrete injury in fact that is fairly traceable to Defendants’ conduct and redressable
by this Court. See Lujan, 504 U.S. 561.
As courts of limited jurisdiction, federal courts must consider subject-matter jurisdiction
in every case. Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465
(6th Cir. 2009); accord Kanuszewski, 927 F.3d at 405 (“Because standing doctrine comes from
Article III’s case-or-controversy requirement, it is jurisdictional and must be addressed as a
threshold matter.”); see also FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.”).
Three elements of constitutional standing “serve as its irreducible minimum in all cases.”
Miller v. City of Wickliffe, 852 F.3d 497, 502 (6th Cir. 2017). “First, the plaintiff must have suffered
an injury in fact—an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual and imminent, not conjectural or hypothetical.” Id. (quoting Lujan,
504 U.S. at 560). “Second, a plaintiff must demonstrate causation—i.e., that her injury is ‘fairly
traceable to the challenged action of the defendant, and not the result of independent action of
some third party not before the court.’” Id. (same). “Lastly, the plaintiff must prove that it is likely,
rather than merely speculative, that a favorable decision could redress the injury.” Id. (citing Lujan,
504 U.S. at 561).
B.
The testimony of Plaintiffs’ opinion witnesses confirms that Plaintiffs have proven their
Article III standing at the summary-judgment stage. Plaintiffs have alleged a concrete and
particularized injury in fact: they paid a premium for a feature that they did not receive (i.e., the
lack of defeat devices, or lower emissions output than expected).

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Plaintiffs’ alleged injury is “particularized.” In overpaying for their 2014 or 2015 diesel
Cruzes, see ECF No. 1 at PageID.64–65, 68, 74–75, Plaintiffs suffered an injury “particular” to
them, see Spokeo, Inc. v. Robins, 578 U.S. 330, 339 n.7 (2016), as revised (May 24, 2016) (“The
victims’ injuries from a mass tort, for example, are widely shared, to be sure, but each individual
suffers a particularized harm.”).
Whether Plaintiffs’ alleged injury is “concrete,” however, is where the case weakens. For
an injury to be “concrete,” it “must be ‘de facto’; that is, it must actually exist.” Yachera v.
Westminster Pharms., 477 F. Supp. 3d 1251, 1263 (M.D. Fla. 2020) (quoting Spokeo, 578 U.S. at
1547). “[A]n economic injury qualifies as a concrete injury,” and “[t]here is no requirement that a
plaintiff have experienced physical harm to have an economic injury.” Debernardis v. IQ
Formulations, LLC, 942 F.3d 1076, 1084, 1086 n.7 (11th Cir. 2019). People “experience[] an
economic injury when, as a result of a deceptive act or an unfair practice, [they are] deprived of
the benefit of [their] bargain.” Id. at 1086.
Plaintiffs have only alleged economic injuries. Generally, damages for economic injuries
“are calculated based on the difference in the market value of the product or service in the condition
in which it was delivered and its market value in the condition in which it should have been
delivered according to the contract of the parties.” Id. But there are many other ways to calculate
economic damages. See, e.g., Nichole Med. Equip. & Supply, Inc. v. TriCenturion, Inc., 694 F.3d
340, 345 (3d Cir. 2012) (discussing “past and future damages of an economic nature, including:
attorneys fees, costs, loss of sales, loss of revenue, loss of profits, and other expenses”). Indeed,
Plaintiffs’ economic-damages expert, Edward Stockton, has provided three reliable calculations of
Plaintiffs’ economic damages. ECF No. 438 at PageID.39356–71.

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Plaintiffs contend that they thought the diesel Cruze would output fewer emissions than it
did because Defendants installed defeat devices that misrepresented the emissions output. In other
words, Plaintiffs argue that the diesel Cruze lacked a feature for which Plaintiffs paid a premium.
See, e.g., ECF No. 95 at PageID.7303–04, 7307, 7311–12, 7314–34, 7344–46, 7402, 7413, 7418–
20, 7447–49, 7455, 7458–60, 7469, 7476, 7479. In this way, as Plaintiffs explain, Defendants
injured Plaintiffs through a deceptive act or unfair practice.
Like their economic damages, Plaintiffs’ only evidence of Defendants’ deception comes
from the opinion testimony of expert witnesses: Juston Smithers,  Plaintiffs’ emissions-testing
expert, ECF No. 438 at PageID.39336–41; Dr. Kirill Levchenko, Plaintiffs’ software expert, id. at
PageID.39341–47; and Dr. Venkat Shankar, Plaintiffs’ marketing expert, id. at PageID.39347–56.
Putting merits aside, Plaintiffs’ alleged injury is “concrete.” For determining whether a
concrete injury exists, it is enough that Plaintiffs “pa[id] a premium for a product but d[id] not
receive the anticipated benefit.” Raymo, 475 F. Supp. 3d at 694. Accordingly, Plaintiffs have
established a concrete monetary injury if a reasonable juror could find by a preponderance of the
evidence that Plaintiffs purchased a diesel Cruze that they would not have purchased had they
known it contained defeat devices. See Reynolds v. Wal-Mart Stores, Inc., No. 4:14CV381MW/CAS, 2015 WL 1879615, at *2 (N.D. Fla. Apr. 23, 2015) (“A plaintiff can meet the
injury-in-fact requirement with a showing that by relying on a misrepresentation on a product label,
they paid more for a product than they otherwise would have paid, or bought it when they otherwise
would not have done so.”). The problem, as Defendants have framed it, is whether Plaintiffs can
prove that such a premium exists. See, e.g., ECF No. 345 at PageID.22285, 22290 (filed under
seal). But, as explained, Plaintiffs experts have since demonstrated a triable assertion of fact that

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such a premium exists using not one, not two, but three reliable economic theories. See ECF No.
438 at PageID.39356–71.
Plaintiffs’ alleged economic injury is “fairly . . . trace[able] to the challenged action.”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976). If Plaintiffs did not pay the
premium for the difference in the emissions levels (i.e., a defective car), then they would not have
experienced their alleged injury. In other circumstances, that difference in emissions output might
not be a feature for which one might pay. But if that were true here, as Dr. Lorin Hitt will testify,
then Defendants would not have advertised the diesel Cruze’s emissions as one of its key features
by, for example, labeling the diesel Cruze as “clean,” “eco-friendly,” and “EPA compliant” and
applying a forest green badge reading “T[urbo]D[iesel] 2.0[Liter].” ECF Nos. 94 at PageID.6254,
6275; 94-4 at PageID.6732, 6806; 94-5 at PageID.6958. As indicated, Defendants would be
responsible for installing and misrepresenting the existence of any defeat device. Thus, Plaintiffs’
injury (paying a premium for a diesel car that defectively outputs more emissions than advertised)
is fairly traceable to Defendants’ conduct (installing defeat devices, or marketing the diesel Cruze
as not containing any defeat devices). See, e.g., Raymo v. FCA US LLC, 475 F. Supp. 3d 680, 698
(E.D. Mich. 2020); In re Takata Airbag Prods. Liab. Litig., 396 F. Supp. 3d 1101, 1129 (S.D. Fla.
2019); In re Chrysler–Dodge–Jeep Ecodiesel Mktg., Sales Pracs., & Prods. Liab. Litig., 295 F.
Supp. 3d 927, 951–52 (N.D. Cal. 2018); In re Duramax Diesel Litig., 298 F. Supp. 3d 1037, 1054
(E.D. Mich. 2018); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs., &
Prods. Liab. Litig., 826 F. Supp. 2d 1180, 1191–92 (C.D. Cal. 2011).
Finally, Plaintiffs’ injury would likely be redressed by their requested relief.  They
overpaid for their cars, and this Court may order Defendants to pay for those injuries.
For these reasons, Plaintiffs have Article III standing against Defendants.

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III.
Defendants have filed Motions for Summary Judgment contending that there is no genuine
issue of material fact that they did not violate the RICO Act. ECF Nos. 338 (Bosch); 345 (filed
under seal); 346 (GM).
A.
A motion for summary judgment should be granted if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). The movant has the initial burden of “identifying those portions of [the
record that] it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant, who must set out
specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (citation omitted). The nonmovant must show more than “some metaphysical doubt as
to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Indeed, the “mere existence of a scintilla of evidence” in support of the nonmovant does not
establish a genuine issue of material fact. Liberty Lobby, 477 U.S. at 252.
The court must review the evidence and draw all reasonable inferences in favor of the
nonmovant to determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251–52; see Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018).
Summary judgment will be granted if the nonmovant “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. But summary judgment will be
denied “[i]f there are . . . ‘genuine factual issues that properly can be resolved only by a finder of

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fact because they may reasonably be resolved in favor of either party.’” Hancock v. Dodson, 958
F.2d 1367, 1374 (6th Cir. 1992) (citation omitted).
B.
Count I of Plaintiffs’ Complaint alleges that Defendants violated the RICO Act, 18 U.S.C.
§§ 1962(c), (d), by “orchestrating a fraudulent scheme and conspiracy. . . . whose direct purpose
was to deceive the regulators and the public into believing the [diesel Cruzes] were ‘clean’ and
‘environmentally friendly.’” ECF No. 95 at PageID.7425–43.
The RICO Act has become one of the primary statutes that plaintiffs invoke to fight fraud.
See generally Nora Freeman Engstrom, Retaliatory RICO and the Puzzle of Fraudulent Claiming,
115 MICH. L. REV. 639 (2017) (noting that “tort reformers support RICO’s use because, they say,
conventional mechanisms to deter fraud fall short”).
The RICO Act provides that:
It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity . . . .
18 U.S.C. § 1962(c); accord United States v. Jenkins, 902 F.2d 459, 463 (6th Cir. 1990) (citing
United States v. Sinito, 723 F.2d 1250, 1260 (6th Cir. 1983)). Conspiracy to commit those acts is
also “unlawful.” Id. § 1962(d).
To establish a RICO violation, Plaintiffs must demonstrate “(1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.” Moon v. Harrison Piping Supply, 465 F.3d 719,
723 (6th Cir. 2006) (quoting Sedima, SPRL v. Imrex Co., 473 U.S. 479, 496 (1985)). By contrast,
to establish a RICO conspiracy claim under § 1962(d), Plaintiffs “must successfully allege all the
elements of a RICO violation [plus] ‘the existence of an illicit agreement to violate the substantive
RICO provision.’” Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 411 (6th Cir.

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2012) (quoting United States v. Sinito, 723 F.2d 1250, 1260 (6th Cir. 1983)). And “RICO plaintiffs
must show that they suffered a concrete, out-of-pocket loss of tangible property.” Bledsoe v. FCA
US LLC, 378 F. Supp. 3d 626, 640 (E.D. Mich. 2019) (citing Wall v. Mich. Rental, 852 F.3d 492,
494 (6th Cir. 2017)).
A “pattern of racketeering activity” (i.e., a scheme to defraud) means at least two acts of
racketeering activity. United States v. Robinson, 763 F.2d 778, 780–81 (6th Cir. 1985) (first citing
18 U.S.C. § 1961(1); and then citing 18 U.S.C. § 1961(5)). “Racketeering activity” can be based
on numerous acts, including violations of 18 U.S.C. § 1341 (any act relating to mail fraud) and 18
U.S.C. § 1343 (any act relating to wire fraud). See 18 U.S.C. § 1961(1)(B).
The scheme to defraud “need not be fraudulent on its face but must involve some sort of
fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary
prudence and comprehension.” United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir. 1978)
(citations omitted). The term “scheme to defraud” connotes some form of planning or pattern.
Fabian v. United States, 358 F.2d 187, 192–93 (8th Cir. 1966).
1.
Plaintiffs allege that Defendants “employed the use of mail and wire facilities, in violation
of 18 U.S.C. §§ 1341 (mail fraud) and 1343 (wire fraud).” ECF No. 95 at PageID.7435.
a.
The wire-fraud statute was modeled after the mail-fraud statute and, therefore, the same
analysis applies to both. United States v. Kennedy, 714 F.3d 951, 958 (6th Cir. 2013) (citing United
States v. Bibby, 752 F.2d 1116, 1126 (6th Cir. 1985)); Carpenter v. United States, 484 U.S. 19, 25
n.6 (1987). “The wire fraud statutory language should be interpreted with the same breadth as the

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analogous language in the mail fraud statute.” Hofstetter v. Fletcher, 905 F.2d 897, 902 (6th Cir.
1988). The only difference between mail fraud and wire fraud is the jurisdictional element.
To prove mail or wire fraud, Plaintiffs must prove by a preponderance of the evidence:
(1) that Defendants knowingly participated in, devised, or intended to devise a
scheme to defraud in order to deprive Plaintiffs of money or property, that is that
Defendants deceived consumers into believing the diesel Cruzes were clean and
environmentally friendly;
(2) that the scheme included a material misrepresentation or concealment of a
material fact;
(3) that Defendant had the intent to defraud; and
(4) that, in interstate or foreign commerce and in furtherance of the scheme,
Defendants used or caused another to use (a) the mail or (b) wire, radio, or
television communications.
See SIXTH CIR. COMM.

ON

PATTERN CRIM. JURY INSTRUCTIONS, FEDERAL JURY PRACTICE

AND

INSTRUCTIONS §§ 10.01–10.02 (2022); see also United States v. Olive, 804 F.3d 747, 753 (6th Cir.
2015).
Plaintiffs need not prove:
(1) all the details alleged concerning the precise nature and purpose of the scheme;
(2) that the material transmitted by mail was itself false or fraudulent;
(3) that the alleged scheme actually succeeded in defrauding Plaintiffs;
(4) that the use of the mail or wire, radio, or television communications was
intended as the specific or exclusive means of accomplishing the alleged fraud;
(5) that Plaintiffs relied on the misrepresentation or false statement; or
(6) that Defendants obtained money or property for their own benefit.
See SIXTH CIR. COMM.

ON

PATTERN CRIM. JURY INSTRUCTIONS, FEDERAL JURY PRACTICE

AND

INSTRUCTIONS §§ 10.01–10.02 (2022); see also Olive, 804 F.3d at 753.
“[T]he scheme to defraud element . . . is not defined according to a technical standard. The
standard is a ‘reflection of moral uprightness, of fundamental honesty, fair play[,] and right dealing
in the general and business life of members of society.’” United States v. Van Dyke, 605 F.2d 220,
225 (6th Cir. 1979) (quoting United States v. Bruce, 488 F.2d 1224, 1229 (5th Cir. 1973)). “A
scheme to defraud includes any plan or course of action by which someone intends to . . . deprive

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another . . . of money or property” [by deception through] false or fraudulent pretenses,
representations, or promises.” United States v. Daniel, 329 F.3d 480, 485 (6th Cir. 2003) (quoting
United States v. Gold Unlimited, Inc., 177 F.3d 472, 479 (6th Cir. 1999)).
Although the “scheme or artifice to defraud” requires that “the defendant said something
materially false,” United States v. Daniel, 329 F.3d 480, 486 (6th Cir. 2003) (quoting Neder v.
United States, 527 U.S. 1, 25 (1999)), plaintiffs need not actually rely on the misrepresentations
to prove mail or wire fraud, United States v. Merklinger, 16 F.3d 670, 678 (6th Cir. 1994).
In contrast to wire fraud, mail fraud requires the defendant to deposit, to receive, or to cause
to be deposited or received any matter or thing to be sent or delivered by the United States Postal
Service or any private or commercial interstate carrier for the purpose of executing a scheme to
defraud. 18 U.S.C. § 1341. “The federal mail fraud statute does not purport to reach all frauds, but
only those limited instances in which the use of the mails is a part of the execution of the fraud. . . .”
Schmuck v. United States, 489 U.S. 705, 710 (1989). But “the use of the mails need not be an
essential element of the scheme,” as “[i]t is sufficient for the mailing to be ‘incident to an essential
part of the scheme,’ or ‘a step in [the] plot.’” Id. (internal citations and quotation marks omitted).
“The relevant question at all times is whether the mailing is part of the execution of the scheme as
conceived by the perpetrator at the time . . . .” Id. at 715.
The Supreme Court has explained that one causes a mailing when “one does an act with
knowledge that the use of the mails will follow in the ordinary course of business, or where such
use can reasonably be foreseen, even though not actually intended.” Pereira v. United States, 347
U.S. 1, 8–9 (1954); accord Frost, 125 F.3d at 354 (mailing need only be reasonably foreseeable).
A mail-fraud conviction can be based on mailings that were legally required. United States v.
Frost, 125 F.3d 346, 354 (6th Cir. 1997) (“Further, ‘[t]he mailings may be innocent or even legally

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necessary.’” (quoting United States v. Oldfield, 859 F.2d 392, 400 (6th Cir. 1988))). In any case,
it is not necessary that the defendant actually mail the material. See 18 U.S.C. § 1341 (mail fraud
committed if defendant causes the mails to be used).
Defendants do not address all the elements of Plaintiffs’ claims. Accordingly, Plaintiffs’
claims will be addressed only to the extent that Defendants have contested them. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (holding that the movant has the initial burden of “identifying
those portions of [the record that] it believes demonstrate the absence of a genuine issue of material
fact.”).
C.
Defendants argue that Plaintiffs’ claims fail because they cannot prove the existence of a
defeat device. ECF No. 345 at PageID. 22222–23, 22255–62 (filed under seal).
Plaintiffs respond that they have amassed ample opinion evidence to support their assertion
that Defendants designed all the 2014 and 2015 diesel Cruzes with defeat devices that conceal
excessive emissions. ECF No. 390 at PageID.31985, 32019–31 (filed under seal). Plaintiffs add
that they have demonstrated that their diesel Cruzes contain defeat devices. Id. at PageID.31985,
32031–42.
There is at least a question of fact as to whether there are defeat devices in the fleet of 2014
and 2015 diesel Cruzes. First and foremost, Plaintiffs have presented admissible expert analyses
demonstrating three defeat devices in the diesel Cruzes and the effect that those devices would
have on emissions readings. See generally ECF No. 438 (denying Defendants’ Daubert Motions
as to those experts). Second, Plaintiffs have submitted internal emails and presentations that—
though cryptic, limited, and distinctly different than the evidence in Volkswagen—reasonably
imply that Defendants implemented defeat devices to deceive regulators and consumers, see, e.g.,

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ECF No. 390 at PageID.32023 (filed under seal) (“I went for the homerun, and have moved the
Positive Filter for Envt_T to 1000 seconds. This should prevent EnvT_t from updating on the SC03
and will be in Manfred’s latest 65% calibration. I will try to understand the effect at cold temps,
and maybe we need to make a SW change for this case.”), opinion testimony suggesting the same,
see ECF No. 438 at PageID.39356, and Defendants’ internal testing suggesting that when such
devices are installed the emissions-control technologies are substantially impaired during
real-world driving, see ECF Nos. 390-1 at PageID.32148–52 (filed under seal); 390-2 at
PageID.32194–95, 32214, 32257–60 (filed under seal); 390-3 at PageID.32363–64 (filed under
seal) (low-pass filtering); 390-21 (filed under seal) (final online-dosing report).
Further, the record supports a reasonable inference of excess, improper, or illegal emissions
caused by defeat devices in the diesel Cruze. Juston Smithers’s PEMS testing suggests that the
fleet of diesel Cruzes contains defeat devices, which Dr. Levchenko’s testimony will partially
corroborate. ECF No. 438 at PageID.39330. And to the extent that GM argues that the testing of a
car that Plaintiffs did not own cannot establish the presence of a defeat device in Plaintiffs’ cars or
the entire fleet of diesel Cruzes, the single-vehicle issue merely goes to the weight of Juston
Smithers’s testimony; indeed, GM partially relied on the PEMS test of a single diesel Cruze to
obtain the requisite Certificate of Conformity from the EPA. Id. at PageID.39339–40. That expert
analysis, by itself, establishes more than a mere scintilla of evidence to deny Defendants’ Motions
for Summary Judgment on this ground.
D.
Defendants also argue that omitting defeat devices was not material to Plaintiffs’
purchases. ECF Nos. 338 at PageID.19139, 19148; 345 at PageID.22223, 22262–80 (filed under
seal).

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Plaintiffs respond that Defendants’ omissions were material to their purchases. ECF No.
390 at PageID.31985–86, 32043–58 (filed under seal).
Defendants are correct that “[t]o be actionable under RICO or state law, an alleged
omission must be ‘material,’” which “calls for ‘an evaluation of whether a “reasonable consumer”
or “reasonable person” likely would consider the information concealed to be important when
making a purchasing decision.’” ECF No. 345 at PageID.22264–65 (filed under seal) (quoting In
re FCA US LLC Monostable Elec. Gearshift Litig., 334 F.R.D. 96, 115 (E.D. Mich. 2019)).
But the record contains trial-admissible testimony of three defeat devices in the diesel
Cruze, each of which would be a material omission. “The level of emissions produced by a diesel
engine was a material consideration for consumers purchasing a vehicle.” In re Duramax Diesel
Litig., 298 F. Supp. 3d 1037, 1084 (E.D. Mich. 2018); see also ECF No. 438 (detailing the expert
analyses of the defeat devices). Drawing all reasonable inferences in Plaintiffs’ favor, three defeat
devices are present in their diesel Cruzes, Defendants concealed the existence of those defeat
devices, and Plaintiffs’ diesel Cruzes output more emissions than Defendants disclosed. In this
way, Defendants omitted material information that a reasonable consumer would consider
important. This finding is reinforced by the opinion testimony of Plaintiffs’ experts, who note that
Defendants’ marketing campaigns touted the eco-friendly nature of the diesel Cruze. Counts v.
Gen. Motors, LLC, 2017 WL 1406938, at *1 (“[E]ven though GM’s advertising campaign does
not constitute actionable misrepresentations, it does provide context for the question of whether
GM made material omissions that would have misled a reasonable consumer.”). Defendants’
argument is similarly unavailing as to the predicate offenses of wire and mail fraud. See United
States v. Merklinger, 16 F.3d 670, 678 (6th Cir. 1994) (“[T]he mail and wire fraud statutes do not

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require proof that the intended victim was actually defrauded; the actual success of a scheme to
defraud is not an element of either § 1341 or § 1343.”).
Defendants incorrectly assert that Defendants argue that the Clean Air Act (CAA) preempts
Plaintiff’s RICO claims. See ECF No. 345 at PageID.22278 (filed under seal) (“[V]iolations of the
CAA are subject to an exclusive federal administrative remedy.”).
But Plaintiffs’ claims do not require proof that Defendants defrauded the EPA. Plaintiffs
have also alleged that Defendants defrauded its consumers by installing and concealing defeat
devices. See Counts v. Gen. Motors, LLC, No. 16-CV-12541, 2018 WL 5264194, at *12 (E.D.
Mich. Oct. 23, 2018) (“[T]he allegations concerning regulatory violations are collateral allegations
[that] are unnecessary to sustain Plaintiffs’ RICO claim.”); Duramax, 298 F. Supp. 3d at 1088
(“Plaintiffs’ RICO claim is not an attempt to obtain a remedy [that] is exclusively within the
purview of the EPA.”). Further, Supreme Court precedent has suggested that the CAA does not
preempt fraud claims brought under the RICO Act. Cf. POM Wonderful LLC v. Coca–Cola Co.,
573 U.S. 102, 120–21 (2014) (“But the FDCA and the Lanham Act complement each other in the
federal regulation of misleading labels. Congress did not intend the FDCA to preclude [private]
Lanham Act suits like POM’s.”); Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 611–12 (6th Cir.
2004) (holding that the NLRA does not “preempt” wage-related RICO claims).
Defendants’ argument that the CAA preempts Plaintiffs’ state-law claims is similarly
without merit. See ECF No. 345 at PageID.22275–78 (filed under seal). Section 209 of the CAA
provides that “[n]o State or any political subdivision thereof shall adopt or attempt to enforce any
standard relating to the control of emissions from new motor vehicles or new motor vehicle engines
subject to this part.” 42 U.S.C. § 1743(a). But, as this Court has repeatedly sought to explain,
Plaintiffs cannot enforce federal emissions standards through the RICO Act. Thus, Plaintiffs now

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only argue that Defendants defrauded them by installing and concealing defeat devices that
misrepresent the diesel Cruze’s emissions. In this way, Defendants’ alleged violation of the CAA
is merely relevant background information; it is not dispositive of Plaintiffs’ claims. See, e.g.,
Thomas v. Lambert, No. 1:19-CV-11046, 2022 WL 909344, at *8 (E.D. Mich. Mar. 28, 2022).
Indeed, all Plaintiff’s state-law claims allege deception, fraud, unfair competition, or some
variation of them. See ECF Nos. 94 at PageID.6184–90; 95 at PageID.7296–302. Plaintiffs are
therefore not attempting to enforce any regulatory standards.
Defendants also declare that Plaintiffs’ expectations of the diesel Cruzes’ emissions are
objectively unreasonable. See ECF No. 345 at PageID.22279–80 (filed under seal).
But Plaintiffs’ claims do not hinge on the diesel Cruzes’ operations as compared to gasoline
alternatives; they hinge on whether Defendants fraudulently concealed one or more defeat devices.
Moreover, the expectation that the diesel Cruze would not defectively contain a defeat device is
reasonable by any measure. Indeed, Defendants have offered no evidence that consumers
purchased GM’s vehicles in hopes that they contain defeat devices. And neither Defendants nor
the diesel Cruzes’ Monroney labels disclosed the “material information” that “GM installed a
‘defeat device’ on the [diesel] Cruze.” Counts v. Gen. Motors, LLC, 237 F. Supp. 3d 572, 600
(E.D. Mich. 2017).
E.
Defendants next contend that Plaintiffs’ RICO claims fail as a matter of law because (1)
Plaintiffs have suffered economic injury, and (2) Plaintiffs are indirect purchasers of GM’s and
Bosch’s products. ECF Nos. 338 at PageID.19139, 19148; 345 at PageID.22223–24, 22281–91
(filed under seal).

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Plaintiffs respond that summary judgment should not be entered against Plaintiffs’ RICO
claims because (1) Plaintiffs have submitted sufficient trial-admissible testimony to demonstrate
their economic damages, and (2) the underlying principles of the indirect-purchaser rule do not
apply here. ECF No. 390 at PageID.31984–85, 32008–18 (filed under seal).
Although Defendants’ first contention fails, their second argument is correct and ultimately
dispositive of Plaintiffs’ RICO claim.
1.
Defendants argue, without merit, that Plaintiffs have not suffered an out-of-pocket injury
sufficient to establish statutory standing under the RICO Act. ECF Nos. 338 at PageID.19139,
19148; 345 at PageID.22223–24, 22281–87 (filed under seal). This argument essentially mimics
Defendants’ argument that Plaintiffs’ have no legally cognizable damages. See ECF No. 345 at
PageID.22225, 22314–16 (filed under seal).
Plaintiffs respond that they have presented substantial admissible evidence of their
damages. ECF No. 390 at PageID.31987, 32074 (filed under seal).
This Court has explained at length that Plaintiffs’ trial-admissible damages expert has
advanced three reliable out-of-pocket damages theories. ECF No. 438. Two of those models
calculate overpayment, and a third model calculates the retail cost of replacement. Thus, to the
extent that those calculations might also satisfy a benefit-of-the-bargain theory of damages, they
do not dissolve Plaintiffs’ standing. And to the extent that Defendants argue that “any ‘premium’
paid by consumers is attributable solely to non-defective components,” id. at PageID.22287 (filed
under seal), Defendants have not sufficiently rebutted the reasonable inference that Plaintiffs
overpaid for nonemissions parts that incurably depended on or operated with the defeat devices or

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their dependent parts. In other words, there is a genuine issue of fact regarding whether Plaintiffs
overpaid for parts that would not or could not properly function without the defeat devices.
2.
Fatal to Plaintiffs’ RICO claims, Defendants contend that the indirect-purchaser rule from
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) forecloses Plaintiffs’ RICO claim. See ECF No.
345 at PageID.22224, 22288–91 (filed under seal). Defendants are correct.
Although the price effects of an antitrust4 injury can indirectly affect anyone in a stream of
distribution, Illinois Brick provides that only direct purchasers may allege an antitrust injury. Ill.
Brick, 431 U.S. at 729. The Sixth Circuit has extended Illinois Brick’s antitrust rule to RICO
claims. See Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 616 (6th Cir. 2004) (“[I]ndirect
purchasers lack standing under RICO and the antitrust laws to sue for overcharges passed on to
them by middlemen.”); see also McCarthy v. Recordex Serv., Inc., 80 F.3d 842, 855 (3d Cir. 1996)
(holding that in RICO cases “the central and dispositive issue is whether plaintiffs are ‘direct
purchasers’”).
Plaintiffs only seek “pass-through” overcharges. Plaintiffs purchased their diesel Cruzes
from dealerships, not from Defendants (whether characterized jointly as co-conspirators or
independently as the manufacturers). ECF No. 94 at PageID.6201, 6203, 6205, 6207–08, 6210,
6212, 6214, 6216, 6218, 6220. Thus, any overcharges resulting from the defeat devices passed
through the dealerships to Plaintiffs. See Apple Inc. v. Pepper, 139 S. Ct. 1514, 1524–25 (2019).

4

The Supreme Court and the Sixth Circuit have repeatedly confirmed that antitrust principles
equally apply to RICO cases. See, e.g., Cnty. of Oakland v. City of Detroit, 866 F.2d 839, 845 (6th
Cir. 1989) (“Although we have focused primarily on the antitrust laws in the foregoing discussion,
most of what we have said is applicable also to the treble damage provision of RICO, 18 U.S.C. §
1964(c), a provision patterned directly on § 4 of the Clayton Act.”).
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For this reason, Plaintiffs do not have standing to bring their RICO claims. The same
remains true even if this Court atavistically applied one of the defunct exceptions of the
indirect-purchaser rule. See Matthew M. Duffy, Chipping Away at the Illinois Brick Wall:
Expanding Exceptions to the Indirect Purchaser Rule, 87 NOTRE DAME L. REV. 1709, 1730–47
(2012) (proposing a pre-Apple regime in which lower courts would expand the cost-plus exception,
the purchaser control exception, the coconspirator exception, and the defendant control exception).
Indeed, as the District of New Jersey recently held under practically identical facts, the
indirect-purchaser rule “is a bright-line rule that admits no exceptions.” Hu v. BMW of N. Am.,
LLC, No. CV184363KMJBC, 2021 WL 346974, at *3 (D.N.J. Feb. 2, 2021) (“[T]he bright-line
rule of Illinois Brick means that there is no reason to ask whether the rationales of Illinois Brick
‘apply with equal force’ in every individual case. We [will] not engage in ‘an unwarranted and
counterproductive exercise to litigate a series of exceptions.’” (quoting Apple, 139 S. Ct. at
1524))).
The indirect-purchaser rule, thus, seemingly “forecloses all consumer RICO claims against
car manufacturers, because state laws generally prohibit manufacturers’ direct sales of
automobiles.” Rickman v. BMW of N. Am., No. CV 18-4363(KM) (JBC), 2020 WL 3468250, at
*9 n.9 (D.N.J. June 25, 2020).
But the indirect-purchaser rule does not foreclose all RICO claims against vehicle
manufacturers. For example, in some states, consumers may purchase vehicles directly from the
manufacturer. Joshua Park, Note, Economic Protectionism: Irrationally Constitutional, 45 PEPP.
L. REV. 149, 156 (2018) (“Although some states have given Tesla access, other states, such as
Michigan and Texas, still maintain a complete ban on Tesla’s direct-to-consumer model . . . .”).
Similarly, in some direct-to-consumer sales, dealerships serve only as a temporary storage. See

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Sean Tucker, Ordering a Car from the Factory: Everything You Need to Know, KELLY BLUE BOOK
(Sept.

20,

2021,

4:00

PM),

https://www.kbb.com/car-advice/ordering-car-from-factory/

[https://perma.cc/AN5X-5AE7] (“But most manufacturers ship the [custom-ordered] car to a
dealership near you to handle the final delivery steps.”). And the dealership that directly purchased
the vehicle from the manufacturer could also sue the manufacturer under the RICO Act.
If the indirect-purchaser rule only applies due to a relationship created by state law, then
courts might properly apply state law to determine if the indirect-purchaser rule should apply.
Michigan, for example, has legislated against the indirect-purchaser rule for cases brought under
state antitrust law. See MICH. COMP. LAWS § 445.778(2); see also GEICO Corp. v. Autoliv, Inc.,
345 F. Supp. 3d 799, 823 (E.D. Mich. 2018) (finding that several states have implemented
“so-called ‘Illinois Brick repealer statutes’” that “allow recovery by indirect purchasers under state
law”).
Although that regime might change the circumstance of this case, it is not the law. Here,
Plaintiffs did not purchase the cars from GM or Bosch, the manufacturers. In other words, Plaintiffs
have no RICO standing because they purchased their diesel Cruzes from dealerships. The proper
parties to bring the federal RICO claim, as pled, are the dealerships that the defeat devices have
allegedly duped. Thus, Plaintiffs’ remedies lie in state law.
All the controlling precedent points in the same direction. Although the parties have cited
numerous cases addressing exceptions to the indirect-purchaser rule, all those cases predate Apple,
which nixed any such exceptions. Therefore, those cases are inapposite here.
The only remaining case does not bind this Court and appears on limited ground. See
Gamboa v. Ford Motor Co., No. 18-10106, 2020 WL 7047612 (E.D. Mich. Nov. 30, 2020). The

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Gamboa opinion eclipses the Apple Court’s clear conclusion that there are no exceptions to the
indirect-purchaser rule. See Gamboa, 2020 WL 7047612, at *8.
Moreover, Gamboa would not apply here because Plaintiffs have not alleged that the
dealerships were involved in the RICO conspiracy. Id. (“The dealerships’ roles as potential
unnamed coconspirators is currently undetermined. But discovery may illuminate more facts about
the unnamed coconspirators, which precludes dismissing Plaintiffs claims.” (citation omitted)).
See generally ECF Nos. 94; 95.
For these reasons, Plaintiffs have no RICO standing, and Count I will be dismissed with
prejudice.
IV.
Defendants’ Motions for Summary Judgment also argue that there is no genuine issue of
material fact that they did not violate the statutory or common law of Arizona, California, Florida,
Maryland, Michigan, New York, Texas, or West Virginia. ECF Nos. 338; 345 (filed under seal);
346.
A.
Although Plaintiffs allege violations of 60 state laws, see ECF No. 95 at PageID.7425–797,
Defendant GM only contests the allegations of the counts with named plaintiffs, see ECF No. 345
at PageID. 22224–25, 22291–314 (filed under seal). Defendant Bosch joins in all Defendant GM’s
arguments in this regard. ECF No. 338 at PageID.19139, 19148.
Plaintiffs respond that there is no merit to Defendant GM’s arguments to the state claims.
ECF No. 390 at PageID.31986–87, 32063–74 (filed under seal).

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Defendants first state that there is no evidence of Plaintiffs’ alleged economic injuries. But
this Court has already explained that Plaintiffs have alleged concrete injuries in fact, see discussion
supra Part II, and reliable methods to calculate damages, see ECF No. 438 at PageID.39356–71.
Defendants add that federal law preempts Plaintiffs’ state claims. But this Court has already
explained why the CAA does not preempt the state claims. See discussion supra Section III.D.
Defendants also assert that they disclosed that the diesel Cruze outputs more emissions
than gasoline vehicles, and that any claims based on a comparison to other diesel vehicles are
unsupported and invalid. This Court has also explained that Plaintiffs’ claims are not predicated
on the diesel Cruze outputting equal or less emissions than a gasoline vehicle. See discussion supra
Section III.D. Nor are they predicated on Defendants cheating regulators. Id. Plaintiffs’ claims are
that Defendant deceived them into believing that their diesel Cruzes output less emissions than
they do because of defeat devices.
Defendants explain that Plaintiffs did not rely on Defendants’ omissions about NOx
emissions. Yet it does not matter if Plaintiffs knew what NOx emissions are or even what level of
NOx emissions they expected of their diesel Cruzes. Plaintiffs have stated and furnished admissible
opinion testimony that they would not have purchased their diesel Cruzes but for the defeat
devices, which deceive the purchaser about the vehicles’ emissions. As explained, drawing all
reasonable inferences in Plaintiffs’ favor, a reasonable juror could find by a preponderance of the
evidence that Plaintiffs relied on the absence of defeat devices when they purchased their diesel
Cruzes. See discussion supra Section III.D.
Defendants separately maintain that the California Plaintiff released his claims against
Defendants. ECF No. 345 at PageID.22312–14 (filed under seal). Plaintiffs acknowledge the same.
ECF No. 390 at PageID.32000 (filed under seal) (“GM’s Plaintiff-specific arguments are

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unfounded, apart from Plaintiff Zamora, who has agreed to dismiss his claims.”). Yet this does not
dispose of Plaintiffs’ allegations under California law, which remain for the same reasons as the
state-law claims that Defendants did not contest in their Motions for Summary Judgment. See ECF
No. 21 at PageID.770–73 (“The question of whether [Plaintiffs] may bring claims on behalf of the
unnamed class members is an issue that is properly addressed via a motion for class certification.”).
For these reasons, all Defendants’ arguments fail regarding Plaintiffs’ state-law claims,
except Defendants’ argument regarding Plaintiff Zamora. Consequently, Defendant GM’s Motion
for Summary Judgment, ECF Nos. 345 (filed under seal); 346, will be granted as to Count I and
denied in all other regards.
B.
In contrast to Defendant GM’s general contentions to Plaintiffs’ state-law claims,
Defendant Bosch offers substantive analyses for why it believes that those 18 claims fail. See ECF
No. 338 at PageID. 19149–73. In general terms, Defendant Bosch argues that 18 of Plaintiffs’
state-law claims fail because there was no direct relationship or communication between
Defendants and Plaintiffs and, unlike Plaintiffs’ RICO claims, Plaintiffs’ state-law claims require
each of the Defendants to have made material misrepresentations to Plaintiffs. See id. at
PageID.19139–40, 19149–73.
Plaintiffs respond that there are genuine questions of fact as to each of those 18 state-law
claims. Id. at PageID.30993–94, 31009–33. As explained hereafter, five of those claims will be
dismissed as to both Defendants, and two of them will be dismissed as to Defendant Bosch.
Defendants do not oppose the other state claims.5

5

Several issues persist as to Plaintiffs’ unopposed state-law claims, as they still do not have named
plaintiffs. See, e.g., John A. Day, “Made-Whole” Made Fair: A Proposal to Modify Subrogation
in Tennessee Tort Actions, 1 BELMONT L. REV. 71, 88 n.80 (2014) (discussing possible
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1.
a.
Defendants argue that Plaintiff Hermiz’s claim under the Arizona Consumer Fraud Act
(“ACFA”) fails because (1) “Plaintiff Hirmiz did not enter into any transaction with Bosch LLC
and Bosch LLC made no misrepresentation to him”; (2) “there is no evidence that he relied on a
misrepresentation or omission by Bosch LLC made in connection with the sale or advertising of
his Cruze”; and (3) “Plaintiff Hirmiz can point to no facts that would create a duty to disclose for
Bosch LLC that could support an omission-based ACFA claim.” ECF No. 338 at PageID.19151–
53. Plaintiffs contest each point. See ECF No. 388 at PageID.31010–31014 (filed under seal).
ACFA provides that:
The act, use or employment by any person of any deception, deceptive or
unfair act or practice, fraud, false pretense, false promise, misrepresentation, or
concealment, suppression or omission of any material fact with intent that others
rely on such concealment, suppression or omission, in connection with the sale or
advertisement of any merchandise whether or not any person has in fact been
misled, deceived or damaged thereby, is declared to be an unlawful practice.
ARIZ. REV. STAT. § 44-1522(A) (emphasis added).
Subsequent purchasers cannot proceed with a private cause of action under ACFA. Sullivan
v. Pulte Home Corp., 290 P.3d 446, 454 (Ariz. Ct. App. 2012), vacated in part on other grounds,
306 P.3d 1 (Ariz. 2013). Indeed, Arizona courts have concluded that “[t]he purpose of the [ACFA]
is to provide injured consumers with a remedy to counteract the disproportionate power often
present in consumer transactions.” Id. (quoting Waste Mfg. & Leasing Corp. v. Hambicki, 900 P.2d

intersections of statutes of repose and fraudulent-concealment statutes). Those issues will be
addressed at the class-certification stage. Counts v. Gen. Motors, LLC, 237 F. Supp. 3d 572, 587
(E.D. Mich. 2017) (“[T]he question of whether the named Plaintiffs have standing to bring claims
on behalf of the unnamed class members is analytically subsequent to the class certification
analysis.”).
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1220, 1224 (Ariz. Ct. App. 1995)). “Because a subsequent purchaser is not a party to the original
transaction and therefore would not encounter this ‘disproportionate bargaining power,’ such a
purchaser is not within the class of consumers intended to be protected by the implied private cause
of action under the [ACFA].” Id.
The only seeming limitation to Sullivan concerns those advertisements or materials
provided as part of the transaction. See Watts v. Medicis Pharm. Corp., 365 P.3d 944, 953 (Ariz.
2016); accord State Farm Fire & Cas. Co. v. Amazon.com Inc., No. CV-17-01994-PHX-JAT,
2018 WL 1536390, at *4–5 (D. Ariz. Mar. 29, 2018). When a claim hinges on an omission, a
plaintiff also must prove that the omission was material. See Haisch v. Allstate Ins., 5 P.3d 940,
944 (Ariz. Ct. App. 2000); Schellenbach v. GoDaddy.com, 321 F.R.D. 613, 622, 623–24 (D. Ariz.
2017). An omission is material if it is “logically related to the transaction in which it occurs and
rationally significant to the parties in view of the nature and circumstances of the transaction.”
Schellenbach, 321 F.R.D. at 623–24 (quoting Demaree v. Wal-Mart Stores, Inc., 511 F. App’x
660, 661 (9th Cir. 2013) (unpublished)). Buyers need not prove an intent to deceive. See State ex
rel. Corbin v. Tolleson, 773 P.2d 490, 503 (Ariz. Ct. App. 1989).
In light of Watts, this Court does not accept Defendants’ contention that Sullivan bars
Plaintiff from stating an ACFA claim against GM. Plaintiffs’ marketing expert, Dr. Shankar, will
offer opinion testimony regarding the omission of the defeat devices in GM’s advertisements for
the diesel Cruze. See ECF No. 438 at PageID.39330–31, 39347–56.
However, Count IV should be dismissed as to Bosch. Plaintiffs have not provided sufficient
evidence to create a genuine issue of fact regarding whether Defendant Bosch gave advertisements
or materials to Plaintiffs as part of a transaction. Specifically, Plaintiff does not allege any facts to
show that Defendant Bosch made a misrepresentation to Plaintiffs in connection with the sale of

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the diesel Cruze. The misrepresentation in this case is omitting the defeat devices by not disclosing
their existence. Even though the defeat devices are material, Plaintiff Hirmiz’s purchase of the
diesel Cruze did not include any representations from Bosch in which it might have disclosed the
defeat devices. Indeed, Plaintiff Hirmiz has not even alleged that Bosch delivered an owner’s
manual, an instruction booklet, or any other document regarding the diesel Cruzes’ emissions.
Plaintiff Hirmiz’s ACFA claim should be dismissed as to Defendant Bosch because “there are no
allegations that Plaintiffs or their Assignors had any contact with [Bosch].” MSP Recovery Claims,
Series LLC v. Abbott Lab’ys, No. CV1921607FLWZNQ, 2021 WL 2177548, at *18 (D.N.J. May
28, 2021). By contrast, Plaintiffs have provided ample evidence of GM’s involvement in the sales
of the diesel Cruzes through, for example, providing the Monroney sticker. See Counts v. Gen.
Motors, LLC, 237 F. Supp. 3d 572, 600 (E.D. Mich. 2017); see also ECF No. 438 at PageID.39347
(discussing Plaintiffs’ proposed expert testimony regarding GM’s marketing of the diesel Cruze).
In this way, Plaintiff Hirmiz has not met his burden to set out specific facts showing “a
genuine issue for trial” under ACFA as to Defendant Bosch. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986) (citation omitted). Consequently, Count IV of Plaintiffs’ First Amended
Complaint will be dismissed with prejudice as to Defendant Bosch.
b.
Defendants correctly add that summary judgment is proper on Plaintiff Hirmiz’s Arizona
fraudulent-concealment claim because they were “not a party to any transaction with Plaintiff
Hirmiz.” ECF No. 338 at PageID.19153–54.
Under Arizona law, “being a ‘party to a transaction’ is a necessary element of a fraudulent
concealment claim.” Sullivan v. Pulte Home Corp., 290 P.3d 446, 454 (Ariz. Ct. App. 2012) (citing
Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr.

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Fund, 38 P.3d 12, 34 (Ariz. 2002), as corrected (Apr. 9, 2002) (en banc)), vacated in part on other
grounds, 306 P.3d 1 (Ariz. 2013); accord J-Hanna v. Enter. Rent-A-Car Co. of San Francisco,
LLC, 672 F. App’x 737 (9th Cir. 2017) (mem.) (“[S]ubsequent purchasers do not have a cause of
action under Arizona’s Consumer Fraud Act against the seller in the original sales transaction; to
establish a common law fraudulent concealment claim, a plaintiff must show the defendant was a
party to a transaction with the plaintiff.”); see also Hale v. Norcold Inc., No. CV-18-03597-PHXSPL, 2019 WL 3556882, at *2 (D. Ariz. Aug. 5, 2019) (“Plaintiffs’ claim should immediately fail
because the Plaintiffs and the Defendants were never parties to the same transaction; rather, the
Plaintiffs bought their RV from a third party with the Refrigerator made by the Defendants already
installed.”).
Plaintiff Hirmiz purchased his diesel Cruze from a dealership with GM’s and Bosch’s
manufactured parts already installed. See ECF No. 346-26 at PageID.24076. And he has not
alleged or offered any evidence demonstrating that he transacted any business with Bosch or GM.
In this way, neither Bosch nor GM was a party to Plaintiff Hirmiz’s purchase of his diesel Cruze.
For that reason, summary judgment is proper on Plaintiff Hirmiz’s Arizona
fraudulent-concealment claim. Consequently, Count V of Plaintiffs’ First Amended Complaint
will be dismissed with prejudice.
2.
Defendants separately maintain that Plaintiff Zamora has no claims under California law.
See ECF No. 338 at PageID.19154–59. Plaintiff Zamora voluntarily dismissed his claims. ECF
No. 388 at PageID.31004 n.1 (filed under seal). Yet this does not dispose of Plaintiffs’ allegations
under California law, which remain for the same reasons as the state-law claims that Defendants
did not contest in their Motions for Summary Judgment. See ECF No. 21 at PageID.770–73 (“The

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question of whether [Plaintiffs] may bring claims on behalf of the unnamed class members is an
issue that is properly addressed via a motion for class certification.”). Consequently, Defendant
Bosch’s Motion for Summary Judgment, though granted as to Plaintiff Zamora, does not affect
Plaintiffs’ California claims.
3.
a.
Defendants next assert that Plaintiff Silveus’s claim fails under Florida’s Deceptive and
Unfair Trade Practices Act (FDUTPA), FLA. STAT. §§ 501.201–501.213. ECF No. 388 at
PageID.19159–60 (filed under seal).
In order to state a claim under the FDUTPA, Plaintiff Silveus must allege (1) a deceptive
act or unfair practice, (2) causation, and (3) actual damages. FLA. STAT. § 501.204; Angelo v.
Parker, 275 So. 3d 752, 755 (Fla. Dist. Ct. App. 2019). Under the FDUTPA, plaintiffs need not
demonstrate that the defendant was the principal actor involved in the violative acts, or that the
defendant initiated those acts. See Sundance Apartments I, Inc. v. Gen. Elec. Cap. Corp., 581 F.
Supp. 2d 1215, 1222 (S.D. Fla. 2008) (holding that it is sufficient to allege that a party directly
participated in a violation of the FDUTPA, even if that violation was initiated by another); K.C.
Leisure, Inc. v. Haber, 972 So.2d 1069, 1073–74 (Fla. Dist. Ct. App. 2008) (holding that FDUTPA
liability extends beyond the corporate seller to others who participated in the deceptive acts).
A deceptive practice is one “likely to mislead consumers acting reasonably in the
circumstances, to the consumers’ detriment.” State v. Beach Blvd. Auto., Inc., 139 So. 3d 380, 387
(Fla. Dist. Ct. App. 2014). A plaintiff must show that a reasonably objective person in the same
circumstances would have been deceived. Lombardo v. Johnson & Johnson Consumer Cos., 124
F. Supp. 3d 1283, 1290 (S.D. Fla. 2015).

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“[A]n unfair practice is one which causes substantial injury to a consumer which the
consumer could not have reasonably avoided and which is not outweighed by countervailing
benefits to the consumer or to competition.” Hill Dermaceuticals, Inc. v. Anthem, Inc., 228 F.
Supp. 3d 1292, 1302 (M.D. Fla. 2017). An unfair practice “‘offends established public policy’ and
. . . is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.’”
PNR, Inc. v. Beacon Prop. Mgmt., 842 So. 2d 773, 777 (Fla. 2003) (quoting Samuels v. King Motor
Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. Dist. Ct. App. 2001)).
There is a genuine question of fact as to whether Defendants’ conduct violated the
FDUTPA. Plaintiffs have furnished evidence that Defendants coordinated to install one or more
defeat devices in the diesel Cruze and then conceal that information from consumers, even though
it sold the diesel Cruze to dealerships. There is no precedent directly on point with respect to the
FDUTPA. In one Florida case, however, the court suggested that a plaintiff could have
demonstrated a genuine issue of material fact under the FDUTPA by demonstrating that the
defendant “sold a vehicle with a Takata recall notice without disclosing that information to the
consumer.” See Stewart Agency, Inc. v. Arrigo Enters., 266 So. 3d 207, 212 & n.1 (Fla. Dist. Ct.
App. 2019). Unlike the plaintiff in Stewart, Plaintiff here has provided “counterevidence to create
a genuine issue of fact”: expert evidence that there are defeat devices that Defendants concealed.
See id.; ECF No. 438 at PageID.39330, 39336–47. Moreover, in the case holding that Florida
courts must define “unfair trade practices” by looking to the Federal Trade Commission’s
interpretations, the plaintiff class alleged that Porsche unfairly profited by distributing headlights
that were highly susceptible to theft without disclosing that information. See generally Porsche
Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090 (Fla. Dist. Ct. App. 2014). Thus, drawing all
reasonable inferences in Plaintiffs’ favor, as this court must, there is a genuine issue of material

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fact as to whether Defendants unfairly profited by installing and not disclosing one or more defeat
devices.
For that reason, summary judgment is not proper on Plaintiff Silveus’s FDUTPA claim.
Consequently, Defendants’ Motion for Summary Judgment will be denied as to Count XVI.
b.
Defendants correctly contend that Plaintiff Silveus’s Florida fraudulent-concealment claim
fails because he has not demonstrated reliance. ECF No. 338 at PageID.19160–61.
The classic illustration of fraud is when one party has superior knowledge and intentionally
fails to disclose a material fact, Columbus Hotel Corp. v. Hotel Mgmt. Co., 156 So. 893, 901 (Fla.
1934); Pryor v. Oak Ridge Dev. Corp., 119 So. 326, 329 (Fla. 1928), that is not discoverable by
ordinary observation, Kitchen v. Long, 64 So. 429, 430 (Fla. 1914); Hirschman v. Hodges, O'Hara
& Russell Co., 51 So. 550, 554 (Fla. 1910), especially if coupled with a trick or artifice, Joiner v.
McCullers, 28 So. 2d 823, 824–25 (Fla. 1947); Stackpole v. Hancock, 24 So. 914, 918 (Fla. 1898)
(per curiam).
Under Florida common law, “[t]he issue of fraud is not ordinarily a proper subject for
summary judgment because, being a subtle matter, fraud requires a full explanation of the facts
and circumstances of the alleged wrong to permit a determination whether they collectively
constitute fraud.” Nessim v. DeLoache, 384 So. 2d 1341, 1344 (Fla. Dist. Ct. App. 1980) (citations
omitted). For that reason, “such determination is seldom one that can be made in a legally sufficient
manner without a trial.” Id. (citing Alepgo Corp. v. Pozin, 114 So. 2d 645 (Fla. Dist. Ct. App.
1959) (per curiam)).
Two months ago, the Florida Supreme Court clarified the meaning of “reliance” in
common-law claims of fraudulent concealment, holding that all fraudulent-concealment plaintiffs

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“must prove reliance on a statement that was made by” the defendant or, for a conspiracy claim, a
co-conspirator. Prentice v. R.J. Reynolds Tobacco Co., No. SC20-291, 2022 WL 805951, at *3
(Fla. Mar. 17, 2022). Although “reliance on a statement” “can include ‘a category of statements
addressing a particular topic (e.g., advertisements for filtered cigarettes),’” such statements, though
“not necessarily false on their face, [must be] misleading because they conceal or omit other
material information.” Id. In other words, “pure silence or a passive failure to disclose” cannot
support fraud liability. Id.
Plaintiff Silveus has not alleged that he relied on an omission in a statement made by GM
or Bosch. Rather, Plaintiff Silveus “served an interrogatory response that had he known that
emissions controls turned off during real-world driving, [then] he would have paid significantly
less for the vehicle or would not have purchased it.” ECF No. 388 at PageID.31019 (filed under
seal). The Florida Supreme Court has been clear that the reliance-on-silence argument is “utterly
disconnected” from fraudulent-concealment claims. Prentice, 2022 WL 805951, at *6.
For these reasons, summary judgment is proper as to Plaintiffs Silveus’s Florida
fraudulent-concealment claim. Consequently, Count XVII of Plaintiffs’ First Amended Complaint
will be dismissed with prejudice.
4.
a.
Defendants incorrectly assert that Plaintiff Miskelly’s claim fails under Maryland’s
Consumer Protection Act (“Maryland CPA”), MD. CODE, CM. LAW §§ 13-303. ECF No. 338 at
PageID.19161–63.
Maryland’s Consumer Protection Act provides in relevant part:

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A person may not engage in any unfair or deceptive trade practice, as defined in
this subtitle or as further defined by the Division, in[ t]he sale, lease, rental, loan,
or bailment of any consumer goods, consumer realty, or consumer services.
MD. CODE, CM. LAW § 13-303(1).
First, Defendants incorrectly argue that Plaintiffs’ claim fails because there is no evidence
that they were “involved in” the vehicle purchase. ECF No. 388 at PageID.19162–63 (filed under
seal). Maryland’s highest court has interpreted the Maryland CPA to mean that “someone who is
not the seller [c]ould so infect the sale or offer for sale to a consumer that the law would deem the
practice to have been committed ‘in’ the sale or offer for sale.” Morris v. Osmose Wood
Preserving, 667 A.2d 624, 635 (Md. 1995) (collecting cases); accord MRA Prop. Mgmt. v.
Armstrong, 43 A.3d 397, 412 (Md. 2012). The examples from Maryland’s highest court include
franchisers, manufacturers, and “a deceptive statement appearing on a manufacturer’s packaging
that is targeted to consumers.” Morris, 667 A.2d at 635.
Although the deceptive act, as Defendants characterize it, cannot occur “entirely during the
marketing,” id. at 636, the alleged deceptive acts in this case are the installation and concealment
of one or more defeat devices. The defeat devices, if they do what Plaintiffs’ experts allege, would
have the effect of “attempt[ing] to influence the plaintiffs to purchase” the diesel Cruze. Id. Indeed,
an entity’s “erroneous and misleading” conduct can be an “integral part of the entire scheme of
deceptive trade practices committed in the sale” of a good if the conduct “directly ‘infected’ the
sales at issue.” Hoffman v. Stamper, 867 A.2d 276, 295 (Md. 2005) (en banc).
Taking the defeat devices together with the advertisements of GM, Bosch’s alleged
co-conspirator, there is a genuine issue of material fact as to whether Defendants’ conduct was
“involved in” or “infected” Plaintiff Miskelly’s purchase. Plaintiff Miskelly relied on Defendants’
omission. ECF Nos. 387-22 at PageID.30795 (“I thought I was buying a green car.”); 387-23 at

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PageID.30800 (stating that he “would not have purchased the vehicle or would have paid
substantially less for it” but for “GM’s undisclosed manipulation of the vehicle’s emissions
system”). The defeat devices, like the appraisals in Hoffman, misrepresented the diesel Cruze’s
emissions output and, thus, support the reasonable inference that Defendants engaged in unfair or
deceptive trade practices under the Maryland CPA. See, e.g., Rutherford v. BMW of N. Am., LLC,
No. CV RDB-18-3618, 2022 WL 80487, at *9 (D. Md. Jan. 7, 2022) (acknowledging that, under
Maryland’s CPA, a vehicle manufacturer could be liable for pre-sale, but not post-sale, conduct
and statements).
For these reasons, summary judgment is not proper on Plaintiff Miskelly’s Maryland CPA
claim. Consequently, Defendants’ Motion for Summary Judgment will be denied as to Count
XXVI.
b.
Defendants also incorrectly claim that Plaintiff Miskelly’s claim for fraudulent
concealment under Maryland law fails because Defendants did not have a duty to disclose. ECF
No. 338 at PageID.19163–65.
A Maryland fraudulent-concealment claim requires plaintiffs to establish that:
(1) the defendant owed a duty to the plaintiff to disclose a material fact;
(2) the defendant failed to disclose that fact;
(3) the defendant intended to defraud or deceive the plaintiff;
(4) the plaintiff acted in justifiable reliance on the concealment; and
(5) the plaintiff suffered damages because of the defendant’s concealment.
Lloyd v. Gen. Motors Corp., 916 A.2d 257, 274 (Md. 2007) (citation omitted) (en banc). A claim
of fraudulent concealment includes “any statement or other conduct [that] prevents another from
acquiring knowledge of a fact that otherwise he would have observed.” Id. “[F]raudulent
concealment includes the situation where the defendant actively undertakes conduct or utters

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statements designed to, or that would, divert attention away from the defect.” Id. at 274 n.11.
Failure to disclose “requires only that the defendant remain silent about, or omit, facts that the
defendant had a duty to disclose.” Id. “Concealment and non-disclosure are closely related and in
any given situation usually overlap.” Fegeas v. Sherrill, 147 A.2d 223, 225 (Md. 1958).
Typically, nondisclosure does not constitute fraud unless a special duty to disclose exists.
Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 389 A.2d 887, 903 (Md. 1978). A duty to
disclose arises in certain relationships such as a confidential or fiduciary relationship. Doe v. Doe,
712 A.2d 132, 161 (Md. Ct. Spec. App. 1998), rev’d on other grounds, 747 A.2d 617 (Md. 2000).
A confidential relationship “may arise [if] a party is, under the existing circumstances, justified in
believing that the other party will not act in a manner adverse or inconsistent with the reposing
party’s interest or welfare.” Midler v. Shapiro, 364 A.2d 99, 103 (Md. Ct. Spec. App. 1976)
(citations omitted). “Absent a presumption arising out of certain relationships (e.g., attorney-client,
trustee-beneficiary, principal-agent), the existence vel non of a confidential relationship is a
question of fact, not of law.” Id. In making such determinations, courts “must guard against the
acquisition of unwarranted influence, whether sought or unsought.” Id. at 103 n.2 (quoting Address
by Dwight David Eisenhower, January 17, 1961).
Plaintiffs can establish a fraudulent-concealment claim for nondisclosure without a
fiduciary or confidential relationship. Indeed, “[o]ne who conceals facts that materially qualify
affirmative representations may be liable for fraud.” Lubore v. RPM Assocs., 674 A.2d 547, 556
(Md. Ct. Spec. App. 1996); accord Finch v. Hughes Aircraft Co., 469 A.2d 867, 891 (Md. Ct.
Spec. App. 1984). In this vein, plaintiffs “must prove that the defendant took affirmative action to
conceal the defect and that the plaintiff could not have discovered it despite the exercise of
reasonable diligence.” Lloyd, 916 A.2d at 275 (citations omitted). “[I]n such cases, the affirmative

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act on the part of the defendant must be more than mere silence; there must be some act intended
to exclude suspicion and prevent injury, or there must be a duty on the part of the defendant to
disclose such facts, if known.” Id. (citation omitted).
The evidence is sufficient to bring Plaintiff Miskelly’s fraudulent-concealment claim to
trial. First, Defendants marketed the diesel Cruze’s emissions technology as clean and
eco-friendly. Drawing all reasonable inferences in Plaintiff Miskelly’s favor, though those
representations were puffery, they created a duty under Maryland law for Defendants to disclose
the presence of any emissions-related defeat devices. See Lubore, 674 A.2d at 556 (“[I]f what is
stated amounts to a ‘partial and fragmentary’ disclosure, that misleads because of its
incompleteness, the ‘legal situation is entirely changed.’” (citations omitted)). Second, by
installing defeat devices in the diesel Cruzes, Defendants engaged in “more than mere silence” in
an effort to “exclude suspicion and prevent injury” by actively concealing the diesel Cruze’s
emissions output.
For these reasons, drawing all reasonable inferences in Plaintiffs’ favor, there is a genuine
issue of material fact as to whether Defendants are liable for fraudulent concealment under
Maryland common law. Consequently, Defendants’ Motion for Summary Judgment will be denied
as to Count XXVII.
5.
a.
Defendants correctly contend that Plaintiffs’ claim under the Michigan Consumer
Protection Act (MCPA) must be dismissed because it exempts motor-vehicle sales. ECF No. 338
at PageID.19165–67.

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The MCPA does not apply to “[a] transaction or conduct specifically authorized under laws
administered by a regulatory board or officer acting under statutory authority of this state or the
United States.” MICH. COMP. LAWS § 445.904(1). The Michigan Supreme Court construes this
exemption broadly. See Liss v. Lewiston-Richards, Inc., 732 N.W.2d 514, 518 (Mich. 2007)
(finding that “the relevant inquiry is whether the general transaction is specifically authorized by
law, regardless of whether the specific misconduct alleged is prohibited” (citation and internal
quotation marks omitted)).
Michigan law specifically authorized and regulated the general transaction in this case (i.e.,
the sale of a new car by a licensed dealer). Jimenez v. Ford Motor Credit Co., 2015 WL 9318913,
at *7 (Mich. Ct. App. Dec. 22, 2015) (finding that the sale of a motor vehicle by a licensed dealer
was an exempt transaction under the MCPA because it was “specifically authorized under laws
administered by a regulatory board or officer acting under statutory authority of this state or the
United States”); Rosenbaum v. Toyota Motor Sales, USA, Inc., 2016 WL 9775018, at *3 (E.D.
Mich. Oct. 21, 2016) (holding that Toyota’s alleged deceptive advertising was exempt from the
MCPA because Michigan “regulates how car wholesalers like Toyota advertise automobiles” and
“regulates the content of general automobile advertisements”); see also Matanky v. Gen. Motors
LLC, 370 F. Supp. 3d 772, 800 (E.D. Mich. 2019) (dismissing MCPA claim that GM concealed
defect because the MCPA exempts claims related to motor-vehicle sales).
As indicated, the MCPA does not cover Plaintiffs’ claims. For that reason, summary
judgment is proper on Plaintiffs’ MCPA claim. Consequently, Count XXX of Plaintiffs’ First
Amended Complaint will be dismissed with prejudice.

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b.
Defendants also properly proclaim that, under Michigan common law, Plaintiffs had to
inquire with Defendants about their emissions-control systems to bring a claim for fraudulent
concealment (i.e., silent fraud). ECF No. 338 at PageID.19167–68.
“[F]or the suppression of information to constitute silent fraud there must exist a legal or
equitable duty of disclosure.” U.S. Fid. & Guar. Co. v. Black, 313 N.W.2d 77, 88 (Mich. 1981);
accord Matanky v. Gen. Motors LLC, 370 F. Supp. 3d 772, 793 (E.D. Mich. 2019) (quoting Hord
v. Env’t Rsch. Inst. of Mich., 617 N.W.2d 543, 550 (Mich. 2000) (per curiam)).
Such a duty arises only if a defendant responds to a plaintiff’s inquiry with an answer that
omits material information. Matanky, 370 F. Supp. At 794. In other words, if the plaintiff did not
make any inquiries that would give the defendant the opportunity to disclose the truth regarding
the purportedly material omission, then the plaintiff cannot bring a silent-fraud claim under
Michigan law.
Plaintiffs Counts and Klein had no contact with Defendants regarding their diesel Cruzes
and have not demonstrated that they made any inquiry with Defendants. See ECF Nos. 346-23 at
PageID.23990; 346-27, PageID.24168. For these reasons, Plaintiffs’ claim for silent fraud against
Defendants is without merit. Hord, 617 N.W.2d at 549 (“[I]n every [Michigan Supreme Court]
case, the fraud by nondisclosure was based upon statements by the vendor that were made in
response to a specific inquiry by the purchaser, which statements were in some way incomplete or
misleading.”); see MacDonald v. Thomas M. Cooley L. Sch., 724 F.3d 654, 666 (6th Cir. 2013)
(“[F]ailure to inquire dooms the silent-fraud claim.”); see also Elliott v. Therrien, No. 288235,
2010 WL 293071, at *6 (Mich. Ct. App. Jan. 26, 2010) (“A claim of silent fraud, like claims for

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fraudulent misrepresentation and innocent misrepresentation, requires proof of reliance on the
inadequate or unforthcoming representation.” (citations omitted)).
As indicated, summary judgment is appropriate as to Plaintiffs’ Michigan
fraudulent-concealment claim. Consequently, Count XXXI of Plaintiffs’ First Amended
Complaint will be dismissed with prejudice.
6.
Defendants incorrectly assert that Plaintiffs’ deceptive-conduct claims under New York
General Business Laws (GBL) § 349 and § 350 fail because Defendants’ conduct was not
consumer-oriented. ECF No. 338 at PageID.19168–69.
General Business Law § 349 prohibits “[d]eceptive acts or practices in the conduct of any
business, trade, or commerce . . . .” Section 350 similarly prohibits “[f]alse advertising in the
conduct of any business, trade or commerce . . . .” Except for § 350 being specific to false
advertising, the elements for both statutes are the same:
(1) that the challenged conduct was consumer-oriented;
(2) that defendant engaged in deceptive or materially misleading acts or practices;
and
(3) that plaintiff was injured by reason of defendant’s deception or misleading
conduct.
Denenberg v. Rosen, 897 N.Y.S.2d 391, 395–96 (N.Y. App. Div. 2010) (citation omitted).
Although a defendant’s conduct is generally not consumer-oriented if it does not involve
any direct contact or solicitation with the plaintiff, see St. Patrick’s Home for Aged & Infirm v.
Laticrete Int’l, 696 N.Y.S.2d 117 (N.Y. App. Div. 1999), such conduct is still consumer-oriented
if it “potentially affect[ed] similarly situated consumers,” see 42-50 21st St. Realty LLC v. First
Cent. Sav. Bank, No. 20CV5370RPKRLM, 2022 WL 1004187, at *9 (E.D.N.Y. Apr. 4, 2022)
(quoting Oswego Laborers’ Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d

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741, 745 (N.Y. 1995)). Put another way, conduct is consumer-oriented if “the acts or practices
have a broader impact on consumers at large.” Oswego Laborers’ Loc. 214, 647 N.E.2d at 744. In
sum, “the injury must be to the public generally as distinguished from the plaintiff alone.” Wilson
v. Nw. Mut. Ins, 625 F.3d 54, 64–65 (2d Cir. 2010) (citation omitted).
A defendant’s conduct might not be consumer-oriented if the plaintiff purchased the goods
from a “sophisticated business entit[y]” that “acted in an intermediary role in the transaction,” as
private contract disputes are not covered by GBL § 349 or § 350. St. Patrick’s Home, 696 N.Y.S.2d
at 122.
Drawing all reasonable inferences in Plaintiffs’ favor, Defendants’ conduct was
consumer-oriented. Plaintiffs are private consumers—not sophisticated business entities—and this
is not a private contract dispute. See N.Y. Univ. v. Cont’l Ins., 662 N.E.2d 763, 770–71 (N.Y. 1995)
(discussing how private contract disputes between business entities do not fall under the ambit of
GBL § 349 or § 350, but a private consumer’s purchase does). Because the indirect purchasers
were not sophisticated business entities, these transactions were “the type of ‘modest’ transaction
that the statute was intended to reach.” St. Patrick’s Home, 696 N.Y.S.2d at 122 (citations omitted).
Further, Defendants’ alleged conduct (i.e., installing and concealing defeat devices) was directed
to the consuming public at large and not to the individual consumers or dealerships, as
demonstrated by Defendants’ repeated contention that they never communicated directly with any
individual Plaintiffs, which Plaintiffs corroborate. See, e.g., ECF Nos. 338 at PageID.19146; 3463 at PageID.23635; see also Euchner-USA, Inc. v. Hartford Cas. Ins., 754 F.3d 136, 143 (2d Cir.
2014) (noting that “deceptive conduct aimed at the public at large” is consumer-oriented conduct).

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For these reasons, summary judgment is not appropriate as to Counts XLII or XLIII.
Consequently, Defendants’ Motion for Summary Judgment will be denied as to Counts XLII and
XLIII.
7.
a.
Defendants assert that Plaintiff Rodriguez’s claim under the Texas Deceptive Trade
Practices Act (DTPA), TEX. BUS. & COM. CODE §§17.41–17.63, fails because Defendants are
upstream suppliers that did not communicate with Plaintiff Rodriguez. ECF No. 338 at
PageID.19169–71.
In Amstadt v. U.S. Brass Corp., the Texas Supreme Court held that downstream purchasers
of non-mobile homes could not bring DTPA claims against remote manufacturers and suppliers of
a defective plumbing system, because the deceptive acts alleged were not committed against or
communicated to them in connection with their own purchases. 919 S.W.2d 644, 648–49 (Tex.
1996). The Texas Court of Appeals confirmed that the DTPA does not apply “in light of the
absence of any evidence that [the downstream purchaser] had knowledge of” the defendant’s
material representations. Bailey v. Smith, No. 13-05-085-CV, 2006 WL 1360846, at *11 (Tex.
App. May 18, 2006); see also PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146
S.W.3d 79, 88 (Tex. 2004) (dismissing a downstream purchaser’s DTPA claim because “it had no
connection with [the upstream seller’s] original Twindows sale, and never saw any [of the
upstream seller’s] advertisements or warranties before it bought the building”).
Plaintiff Rodriguez’s DTPA claim survives summary judgment. Defendants are correct
that Plaintiff Rodriguez had no connection with Defendants’ sale to the dealership from which
Rodriguez purchased his diesel Cruze. See ECF No. 346-30 at PageID.24331. But Plaintiff

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Rodriguez claims that he viewed and relied on Defendants’ advertisements regarding the diesel
Cruze’s emissions. ECF Nos. 95 at PageID.7333; 346-30 at PageID.24321. Drawing all reasonable
inferences in Plaintiffs’ favor, there is at least a question of fact as to whether Defendants engaged
in a deceptive trade practice. See, e.g., TEX. BUS. & COM. CODE § 17.46(b)(5) (creating liability
for “representing that goods or services have sponsorship, approval, characteristics, ingredients,
uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval,
status, affiliation, or connection which the person does not”); TEX. BUS. & COM. CODE §
17.46(b)(24) (creating liability for “failing to disclose information concerning goods or services
which was known at the time of the transaction if such failure to disclose such information was
intended to induce the consumer into a transaction into which the consumer would not have entered
had the information been disclosed”).
For these reasons, summary judgment is not proper on Plaintiff Rodriguez’s DTPA claim.
Consequently, Defendants’ Motion for Summary Judgment will be denied as to Count LIII.
b.
Defendants contend that Plaintiff Rodriguez’s claim for fraudulent concealment under
Texas law fails because Defendants did not have a duty to disclose the defeat devices to him. ECF
No. 338 at PageID.19170–71.
In order to prove fraud under Texas common law, Plaintiff Rodriguez must establish:
(1) a material misrepresentation;
(2) that was false;
(3) known to be false when made or asserted without knowledge of its truth;
(4) made with intent that they would act on it;
(5) that they actually did rely on it; and
(6) that it caused injury.
Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518, 525 (5th Cir. 2001) (citations
omitted).

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In general, “[i]n an arms-length transaction where none of the Plaintiffs dealt directly with
the vehicle manufacturer, there is no duty [to disclose].” Adams v. Nissan N. Am., Inc., 395 F.
Supp. 3d 838, 850 (S.D. Tex. 2018).
But, even then, a failure to disclose information is fraudulent if “a party later learns that
previous affirmative representations are in fact false.” Tempo Tamers, Inc. v. Crow-Houston Four,
Ltd., 715 S.W.2d 658, 669 (Tex. App. 1986) (internal citations omitted). In this way, “a duty to
disclose the whole truth” arises when a manufacturer “voluntarily disclose[s] information.”
Curocom Energy LLC v. Eem, No. 01-14-00816-CV, 2016 WL 4150837, at *6 (Tex. App. Aug. 4,
2016). Similarly, if a manufacturer “made a representation,” then it “had a duty to disclose new
information if [it] became aware that the new information made the earlier representation
misleading or untrue.” Id. A manufacturer likewise has “a duty to correct a false impression
conveyed by a partial disclosure.” Id.
Plaintiff Rodriguez’s Texas fraudulent-concealment claim fails as to Defendant Bosch.
Both Bosch and GM voluntarily made representations about the diesel Cruzes’ emissions
technology. See ECF No. 95 at PageID. 7359–78, 7408–14. Advertising the efficiency of the diesel
Cruze’s emissions created a duty to disclose the existence of any emissions-related defeat devices.
Yet Plaintiff Rodriguez must have relied on GM’s and Bosch’s emissions-related advertisements
to bring a Texas fraudulent-concealment claim based on the omitted defeat devices. See Jackson,
245 F.3d at 525 (holding that even if an upstream manufacturer has a duty to disclose a fraudulent
omission, the downstream purchaser must have relied on the deficient representation from which
the information was omitted). Plaintiff Rodriguez testified that he relied on GM’s advertisements
but did even see any of Bosch’s advertisements. See ECF No. 346-30 at PageID.24321, 24331.

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Because Plaintiff Rodriguez relied on GM’s representations but not Bosch’s, his Texas
fraudulent-concealment claim fails against Bosch but not against GM.
For these reasons, summary judgment is appropriate on Plaintiff Rodriguez’s Texas
fraudulent–concealment claim as to Defendant Bosch. Consequently, Defendants’ Motion for
Summary Judgment will be granted in part and denied in part as to Count LIV.
8.
a.
Defendants inaccurately assert that they are not liable under the West Virginia Consumer
Credit and Protection Act (CCPA), W. VA. CODE § 46A-6-106, because they did not directly sell
anything to Plaintiffs. ECF No. 338 at PageID.19171–72.
The CCPA provides a private cause of action for people “who purchase[d] or lease[d]
goods or services and thereby suffer[ed] an ascertainable loss of money or property, real or
personal, as a result of the use or employment by another person of a method, act or practice
prohibited or declared to be unlawful by the provisions of this article.” W. VA. CODE § 46A-6106(a).
To state a claim under the CCPA, a consumer must allege:
(1) unlawful conduct by a seller;
(2) an ascertainable loss on the part of the consumer; and
(3) proof of a causal connection between the alleged unlawful conduct and the
consumer’s ascertainable loss.
Heater v. Gen. Motors, LLC, No. 1:21CV24, 2021 WL 4896546, at *2 (N.D. W. Va. Oct. 20, 2021)
(quoting White v. Wyeth, 705 S.E.2d 828, 837 (W. Va. 2010)).
“Where concealment, suppression or omission is alleged, and proving reliance is an
impossibility, the causal connection between the deceptive act and the ascertainable loss is
established by presentation of facts showing that the deceptive conduct was the proximate cause

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of the loss.” White v. Wyeth, 705 S.E.2d 828, 837 (W. Va. 2010) (“In other words, the facts have
to establish that ‘but for’ the deceptive conduct or practice a reasonable consumer would not have
purchased the product and incurred the ascertainable loss.”).
As previously discussed, a reasonable juror could infer that Defendants’ omission of the
defeat device proximately caused Plaintiffs’ alleged loss (i.e., the overpayment for a defective
diesel Cruze). See discussion supra Section III.B (finding that Plaintiffs’ economic damages are
fairly traceable to Defendants’ installation and concealment of the defeat devices); see also ECF
No. 438 at PageID.39356–71 (finding that Plaintiffs’ damages theories are methodologically
reliable).
But Defendants assert that they are not a seller under § 46A-6-106. ECF No. 338 at
PageID.19171 (“If Chrysler Motors is not a seller or lessor of goods under the statute then there is
no cause of action against them.” (quoting Perry v. Tri-State Chrysler Jeep, LLC, No. CIV.A.
3:08-0104, 2008 WL 1780938, at *4 (S.D. W. Va. Apr. 16, 2008))).
The term “seller of goods” can be interpreted to include either any merchant of the goods
in question or only sellers that sold the goods directly to the plaintiff. According to West Virginia’s
highest court, the CCPA is remedial in nature and should be liberally construed “to protect
consumers from unfair, illegal and deceptive business practices.” Fleet v. Webber Springs Owners
Ass’n, 772 S.E.2d 369 (W. Va. 2015) (citations omitted).
The liberal construction of “seller of goods” includes Defendants, as Bosch sold the
software to GM, which sold the diesel Cruze to the dealership, which sold the diesel Cruze to
Plaintiff Long. See Bank of Huntington v. Napier, 23 S.E. 800, 802 (W. Va. 1895) (“Why should
it make any difference whether a person contracts with two separate individuals or with one
individual in two distinct or separate capacities, namely, a seller of goods and an agent to deliver

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goods?”); see also Mountaineer Contractors, Inc. v. Mountain State Mack, Inc., 268 S.E.2d 886,
889 (W Va. 1980) (stating that “[u]nder the Uniform Commercial Code, adopted by the legislature
in 1963 and embodied in Chapter 46 of the West Virginia Code, . . . [a] seller is a merchant with
respect to goods of that kind”); Sewell v. Gregory, 371 S.E.2d 82, 83 (W. Va. 1988) (holding that
“[i]mplied warranties of habitability and fitness for use as a family home may be extended to
second and subsequent purchasers for a reasonable length of time after construction”). No West
Virginia precedent forecloses that interpretation.
For these reasons, summary judgment is not proper on Plaintiff Long’s CCPA claim.
Consequently, Defendants’ Motion for Summary Judgment will be denied as to Count LXI.
b.
Defendants also claim that Plaintiff Long’s claim for fraudulent concealment fails under
West Virginia common law because Defendants did not have a duty to disclose the defeat devices.
See ECF No. 338 at PageID.19172–73.
In order to prove fraud under West Virginia common law, a plaintiff must establish:
(1) that the act claimed to be fraudulent was the act of the defendant or induced by
him;
(2) that it was material and false;
(3) that plaintiff relied upon it;
(4) that plaintiff was justified under the circumstances in relying upon it; and
(5) that he was damaged because he relied upon it.
Trafalgar House Constr. v. ZMM, Inc., 567 S.E.2d 294, 300 (W. Va. 2002) (quoting Lengyel v.
Lint, 280 S.E.2d 66, 67 (W. Va. 1981)). “Fraudulent concealment involves the concealment of
facts by one with knowledge or the means of knowledge, and a duty to disclose, coupled with an
intention to mislead or defraud.” Id. (citing Silva v. Stevens, 589 A.2d 852, 857 (Vt. 1991)).
West Virginia courts have long held that vendors have a duty to disclose when “aware of
defects or conditions which substantially affect the value or habitability of the property and the

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existence of which are unknown to the purchaser and would not be disclosed by a reasonably
diligent inspection.” Thacker v. Tyree, 297 S.E.2d 885, 888 (W. Va. 1982); see also Teter v. Old
Colony Co., 717, 441 S.E.2d 728, 734 (W. Va. 1994) (“Thacker, on the other hand, places an
affirmative duty on the vendor to disclose defects which are known to him, but unknown to the
purchaser even with a reasonably diligent inspection.”). It matters not whether the seller was the
manufacturer of the good. Chamberlaine & Flowers, Inc. v. McBee, 356 S.E.2d 626, 629 (W. Va.
1987) (per curiam) (“A purchaser can also be injured by a seller who commits a fraud by
concealing a defect or making a misrepresentation, but did not construct the house. The effect is
the same.”).
Fraudulent concealment requires some affirmative act “designed or intended to prevent,
and which does prevent, the discovery of facts giving rise to the fraud claim.” Kessel v. Leavitt,
511 S.E.2d 720, 763 (W. Va. 1998). Fraudulent concealment might “arise when the defendant
successfully prevents the plaintiff from making an investigation that he would otherwise have
made, and which, if made, would have disclosed the facts.” Id. (quoting RESTATEMENT (SECOND)
OF TORTS

§ 550 (1976)). “Indeed, ‘[f]raud is the concealment of the truth just as much as it is the

utterance of a falsehood.’” Quicken Loans, Inc. v. Brown, 737 S.E.2d 640, 654 (W. Va. 2012)
(quoting Frazer v. Brewer, 43 S.E. 110, 111 (W. Va. 1902)).
Drawing all reasonable inferences in Plaintiff Long’s favor, he has seemingly stated a
viable claim of fraudulent concealment under West Virginia common law. Defendants
affirmatively acted by installing and concealing the defeat devices. Concealing the defeat devices
is the same as affirmatively representing that they do not exist. See Trafalgar, 567 S.E.2d at 300
(holding that a plaintiff can “detrimentally rely[] upon fraudulent misrepresentations or

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concealment by the defendant”). As indicated, Defendants seemingly had a duty to disclose the
defeat devices.
Yet this Court has not found, and the parties have not identified, any West Virginia
precedent imputing a duty to disclose on a party that did not sell the product to the plaintiff (i.e.,
an upstream seller). Even so, the lack of such precedent does not mean that those claims cannot
exist.
Plaintiff quotes Belville v. Ford Motor Co., 60 F. Supp. 3d 690, 696 (S.D. W. Va. 2014)
for the proposition that an upstream manufacturer has “a common-law duty to disclose ‘facts basic
to the transaction’ when ‘objective circumstances’ are such that the person ‘would reasonably
expect a disclosure of those facts.’” ECF No. 388 at PageID.31033 (filed under seal). But that
discussion in Bellville concerned fraudulent omission, not fraudulent concealment. Belville, 60 F.
Supp. 3d at 696–97. Indeed, the Bellville court stated that it “dismissed” the plaintiff’s
fraudulent-concealment claims because “the various reports, advertisements, and statements
quoted . . . were mere puffery.” Id.
But based on Belleville, the only case remotely on point, a West Virginia
fraudulent-concealment claim based on affirmative representations cannot be sustained on mere
puffery. See id. at 696 (“The critical difference between fraudulent concealment and fraudulent
omission is that the later [sic] does not require an affirmative act of concealment.”). This Court
has already found that Defendants’ affirmative representations were mere puffery. Counts v. Gen.
Motors, LLC, 237 F. Supp. 3d 572, 598 (E.D. Mich. 2017). And Plaintiffs have not attempted to
amend Count LXII as a West Virginia common-law claim of fraudulent nondisclosure.

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For these reasons, summary judgment is appropriate on Plaintiff Long’s West Virginia
fraudulent-concealment claim. Consequently, Count LXII of Plaintiffs’ First Amended Complaint
will be dismissed.
V.
Accordingly, it is ORDERED that GM’s Motion for Summary Judgment, ECF No. 345
(filed under seal); 346, is GRANTED IN PART and DENIED IN PART. GM’s Motion for
Summary Judgment is GRANTED as to Count I of Plaintiffs’ First Amended Complaint, ECF
Nos. 94; 95, and DENIED in all other regards.
Further, it is ORDERED that Count I of Plaintiffs’ First Amended Complaint, ECF Nos.
94; 95, is DISMISSED WITH PREJUDICE.
Further, it is ORDERED that Bosch’s Motion for Summary Judgment, ECF No. 338, is
GRANTED IN PART and DENIED IN PART.
Further, it is ORDERED that the following claims from Plaintiffs’ First Amended
Complaint, ECF Nos. 94; 95, are DISMISSED WITH PREJUDICE as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

Count IV (Arizona Consumer Fraud Act) as to Defendant Bosch;
Count V (Arizona Fraudulent Concealment);
Count XVII (Florida Fraudulent Concealment);
Count XXX (Michigan Consumer Protection Act);
Count XXXI (Michigan Fraudulent Concealment);
Count LIV (Texas Fraudulent Concealment) as to Defendant Bosch; and
Count LXII (West Virginia Fraudulent Concealment).

Further, it is ORDERED that Defendant Bosch’s Motion for Summary Judgment, ECF
No. 338, is DENIED with respect to the following claims (which are thus retained):
(1)
(2)
(3)
(4)
(5)
(6)

Count IV (Arizona Consumer Fraud Act) as to only Defendant GM;
Count XVI (Florida Deceptive and Unfair Trade Practices Act);
Count XXVI (Maryland Consumer Protection Act);
Count XXVII (Maryland Fraudulent Concealment);
Count XLII (New York General Business Law § 349);
Count XLIII (New York General Business Law § 350);

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(7) Count LIII (Texas Deceptive Trade Practices Act).
(8) Count LIV (Texas Fraudulent Concealment) as to only Defendant GM; and
(9) Count LXI (West Virginia Consumer Credit and Protection Act).
The following table provides the current posture of Plaintiffs’ claims:
Count
Number
I
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
XVIII

Claim

Underlying Law

RICO

18 U.S.C. §§ 1962(c), (d)

Named
Plaintiff
All

AL - Deceptive
Trade Practices Act
AL - Fraudulent
Concealment
AZ - Consumer
Fraud Act

Ala. Code § 8-19-1 et seq.

None

Common Law

None

Ariz. Rev. Stat. § 44-1521
et seq.

Bassam
Hirmiz

AZ - Fraudulent
Concealment
CA - Unfair
Competition Law
CA - False
Advertising Law
CA - Consumer
Legal Remedies Act
CA - Fraudulent
Concealment
CO - Consumer
Protection Act
CO - Fraudulent
Concealment
CT - Unfair Trade
Practices Act
CT: Fraudulent Nondisclosure
DE - Consumer
Fraud Act
DE - Fraudulent
Concealment
FL - Unfair and
Deceptive Trade
Practices Act
FL - Fraudulent
Concealment
GA - Fair Business
Practices Act

Common Law

Bassam
Hirmiz
None

Cal. Bus. & Prof. Code
§ 17200 et seq.
Cal. Bus. & Prof. Code
§ 17500 et seq.
Cal. Civ. Code § 1750 et
seq.
Common Law

None
None
None

Colo. Rev. Stat. § 6-1-101
et seq.
Common Law

None

Conn. Gen. Stat. § 42110A et seq.
Common Law

None

Del. Code tit. 6, § 2513

None

Common Law

None

Fla. Stat. § 501.201

Jason
Silveus

Common Law

Jason
Silveus
None

Ga. Code § 10-1-390 et
seq.
- 54 -

None

None

Status
Defs.’ Summ.
J. Granted
Merits Not
Addressed
Merits Not
Addressed
Defs.’ Summ.
J. Granted as to
Bosch
Defs.’ Summ.
J. Granted
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Defs.’ Summ.
J. Denied
Defs.’ Summ.
J. Granted
Merits Not
Addressed

Case 1:16-cv-12541-TLL-PTM ECF No. 439, PageID.39441 Filed 06/09/22 Page 55 of 57

XIX
XX
XXI
XXII

XXIII
XXIV
XXV
XXVI

GA - Fraudulent
Concealment
ID - Consumer
Protection Act
ID - Fraudulent
Concealment
IL - Consumer Fraud
and Deceptive
Business Practices
Act
IL - Fraudulent
Concealment
KY - Consumer
Protection Act
KY - Fraud by
Omission
MD - Consumer
Protection Act

Common Law

None

Idaho Code § 48-601 et
seq.
Common Law

None

815 Ill. Comp. Stat. 505/1;
720 Ill. Comp. Stat.
295/1A

None

Common Law

None

Ky. Rev. Stat. § 367.110
et seq.
Common Law

None

Md. Code, Com. Law §
13-101 et seq.

John
Miskelly

None

None

XXVII

MD - Fraudulent
Concealment

Common Law

John
Miskelly

XXVIII

MA - Consumer
Protection Act
MA - Fraudulent
Concealment
MI - Consumer
Protection Act

Mass. Gen. Laws ch. 93A,
§ 1 et seq.
Common Law

None

Mich. Comp. Laws §
445.903 et seq.

XXXI

MI - Fraudulent
Concealment

Common Law

XXXII

MN - Prevention of
Consumer Fraud Act
MN - Fraudulent
Concealment
MO - Merchandising
Practices Act
MO - Fraudulent
Concealment
MT - Unfair Trade
Practices and
Consumer Protection
Act of 1973

Minn. Stat. § 325F.68 et
seq.
Common Law

Jason
Counts;
Donald
Klein
Jason
Counts;
Donald
Klein
None

XXIX
XXX

XXXIII
XXXIV
XXXV
XXXVI

None

None

Mo. Rev. Stat. § 407.010
et seq.
Common Law

None

Mont. Code § 30-140191
et seq.

None

- 55 -

None

Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Summary
Judgment
Denied
Summary
Judgment
Denied
Merits Not
Addressed
Merits Not
Addressed
Defs.’ Summ.
J. Granted
Defs.’ Summ.
J. Granted
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed

Case 1:16-cv-12541-TLL-PTM ECF No. 439, PageID.39442 Filed 06/09/22 Page 56 of 57

XXXVII

MT - Fraud by
Concealment
XXXVIII
NV - Deceptive
Trade Practices Act
XXXIX
NV - Fraudulent
Concealment
XL
NJ - Consumer Fraud
Act
XLI
NJ - Fraudulent
Concealment
XLII
NY - General
Business Law § 349
XLIII

NY - General
Business Law § 350

XLIV

NY - Fraudulent
Concealment

XLV
XLVI
XLVII
XLVIII
XLIX

L
LI
LII
LIII
LIV

Common Law

None

Nev. Rev. Stat.
§ 598.0903 et seq.
Common Law

None

N.J. Stat. § 56:8-1 et seq.

None

Common Law

None

None

N.Y. Gen. Bus Law § 349

Thomas
Hayduk;
Christopher
Hemberger
N.Y. Gen. Bus. Law § 350
Thomas
Hayduk;
Christopher
Hemberger
Common Law
Thomas
Hayduk;
Christopher
Hemberger
N.C. Gen. Stat. § 75-1.1 et
None
seq.

NC - Unfair and
Deceptive Acts and
Practices Act
NC - Fraudulent
Common Law
Concealment
OH - Consumer Sales Ohio Rev. Code § 1345.01
Practices Act
et seq.
OH - Fraudulent
Common Law
Concealment
PA - Unfair Trade
73 Pa. Stat. and Cons.
Practices and
Stat. § 201-1 et seq.
Consumer Protection
Law
PA - Fraudulent
Common Law
Concealment
TN - Consumer
Tenn. Code § 47-18-101 et
Protection Act
seq.
TN - Fraud by
Common Law
Concealment
TX - Deceptive
Tex. Bus. & Com. Code §
Trade Practices Act
17.41 et seq.
TX - Fraud by
Common Law
Concealment

- 56 -

None
None
None
None

None
None
None
Joshua
Rodriguez
Joshua
Rodriguez

Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Defs.’ Summ.
J. Denied
Defs.’ Summ.
J. Denied
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Defs.’ Summ.
J. Denied
Defs.’ Summ.
J. Granted as to
Bosch

Case 1:16-cv-12541-TLL-PTM ECF No. 439, PageID.39443 Filed 06/09/22 Page 57 of 57

LV
LVI
LVII
LVIII
LIX
LX
LXI
LXII
LXIII
LXIV

UT - Consumer Sales
Practices Act
UT - Fraudulent
Concealment
VA - Consumer
Protection Act
VA - Fraud by
Concealment
WA - Consumer
Protection Act
WA - Fraudulent
Concealment
WV - Consumer
Credit and Protection
Act
WV - Fraudulent
Concealment
WI - Deceptive Trade
Practices Act
WI - Fraudulent
Concealment

Utah Code § 13-11-1 et
seq.
Common Law

None

Va. Code § 59.1-196 et
seq.
Common Law

None

Wash. Rev. Code
§ 19.86.010 et seq.
Common Law

None

W. Va. Code § 46A-1-101
et seq.

Derek
Long

Common Law
Wis. Stat. § 110.18

Derek
Long
None

Common Law

None

None

None

None

This is not a final order and does not close the case.
Dated: June 9, 2022

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

- 57 -

Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Merits Not
Addressed
Defs.’ Summ.
J. Denied
Defs.’ Summ.
J. Granted
Merits Not
Addressed
Merits Not
Addressed