Harrison et al v. General Motors, LLC
OPINION and ORDER Granted in Part GM's Motion to Dismiss 38 . Signed by District Judge Laurie J. Michelson. (EPar)
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5369 Filed 01/19/23 Page 1 of 67
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DANNY HARRISON, et al.,
Case No. 21-12927
Honorable Laurie J. Michelson
GENERAL MOTORS, LLC,
OPINION AND ORDER GRANTING IN PART
GM’S MOTION TO DISMISS 
Danny Harrison, along with 41 other plaintiffs, bought new or pre-owned
General Motors vehicles that they believe are defective. Specifically, Plaintiffs allege
that each of their vehicles (which encompass a variety of GM models and range from
model years 2014 to 2021) has a valve-train system that malfunctions in a few ways.
As a result of this defect, Plaintiffs say that they hear noises from the engine,
such as a “chirping, squeaking, and/or ticking when the vehicle is not idling.”
Eventually, the defect leads to the engine misfiring as valves fail to open and close at
the appropriate times. This, say Plaintiffs, causes them to stall, surge, or lose power
So Plaintiffs sued GM over what they call the Valve-Train Defect. In what is a
borderline unwieldy single lawsuit, they bring a host of claims, all on behalf of
nationwide or statewide classes, which include fraudulent omission or concealment,
unjust enrichment, breach of express warranty, breach of implied warranty, violation
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of the Magnuson-Moss Warranty Act, and violations of consumer-protection statutes
in 22 states.
GM simultaneously moved to dismiss the complaint and to compel certain
plaintiffs to arbitrate their claims. The Court has issued an opinion on the motion to
compel arbitration, and as a result, stayed 17 plaintiffs’ claims. So it will only consider
the claims of the following Plaintiffs in its opinion on the motion to dismiss: Danny
Harrison, Melissa Luster, Leon Jordan, Mark Hayford, Ronald and Marilyn Jett,
Nataliya and Alexander Purshaga, Daniel Podojil, Jennifer Deery, Christopher
Dittman, Michael Scott, Bobby Cheshire, Brian and Tammy Burton, Tony and Robin
Reidhar, Paul Mouradjian, Brian Hess, Lisa Saffell, Joseph Attia, Stephanie Speno,
and Scott Roller.1
The Court provides a broad overview of the factual background of this case
here, but given the scope of the case, it will reiterate the relevant facts as to each
individual plaintiff in its analysis of their claims.
The 23 plaintiffs who are relevant to this opinion hail from 13 states and have
purchased various models of vehicles from GM dealerships from 2014 to 2021. They
bring largely the same type of claims, but they do so under the different laws of the
states they purchased their car in. They all have one thing in common, however—
they all allege that their GM vehicles have a defective valve-train system.
Christopher McClave is listed in the caption of the amended complaint, but
no factual allegations are made about him. So the Court will dismiss him from the
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Some background on the valve-train system is helpful. “Every internal
combustion engine . . . has a valve train system,” which is “the mechanical system
that controls when the intake valves and exhaust valves of the internal combustion
chamber open and close.” (ECF No. 27, PageID.2653.) As their names suggest, the
intake valves introduce gasoline and air (or just air) into the chamber, and the
exhaust valves allow the exhaust to escape. (Id.)
The valve train consists of many smaller parts working together to accomplish
the opening and closing of the valves. The figure below helps show how these smaller
parts fit together.
(ECF No. 27, PageID.2654.) The rotation of the camshaft opens and closes the valves.
(Id. at PageID.2653.) “As a camshaft rotates, its egg-shaped lobes push up on
lifters . . . . The lifters then apply this force to the pushrods, [which are] metal rods
that push into the rocker arm, which turns or pivots on its internal bearings, and
then opens the valve.” (Id. at PageID.2653–2654.)
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There is also a coiled spring, called the valve spring, which closes the valves.
(Id. at PageID.2655.)
Plaintiffs say that the engines at issue in this litigation also use either Active
Fuel Management (AFM) or Dynamic Fuel Management (DFM). (Id. at PageID.2655.)
These management systems “effectively shut off some of the cylinders at certain
time[s] during the vehicle’s operation in order to save fuel.” (Id.) AFM and DFM are
specific to GM vehicles. (Id.) The deactivation of the cylinders is accomplished “by the
use of specialized lifters” that lock and unlock so that “the lifter does not transfer the
motion of the cam lobe to the pushrod,” which in turn does not move the rocker arm,
so the valve remains closed. (Id. at PageID.2656.)
According to Plaintiffs, there are a few issues with how this system operates
in their GM vehicles. For one, the lifters collapse “when the lifter is locked or unlocked
at the wrong time of the cycle.” (Id. at PageID.2657.) Lifters also become stuck,
causing “the roller . . . to freeze into position, creating a furrow on the cam[shaft] lobe
and sending pieces of metal circulating through the engine. Collapsed lifters can also
cause the pushrods to become bent.” (Id. at PageID.2658.) Plaintiffs also note that
while the specialized AFM lifters have some “unique issues, the valve train systems
in the Subject Engines are also subject to problems in more traditional valve trains[.]”
(Id. at PageID.2661.) These issues include the rocker arms no longer moving in time
with the rest of the valve train and the valve springs breaking down and failing
prematurely. (Id. at PageID.2661–2662.)
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Plaintiffs experience a few different symptoms as a result of the valve train not
working. These include “noises, typically chirping, squeaking, and/or ticking” and
“[e]ventually, if unremedied, they progress to engine misfire, as the valves fail to open
and close at appropriate times.” (Id. at PageID.2662.) Some plaintiffs have also
experienced a loss of power while driving, and the vehicle stalling and surging. (Id.
at PageID.2663.) But Plaintiffs have not alleged that they were involved in a crash
because of the defect or suffered any physical injuries.
As far as GM’s culpability, Plaintiffs say GM knew about the Valve-Train
Defect and failed to disclose it to consumers when they purchased their vehicles. (ECF
No. 27, PageID.2666.) In support of this assertion, Plaintiffs provide numerous
bulletins issued by GM to its dealers describing issues with the valve train in various
vehicle models and instructing the dealership on how to repair the defect. (Id. at
PageID.2670–2706.) They also allege that pre-production testing, complaints to
online forums and the National Highway Traffic Safety Commission, and GM’s
redesign of the valve-train system tend to show that GM knew about the defect. (See,
e.g., id. at PageID.2668, 2706–2709, 2711.)
In December 2021, Plaintiffs sued GM over the Valve-Train Defect. (ECF No.
1.) After GM moved to dismiss and to compel certain plaintiffs to arbitrate their
claims, Plaintiffs amended their complaint, bringing 71 claims in total, both
individually and on behalf of either national or state-specific classes. (ECF No. 27.)
GM responded as it did before, and the parties engaged in a lengthy round of briefing
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for both the motion to dismiss and the motion to compel arbitration. The motion to
dismiss is now before the Court.
Given the extensive briefing, the Court considers the motion to dismiss without
further argument. See E.D. Mich. LR 7.1(f).
In deciding a motion to dismiss under Rule 12(b)(6), the Court “construes the
complaint in the light most favorable” to Plaintiffs and determines whether their
“complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” See Heinrich v. Waiting Angels Adoption Servs.,
Inc., 668 F.3d 393, 403 (6th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Detailed factual allegations are not required to survive a motion to dismiss,
HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 614 (6th Cir. 2012), but they must
“raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). What is plausible is “a context-specific task” requiring this
Court “to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
The Court begins with GM’s argument on Plaintiffs’ standing for their
nationwide class allegations. See Langfan v. Goodyear Tire & Rubber Co., 529 F.
App’x 460, 462 (6th Cir. 2013).
There is no federal law of torts or contract. When a plaintiff, like Plaintiffs
here, brings a tort claim on behalf of a nationwide class, in reality she does so on
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behalf of 50 classes alleging the same type of claim under the relevant laws of each
GM argues that Plaintiffs lack standing to bring claims under state laws that
do not apply to them. For example, Harrison, who is from Alabama, does not have
standing to bring an unjust-enrichment claim on behalf of consumers in Indiana. Yet,
Harrison does exactly that when he brings a nationwide class claim for unjust
enrichment, which results in him bringing claims under Indiana (and every other
state’s) law. Applying that to Plaintiffs’ claims as a whole, GM argues that they do
not have standing to pursue nationwide class claims because they do not reside in
every state. Each plaintiff only has standing to bring claims under the laws of the
state in which she is from.
Courts have not uniformly addressed this issue. Some courts have deferred this
question to the class-certification stage, finding that the issue is best suited to the
commonality or typicality analysis under Federal Rule of Civil Procedure 23. See
Johnson v. FCA US LLC, 555 F. Supp. 3d 488, 499 (E.D. Mich. 2021); Gamboa v. Ford
Motor Co., 381 F. Supp. 3d 853, 884 (E.D. Mich. 2019).
This Court has previously declined to follow this line of cases. See Withrow v.
FCA US LLC, No. 19-13214, 2021 WL 2529847, at *6–9 (E.D. Mich. June 21, 2021).
There, the Court provided three main reasons why it would not defer this question to
class certification—one, the case law used in support of deferring did not involve
plaintiffs seeking to bring claims under the laws of all 50 states; two, standing must
be determined claim-by-claim and relief-by-relief; and three, Rule 23 and standing
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present distinct inquiries with distinct purposes. Id. at *6–8. So, the Court concluded,
plaintiffs only have standing to bring claims, including class claims, under the laws
of the states where they bought their vehicles because their injury is only “fairly
traceable” to the defendant’s unlawful conduct under that state’s laws. Id. at *9.
Plaintiffs have not provided the Court with any reason to rethink its decision
in Withrow. Plaintiffs merely cite to cases in this District and others that have
deferred the question to the class-certification stage. (ECF No. 40, PageID.5236–
5237.) But the Court is well aware of these decisions. In fact, it addressed many of
these decisions in Withrow and provided reasons why it was not persuaded to follow
them. See 2021 WL 2529847, at *6 (“But on the facts of this case, the Court does not
believe Amchem, Ortiz, and Fallick are instructive.”). In fact, many of the decisions
Plaintiffs cite predate this Court’s decision in Withrow. And since the Court issued
its opinion in Withrow, other courts have joined it in dismissing nationwide class
claims that seek to invoke state laws that the named plaintiffs have no connection to.
See, e.g., Heater v. Gen. Motors, LLC, 568 F. Supp. 3d 626, 644 (N.D. W. Va. 2021);
Vitiosus v. Alani Nutrition, LLC, No. 21-cv-2048, 2022 WL 2441303, at *10 (S.D. Cal.
July 5, 2022); Pistorio v. FCA US LLC, No. 20-cv-11838, 2022 WL 141524, at *6 (E.D.
Mich. Jan. 14, 2022).
So given that Plaintiffs have not provided the Court with any reason to change
its decision, the Court will dismiss Plaintiffs’ nationwide claims for unjust
enrichment, fraud by omission, and violations of the Magnuson-Moss Warranty Act
for the same reasons it gave in Withrow. 2021 WL 2529847, at *6–9. Plaintiffs may
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only pursue those claims, individually and on behalf of a class, under the laws of the
states they share a connection with, and not under the laws of all fifty states.
Fraud by Omission or Fraudulent Concealment
Turning to the substance of the claims, Plaintiffs complain about GM’s failure
to inform them of the Valve-Train Defect. GM raises two grounds for dismissing
Plaintiffs’ fraud-by-omission claims: that Plaintiffs have not plausibly pled that GM
knew about the defect and that, even if they had, Plaintiffs have not alleged that GM
had a duty to disclose the defect.2
The Court starts with addressing Plaintiffs’ allegations about GM’s knowledge
of the defect, as knowledge is a relevant issue to claims other than just the fraud-byomission claims. It is undisputed that knowledge is an element of fraud by omission
in all relevant states. See Gregorio v. Ford Motor Co., 522 F. Supp. 3d 264, 277–78
(E.D. Mich. 2021). And because neither party makes arguments specific to any one
state’s law, the Court will address this argument in a general manner.
Plaintiffs allege four sources of GM’s knowledge of the Valve-Train Defect: preproduction testing, customer complaints to online forums and to the National
Highway Traffic Safety Administration, redesigning parts of the valve-train system,
and Technical Service Bulletins and Service Updates.
GM also argues that, to the extent Plaintiffs bring any claims based on
misrepresentations, those should be dismissed for failing to plead specific statements
or pleading statements that are puffery. As the fraud-by-omission claim does not
necessarily implicate any misrepresentations, the Court will address this argument
when discussing Plaintiffs’ state-consumer-protection-act claims.
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Two of these categories—customer complaints and pre-production testing—are
disfavored as ways of showing a manufacturer’s knowledge.
“Without supporting facts that GM engaged with or received complaints about
the [defect] and its safety risk, the consumer complaints are insufficient to allege that
GM knew about the [defect] under the 12(b)(6) pleading standard.” Smith v. Gen.
Motors LLC, 988 F.3d 873, 885 (6th Cir. 2021). To show such engagement, Plaintiffs
rely on an article titled, “Taking your car complaint online? Chrysler, GM, and Ford
will see it.” (See ECF No. 27-8.) But the article fails to support Plaintiffs’ conclusion
that GM took note of the complaints. For starters, the article discusses a more general
trend of GM, Ford, and Chrysler focusing on brand and reputation management, as
opposed to corporate identity as a whole, by using search engines to scan for terms
involving their bestselling cars. (ECF No. 27-8, PageID.3207.) That hardly leads to
the inference that GM specifically knew about customer complaints regarding the
Valve-Train Defect in several different models of cars over several years. In fact, the
article says little about GM specifically and mostly discusses Chrysler’s strategy. (See
id. at PageID.3208 (“While Ford and GM don’t seem to devote quite as much staff
time to such activities, it’s become part of their corporate game plan, too.”).) Further,
the article does not discuss its sources for coming to these conclusions—the author
did not interview anyone from GM and does not share his own credentials for making
these assertions. So the article on consumer complaints does little to show that GM
plausibly “engaged with or received complaints” about the Valve-Train Defect. See
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Smith, 988 F.3d at 885. And without such allegations, the complaints cannot be used
to show knowledge.
Similarly, Plaintiffs allege that as a result of “testing that place[s] 100,000
miles on the engines prior to production in GM’s standard durability testing,” GM
“would have learned of the Valve Train Defect not only prior to the sale of the first
vehicle with AFM, but also each year before new model year vehicles were produced.”
(ECF No. 27, PageID.2669.) Similar allegations have been found to be insufficient to
plead knowledge because Plaintiffs have made “no specific allegations about the
results of the tests, such as data obtained by GM or documents confirming or
suggesting whether the defect became known.” See Smith, 988 F.3d at 884. In other
words, Plaintiffs have not alleged “how or why testing revealed” the defect other than
an assumption that by placing 100,000 miles on the vehicles and conducting
durability testing, GM must have learned of the defect. See id. And none of the
articles Plaintiffs attach to their complaint changes that conclusion as they do not
contain specific discussions about the Valve-Train Defect. (See ECF Nos. 27-4, 27-5,
27-6.) So the pre-production allegations also do not plausibly show GM’s knowledge
of the defect.
And while the Court perhaps understands the logic behind Plaintiffs’
allegations that GM redesigning certain valve-train parts means it knew of the defect,
that argument only goes so far. There are many other reasons for GM to redesign a
part—availability of materials, cost of materials or assembly, to improve efficiency of
the vehicle, and to improve reliability and safety (apart from the need to do so because
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of a defect). Plus, Plaintiffs allege that the redesigned valve-train system was also
defective. (ECF No. 27, PageID.2707.) So it seems even less likely that GM redesigned
these parts because of the Valve-Train Defect if the parts continued to be defective in
largely the same way. Thus, Plaintiffs’ allegations that GM redesigned certain
components of the valve-train system do not plausibly show that GM knew about the
With that, Plaintiffs’ knowledge allegations boil down to the Technical Service
Bulletins and the Service Updates. The Court finds that these two sources are
sufficient to plausibly allege that GM had knowledge of the defect.
GM provides Technical Service Bulletins, which describe issues that customers
may experience with their vehicles, to professional technicians at its dealerships.
(ECF No. 27, PageID.2670.) The bulletins include, among other things, a description
of the issue and how customers may describe the issue, what model and model year
of vehicle the bulletin applies to, and possible solutions the dealership technicians
should apply to fix the defect. (See, e.g., id. at PageID.2683–2684.)
While these bulletins are not admissions that a particular vehicle has a defect,
this Court and others have found that they provide a sufficient basis to allege that
the manufacturer had knowledge about certain issues. See Gregorio v. Ford Motor
Co., 522 F. Supp. 3d 264, 282 (E.D. Mich. 2021) (“As explained by another court in
this District, ‘TSBs advising of specific transmission issues support[ ] a fair inference
that [the manufacturer] relied on an ‘accretion of knowledge’ collated from its own
internal testing and engineering reports and complaints and data received
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exclusively by it through its dealer channels, which prompted it to issue those repair
bulletins.’” (quoting Francis v. Gen. Motors, LLC, 504 F. Supp. 3d 659, 685 (E.D. Mich.
2020))); see also In re MyFord Touch Consumer Litig., 46 F. Supp. 3d 936, 958 (N.D.
Cal. 2014); MacDonald v. Ford Motor Co., 37 F. Supp. 3d 1087, 1093 (N.D. Cal. 2014).
Thus, when GM “issues a service bulletin about the precise issue in the precise vehicle
that a plaintiff complains of, it is common sense to infer that [GM] had knowledge of
that issue at the time of, and prior to, the service bulletin.” See Gregorio, 522 F. Supp.
3d at 282.
Plaintiffs’ allegations warrant such an inference here.
Start with the allegations describing the defect. The Court surmises that the
Valve-Train Defect, which generally refers to the valves not opening and closing at
the correct times, is actually the failure of three parts: the rockers arms, the valve
springs, and the lifters. The rocker-arm issue refers to the rocker arms shedding
“needle bearings, causing the rocker arm to no longer move in time with the rest of
the valve train.” (ECF No. 27, PageID.2661.) The valve springs “breakdown and fail
prematurely” by either breaking into multiple pieces or shedding pieces, which causes
the valve spring to no longer hold the opening to the combustion chamber closed. (Id.
at PageID.2662.) And the lifter defect includes “collapsed lifters, which can be the
result of a mistimed switch event when the lifter is locked or unlocked at the wrong
time of the cycle.” (Id. at PageID.2657.) In turn, collapsed lifters can cause the
pushrods to become bent, apparently causing them to not properly push into the
rocker arm, which is what controls the opening of the valve. (Id. at PageID.2658.)
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Issues with all three components—the rocker arm, the valve springs, and the lifters—
can cause debris to circulate through the engine and create the issues Plaintiffs
In terms of what customers may experience as a result of the defect, Plaintiffs
say that “symptoms of the Valve Train Defect begin with noises, typically chirping,
squeaking, and/or ticking when the vehicle is not idling. Eventually, if unremedied,
they progress to engine misfires, as the valves fail to open and close at appropriate
times.” (ECF No. 27, PageID.2662.)
Now compare those allegations to the Technical Service Bulletins. Plaintiffs
describe over 30 different bulletins in their complaint, but the point can be made with
a few. The bulletins refer to issues that Plaintiffs connect to the defect. (See ECF No.
27, PageID.2672 (pleading that a 2011 TSB stated, “[t]his may be the result of an
AFM lifter that unlocks as soon as the engine is started or one that is mechanically
collapsed/stuck all of the time. . . . AFM lifters which were collapsed or stuck would
additionally cause “a consistent valve train tick noise.”); id. at PageID.2674 (pleading
that a 2012 TSB stated, “GM noted that this concern may be the result of several
conditions, including a ‘worn camshaft lobe and/or lifter roller,’ ‘a broken valve
spring,’ and ‘a collapsed AFM lifter.’”); id. at PageID.2678 (pleading that a 2014 TSB
stated, “if a dealer finds roller rocker arm needle bearings during an oil change [in
the oil pan], inspect all of the roller rocker arms. If a damaged rocker arm is found,
only replace the broken roller rocker arm.”); id. at PageID.2680 (pleading that a 2015
TSB stated, “[s]ome customers may comment on . . . engine misfire on cylinder 4, 6,
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and/or tick noise. This may be the result of an AFM lifter that is mechanically
collapsed and or stuck all of the time. These lifter concerns may be the result of
internal locking pin damage in the lifter, due to oil aeration.”); id. at PageID.2692
(pleading that a 2018 TSB stated, “GM noted that this concern may be the result of
several conditions, including a worn camshaft lobe and/or lifter roller, a broken valve
spring, and a collapsed AFM lifter.”); id. at PageID.2695 (pleading that a 2019 TSB
stated, “The bulletin stated that customers might comment on misfire, chirp, squeak,
squeal, tick . . . GM noted that this concern may be the result of several conditions,
including a worn camshaft lobe and/or lifter roller, a broken valve spring, and a
collapsed AFM lifter.”); id. at PageID.2697, 2698 (pleading that a 2020 TSB
“described that ‘[s]ome customers may comment on a malfunction indicator lamp
(MIL) on and/or an engine misfire/tick noise. . . . The possible causes included AFM
lifter that is mechanically collapsed and/or stuck all of the time, internal locking pin
damage in the lifter, due to oil aeration, lifter that has collapsed and is stuck in the
lifter bore, and a bent push rod.’”).) Given the similarities between the defect
description and these bulletins, the Court finds that “it is common sense to” infer that
GM had knowledge of these issues before and at the time it issued the bulletins.
The Court notes, however, that Plaintiffs have alleged one uniform defect—the
Valve Train Defect. Yet the sum of their TSB allegations actually indicate that there
are three separate part failures at issue in this case. The Court would thus describe
the “Valve Train Defect” as actually three separate defects that affect three different
parts, all of which perhaps lead to the same symptoms. But Plaintiffs’ allegations do
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not plausibly show that each plaintiff suffered from all three parts failing at once
such that the Court can find GM plausibly had knowledge of a “Valve Train Defect.”
But it does find that GM plausibly knew of 1) issues with the rocker arms; 2) issues
with the valve springs, and; 3) issues with the lifters.
GM also argues that some of these bulletins “apply only to a limited subset of
the vehicles included in Plaintiffs’ broad putative class.” (ECF No. 38, PageID.2602.)
While that is true, it does not change this Court’s conclusion for two reasons. One,
though a particular bulletin only applies to the vehicles listed, Plaintiffs have
provided numerous bulletins issued by GM, some of which apply to a broad range of
classes. (See, e.g., ECF No. 27, PageID.2700 (“The bulletin was applicable to all GM
vehicles model years 2000-2021.”).) And two, despite raising this argument, GM does
not specify which of Plaintiffs’ vehicles are not covered by the bulletins. Without this
information, the Court is unwilling to exclude any fraud-by-omission claim.
Finally, GM argues that the bulletins are “not a basis for imposing liability[.]”
(ECF No. 28, PageID.3602.) But as another district court explained, “[a]t this
juncture, the Court is not determining liability or considering the TSB as an
‘admission’ of any kind. Rather, the various TSB helps render plausible Plaintiffs’
allegations that Defendants knew of the alleged defect.” Ponzio v. Mercedes-Benz
USA, LLC, 447 F. Supp. 3d 194, 229 (D.N.J. 2020).
Thus, Plaintiffs have plausibly alleged GM’s knowledge, and their fraud-byomission claims will not be dismissed on that ground.
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Duty to Disclose
GM also argues that, under relevant state law, Plaintiffs must plead that GM
had a duty to disclose information about the defect to state a claim for fraud by
omission. For their part, Plaintiffs argue that not all states require a duty to disclose,
but for the ones that do, Plaintiffs have adequately pled such a duty by pleading that
GM had superior knowledge of the defect.
Both parties agree that a duty to disclose can be established based on GM’s
superior knowledge of the defect in all relevant states except Florida and New Jersey.
(See ECF No. 38, PageID.3607, n.33.) So, for all other states, the Court will assume
without deciding that Plaintiffs are required to plead a duty to disclose because it
finds that Plaintiffs have done so by pleading that GM had superior knowledge of the
Much like the Court’s analysis on GM’s knowledge of the defect, the analysis
here also focuses on the bulletins Plaintiffs cite in their complaint. This Court and
others in this District have found that Technical Service Bulletins in particular
support an inference that a manufacturer “was collecting evidence of a [defect] from
internal sources long before the TSBs were issued.” Gregorio, 522 F. Supp. 3d at 282–
83 (finding three TSBs issued by Ford sufficient to establish superior knowledge); see
also Francis, 504 F. Supp. 3d at 685 (“[T]he evidence of the many TSBs advising of
specific transmission issues supports a fair inference that GM relied on an accretion
of knowledge collated from its own internal testing and engineering reports and
complaints and data received exclusively by it through its dealer channels, which
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prompted it to issue those repair bulletins.”). And though some TSBs are available on
public websites, like the NHTSA website, that does not defeat Plaintiffs’ allegation
that GM had superior knowledge of the defect compared to them. For one, even if the
TSBs were available online for consumers who conducted Internet research, the
information that led to the issuance of the bulletins was likely in the exclusive control
of GM. See Gregorio, 522 F. Supp. 3d at 282–83. And Plaintiffs’ complaint suggests
that the full content of the TSBs was not publicly available. See MyFord Touch, 46 F.
Supp. 3d at 960. Indeed, Plaintiffs plead that the bulletins “are issued exclusively to
[GM] dealerships and are not disseminated to consumers, even if their vehicles
receive services as outlined in the bulletins” unless directed to do so by GM. (ECF No.
27, PageID.2670.) Plaintiffs continue, “since GM issues bulletins for everything from
minor, cosmetic issues to major issues such as the Valve Train Defect, any given
model year of vehicle might have over 1,000 bulletins applicable to it . . . . Further,
NHTSA does not provide a way to search through the bulletins so that consumers can
sort major issues from minor issues.” (Id.) And the bulletins include a disclaimer
stating, “DO NOT assume that the bulletin applies to your vehicle, or that your
vehicle will have that condition. See your GM dealer for information on whether your
vehicle may benefit from the information.” (Id. at PageID.2670–2671.) In all, given
the intended purpose of the TSBs, the process by which they are issued, and the
difficulty consumers may have discerning between material and non-material TSBs,
the Court finds that the dozens of TSBs issued by GM about valve-train issues make
plausible the allegation that GM had superior knowledge of the alleged defect.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5387 Filed 01/19/23 Page 19 of 67
That leaves whether Plaintiffs have plausibly pled a duty to disclose under
Florida and New Jersey law.
New Jersey law does not allow a plaintiff to establish a duty to disclose via
superior knowledge. See O’Connor v. Ford Motor Co., 567 F. Supp. 3d 915, 965 (N.D.
Ill. 2021) (“[A] party’s ‘superior knowledge’ is insufficient to impose a duty to disclose
in New Jersey.” (quoting Schechter v. Hyundai Motor America, No. 18-13634, 2019
WL 3416902, at *9 (D.N.J. July 29, 2019))); see also Roe v. Ford Motor Co., No. 1812528, 2021 WL 2529825, at *9 (E.D. Mich. June 21, 2021). There must be something
more, like a fiduciary relationship or a partial disclosure. Chapman v. Gen. Motors
LLC, 531 F. Supp. 3d 1257, 1291 (E.D. Mich. 2021). “In fact, New Jersey Courts have
found no special relationship between individual consumers and automobile
manufacturers that would impose a duty to disclose on the manufacturers” within
the context of omissions-based fraud claims. Ponzio, 447 F. Supp. 3d at 234; Coba v.
Ford Motor Co., No. 12-1622, 2013 WL 244687, at *12 (D.N.J. Jan. 22, 2013) (internal
citations omitted); Argabright v. Rheem Mfg. Co., 201 F. Supp. 3d 578, 604 (D.N.J.
2016). And Mouradjian (the only New Jersey plaintiff the Court is considering in this
opinion) does not allege any sort of partial disclosure that would impose on GM the
duty to also disclose the defect. (See ECF No. 27, PageID.2584–2587). So the Court
will dismiss Mouradjian’s fraud-by-omission claim under New Jersey law.
As for Florida, courts in this District have found that superior knowledge is an
exception to the duty to disclose under Florida law. See Chapman v. Gen. Motors,
LLC, 531 F.Supp.3d 1257, 1291 (E.D. Mich. 2021) (denying motion to dismiss because
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5388 Filed 01/19/23 Page 20 of 67
superior knowledge is an exception to the duty to disclose under Florida law); In re
Gen. Motors Air Conditioning Mktg. & Sales Practices Litig., 406 F. Supp. 3d 618, 638
(E.D. Mich. 2019) (same (citing Majdipour v. Jaguar Land Rover N. Am., LLC, No.
12-07849, 2015 WL 1270958, at *13 (D.N.J. Mar. 18, 2015))); see also Majdipour, 2015
WL 1270958, at *13 (holding that plaintiff plausibly alleged that auto manufacturer
“had superior knowledge of
a duty to disclose” under Florida law); Estate of Pilgrim v. Gen. Motors LLC, — F.
Supp. 3d —, 2021 WL 989322, at *9 (E.D. Mich. 2022) (same). And Florida law
provides a basis for this conclusion. See Nessim v. DeLoache, 384 So. 2d 1341, 1344
(Fla. Dist. Ct. App. 1980) (“The classic illustration of fraud is where one party having
superior knowledge intentionally fails to disclose a material fact, which is not
discoverable by ordinary observation[.]” (internal citations omitted)). So, for the
reasons given above, the Court will allow the fraud-by-omission claims to survive
under Florida law.
In sum, the only fraud-by-omission claim that will be dismissed is Mouradjian’s
claim under New Jersey law. The other plaintiffs who are at issue in this motion
plausibly pled a duty to disclose based on GM’s superior knowledge.
Plaintiffs also bring breach-of-express-warranty claims based on GM’s failure
to repair the valve-train issues at no cost. Plaintiffs fall into two groups when
examining their express warranty claims—those who sought repairs within the
warranty period and those who did not. The Court addresses each group in turn.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5389 Filed 01/19/23 Page 21 of 67
No repairs within warranty
Start with Plaintiffs who did not seek repairs within the warranty period. This
Court has previously held that a plaintiff who did not bring their vehicle in for repair
within the time and mileage limits set by the warranty may not pursue a breach-ofexpress-warranty claim. See Roe v. Ford Motor Co., No. 2:18-CV-12528-LJM-APP,
2019 WL 3564589, at *9 (E.D. Mich. Aug. 6, 2019) (“As it is not plausible that any
plaintiff brought his or her vehicle to a Ford dealer for a water-pump repair within
the lesser of five years and 60,000 miles, Ford’s express-warranty obligation to repair
or replace the water pump was never triggered. So even if, as Plaintiffs plead, Ford
did not repair their vehicles cost-free, Ford did not breach the express warranty by
failing to do so.”).
A similar conclusion is warranted here. GM’s warranty states, “[t]o obtain
warranty repairs, take the vehicles to a GMC [or Chevrolet] dealer facility within the
warranty period and request the needed repairs.” (ECF No. 38-4 (the Jetts and
Deery); ECF No. 38-6 (Hayford); ECF No. 38-8 (Cheshire and Mouradjian); ECF No.
38-15, PageID.4271 (Reidhars); ECF No. 38-16, PageID.4321 (Attia and the
Purshagas).) The warranty thus directs consumers to take the vehicles to a dealer
facility within the warranty period as a precondition to receiving repairs. See id.
That precondition is fatal to some of plaintiffs’ express-warranty claims. See
Roe, 2019 WL 3564589, at *9; see also Wozniak v. Ford Motor Co., No. 2:17-CV-12794,
2019 WL 108845, at *2 (E.D. Mich. Jan. 4, 2019); Gregorio v. Ford Motor Co., 522 F.
Supp. 3d 264, 290 (E.D. Mich. 2021). GM issued Plaintiffs an express warranty with
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5390 Filed 01/19/23 Page 22 of 67
time and mileage limits. (ECF No. 38-4 (the Jetts and Deery had a 5-year or 60,000miles Powertrain warranty); ECF No. 38-6 (same for Hayford); ECF No. 38-8
(Cheshire and Mouradjian had a 5-year or 100,000 miles Powertrain warranty); ECF
No. 38-15, PageID.4271 (same for Reidhars); ECF No. 38-16, PageID.4321 (Attia and
the Purshagas had a 5-year or 60,000-miles Powertrain warranty).) Yet these
plaintiffs all alleged that they sought repairs after the expiration of their warranties
or failed to take their vehicles in for repair at a dealer facility. (See ECF No. 27,
PageID.2632–2633 (Jetts took vehicle in for repair after 73,000 miles); id. at
PageID.2617 (Deery took her vehicle in to a non-dealer repair shop at 99,470 miles);
id. at PageID.2605 (Hayford took in his vehicle at 81,300 miles); id. at PageID.2524,
2527 (Cheshire bought his vehicle in 2015 and took it for repairs in 2021); id. at
PageID.2586 (no allegations that Mouradjian took car to a certified dealer); id. at
PageID.2519 (Reidhars purchased vehicle in 2014 and took it into dealership in 2022);
id. at PageID.2570 (Attia took his car in after 78,483 miles); id. at PageID.2572
(Purshagas purchased vehicle used at 69,000 miles).) Thus, the Jetts, Deery,
Cheshire, Mouradjian, the Reidhars, Attia, the Purshagas, and Hayford did not
satisfy the precondition to their warranties and have failed to plausibly plead a
Plaintiffs argue that they should not be barred from pursuing an expresswarranty claim because they have alleged that the defect “existed when they
purchased their vehicles and GM’s express warranty covers any vehicle defect
occurring during the warranty period.” (ECF No. 40, PageID.5241.) That may be true,
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5391 Filed 01/19/23 Page 23 of 67
but it does not explain why Plaintiffs should be excused from the separate
precondition of seeking a repair within the time-and-mileage limits. To establish a
breach, Plaintiffs must show that GM did not comply with the terms of that warranty.
And nothing in the warranty guarantees a defect-free vehicle upon purchase—
instead, it guarantees free repairs if a defective vehicle is presented to the dealership
within certain time and mile limits. See Roe, 2019 WL 3564589, at *11 (“Factually,
Ford did not promise that Plaintiffs’ powertrains were defect-free; Ford merely
promised that (if certain conditions were met) it would repair, replace, or adjust
powertrain parts . . . free of charge” (internal quotations omitted)). So these plaintiffs’
express-warranty claims are untenable to the extent they seek to hold GM
accountable for breaching a warranty that guarantees repairs within a certain period
when they never asked for such repairs during the relevant period.
Plaintiffs also present a similar argument in a different flavor—that they
should not be held to the durational and mileage limits set out in the express
warranty because the limits are unconscionable due to GM’s knowledge of the defect
at the time of sale.
Plaintiffs have not expressly argued that any particular state does not require
a showing of procedural unconscionability. And GM asserts that to successfully plead
a breach-of-warranty claim based on a theory of unconscionability, they must allege
both substantive and procedural unconscionability. See Ambrose v. Gen. Motors LLC,
No. 19-13449, 2022 WL 3701946, at *9 (E.D. Mich. Aug. 26, 2022) (citing Rivera v.
Ford Motor Co., No. 16-cv-13786, 2017 WL 3485815, at *3 (E.D. Mich. Aug. 15, 2017)).
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5392 Filed 01/19/23 Page 24 of 67
The Sixth Circuit has held that a contract is procedurally unconscionable where the
“relative bargaining power and alternative sources of supply strongly favors one
party.” See Andersons, Inc. v. Horton Farms, Inc., 166 F.3d 308, 322 (6th Cir. 1998).
Plaintiffs have barely pled any allegations about unconscionability. For each
subclass, Plaintiffs state that the warranty limitations are unconscionable because
GM “knowingly” sold or leased vehicles without disclosing the Valve-Train Defect and
that Plaintiffs did not determine or know about the warranty limitations, even
though the limitations are stated in the warranty. (See, e.g., ECF No. 27,
PageID.2749–2750.) Plaintiffs conclude, “[a] gross disparity in bargaining power and
knowledge of the extent, severity, and safety risk of the Valve-Train Defect existed
between GM” and the class members for each state. (See, e.g., id. at PageID.2750.)
GM’s alleged knowledge of the defect does not amount to a gross disparity of
bargaining power between Plaintiffs and GM. The Court agrees with the court’s
analysis in In re General Motors Air Conditioning Marketing & Sales Practices
Litigation that a difference in knowledge should not be conflated with a difference in
bargaining power. 406 F. Supp. 3d 618, 629–30 (E.D. Mich. 2019). As the court
explained, “Bargaining power comes primarily from having viable alternatives in the
marketplace, and a vehicle consumer with many options – like the Plaintiffs here –
has real and substantial bargaining power even where a seller like GM knowingly
fails to disclose a defect.” Id.
To that point, the Court notes that given the nature of the car industry, it is
difficult to show procedural unconscionability in a case like this one. Many courts
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5393 Filed 01/19/23 Page 25 of 67
have recognized, and this Court agrees, that the car industry is one of the most
competitive markets that exists. With that competition comes a meaningful choice
between a range of manufacturers and models. In other words, the “alternative
sources of supply” does not favor GM in the bargaining process at all. As one court
put it, “[a]n individual seeking to purchase one of the Class Vehicles has many other
options – sometimes within walking distance of his local GM dealership – if he is
unhappy with the warranty that GM provides.” In re Gen. Motors Air Conditioning
Mktg. & Sales Pracs. Litig., 406 F. Supp. 3d at 629–30.
Without more than its allegations that GM knew about the Valve-Train Defect
and Plaintiffs did not, Plaintiffs have failed to plausibly plead that the limits on the
warranty were procedurally unconscionable. So the terms of the express warranty
will still apply. The Jetts, Deery, Hayford, Cheshire, Mouradjian, the Reidhars, Attia,
and the Purshagas may not proceed with their express-warranty claims.
Repairs Within Warranty Period
As for the remaining plaintiffs, they all plausibly alleged that they sought
repairs within the warranty period. GM mostly does not dispute this, with the
exception of two plaintiffs—Luster and Jordan.
Luster alleged that she bought her car in 2017, and just a few months after,
she took her vehicle to the dealership and requested repairs for issues related to the
valve train, but “was told there was nothing wrong with her vehicle.” (ECF No. 27,
PageID.2531.) She also alleges that as of 2021, her car had 62,079 miles. (Id.) As her
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5394 Filed 01/19/23 Page 26 of 67
Powertrain warranty covers the first 6 years or 70,000 miles (ECF No. 38-5), Luster
has plausibly alleged that she sought repairs within the warranty period.
As for Jordan, the facts are less clear. Jordan alleges he bought a used GM
vehicle on December 31, 2015, and on June 14, 2021, with 46,800 miles on his car, he
sought valve-train repairs from a dealer. His Powertrain warranty is for the first 6
years or 70,000 miles, so he seemingly sought repairs within the warranty
limitations. (See ECF No. 38-7.) But there is a wrinkle: the warranty also states that
the “period for all coverages begins on the date the vehicle is first delivered or put in
use,” and Jordan bought a used vehicle. (See ECF No. 38-7.) However, Jordan
purchased a 2015 model, so it may have been first put into use after June 14, 2015,
making the June 14, 2021 requested repair within six years. Given that Jordan may
have sought repairs within the time limit set in the warranty, the Court finds that
he plausibly pled an express-warranty claim at this stage.
Having determined who sought repairs within the warranty period, the Court
now addresses GM’s argument that those plaintiffs have no express-warranty claim
because they received “the precise benefit the warranty provides”—a free repair.
Courts in similar cases have found that an express-warranty claim may be
brought when the manufacturer is either unwilling or unable to repair the vehicle,
despite attempting to repair the vehicle for free. See Benkle v. Ford Motor Co., No.
161569, 2017 WL 9486154, at *12 (C.D. Cal. Dec. 22, 2017) (“Plaintiffs have plausibly
alleged a breach of express warranty on the theory that Defendant failed to provide
adequate repairs under the terms of its Limited Warranty.”); Gregorio v. Ford Motor
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5395 Filed 01/19/23 Page 27 of 67
Co., 522 F. Supp. 3d 264, 290 (E.D. Mich. 2021) (holding that it is plausible that Ford’s
express warranty failed its essential purpose where plaintiffs pled that Ford was
either unwilling or unable to fix the defect); Reynolds v. FCA US LLC, 546 F. Supp.
3d 635, 649–50 (E.D. Mich. 2021).
Plaintiffs here have adequately pled that even if GM provided them with
repairs, the repairs failed to fix the defect. All Plaintiffs, including those whose valvetrains were repaired under warranty, state that the Valve-Train Defect continues to
affect their cars at the time of the complaint. (See, e.g., ECF No. 27, PageID.2513.)
Some Plaintiffs even allege that they sought repairs multiple times during the
warranty period and still experienced the defect, which suggests that the repair was
ineffective. (See ECF No. 27, PageID.2511–2512 (Harrison); id. at PageID.2535–2536
(Speno); id. at PageID.2566–2567 (Roller); id. at PageID.2555–2556 (Scott); id. at
PageID.2609 (Podojil); id. at PageID.2625 (Dittman).) And Luster stated she was
denied repairs for the defect when she sought them. (Id. at PageID.2531.)
So the Court will not dismiss the express-warranty claims of Plaintiffs who
presented their vehicle for repair during the warranty period but received an
GM raises four issues with Plaintiffs’ implied-warranty-of-merchantability
claims: that their implied-warranty claims are limited by their express-warranty
claims, that they are still able to drive their vehicles after the repairs, that Plaintiffs
failed to allege privity, and that the statute of limitations bar some of their claims.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5396 Filed 01/19/23 Page 28 of 67
The Court agrees with GM that plaintiffs who did not comply with the
durational limits set out in the express warranties also do not have a plausible
implied-warranty claim because their express warranties limit the duration of any
implied warranties. See Hall v. Gen. Motors, LLC, No. 19-cv-10186, 2020 WL
1285636, at *11 (E.D. Mich. Mar. 18, 2020) (“Because Plaintiffs’ implied warranties
expired before they sought service for their vehicles, they cannot state a viable breach
of implied warranty claim against GM.”).
The Jetts, Deery, Hayford, Cheshire, Mouradjian, the Reidhars, Attia, and the
Purshagas alleged that the defect manifested outside of the warranty period. (ECF
No. 27, PageID.2633 (Jetts); id. at PageID.2617 (Deery); id. at PageID.2605
(Hayford); id. at PageID.2526–2526 (Cheshire); id. at PageID.2586 (Mouradjian); id.
at PageID.2519 (Reidhars); id. at PageID.2570 (Attia); id. at PageID.2574
(Purshagas).) And all of their express warranties contained a clause that set
durational limits for any implied warranties. (ECF No. 38-4 (Jetts’ and Deery’s
express warranty stating, “Any implied warranty of merchantability or fitness for a
particular purpose applicable to this vehicle is limited in duration to the duration of
this written warranty.”); ECF No. 38-6 (Hayford); ECF No. 38-8 (Cheshire and
Mouradjian); ECF No. 38-15, PageID.4281–4282 (the Reidhars); ECF No. 38-16,
PageID.4331 (Attia and the Purshagas).) So the Court will also dismiss the impliedwarranty claims brought by the Jetts, Deery, Hayford, Cheshire, Mouradjian, the
Reidhars, Attia, and the Purshagas.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5397 Filed 01/19/23 Page 29 of 67
The U.C.C. provides an implied warranty of merchantability. U.C.C. § 2-314.
To be merchantable, goods must be “fit for the ordinary purposes for which such goods
are used.” U.C.C. § 2-314(2)(c).
GM argues that “no Plaintiff alleges that they have not been able to drive their
vehicle after repairs were performed,” so none of Plaintiffs’ vehicles are truly
unmerchantable. (ECF No. 38, PageID.3590.) GM does not argue that any particular
jurisdiction’s rule of decision warrants dismissal of the claims—it merely argues that
each plaintiff’s implied-warranty claim should be dismissed for failing to allege that
they are unable “to drive their cars despite the alleged defects.” (Id. (quoting Brown
v. Hyundai Motor Am., No. CV1811249, 2019 WL 4126710, at *5 (D.N.J. Aug. 30,
Courts have not taken the narrow view of merchantability that GM desires.
Rather, “for an automobile to be merchantable in the usual sense, the law requires
more than it simply move from point to point under its own power. Ordinary car
buyers reasonably expect, and the law allows that they should expect, cars not only
to provide transportation, but also do so in a reasonably safe and reliable manner.”
Francis v. Gen. Motors, LLC, 504 F. Supp. 3d 659, 675 (E.D Mich. 2020); see also
Gregorio, 522 F. Supp. 3d at 290 (“Courts routinely hold that to be fit for its ordinary
purpose, a standard road vehicle must be able to provide safe and reliable
transportation and be substantially free of defects.”); In re FCA US LLC Monostable
Elec. Gearshift Litig., 334 F.R.D. 96, 112 (E.D. Mich. 2019).
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5398 Filed 01/19/23 Page 30 of 67
With one exception discussed below, Plaintiffs have satisfied this definition of
merchantability. As a general matter, Plaintiffs allege that the Valve-Train Defect
causes them to lose power while driving and also causes the car to stall, shake, and
surge. (ECF No. 27, PageID.2508.) In particular, Plaintiffs have described their car
engines losing power as they drove, which affects their ability to use their car for
transportation purposes, and their vehicles emanating a loud ticking or knocking
noise. (See, e.g., ECF No. 27, PageID.2621 (Burton’s vehicle “was barely able to move
forward by the time he got to his home” and had a loud ticking or knocking noise); id.
at PageID.2597 (Hess and Martin-Wasser experienced a loss of power, sputtering,
and noises from the engine, and could not accelerate); id. at PageID.2511–2512
(Harrison was on a 20-mile bridge when he lost power and the vehicle began to
sputter and misfire and says he was “only narrowly able to get the vehicle off the
bridge[.]”); id. at PageID.2566 (“Roller was driving his vehicle on the highway when
the vehicle began to [shutter] . . . He was barely able to exit the highway safely
[and] . . . the vehicle would not start.”).) These allegations, if true, would show that
the vehicles are not fulfilling their transportation purposes, and are also causing
issues of reliability. If these vehicles are losing power and breaking down on bridges
and highways, they are not functioning in the way consumers would expect.
The one exception the Court has found is Jordan’s allegations about his 2021
vehicle. Jordan says that his 2015 GM vehicle “had a lack of power, ran roughly,
produced smoke from the tailpipe, and was making a clacking noise in the engine
compartment” (ECF No. 27, PageID.2549), but all Jordan says about his 2021 vehicle
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5399 Filed 01/19/23 Page 31 of 67
is that it “remains subject to the Valve Train Defect” (ECF No. 27, PageID.2552).
Jordan does not allege any facts about the 2021 vehicle’s failure to function at any
specific time. Thus, the Court will not allow Jordan to pursue an implied-warranty
claim for his 2021 GM vehicle.
So all Plaintiffs, with the exception of Jordan and his 2021 vehicle, have
plausibly pled that their vehicles were not merchantable.
Of the Plaintiffs whose implied-warranty claims are not subject to dismissal
for the time-and-mileage limitations, GM asserts that seven of them—the Burtons,
Dittman, Speno, Luster, Harrison, and Podojil—failed to allege privity.
The Burtons and Dittman bring their implied-warranty claims under
Tennessee law. Privity is a requirement in Tennessee for an implied-warranty claim.
Chapman v. Gen. Motors LLC, 531 F. Supp. 3d 1257, 1277 (E.D. Mich. 2021)
(dismissing Tennessee implied warranty of merchantability claim because Tennessee
has a privity requirement with no exceptions); Travis v. Ferguson, No.
M201600833COAR3CV, 2017 WL 1736708, at *2 (Tenn. Ct. App. May 3, 2017)
(“Importantly, Tennessee Code Annotated Section 47–2–314 requires privity of
contract between the buyer and the seller. As discussed in the annotations to the
statute: The rule requiring privity of contract between the parties is still an essential
element of implied warranty in Tennessee except in cases where the product involved
is in a defective condition unreasonably dangerous to the user or to the property.”
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5400 Filed 01/19/23 Page 32 of 67
(citing Tenn. Code Ann. § 47–2–314, n. 9; Leach v. Wiles, 429 S.W.2d 823 (Tenn. Ct.
The Burtons and Dittman argue that issuance of an express warranty is
evidence that there is privity sufficient for an implied-warranty claim, but they cite
no Tennessee law in support.
The Burtons and Dittman do cite to Commercial Truck & Trailer Sales, Inc. v.
McCampbell, 580 S.W.2d 765 (Tenn. 1979). That decision relies on Tenn. Ann. Code
§ 29-34-104, which states, “In all causes of action for . . . breach of warranty, including
actions brought under the Uniform Commercial Code, privity shall not be a
requirement to maintain such action.” But this provision is inapplicable in this case
where the Burtons are only alleging economic damages and not personal injury or
property damage. See Siqueiros v. General Motors LLC, No. 16-CV-07244-EMC, 2021
WL 2115400, at *12 (N.D. Cal. May 25, 2021) (“Tennessee law requires plaintiff to be
in privity with the defendant to assert warranty claims unless they are raising a
cause of action for personal injury or property damage. Put differently, the privity
requirement is loosened where there has been personal injury or property damage,
not, as here, where there is only a risk of such injury.”). Indeed, McCampbell was
about a fatal injury. Comm. Truck & Trailer Sales, Inc., 580 S.W.2d at 767. So the
Burtons and Dittman’s implied-warranty claims are dismissed for lack of privity
under Tennessee law.
Luster and Speno’s claims will similarly be dismissed under Florida law. This
Court has previously found that Florida law provides no exceptions to the privity
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5401 Filed 01/19/23 Page 33 of 67
requirement. Gregorio, 522 F. Supp. 3d at 292 (“Florida, on the other hand, has a
strict privity requirement. The Florida plaintiffs cannot maintain implied warranty
claims against Ford because they bought their cars from a dealer rather than Ford
itself.”); see also Chapman, 531 F. Supp. 3d. at 1278 (“The claims under the . . . Florida
statutes, where no exceptions are recognized, are dismissed for failure to sufficiently
Luster and Speno nonetheless contend that there is a third-party beneficiary
exception to Florida’s privity requirement and that their claims fall under it. The
Court recognizes that there is a split among Florida courts as to whether such an
exception exists. Compare Padilla v. Porsche Cars N. Am., Inc., 391 F. Supp. 3d
11081117 (S.D. Fla. 2019) (“Consistent with Florida law, and this Court’s application
thereof, because Plaintiffs did not purchase their used vehicles directly from Porsche,
they lack contractual privity with Porsche and their implied warranty claim
necessarily fails as a matter of law.”), with Weiss v. Gen. Motors LLC, 418 F. Supp.
3d 1173, 1183 (S.D. Fla. 2019) (“The Court finds more persuasive the decisions finding
the third-party beneficiary exception viable in Florida . . . .Otherwise, a manufacturer
would always be able to shield itself from implied warranty claims even though it
knows that its intended consumer is not the dealership.”). But a split in authority is
not enough of a reason for this Court to stray from its prior decision. The Court will
thus follow the line of cases finding that Florida law has a strict privity requirement
with no exceptions. So Speno and Luster’s implied-warranty claims are dismissed.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5402 Filed 01/19/23 Page 34 of 67
The same dispute occurs between Harrison and GM under Alabama law. While
Harrison does raise the third-party beneficiary exception to privity, he does so in a
conclusory manner by merely citing to the portion of the complaint where he asserts
he is a third-party beneficiary of “contracts between GM and its distributors and
dealers[.]” (ECF No. 27, PageID.2749.)
Despite Harrison’s undeveloped argument, it appears that Alabama courts do
allow for a third-party beneficiary exception to the privity requirement. See Hurry v.
Gen. Motors LLC, — F. Supp. 3d —, No. 3:21-CV-673-ECM, 2022 WL 3587349, at *7
(M.D. Ala. Aug. 22, 2022) (“GM argues that Alabama law does not allow a third-party
beneficiary to maintain an implied warranty of merchantability claim. That is
incorrect.” (citing Morris Concrete, Inc. v. Warrick, 868 So.2d 429, 435 (Ala. Ct. App.
2003))). And similar to what the court found in Hurry, Harrison’s allegations here
support “a reasonable inference that the parties to the contract for the Class
Vehicles—GM and the independent authorized dealers—intended to bestow the
benefit of the implied warranty of merchantability upon the Plaintiffs. It is
reasonable to infer that GM and the independent dealers intended for the eventual
users of the Class Vehicles—the Plaintiffs—to benefit from the implied warranty of
merchantability because of the foreseeability of harm to those users from vehicles
which are defective, unmerchantable, or both.” Hurry, 2022 WL 3587349, at *7. So
Harrison’s implied-warranty claim will survive.
Podojil brings his implied-warranty claim under Ohio law. Ohio law has a
privity requirement, but “federal courts applying Ohio law readily have found the
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5403 Filed 01/19/23 Page 35 of 67
privity requirement to be satisfied where the manufacturer issued a written warranty
covering the vehicle in question and the claims are based on warranty-covered
defects.” In re FCA US LLC Monostable Elec. Gearshift Litig., 355 F. Supp. 3d 582,
596 (E.D. Mich. 2018) (citing Roxy Home Improvement, LLC v. Mercedes-Benz USA,
LLC, No. 17-01817, 2018 WL 1705800, at *5 (N.D. Ohio Apr. 9, 2018)); see also Roxy
Home Improvement, 2018 WL 1705800, at *5 (“For purposes of this 12(c) motion and
accepting well-pleaded factual allegations as true, the court finds that plaintiffs were
in privity of contract with [Mercedes-Benz USA] with respect to the standard 4year/50,000-mile limited warranties on the 2015 and 2016 vans.”). So Podojil’s
implied-warranty claim will also survive.
In sum, the Burtons, Dittman, Luster, and Speno’s implied-warranty claims
will be dismissed for lack of privity under Tennessee and Florida law, respectively.
Statute of Limitations
The Court needs to address GM’s statute-of-limitations argument only as to
Jordan, who brings his implied-warranty claim under Georgia law. Recall that Jordan
pled that he purchased two vehicles—one in 2015 and one in 2021—but the Court
found that he did not plead sufficient facts to support his implied-warranty claim for
the 2021 vehicle.
So that leaves the 2015 vehicle. Jordan purchased that car in December 2015,
but did not sue until almost six years later, in December 2021. Plaintiffs do not
dispute that Georgia has a four-year statute of limitations for implied-warranty
claims. See Ga. Stat. § 11-2-725(1); see also McCabe v. Daimler AG, 948 F. Supp. 2d
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5404 Filed 01/19/23 Page 36 of 67
1347, 1361 (N.D. Ga. 2013). And breach-of-implied-warranty claims “accrue on the
date of delivery, irrespective of an attempt to repair.” Moyer v. RV World, LLC, No.
1:20-cv-754, 2020 WL 13468969, at*5 (N.D. Ga. Oct. 27, 2020) (citing Everhart v.
Rich’s Inc., 196 S.E.2d 475, 476 (Ga. Ct. App. 1973)); see also Ga. Stat. § 11-2-725(2)
(“A cause of action accrues when the breach occurs, regardless of the aggrieved party’s
lack of knowledge of the breach.”). Since Jordan purchased his vehicle in 2015 and
did not bring suit until 2021, his claim is time-barred by the four-year statute of
limitations in Georgia’s UCC.
Though Plaintiffs assert that the statute of limitations is tolled because of
fraudulent concealment, they did not cite a Georgia case in support of this exception.
And Georgia law requires a plaintiff to show concealment “by positive affirmative act
and not by mere silence. There must be some trick or artifice employed to mislead the
party who has the cause of action.” See Moore v. Meeks, 483 S.E.2d 383, 385 (Ga. Ct.
App. 1997). Since there is no indication that GM employed such tactics against
Jordan, the Court will not toll the statute of limitations.
Thus, since it is clear from the face of the complaint that Jordan’s impliedwarranty claim for his 2015 vehicle is time-barred by Georgia’s four-year statute of
limitations, see Dabish v. McMahon, 818 F. App’x 423, 428 (6th Cir. 2020) (affirming
dismissal on statute of limitations in part because plaintiffs did not sufficiently plead
fraudulent concealment tolling), the Court will dismiss Jordan’s implied-warranty
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5405 Filed 01/19/23 Page 37 of 67
To summarize, the Court dismisses the following Plaintiffs’ implied-warranty
claims: the Jetts, Deery, Hayford, Cheshire, Mouradjian, the Reidhars, Attia, and the
Purshagas because of the limitation in their express warranties; the Burtons,
Dittman, Luster, and Speno because of privity; and Jordan for failure to plead
unmerchantability (2021) and for being untimely (2015).
Magnuson-Moss Warranty Act
“The MMWA provides a federal cause of action for consumers damaged by a
defendant who fails to comply with an obligation under a written or implied
warranty.” Gregorio v. Ford Motor Co., 522 F. Supp. 3d 264, 293 (E.D. Mich. 2021).
The parties agree that, if a plaintiff’s express- and implied-warranty claims are
subject to dismissal, plaintiff’s Magnuson-Moss claim must be dismissed as well.
(ECF No. 38, PageID.3594; ECF No. 40, PageID.5247.) So the Court will dismiss the
following plaintiffs’ Magnuson-Moss claims: the Purshagas, Cheshire, Deery, Attia,
the Jetts, Hayford, Mouradjian, the Reidhars, and Luster.
GM also raises a basis for dismissing the other plaintiffs’ Magnuson-Moss class
action claims. GM says that all plaintiffs have failed to meet the Act’s 100-namedplaintiff requirement, and so their class action claims must be dismissed. See Kuns
v. Ford Motor Co., 543 F. App’x 572, 574 (6th Cir. 2013) (“To bring a class action
pursuant to the MMWA, a complaint must list at least one hundred named plaintiffs.”
(citing 15 U.S.C. § 2310(d)(3))).
The Court recognizes that there is a split in authority as to whether a plaintiff
may use the Class Action Fairness Act to bring a class action under the Magnuson-
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5406 Filed 01/19/23 Page 38 of 67
Moss Warranty Act, thereby evading Magnuson-Moss’ requirement that they name
100 plaintiffs. See, e.g., Floyd v. Am. Honda Motor Co., 966 F.3d 1027, 1035 (9th Cir.
2020) (“Although CAFA was enacted thirty years after MMWA, CAFA does not
demonstrate any intent by Congress to repeal or alter parts of the MMWA’s
jurisdictional requirements. Therefore, CAFA may not be used to evade or override
the MMWA’s specific numerosity requirement[.]” (internal citations omitted)). But
the Sixth Circuit has stated that “district courts have, as a general rule, held that the
requirements. We agree that the district court had jurisdiction notwithstanding the
MMWA’s jurisdictional limitations.” Kuns, 543 F. App’x at 574. Thus, the Court will
follow the Sixth Circuit’s guidance and allow the other plaintiffs to pursue their
Magnuson-Moss class claims without naming 100 named plaintiffs.
GM urges the Court to part ways with the Sixth Circuit’s opinion in Kuns, but
the Court declines this invitation. Though Kuns is an unpublished case, it is
indicative of the Sixth Circuit’s opinion and considered this issue head-on. And this
Court routinely relies on unpublished Sixth Circuit case law to guide its decisions.
Thus, the Magnuson-Moss claims brought by the Purshagas, Cheshire, Deery,
Attia, the Jetts, Hayford, Mouradjian, the Reidhars, and Luster are dismissed, but
the remaining Magnuson-Moss claims will remain.
Plaintiffs assert unjust-enrichment claims on behalf of all plaintiffs en masse
without specifying the state laws such claims fall under. Many states, however, bar
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5407 Filed 01/19/23 Page 39 of 67
a plaintiff from bring an unjust-enrichment claim where an agreement exists between
the parties that defines their relevant rights. If there is disagreement concerning the
validity of the contract though, then an unjust-enrichment claim may be pled in the
alternative. See Gregorio, 522 F. Supp. 3d at 294; Solo v. United Parcel Serv. Co., 819
F.3d 788, 797 (6th Cir. 2016); Johnston v. PhD Fitness, LLC, No. 16-cv-14152, 2018
WL 646683, at *6 (E.D. Mich. Jan. 31, 2018) (holding that where the defendant
“disputed the existence of an express agreement, at this stage there is nothing infirm
about [the plaintiff] pleading unjust enrichment in the alternative”). And that is
where the parties here disagree—GM believes that Plaintiffs’ express-warranty
claims bar their unjust-enrichment claims, and Plaintiffs believe that they should be
able to plead both in the alternative. GM has the better argument.
Here, GM does not dispute the existence of an express warranty between it and
Plaintiffs. To this point, GM has not really even argued that repairs of the valve train
would not be covered under the warranty. Instead, it has argued that some plaintiffs
did not present their vehicle for repair within the warranty period, and the ones that
did received the benefit of their bargain, i.e. a free repair. So rather than disputing
the existence of a valid contract, see Solo, 819 F.3d at 797, GM is instead recognizing
the existence of such a contract and purportedly enforcing its terms. “Where the
parties have an enforceable contract and merely dispute its terms, scope, or effect,
one party cannot recover for promissory estoppel and unjust enrichment.” Terry Barr
Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 181 (6th Cir. 1996).
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5408 Filed 01/19/23 Page 40 of 67
Further, “[c]ourts have regularly dismissed unjust enrichment claims filed
against automobile manufacturers where a valid, enforceable express warranty
covers the same subject matter as plaintiffs’ unjust enrichment claims.” In re Gen.
Motors Air Conditioning Mktg. & Sales Practices Litig., 406 F. Supp. 3d 618, 634 (E.D.
Mich. 2019); see also McKee v. Gen. Motors LLC, 376 F. Supp. 3d 751, 762 (E.D. Mich.
2019); Hall v. Gen. Motors, LLC, No. 19-CV-10186, 2020 WL 1285636, at *9 (E.D.
Mich. Mar. 18, 2020), appeal dismissed, No. 20-1321, 2020 WL 6140402 (6th Cir. Sept.
28, 2020); Gant v. Ford Motor Co., 517 F.Supp.3d 707, 723 (E.D. Mich. 2021). So the
Court finds that because the express warranty governs GM’s obligations to remedy
the alleged defect, Plaintiffs may not bring an unjust-enrichment claim in the
Resisting this conclusion, Plaintiffs cite to Francis v. General Motors, LLC, 504
F. Supp.3d 659, 694 (E.D. Mich. 2020), in support of their argument that they are
able to plead unjust enrichment in the alternative. But Francis was a case where GM
denied that its express warranty covered the alleged defect. In contrast, here, GM
agrees the express warranty applies—by limiting claims from plaintiffs who did not
seek repairs within the warranty period or by fulfilling its purpose and giving
plaintiffs repairs within the warranty period. Either way, GM recognizes that an
express-warranty governs its obligations. So the Court finds that Gregorio, and the
cases it relies on, presents a better comparison to the current case than Francis. Thus,
the Court will dismiss the unjust-enrichment claims.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5409 Filed 01/19/23 Page 41 of 67
State Consumer Protection Laws
GM raises a number of issues with Plaintiffs’ claims under various state
consumer protection laws. Before the Court looks at the relevant state law more
closely, it notes that GM seeks to dismiss many of these claims on the basis that
Plaintiffs have not adequately pled its knowledge of the defect. As the Court
explained above, Plaintiffs have plausibly pled GM’s knowledge of the alleged defect.
So to the extent GM raises the same argument for the state-consumer-protection-act
claims, it does not warrant dismissal of those claims.
The Court will also address misrepresentation-based claims under all relevant
state statutes together. Plaintiffs purport to bring misrepresentation-based claims,
but their allegations in support are either conclusory or vague. (See, e.g., ECF No. 27,
PageID.2510 (“Indeed, GM’s misstatements and omissions were material to Plaintiff
Harrison.”).) Plaintiffs allege that they relied on representations from either GM or
its dealerships, but do not specify what the statements were: “[Plaintiffs] relied upon
GM and its authorized dealerships’ representations, which [Plaintiffs] viewed during
[their] online research, including on GM’s website, heard from the salesperson, and
reviewed the vehicle’s window stickers, including the Monroney sticker,3 that the
vehicle was fully functional, safe, durable, reliable, and that the engine operated
“Monroney stickers are mandated by [the] Automobile Information Disclosure
Act of 1958 and must include information about the specific vehicle being sold
including, powertrain information about the engine and transmission, safety ratings,
crash test scores, fuel economy and environmental impact.” (ECF No. 27,
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5410 Filed 01/19/23 Page 42 of 67
correctly and effectively.” (ECF No. 27, PageID.2510.) Though Plaintiffs varied in
what they viewed, this allegation is similar for all plaintiffs.
Plaintiffs also quote some brochures for GM vehicles, claiming they state
things like “‘the strongest, most advanced Silverado ever,’ offered with one of ‘six
engines designed with Chevy truck power and reliability’” (id. at PageID.2664); “DFM
in the vehicles ‘all happens with seamless precision, so you’ll never even notice’” (id.);
“‘[b]y sensing load and demand, AFM improves efficiency by activating or
deactivating cylinders[;] [u]nder demanding conditions, such as high speeds or heavy
loads, the valves switching mechanisms is depressurized, re-engaging the cylinder
and restoring full power’” (id.); and “‘delivery power and efficiency’” (id. at
None of these statements are specific enough to establish a representationbased claim, and many are “non-actionable puffery.” See Elliott v. Gen. Motors LLC,
No. 21-12561, 2022 WL 1815494, at *6 (E.D. Mich. June 2, 2022) (“Courts in this
district have repeatedly held that the kind of broad, non-quantifiable statements
about a vehicle’s safety or reliability that Plaintiffs identify here are nonactionable puffery[.]”); see also Wysong Corp. v. APN, Inc., 889 F.3d 267, 271 (6th Cir.
2018) (explaining that “puffery is a fact of life” and that “reasonable consumers know
that marketing involves some level of exaggeration—what the law calls ‘puffery’”);
Raymo v. FCA US LLC, 475 F. Supp. 3d 680, 705–06 (E.D. Mich. 2020) (finding
“claims that a vehicle is ‘efficient’ or ‘reliable’” to be puffery (internal citations
omitted)); Ram Int’l Inc. v. ADT Sec. Servs., Inc., No. 11-10259, 2011 WL 5244936, at
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5411 Filed 01/19/23 Page 43 of 67
*6 (E.D. Mich. Nov. 3, 2011) (“Defendant’s statements that its products were efficient,
reliable, and would protect Plaintiffs’ property are examples of opinion and puffery.”).
GM’s statements about efficiency, reliability, durability, and precision have little
meaning without providing a specific measure of these attributes. See Raymo, 474 F.
Supp. 3d at 706 (finding statements that are “general and nonquantifiable” to be
puffery); Chapman v. Gen. Motors LLC, 531 F. Supp. 3d 1257, 1287 (E.D. Mich. 2021)
(“While ‘11 percent more fuel efficient’ might seem closer to the types of statements
the Court found to be actionable . . . the allegations fail to indicate what benchmark
the 11% figure is being compared to (i.e., the trucks are 11% more fuel efficient than
what?), and therefore the Court does not consider the use of this figure to be a
quantifiable promise that could constitute affirmative misrepresentation.”).
And some of the statements Plaintiffs point to seem to be facts, or at least align
with Plaintiffs’ explanation of the defect. For example, the statement, “By sensing
load and demand, AFM improves efficiency by activating or deactivating cylinders.
Under demanding conditions, such as high speeds or heavy loads, the valves
switching mechanisms is depressurized, re-engaging the cylinder and restoring full
power,” tracks Plaintiffs’ own description of how AFM operates. (See ECF No. 27,
PageID.2656.) And though Plaintiffs would not agree that AFM “improves efficiency”
or “restor[es] full power,” those parts of the statement are too general to support a
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5412 Filed 01/19/23 Page 44 of 67
So in all, the statements Plaintiffs allege GM falsely made are all generalized
and vague, and thus are non-actionable puffery at best. So to the extent any plaintiff
made a misrepresentation-based claim, that claim is dismissed.
Now the Court will turn to its state-specific analysis for the remaining
The Court will dismiss the Reidhars’ Arkansas Deceptive Trade Practices Act
claim as time-barred.
The Reidhars do not dispute that the Arkansas DTPA has a five-year statute
of limitations, Ark. Stat. § 4-88-115, that they bought their vehicle in 2014, and that
they did not raise these claims until the filing of the amended complaint in 2022 (or,
at the absolute earliest, the filing of the original complaint in December 2021). (ECF
No. 27, PageID.2517.)
The Reidhars argue, however, that they are entitled to tolling due to
fraudulent concealment. “In order to toll a limitation period on the basis of fraudulent
concealment, there must be: “(1) a positive act of fraud (2) that is actively concealed,
and (3) is not discoverable by reasonable diligence.” Summerhill v. Terminix, Inc.,
637 F.3d 877, 880 (8th Cir. 2011); see also Bomar v. Moser, 251 S.W.3d 234, 242
(2007). “[T]o toll the statute of limitations, we said that plaintiffs were required to
show something more than a continuation of a prior nondisclosure.” Shelton v. Fisher,
8 S.W.3d 557, 562 (Ark. 2000) (quoting Martin v. Arthur, 3 S.W.3d 684, 687 (Ark.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5413 Filed 01/19/23 Page 45 of 67
The Reidhars have not plausibly pled something “so furtively planned and
secretly executed” that kept their cause of action concealed. See Shelton, 8 S.W.3d at
562. All the Reidhars allege is that GM did not disclose the alleged defect at the time
of sale nor at any point after. The Reidhars do not allege active concealment in the
form of denying repairs, telling them that their valve-train issues were normal, or
pretending the defect is something else. Rather, the Reidhars state that when they
presented their vehicle for repair, the dealership told them that they “found lifter
stuck in #4 cylinder” and that the dealership was replacing the AFM lifter. (ECF No.
27, PageID.2520.) That hardly amounts to a “furtive” plan to conceal the cause of
action. Nor do the Plaintiffs’ allegations about the TSBs suggest such a furtive plan.
So the Court finds that the Reidhars did not plausibly plead active concealment
such that the statute of limitations should be tolled. Their claim is thus time-barred
and will be dismissed.
GM challenges Cheshire, Luster, and Speno’s claims under the Florida
Deceptive and Unfair Trade Practices Act for failing to “allege any specific facts about
the contents” of the materials they allegedly relied on that contained representations
from GM and its dealers. (ECF No. 38, PageID.3612.)
As discussed, any representation-based claims are dismissed. The Florida
plaintiffs may, however, proceed with an omissions-based claim under the FDUTPA
for GM’s failure to disclose an alleged known defect, including by failing to list the
defect on Monroney stickers Plaintiffs say they relied upon. See Badawi v. Brunswick
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5414 Filed 01/19/23 Page 46 of 67
Corp., No. 8:21-CV-1825-TPB-AAS, 2022 WL 613807, at *3 (M.D. Fla. Mar. 2, 2022)
(“Specifically, Plaintiff’s FDUTPA claim alleges that the limited written warranty
provided by Sea Ray in connection with Plaintiff’s purchase of the boat in November
2020 was misleading and constituted an unfair and deceptive trade practice in light
of Sea Ray’s alleged knowledge that the boat it supplied suffered from substantial
defects that Sea Ray failed to disclose, and that Plaintiff was thereby induced to
purchase the boat. The complaint is sufficiently particularized.”); Cho v. Hyundai
Motor Co., Ltd., No. 822CV00448SPGKES, 2022 WL 16966537, at *7 (C.D. Cal. Oct.
21, 2022) (finding reliance on Hyundai materials, including Monroney stickers,
sufficient to survive a motion to dismiss under Florida law). But Plaintiffs did not
allege any specific misrepresentations on the Monroney stickers, so only an
omissions-based claim as to the stickers survives.
Thus, the omissions-based claims under Florida’s Deceptive and Unfair Trade
Practices Act will survive.
Jordan and Scott bring claims under two Georgia statutes—the Georgia Fair
Business Practices Act and the Georgia Uniform Deceptive Trade Practices Act.
Their claims under the Georgia Uniform Deceptive Trade Practices Act will be
dismissed. “Under [the] GUDTPA, ‘[a] person likely to be damaged by a deceptive
trade practice of another may be granted an injunction against it under the principles
of equity and on terms that the court considers reasonable.’” Amin v. Mercedes-Benz
USA, LLC, 301 F.Supp.3d 1277, 1292 (N.D. Ga. 2018) (quoting O.C.G. § 10-1-373(a)).
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5415 Filed 01/19/23 Page 47 of 67
To plead a claim under the GUDTPA, Jordan and Scott must plead “a likelihood of
future harm by a deceptive trade practice.” Id.
Though Jordan and Scott plead that they would “like to” purchase GM vehicles
in the future, they also state that they are “unable to rely on GM’s advertising or
labeling in the future, and so will not purchase or lease another vehicle from GM in
the future[.]” (ECF No. 27, PageID.2552, 2556.) Such an allegation does not amount
to the inference that Jordan and Scott are likely to buy another class vehicle in the
future, and it certainly does not show that they are likely to be misled by any alleged
deceptive practices. In short, Jordan and Scott have not “sufficiently alleged that they
are ‘likely to be damaged’ again by [GM’s] advertising or marketing.” Amin, 301 F.
Supp. 3d at 1294 (quoting O.C.G.A. § 10-1-373(a)); see also Cunningham, 2022 WL
17069563, at *13 (E.D. Mich. Nov. 17, 2022) (“Simply put, Cunningham fails to
plausibly allege that the omissions will mislead him on a going-forward basis.”). So
the GUDTPA claims will be dismissed.
As for the Georgia Fair Business Practices Act, GM argues that Jordan and
Scott’s class claims should be dismissed because the statute prohibits bringing an
action in a representative capacity. O.C.G. § 10-9-399. Jordan and Scott respond that
Federal Rule of Civil Procedure 23 governs whether a class action can proceed in
This dispute of whether the Georgia statute barring class actions or Federal
Rule 23 controls presents an issue best decided under the Supreme Court’s decision
in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). “This
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5416 Filed 01/19/23 Page 48 of 67
Court, like ‘the majority of district and circuit courts’ that have considered the issue,
finds that Justice Stevens’ concurrence is the controlling opinion in Shady Grove.”
Cunningham, 2022 WL 17069563, at *10–13 (citing Greene v. Gerber Prod. Co., 262
F. Supp. 3d 38, 60 (E.D.N.Y. 2017) (collecting cases)). The Court also notes that this
issue has divided federal district courts, and thus, does not have an easy answer. See,
e.g., Reynolds v. FCA US LLC, 546 F.Supp.3d 635, 658 (E.D. Mich. 2021) (recognizing
the “split in authority” on this issue under the GFBPA); Miller v. Ford Motor Co., —
F. Supp. 3d ––, 2022 WL 3229503, at *19 (E.D. Cal. Aug. 10, 2022) (collecting cases
and explaining that “[f]ederal district courts are divided on whether the prohibition
of [G]FBPA class action claims applies in federal court”).
That being said, the Court finds the Shady Grove analysis that concludes that
plaintiffs are barred from bringing a class action under the GFBPA to be more
persuasive. Under Justice Stevens’ approach in Shady Grove, the inquiry should
“focus on whether the state law had a substantive purpose and acknowledge the
possibility that state rules that are otherwise procedural may in some instances
become so bound up with the state-created right or remedy that it defines the scope
of the substantive right or remedy and . . . should not be preempted by a conflicting
federal rule.” Shady Grove, 559 U.S. at 420. In other words, the Court looks beyond
what is “traditionally described as substantive or procedural” and looks to whether
the state rule affects the scope of the right itself. See id.
Many courts have found that Georgia’s limitation on class actions in this
context define the scope of the state-created right. Delgado v. Ocwen Loan Servicing,
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5417 Filed 01/19/23 Page 49 of 67
LLC, No. 13CV4427NGGST, 2017 WL 5201079, at *10 (E.D.N.Y. Nov. 9, 2017) (“[T]he
court concludes the specific inclusion of the class action bar within the . . . Georgia
statutes under which Plaintiffs’ claims are brought
differentiates them from the “pan-statutory” bar in Shady Grove and demonstrates
that they incorporate a substantive policy choice.”); In re Target Corp. Data Sec.
Breach Litig., 66 F. Supp. 3d 1154, 1165 (D. Minn. 2014) (collecting cases); Matanky,
370 F. Supp. 3d at 798–99 (same); Danielkiewicz v. Whirlpool Corp., 426 F. Supp. 3d
426, 438 (E.D. Mich. 2019) (“To ignore the state statute and apply Rule 23 in federal
courts would abridge and enlarge the scope of the state-created rights and ‘encourage
forum shopping and the inequitable administration of laws.’” (quoting In re Asacol
Antitrust Litig., No. 15-CV-12730, 2016 WL 4083333, at *15 (D. Mass. July 20,
2016))); In re Chevrolet Bolt EV Battery Litig., — F. Supp. 3d —, 2022 WL 4686974,
at *30 (E.D. Mich. Sept. 30, 2022). As one court explained, the decision to prohibit
bringing consumer-protection claims as class actions “was a choice made not simply
because of procedural convenience, but for reasons relating to the substantive nature
of class action lawsuits.” Chapman, 531 F. Supp. 3d at 1301. Such reasoning is further
supported by the fact that Georgia has enacted this class-action bar specific to its
consumer-protection statute, as opposed to the general class-action bar at issue in
Shady Grove. See 559 U.S. at 432.
So the Court will dismiss Jordan and Scott’s class claims under the Georgia
Fair Business Practices Act.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5418 Filed 01/19/23 Page 50 of 67
For Roller’s claims under the Maryland Consumer Protection Act, GM argues
that Roller cannot establish an “identifiable loss” because he never paid for any
repairs to his vehicle and he did not allege any continuing problems, “so he received
what he paid for—a vehicle that would be repaired free of charge under the
warranty.” (ECF No. 42, PageID.5353.)
But that is not true. Even accepting GM’s premise that receiving a vehicle that
is repaired under warranty negates any claim of an identifiable loss, Roller did not
receive such a vehicle—according to his allegations, he received a vehicle that GM
failed to properly repair. Indeed, Roller explains that he (at the very least) expected
a car that would be repaired if it had a defect. (Id. at PageID.2565.) But he did not
receive a repair that cured the defect. In fact, he says his car still maintains this
defect. (ECF No. 27, PageID.2567.) That is sufficient to state a claim under the
Maryland CPA. See Singh v. Lenovo (United States) Inc., 510 F.Supp.3d 310, 328 (D.
Md. 2021) (rejecting defendant’s argument that no ascertainable damages were pled
because plaintiff does not have to have paid to repair the defect—“[a]ll that was
required was to articulate some manifestation of loss including a difference between
what was expected and what was received as a result of a misrepresentation”). So
Roller’s claim under the Maryland CPA survives.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5419 Filed 01/19/23 Page 51 of 67
GM asserts that Saffell may not bring claims under the Missouri
Merchandising Practices Act because a dealer, as opposed to GM, was part of the
GM’s assertion is contrary to Missouri law. See Tucker v. Ethicon, Inc., No.
4:20-CV-1543 RLW, 2021 WL 410058, at *8 (E.D. Mo. Feb. 5, 2021). The MMPA’s
“plain language does not contemplate a direct contractual relationship between
plaintiff and defendant, and Missouri courts have not imposed such a requirement
through statutory construction.” Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669
(Mo. 2007) (en banc); see Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 416 (Mo.
2014) (explaining that “[t]he Gibbons court found a plaintiff can maintain a suit under
the MMPA against a party with a connection to the merchandise before a buyer enters
the transaction. Similarly, the MMPA may cover parties who enter the relationship
after a buyer enters the transaction, including a loan servicer.”).
So Saffell’s claims under the Missouri Merchandising Practices Act will
GM raises two issues with Hess and Martin-Wasser’s claims under the Nevada
Deceptive Trade Practices Act—that a duty to disclose is required for an omissionsbased claim, and that Hess and Martin-Wasser must plead reliance, which they
cannot do because they did not interact with GM. Neither wins the day.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5420 Filed 01/19/23 Page 52 of 67
As with other states, Nevada allows superior or exclusive knowledge to satisfy
a duty to disclose requirement. See In re Volkswagen Timing Chain Prod. Liab. Litig.,
No. CV 16-2765, 2017 WL 1902160, at *19 (D.N.J. May 8, 2017) (finding duty to
disclose under Nevada law in part because “Plaintiffs have also alleged the presence
of various TSBs and Defendant’s decision to redesign the Timing Chain System as
further proof of its superior knowledge”); Heldenbrand v. Multipoint Wireless, LLC,
No. 2:12-CV-01562, 2012 WL 5198479, at *4 (D. Nev. Oct. 18, 2012) (“Also, a duty to
disclose may arise from ‘the existence of material facts peculiarly within the
knowledge of the party sought to be charged and not within the fair and reasonable
reach of the other party.’” (quoting Villalon v. Bowen, 273 P.2d 409, 415 (Nev. 1954))).
Since the Court has already found that Plaintiffs plausibly pled that GM had superior
or exclusive knowledge of the alleged defect, it finds that Hess and Martin-Wasser
have also pled such knowledge to establish a duty to disclose under Nevada law.
As for reliance, the Court agrees with Hess and Martin-Wasser that for
omissions-based claims, a reliance requirement is not necessarily read into the
Nevada Deceptive Trade Practices Act. The cases cited by GM, and the ones found by
the Court, include a reliance requirement for misrepresentation-based claims under
the Act. See, e.g., Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 658 (D. Nev. 2009)
(“Because Defendants here allegedly made an affirmative misrepresentation and
Plaintiff could prove she sustained damages as a result of Defendants’ alleged
misrepresentation only by demonstrating she relied upon a “Made in the USA” label,
the Court concludes causation includes reliance in this case.”); Motogolf.com, LLC v.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5421 Filed 01/19/23 Page 53 of 67
Top Shelf Golf, LLC, 528 F. Supp. 3d 1168 (D. Nev. 2021) (specifically referencing
misrepresentations and relying on case law referencing representation-based
deceptive acts). Yet it is clear that Nevada law allows for an omissions-based claim
under its consumer-protection laws. See Leigh-Pink v. Rio Properties, LLC, 512 P.3d
322, 327 (2022) (“NRS 41.600(1) provides a cause of action to victims of consumer
fraud. . . . A person who knowingly fails to disclose a material fact related to the sale
of a good or service has engaged in a deceptive trade practice.”). Since GM has not
persuaded the Court that Nevada law requires reliance for omissions-based claims
under the Nevada DTPA, the Court will not dismiss Hess and Martin-Wasser’s claims
for this reason.
Thus, Hess and Martin-Wasser’s omissions-based claims under the Nevada
Deceptive Trade Practices Act survive.
GM contends that the New Jersey Consumer Fraud Act requires a duty to
disclose for an omissions-based claim.
But GM has not persuaded the Court that its contention is correct. GM cites a
decision by a federal court in New Jersey, which analyzes the plaintiff’s claim under
the CFA, and states, “[i]mplicit in the showing of an omission is the underlying duty
on the part of the defendant to disclose what he concealed to induce the purchase.
Obviously, there can be no [unlawful conduct], or reliance for that matter, if the
defendant was under no obligation to disclose the information in the first place.”
Mickens v. Ford Motor Co., 900 F. Supp. 2d 427, 441 (D.N.J. 2012). In turn, the case
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5422 Filed 01/19/23 Page 54 of 67
Mickens cites for that proposition is another federal court decision. See Arcand v.
Brother Intern Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). And Arcand does not
provide a citation for the proposition that the NJCFA requires a duty to disclose for
omissions-based claims. Moreover, neither Mickens nor Arcand analyze the duty to
disclose—Arcand decided that the case before it was only about affirmative acts, and
Mickens only addressed the defendant’s arguments, which apparently did not raise
the duty to disclose. So the duty to disclose did not provide the rule of decision in
either case. See Arcand, 673 F. Supp. 2d at 298; Mickens, 900 F. Supp. 2d at 442–45.
And notably, Mickens allowed a claim to survive that is similar to the claim
Mouradjian brings here—“that Ford knowingly concealed the galvanic corrosion
defect from Mickens and the class members with the intent that they rely on the
absence of such information when purchasing the affected vehicles.” See Mickens, 900
F. Supp. 2d at 441.
The Court further notes that other district courts have recently allowed similar
claims to survive without any mention of a duty to disclose. See Haft v. Haier US
Appliance Sols., Inc., 578 F. Supp. 3d 436, 461–63 (S.D.N.Y. 2022) (finding Plaintiff
sufficiently pled a NJCFA claim based on “Defendant knowingly conceal[ing] the
defective soda lime glass doors,” the warranty being inadequate to protect consumers,
and Plaintiffs paying out-of-pocket to repair the goods); DeFrank v. Samsung Elecs.
Am., Inc., No. CV1921401, 2020 WL 6269277, at *10 (D.N.J. Oct. 26, 2020) (“I
conclude these allegations adequately plead a claim under the NJCFA, because, if
true, they establish that SEA knew the dryers were defective and were likely to fail
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5423 Filed 01/19/23 Page 55 of 67
due to that defect.”). So GM has not persuaded the Court that a duty to disclose is
required for omissions-based claims under New Jersey’s CFA.
Thus, the Court will allow Mouradjian to pursue his claim under the New
There are three distinct parts to GM’s argument against Hayford and Podojil’s
claims under the Ohio Consumer Sales Practices Act.
For one, GM claims that, contrary to Ohio law, Hayford and Podojil have not
pled notice as required by Ohio Code § 1345.09(B). See Johnson v. Microsoft Corp.,
802 N.E.2d 712, 720 (Ohio Ct. App. 2003) (“Under R.C. 1345.09(B), a class action is
permitted under the Act if the plaintiff alleges that the substantive provisions of the
Act have been violated, and (1) a specific rule or regulation has been promulgated
under R.C. 1345.05 that specifically characterizes the challenged practice as unfair
or deceptive, or (2) an Ohio state court has found the specific practice either
unconscionable or deceptive in a decision open to public inspection.”). For their part,
Hayford and Podojil concede they did not plead a rule, regulation, or court decision.
But they argue that doing so is not a pleading requirement, but rather a class-action
requirement, and should be left to class certification.
It appears that a majority of courts, including the Sixth Circuit, have decided
the notice issue under Ohio law at the motion-to-dismiss stage, though the Court
acknowledges that Plaintiffs have cited a couple of cases where the issue was deferred
to class certification. Volbers-Klarich v. Middletown Mgt., Inc., 929 N.E.2d 434, 502
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5424 Filed 01/19/23 Page 56 of 67
(Ohio 2010) (finding plaintiff’s claim “seeking certification of a class action alleging a
violation of the OCSPA does not state a claim upon which relief can be granted”
because it failed to comply with the
statutory notice requirement); Gerboc v.
ContextLogic, Inc., 867 F.3d 675, 680 (6th Cir. 2017) (affirming dismissal of OCSPA
class-action claim for failure to comply with notice requirements); Foster v. Health
Recovery Servs., Inc., 492 F.Supp.3d 622, 637 (S.D. Ohio 2020) (“Plaintiff cannot
proceed with his Ohio OCSPA class claims because he failed to plead the notice
requirement in his complaint by pointing to a rule or Ohio courts’ decision that would
put Defendant on notice of the alleged unfair or deceptive conduct.”); Chapman, 531
F. Supp. 3d. at 1302 (dismissing OCSPA claim for failure to satisfy notice
requirement); Miranda v. Xavier Univ., 594 F. Supp. 3d 961, 978 (S.D. Ohio 2022)
(“Plaintiff has failed to allege that Xavier had notice, and, therefore, cannot state a
class claim under OCSPA.”); In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 869
(S.D. Ohio 2012) (“If a plaintiff fails to identify a rule or case in his or her complaint
that satisfies Section 1345.09(B), dismissal of the claim as a class action is proper and
the plaintiff may proceed in his or her individual capacity alone.”).
Indeed, the notice rule does not squarely fit into any of the Federal Rule of
Civil Procedure 23 requirements such that it makes sense to address them together.
See Raymond v. Avectus Healthcare Sols., Inc., No. 1:15cv559, 2020 WL 3470461, at
*9 (S.D. Ohio Mar. 27, 2020) (stating the OCSPA class claim “requires a separate
discussion” in the context of a class-certification order). And it is not clear what
Plaintiffs would get by deferring the question to class certification, except perhaps
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5425 Filed 01/19/23 Page 57 of 67
more time to form their argument. The argument for notice presumably remains the
same at the motion-to-dismiss stage as it does the class-certification stage. So the
Court will dismiss the OCSPA class claims.
That leaves Hayford’s and Podojil’s individual Ohio consumer-protection
Starting with Hayford, GM says his claim is untimely. Hayford does not
dispute that he brings his claim beyond the statute of limitations but argues that the
statute of limitations is subject to tolling under Ohio law for fraudulent concealment.
Ohio has a high standard, however, for a plaintiff to receive tolling due to
fraudulent concealment. To fall within the “limited circumstances” in which tolling
applies, “the plaintiff must allege some affirmative act by the defendant designed to
prevent discovery of the cause of action. Indeed, as the Ohio Supreme Court has
explained, plaintiffs must ‘establish that subsequent and specific actions by
defendants somehow kept them from timely bringing suit.’” Szep v. Gen. Motors LLC,
491 F. Supp. 3d 280, 298 (N.D. Ohio 2020) (quoting Doe v. Archdiocese of Cincinnati,
849 N.E.2d 268, 279 (2006)); see also Unifund CCR Partners v. Young, No. 11-MA113, 2013 WL 5447666, at *7 (Oh. Ct. App. Sept. 27, 2013) (“However, ‘[e]quitable
tolling is only available in compelling cases which justify a departure from
established procedure. Thus, Ohio law requires a showing of actual or constructive
fraud by a party in the form of representations that the statute of limitations was
larger than it actually was, promises of a better settlement if the lawsuit was not
filed, or other similar representations or conduct’ before a party can get relief through
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5426 Filed 01/19/23 Page 58 of 67
the doctrine of equitable tolling.”); Matanky v. Gen. Motors LLC, 370 F. Supp. 3d 772,
802 (E.D. Mich. 2019) (“The doctrine of fraudulent concealment does not apply to
Plaintiffs’ OCSPA claim because Plaintiffs fail to allege that any subsequent and
specific actions by GM were designed to prevent, and did prevent, them from
discovering their cause of action.”).
Here, Hayford alleges that the dealership told him it found a collapsed lifter
and a bent push rod and warned him that the same lifter or other lifters could fail
again. (ECF No. 27, PageID.2605–2606.) He does not allege that GM attempted to
conceal the defect by saying his valve-train problems were normal or denying him a
repair, as other Plaintiffs have. Thus, Hayford has not alleged that GM engaged in
subsequent concealment after it failed to disclose the defect at the time of sale. See
Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-CV-00018, 2006 WL 3359448, at
*6 (N.D. Ohio Nov. 17, 2006) (“From that point forward, Thornton can only point to
inaction.”); Kondash v. Kia Motors Am., Inc., No. 1:15-CV-506, 2016 WL 11246421, at
*20 (S.D. Ohio June 24, 2016) (noting that even if active concealment applied, the
Court would not be persuaded to toll the statute of limitations under Ohio law
because “the facts to support the application of either theory are that Plaintiff bought
a Kia with a sunroof prone to spontaneous shattering, and Kia never revealed the
defect to him at the time of purchase”). So Hayford’s OCSPA claim is barred by the
two-year statute of limitations as he has not plausibly pled active concealment to toll
the statute of limitations.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5427 Filed 01/19/23 Page 59 of 67
Only Podojil’s Ohio consumer-protection claim remains, and the Court finds
that it is plausibly pled. GM is correct that “mere non-disclosure” is not enough to
bring a claim under the Ohio Consumer Sales Practices Act. To make out a prima
facie claim under the OCSPA, the plaintiff “must show a material misrepresentation,
deceptive act or omission that impacted his decision to purchase the item at issue.”
Ewalt v. Gatehouse Media Ohio Holdings II, Inc., No. 2:19-CV-4262, 2021 WL 825978,
at *16 (S.D. Ohio Mar. 4, 2021) (citing Temple v. Fleetwood Enters., 133 F. App’x 254,
265 (6th Cir. 2005)). But pleading a knowing omission is sufficient. See Grgat v. Giant
Eagle, Inc., 135 N.E.3d 846, 851 (Ohio Ct. App. 2019) (“Rather than applying strict
liability, courts have held that whether a supplier’s act or omission is a violation of
the CSPA depends on how a reasonable consumer would view it. . . . [T]he test is
whether the alleged act or practice has the likelihood of inducing a state of mind in
the consumer that is not in accord with the facts.” (internal citations omitted)). As
discussed, Plaintiffs’ allegations make it reasonable to infer that GM had knowledge
of the alleged defect. And Podojil has plausibly pled that GM’s omission of the alleged
defect from the materials he viewed before purchasing the car could mislead a
reasonable consumer. So Podojil’s individual OCSPA claim survives.
In sum, the class claims under the Ohio Consumer Sales Protection Act are
dismissed without prejudice, Hayford’s individual claim is dismissed as time-barred,
and Podojil’s individual claim survives.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5428 Filed 01/19/23 Page 60 of 67
Deery brings her claim under the Rhode Island Deceptive Trade Practices Act.
GM argues that she did not allege a representation or omission that is likely to
mislead customers. But GM provides no further argument on the issue. “A party
waives issues that he adverts to in a perfunctory manner, unaccompanied by some
effort at developed argumentation.” Thomas v. United States, 849 F.3d 669, 679 (6th
Cir. 2017); Calvey v. Village of Walton Hills, Ohio, 841 F. App’x 880, 885 (6th Cir.
2021). GM has not provided any reason why Deery’s omission-based claim should not
survive given the allegations that GM knew about the Valve-Train Defect and did not
disclose it to Deery, and that if Deery had known, she would have bought a different
car or paid less for it. Such an omission plausibly could mislead consumers, see Long
v. Dell, 93 A.3d 988, 1003 (R.I. 2014), and thus Deery’s claim under the Rhode Island
DTPA will survive.
GM challenges the Burtons and Dittman’s claims under the Tennessee
Consumer Protection Act (based only on GM’s omissions) by arguing that the Burtons
and Dittman have failed to allege proximate causation.
The Burtons and Dittman have the better argument. They argue that for an
omissions-based claim, allegations that GM had the opportunity to disclose the defect
to them but failed to do so are sufficient to show proximate cause. See Cloud Nine,
LLC v. Whaley, 650 F. Supp. 2d 789, 798 (E.D. Tenn. 2009) (finding proximate cause
at summary judgment because there was evidence showing the plaintiffs were “privy
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5429 Filed 01/19/23 Page 61 of 67
to the alleged unfair and deceptive acts” and that the defendants had “at least some
interaction” with the plaintiffs); Act for Health v. Case Mgmt. Assocs., Inc., 128 F.
Supp. 3d 1020, 1036 (E.D. Tenn. 2014) (“Ordinarily, proximate cause is a question for
a jury “unless the uncontroverted facts and inferences to be drawn from them make
it so clear that all reasonable persons must agree on the proper outcome”). GM does
not provide any response to this argument in its reply.
So the Court will not dismiss the Burtons and Dittman’s TCPA claims for
failure to allege proximate cause.4
GM says that the Jetts did not comply with the 60-day notice requirement
under the Texas Deceptive Trade Practices Act. But even if the Jetts did not comply
with this requirement, Texas law remedies lack of notice by holding the claims in
abeyance until the 60-day notice requirement is complied with. Franklin v. Apple Inc.,
569 F. Supp. 3d 465, 483 (E.D. Tex. 2021) (“Apple is entitled to have this action held
in abeyance until Franklin complies with the DTPA’s notice requirement.” (citing
Oppenheimer v. Prudential Secs. Inc., 94 F.3d 189, 194 (5th Cir. 1996))); see also
The Court notes that it is not clear under which TCPA provision the Burtons
and Dittman’s omissions-based claims fall. Many of the provisions Plaintiffs cite in
their complaint reference affirmative representations, not omissions. And though
perhaps omissions-based claims are captured by the catch-all provision, enforcement
of that provision has been left to the Tennessee Attorney General following
amendments in 2011. See Harding v. BMW of N. Am., LLC, No. 3:20-CV-00061, 2020
WL 5039439, at *3 (M.D. Tenn. Aug. 26, 2020) (“In 2011, however, the catch-all
provision was amended to state that its enforcement was vested exclusively in the
office of the attorney general and reporter and the director of the division [of
consumer affairs in the department of commerce and insurance].”).
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5430 Filed 01/19/23 Page 62 of 67
Oppenheimer, 94 F.3d at 194 (finding that the proper remedy for insufficient notice
is abatement). And since the Jetts sent their first letter to GM on November 8, 2021
(and their last letter on February 10, 2022), more than 60 days have passed since GM
first received notice. So the Court finds that the Jetts have now complied with the
notice requirement to bring their Texas DTPA claim, and there is no need to hold the
claim in abeyance.
GM also argues that under Texas law, a breach of contract, without more, does
not violate the DTPA. Ashford Dev., Inc. v. USLife Real Estate Servs. Corp., 661
S.W.2d 933, 935 (Tex. 1983). To determine whether there is “more,” Texas courts
instruct that “the inquiry is whether the alleged unconscionable conduct could have
resulted in the absence of a contract between the parties.” Crawford v. Ace Sign,
Inc., 917 S.W.2d 12, 13 (Tex. 1996). Put another way, “where the breach of the
contract causes the harm, a plaintiff cannot maintain a claim for unconscionable
conduct under the DTPA.” Malsom v. Match.com, L.L.C., 540 F. App’x 412, 415 (5th
Cir. 2013). Here, the alleged deceptive conduct of omitting the defect when
advertising and selling the vehicles could have occurred regardless of whether GM
agreed to the warranty with the Jetts, as would the harm that resulted from buying
a car the Jetts did not want or paying too much for the car. Thus, the Court finds that
this is more than just a breach-of-contract action, and so the Jetts may pursue their
claims under the Texas DTPA.
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5431 Filed 01/19/23 Page 63 of 67
Claims for Injunctive Relief
One final word on remedies. Plaintiffs ask for the following injunctive relief in
addition to monetary damages: that GM be compelled to offer remediation solutions
under warranty; that GM be enjoined from further deceptive distribution, sales, and
lease practices with respect to the vehicles in question; that GM be compelled to
provide class members with replacement components; and that GM be compelled to
change its warranty to cover the alleged defect and notify all class members that the
warranty has been reformed. (See ECF No. 27, PageID.2743.)
GM argues for dismissal of any claims for injunctive relief. The Court finds
that request to be premature. As another court in this District explained, “[i]f
plaintiffs succeed on any of their claims—a question that likely will not be resolved
for a significant period of time—the Court will entertain arguments from the parties
about whether [injunctive relief] is an appropriate or allowable remedy.” Milsits v.
FCA US LLC, No. 20-cv-11578, 2021 WL 3145704, at *15 (E.D. Mich. July 26, 2021)
(citing Bossart v. Gen. Motors, LLC, 20-CV-11057, 2021 WL 5278191, at *12 (E.D.
Mich. May 19, 2021)). So that issue is left for a different day.
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN
PART GM’s motion to dismiss. The attached chart should aid the parties in
determining which claims remain in this litigation.
At the scheduling conference, the parties should be prepared to discuss
severing this lawsuit based on the specific part that is allegedly defective in each
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5432 Filed 01/19/23 Page 64 of 67
plaintiff’s vehicle. The Court is concerned that discovery will be unmanageable if
Plaintiffs litigate a general valve-train defect in one case.
Dated: January 19, 2023
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5433 Filed 01/19/23 Page 65 of 67
Claims Chart for Non-Arbitration Plaintiffs
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5434 Filed 01/19/23 Page 66 of 67
by statute of
Case 2:21-cv-12927-LJM-APP ECF No. 44, PageID.5435 Filed 01/19/23 Page 67 of 67
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