Bledsoe et al v. FCA US LLC et al

Filing 272

ORDER DENYING IN PART AND GRANTING IN PART 218 , 221 , 263 Defendants' Motions for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)

Case 4:16-cv-14024-TGB-RSW ECF No. 272, PageID.37709 Filed 03/23/23 Page 1 of 97

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES BLEDSOE, et al.,
individually and on behalf of all
others similarly situated,

4:16-CV-14024-TGB-RSW

ORDER DENYING IN PART
AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

Plaintiffs,
vs.
FCA US LLC, a Delaware
corporation, and CUMMINS INC.,
an Indiana corporation,

(ECF NOS. 218, 221, 263)

Defendants.
This case is filed as a putative class action by Plaintiffs James
Bledsoe, Paul Chouffet, Michael Erben, James Forshaw, Marc Ganz,
Donavan Kerber, Jeremy Perdue, Dawn Roberts, Marty Ward, and
Martin Witberg (“Plaintiffs”) on behalf of a nationwide class of consumers
who purchased Dodge Ram 2500 and 3500 diesel trucks (“the Trucks”)
manufactured and sold by Defendants FCA US LLC (“FCA”) and
Cummins Inc. (“Cummins”) between 2007 and 2012. Plaintiffs allege that
the Trucks they purchased emit nitrogen oxide (“NOx”) at levels that
exceed federal and state emissions standards as well as the expectations
of reasonable consumers. Plaintiffs allege that they purchased their
Trucks based on Defendants’ advertising that touted the Trucks as more
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fuel efficient and environmentally friendly than other diesel trucks.
Plaintiffs allege that despite marketing the Trucks as having “clean
diesel engines,” Defendants knew the Trucks discharged emissions at
levels greater than what a reasonable consumer would expect based on
the alleged representations.
Defendants have moved for summary judgment on all claims.
Defendants argue that Plaintiffs lack Article III standing, the Clean Air
Act (“CAA”) preempts Plaintiffs’ claims, Plaintiffs lack standing to bring
Racketeer Influenced and Corrupt Organizations Act (“RICO Act”)
claims, and Plaintiffs’ state law claims fail for various reasons. Defendant
Cummins’s Motion for Summary Judgment, ECF No. 218; Defendant
FCA’s Motion for Summary Judgment, ECF No. 221. Defendant FCA has
also moved for summary judgment on the claims of Plaintiff Donovan
Kerber, a potential class representative who was added to the case in
July 2022. Defendant FCA’s Motion for Summary Judgment on Claims
of Plaintiff Donovan Kerber, ECF No. 263. Per the Court’s Case
Management Order, the Court addresses summary judgment before class
certification. ECF No. 249, PageID.34864. For the reasons explained
below, Defendants’ motions for summary judgment are DENIED in part
and GRANTED in part.

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I.

TABLE OF CONTENTS
BACKGROUND ................................................................................ 5

II.

LEGAL STANDARD ......................................................................... 9

III. DISCUSSION.................................................................................. 10
A. Defendants Cummins and FCA....................................................... 11
B. Plaintiffs and the Putative Class .................................................... 16
1. James Bledsoe .............................................................................. 17
2. Paul Chouffet ............................................................................... 18
3. Marc Ganz .................................................................................... 18
4. Jeremy Perdue ............................................................................. 19
5. Dawn Roberts ............................................................................... 20
6. Michael Erben .............................................................................. 21
7. James Forshaw............................................................................. 21
8. Marty Ward .................................................................................. 22
9. Martin Witberg............................................................................. 23
10. Donovan Kerber ........................................................................... 23
C. Plaintiffs’ Experts Juston Smithers and Edward Stockton ........... 26
1. Smithers’ Technical Opinions ...................................................... 26
a. Excessive Active Regeneration as an Excessive Emissions
Device (“EED”) .............................................................................. 26
b. Smithers’ Inadmissible Opinions on Defeat Devices and
Cummins’ Alleged Fraud on the Regulators ................................ 29
2. Stockton’s Damages Opinions ...................................................... 31
D. General Principles of Article III Standing ...................................... 32
E. Plaintiffs Have Sufficiently Demonstrated Injury-in-Fact and
Causation ......................................................................................... 34
1. Plaintiffs’ Alleged Overpayments Confer Standing Because They
Are Injuries-in-Fact ........................................................................... 35

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2. Plaintiffs Demonstrate Causation Because Their Alleged Injuries
Are Fairly Traceable to Defendants’ Conduct................................... 37
F. Plaintiffs Lack RICO Standing as Indirect Purchasers .................. 41
G. Plaintiffs’ Claims Are Not Preempted by the Clean Air Act .......... 44
H. State Law Consumer Protection, Fraudulent Concealment, and
Breach of Contract Claims ............................................................... 46
1. Fraud-Related Claims Generally ................................................. 47
2. Breach of Contract Claims ............................................................ 50
I. State-by-State Discussion of Plaintiffs’ Individual State Law Claims
51
1. Michigan State Law Claims.......................................................... 51
a. Michigan Fraudulent Concealment Claim................................ 53
2. Illinois State Law Claims ............................................................. 54
a. Illinois Consumer Fraud and Deceptive Business Practices Act
(“ICFA”) Claim............................................................................... 54
b. Illinois Fraudulent Concealment Claim .................................... 57
c. Illinois Breach of Contract Claim .............................................. 60
3. Idaho State Law Claims ............................................................... 63
d. Idaho Consumer Protection Act (“ICPA”) Claim........................ 63
e. Idaho Fraudulent Concealment Claims ..................................... 64
4. California State Law Claims ........................................................ 65
a. California Unfair Competition Law (“UCL”), Consumer Legal
Remedies Act (“CLRA”), False Advertising Law (“FAL”), and
Fraudulent Concealment Claims .................................................. 66
i. Bledsoe’s UCL, CLRA, FAL, and Fraudulent Concealment
Claims Against Cummins .......................................................... 69
ii. Kerber’s UCL, CLRA, FAL, and Fraudulent Concealment
Claims Against FCA................................................................... 71
b. Kerber’s MMWA Claim .............................................................. 76

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c. Kerber’s California Breach of Contract Claim Against FCA ..... 77
5. South Carolina Law Claims ......................................................... 77
6. New Mexico Law Claims .............................................................. 78
a. Whether Plaintiff Ward’s New Mexico Unfair Trade Practices
Act (“NMUTPA”) Claim is Time-Barred ....................................... 79
b. Duty to Disclose Under the NMUTPA ....................................... 81
c. New Mexico Economic Loss Rule ............................................... 82
d. New Mexico Breach of Contract Claim ...................................... 83
7. North Carolina State Law Claims ................................................ 84
a. North Carolina Unfair and Deceptive Trade Practices Act
(“NCUDTPA”) and Fraudulent Concealment Claims ................... 85
b. North Carolina Breach of Contract Claim ................................. 88
8. Texas State Law Claims ............................................................... 89
a. Texas Deceptive Trade Practices Act (“DTPA”) and Fraudulent
Concealment Claims ...................................................................... 89
J. Standing Issues Related to State Law Claims Lacking a
Corresponding Potential Class Representative .............................. 93
IV. CONCLUSION ................................................................................ 95
I.

BACKGROUND

Plaintiffs seek to bring a nationwide class action, with sub-classes
in all 50 states and the District of Columbia. They allege that Defendant
FCA’s 2007–2012 Dodge Ram 2500 and 3500 Trucks, equipped with 6.7liter Turbo Diesel engines manufactured by Defendant Cummins, emit
nitrogen oxide (“NOx”) in real-world driving at levels that exceed federal
and state emissions standards as well as the expectations of reasonable
consumers.
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Plaintiffs allege that they purchased their Trucks based on
Defendants advertising the Trucks as more fuel efficient and
environmentally friendly than other diesel trucks. Plaintiffs specifically
claim that Defendants knew the Trucks discharged emissions in realworld driving at levels greater than what a reasonable consumer would
expect, but continued to market them as using “clean diesel” technology.
In Plaintiffs’ operative Third Consolidated and Amended Class Action
Complaint (“TCAC”), they allege violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), the Magnuson Moss Warranty
Act (“MMWA”), and consumer protection, breach of contract, and
fraudulent concealment laws of 50 states as well as the District of
Columbia. ECF No. 255.
Defendants previously moved to dismiss Plaintiffs’ Second
Consolidated and Amended Class Action Complaint (“SCAC”). ECF Nos.
67, 68. This Court granted Defendants’ motions on Plaintiffs’ MMWA
claim, but denied them for all other claims. ECF No. 97. Later, Defendant
FCA moved for judgment on the pleadings on the SCAC as to Plaintiffs
Bledsoe, Erben, Forshaw, Witberg, and Chouffet. ECF No. 171. The
Court granted FCA’s motion as to those five Plaintiffs, and with respect
to FCA only. ECF No. 215. Because the five Plaintiffs had been proposed
as potential class representatives for state law claims in California,
Idaho, South Carolina, Michigan, and Texas respectively, Plaintiffs
sought leave to amend their complaint to retain viable claims against
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FCA. ECF No. 238. The Court granted leave for Plaintiffs to amend the
complaint against FCA only, limited to adding new Plaintiffs advancing
the same state law claims and theories of liability against FCA as those
who were dismissed. ECF No. 249.
Plaintiffs then filed a Third Consolidated and Amended Complaint
(“TCAC”) for that purpose. As it stands now, Plaintiffs, with the potential
to serve as class representatives advancing state law claims against
Defendants, are residents of the following states: California, Illinois,
Montana, New Mexico, North Carolina, South Carolina, Tennessee, and
Texas. ECF No. 255. In addition, Plaintiff Erben, a Montana resident,
bought his Truck in Idaho. Plaintiff Witberg, a Tennessee resident,
bought his Truck in Michigan.
To prove their claims, Plaintiffs offer expert opinions and reports
from Juston Smithers and Edward Stockton. Smithers’ opinions address
two primary issues: (1) whether the Trucks contain “defeat devices” or
“excessive emissions devices” that cause NOx emissions beyond
regulatory standards in common real-world driving conditions; and (2)
whether the Trucks’ designs cause excessive fuel consumption.
Stockton’s opinions address two

damages models:

(1)

an

“Overpayment” model, calculating the amount at the point of sale that
putative class members overpaid for the Trucks that emit excessive NOx;
(2) and an “Excess Fuel Consumption” model, calculating the increased
costs passed along to the consumer through the Trucks’ excessive fuel
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consumption. These two damage models are premised on Plaintiffs’
ability to prove the existence of excessive emissions devices or defeat
devices as described by Smithers.
Defendants previously filed five Daubert motions seeking to exclude
Smithers’ and Stockton’s opinions. The Court mostly denied these
motions, except with respect to Smithers’ and Stockton’s opinions as to
defeat devices only. Daubert Order, ECF No. 262. Specifically, the Court
excluded Smithers’ opinions on the presence of a defeat device in the
Trucks because his fraud-on-the-regulators theory lacked a sufficient
factual basis. Id. at PageID.36971–72. Consequently, the Court also
excluded Stockton’s opinions to the extent that they rely upon Smithers’
defeat device opinions. Id. at PageID.36982–83.
As such, for summary judgment purposes, Plaintiffs are permitted
to rely on Smithers’ and Stockton’s opinions in accordance with the
Court’s Daubert Order. And for the same reasons that Smithers’ opinions
are admissible in the Daubert Order, those opinions establish genuine
disputes of material fact as to pertinent issues that preclude a grant of
summary judgment. But because the Court has excluded Smithers’
opinions on defeat devices, Plaintiffs cannot rely on Smithers’ opinions
on the existence of a defeat device to create a genuine dispute of material
fact. Therefore, summary judgment is warranted for any claims premised
on Smithers’ inadmissible defeat device theories.

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Pending before the Court are the following motions filed by
Defendants. These motions have been fully and extensively briefed by all
parties:
1. Defendant Cummins Inc.’s motion for summary judgment (ECF
No. 218), with related briefing at ECF Nos. 241, 247, 248, 250,
257; and
2. Defendant FCA US LLC’s motions for summary judgment (ECF
Nos. 221, 263), with related briefing at ECF Nos. 241, 247, 251,
252, 257, 264, 266.
The Court held a hearing on these motions on February 17, 2023. As
described below, the Court GRANTS in part and DENIES in part
Defendant Cummins’ motion for summary judgment (ECF No. 218), and
GRANTS in part and DENIES in part Defendant FCA’s motions for
summary judgment (ECF Nos. 221, 263).
II.

LEGAL STANDARD

“Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with any
affidavits, show that there is no genuine issue as to any material fact
such that the movant is entitled to a judgment as a matter of law.”
Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013);
see also Fed. R. Civ. P. 56(a). A fact is material only if it might affect the
outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).

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On a motion for summary judgment, the Court must view the
evidence, and any reasonable inferences drawn from the evidence, in the
light most favorable to the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted);
Redding v. St. Eward, 241 F.3d 530, 531 (6th Cir. 2001).
The moving party has the initial burden of demonstrating an
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the moving party carries this burden, the party
opposing the motion “must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita, 475 U.S. at 587. The trial
court is not required to “search the entire record to establish that it is
bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479–80 (6th Cir. 1989). Rather, the “nonmoving party
has an affirmative duty to direct the court’s attention to those specific
portions of the record upon which it seeks to rely to create a genuine issue
of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). The
Court must then determine whether the evidence presents a sufficient
factual disagreement to require submission of the challenged claims to
the trier of fact or whether the moving party must prevail as a matter of
law. See Anderson, 477 U.S. at 252.
III. DISCUSSION
Defendants have moved for summary judgment on all of Plaintiffs’
claims. Defendants argue that Plaintiffs lack Article III standing,
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Plaintiffs’ claims are preempted by the Clean Air Act (“CAA”), Plaintiffs
lack standing to bring federal RICO claims, and Plaintiffs’ claims fail as
a matter of law under the laws of several states. As necessary context
before substantively addressing the merits of Defendants’ arguments, the
Court summarizes key factual issues and Plaintiffs’ expert opinions.
A. Defendants Cummins and FCA
It is undisputed that Plaintiffs did not purchase their Trucks
directly from either Cummins or FCA. ECF No. 218, PageID.27366;
ECF No. 221, PageID.28588; ECF No. 241, PageID.34147. Instead,
Plaintiffs purchased their Trucks from dealerships or prior owners. ECF
No. 218, PageID.27365–66; ECF No. 241, PageID.34132. Cummins is the
component part supplier to FCA that designed and manufactured the 6.7liter diesel engine installed in the Trucks at issue. ECF No. 218,
PageID.27365; ECF No. 241, PageID.34132. FCA ultimately purchased
the completed diesel engines from Cummins, and sold the Trucks to
individual dealerships. ECF No. 221, PageID.28590.
In designing the Trucks’ engine, Cummins calibrated the engines
to control when and how often the process called active regeneration
would occur. ECF No. 218, PageID.27367–69. Active regeneration refers
to a periodic change in engine conditions where an emissions control
device called the diesel particulate filter (“DPF”) removes accumulated
particulate matter. In general, active regeneration requires additional
fuel consumption and causes higher NOx emissions. Therefore, the more
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frequently that the Trucks undergo active regeneration, the more fuel
they will consume and the more NOx they will emit. Cummins did not
share its actual calibrations on active regeneration with FCA because
they were Cummins’ intellectual property. ECF No. 221, PageID.28589;
ECF No. 241, PageID.34147.
Moreover, before Defendants could offer the Trucks for commercial
sale, Cummins1 was tasked with obtaining certification from federal and
state environmental regulators (“the Regulators”). ECF No. 218,
PageID.27366–67; ECF No. 241, PageID.34133. These Regulators,
including the U.S. Environmental Protection Agency (“EPA”) and the
California Air Resources Board (“CARB”), had to ensure that the Trucks
met the pertinent emissions standards by conducting emissions testing
and reviewing Cummins’ methodology for calculating emissions rates. Id.
Cummins contends that it did not make any representations to
FCA, the Regulators, or Plaintiffs that directly addressed the Trucks’
expected fuel economy performance. ECF No. 218, PageID.27378 (citing
Fathauer Decl., ECF No. 218-23, PageID.27572, ¶¶ 10–11). Neither the
EPA nor CARB required the Trucks to meet any fuel economy standard.
ECF No. 241, PageID.34140; see also 49 U.S.C. § 32908(a)(1) (fuel
Although Cummins was the sole “certificate holder” responsible for
obtaining the Trucks’ emissions certifications, Plaintiffs dispute the
extent to which Defendant FCA was involved in the emissions
certification process. ECF No. 218, PageID.27366; ECF No. 221,
PageID.28589–90; ECF No. 241, PageID.34148.
1

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economy regulations apply only to automobiles with gross vehicle weight
less than 8,500 pounds). The Trucks’ “Monroney label” (the window
sticker on the vehicle containing mandatory pricing information, engine
and transmission specifications, and fuel economy ratings) did not
include any specific representation as to fuel economy, such as miles per
gallon or estimated annual fuel cost. ECF No. 218-70, PageID.28180–81.
Although Cummins was tasked with designing and producing the
engines, FCA consistently provided input on engine design and
production issues. FCA engineer Steve Anderson testified that he was
responsible for the release of an engine into a vehicle, and that he
“oversaw the Cummins [diesel] program” and made sure that the engine
met FCA’s requirements. Anderson Dep. (July 22, 2021), ECF No. 241-2,
PageID.34219. FCA assembled its own teams of engineers to collaborate
with Cummins on the engine, specifically an “engine systems
organization that was responsible for the release of the aftertreatment
components.” Id. at PageID.34228–30.
FCA also participated in regular liaison meetings with Cummins to
discuss ongoing engine development issues. See, e.g., ECF No. 241-4,
PageID.3274–76 (email to Cummins and FCA employees, including
Anderson, regarding “Task Force” meeting to discuss engine issues); ECF
No. 241-2, PageID.34241, PageID.34243 (explaining that Anderson
regularly attended “product assurance team” meetings between FCA and
Cummins to resolve engine issues). In its collaboration with Cummins,
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FCA assisted Cummins to correct quality concerns during the engine
design process, including O2 sensors, exhaust gas recirculation
temperature sensors, valves, and soot generation. See ECF No. 241-2,
PageID.34245–46.
In addition to regular meetings, FCA and Cummins used a “Change
Notice” process. The Change Notice process required Cummins to seek
FCA’s approval before making any changes to the Trucks’ software
calibration. Altermatt Dep. (July 21, 2022), ECF No. 241-10,
PageID.34617–19. But before FCA approved any proposed changes, FCA
and Cummins generally discussed “root cause, the actual change, [and]
when [the change] would be implemented.” Id. at PageID.34620.
To market the Trucks, a 2012 brochure published by FCA2 touts the
Dodge Ram 3500 Chassis Cabs equipped with “6.7L Cummins Diesel”
engines as “smarter” with “best-in-class rear fuel tank size and excellent
fuel efficiency for exceptional range,” and the ability to “decrease fuel
consumption.” ECF No. 241-17, PageID.34694. FCA also described the
At oral argument, FCA’s counsel emphasized that FCA cannot be held
liable for any alleged misrepresentations made before FCA became a
legal entity in April 2009. Feb. 17, 2023 Hearing Transcript, pp.31–32.
While FCA did not raise this point in its summary judgment briefing, the
Court noted in its Order on FCA’s motion for judgment on the pleadings
that Trucks purchased before FCA’s existence “could not have been
purchased upon the reliance of alleged false statements proffered by
FCA.” ECF No. 215, PageID.25575. Accordingly, for summary judgment
purposes, the Court refers only to statements made by FCA or its
putative agents after April 28, 2009. Id. at PageID.25552.
2

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Cummins engines as “[c]lean by design,” specifically because the Trucks
did not require diesel exhaust fluid (“DEF”), “while meeting all 50-state
emissions standards—a major difference between [Defendants’] pickups
and those offered by Ford and Chevy.” Id. at PageID.34700.
And before making claims regarding fuel efficiency and fuel economy
related to the 2011 Trucks, FCA and Cummins conducted internal
research and developed messaging to highlight the Trucks’ “best-in-class
fuel economy.” ECF No. 241-19, PageID.34731–32, PageID.34743–44; see
also ECF No. 241-18 (Cummins presentation on providing a “Fuel
Economy Task Force Update,” including data on the Trucks’ fuel economy
compared to Ford and Chevy trucks). Similarly, FCA explained that the
2011 Trucks were “the industry’s only Class 2 and 3 trucks to meet 2011
EPA compliance rules without the need for a Selective Catalytic Reduction
(SCR) system and Diesel Exhaust Fluid (DEF).” ECF No. 241-19,
PageID.34743. And while acknowledging some “issues” that customers
experienced with the Trucks’ active regeneration, FCA emphasized that
“[t]he Cummins Turbo Diesel engine has an advanced diesel exhaust
emissions aftertreatment system which we pulled forward several years
ahead of federal requirements,” giving “customers a less complicated,
lower maintenance,” and “less costly” aftertreatment process. Id. at
PageID.34744.

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B. Plaintiffs and the Putative Class
Plaintiffs Witberg, Bledsoe, Ward, Forshaw, Ganz, and Erben
purchased their vehicles from FCA-authorized dealerships, not from FCA
or Cummins directly. ECF No. 241, PageID.34162. Plaintiffs concede that
they did not rely on any statements or representations by Cummins in
purchasing their vehicles. ECF No. 241, PageID.34141. But in general,
Plaintiffs considered fuel economy as a factor in their purchasing
decisions and had varying expectations for the Trucks’ fuel economy
performance. Id. at PageID.34141–42; ECF No. 218, PageID.27381.
While Plaintiff Erben testified that his Truck had “great” fuel economy,
other Plaintiffs stated that they received lower fuel economy than they
expected. ECF No. 218, PageID.27381; ECF No. 241, PageID.34142.
Plaintiffs also had other reasons for purchasing their Trucks that were
entirely unrelated to emissions or fuel economy, including aesthetic
appeal and towing capacity. ECF No. 241, PageID.34140–41; ECF No.
218, PageID.27379.
On the other hand, Plaintiffs did not testify that they considered
emissions performance to be a material factor in their purchasing
decisions. ECF No. 241, PageID.34141. Even so, Plaintiffs contend that
“they have been economically harmed due to their overpayment for
vehicles that emit excess emissions and have decreased fuel economy”
because they expected “their vehicles’ emissions performance to comply
with regulatory standards.” Id. at PageID.34141–42. As Plaintiffs admit,
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however, they did not know what type of emissions their Trucks produced
or what NOx was. ECF No. 241, PageID.34142. And even Plaintiffs who
expected to have a “clean diesel” engine did not have a specific
understanding of what “clean diesel” meant. Id.; ECF No. 218,
PageID.27380–81. Moreover, some Plaintiffs testified that they were
satisfied overall with their Trucks, which met their expectations for
towing capacity and drivability. ECF No. 241, PageID.34142; ECF No.
218, PageID.27382.
1. James Bledsoe
Plaintiff James Bledsoe purchased a new 2007 Ram 2500 Truck
from an FCA-authorized dealership in California on September 7, 2007.
Bledsoe Fact Sheet (July 2, 2021), ECF No. 183-44, PageID.21297; ECF
No. 241, PageID.34162. Bledsoe testified that he is generally satisfied
with the Truck, but also noted that the Truck did not meet his
expectations for fuel mileage. ECF No. 218, PageID.27382; ECF No. 241,
PageID.34142.
Bledsoe’s claims against FCA were previously dismissed, but his
claims against Cummins remain. ECF No. 215. Bledsoe admits that he
did not rely on any representations by Cummins in purchasing the Truck
and cannot identify any statements by Cummins on the Truck’s fuel
economy. ECF No. 218, PageID.27381; ECF No. 241, PageID.34142.
Instead, Bledsoe’s expectations for fuel economy were formed by
discussions “with friends who owned similar vehicles.” Id.
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2. Paul Chouffet
Plaintiff Paul Chouffet purchased a new 2009 Ram 2500 Truck from
an FCA-authorized dealership in Texas in 2009. Chouffet Fact Sheet
(July 2, 2021), ECF No. 175-44, PageID.19662; Chouffet Dep. (June 30,
2021), ECF No. 239-13, PageID.33403; ECF No. 241, PageID.34162.
Chouffet testified that he considered hauling ability and fuel economy in
purchasing his Truck. ECF No. 239-13, PageID.33405. Chouffet admits
that he did not research the Truck’s “emissions controls” before
purchasing, but claims that the Truck was not working properly as he
noticed he was not “getting the right [gas mileage].” Id. at PageID.33406.
Chouffet’s claims against FCA were previously dismissed, but his
claims against Cummins remain. ECF No. 215. Chouffet admits that he
did not rely on any representations by Cummins in purchasing the Truck
and cannot identify any statements by Cummins on the Truck’s fuel
economy. ECF No. 218, PageID.27381; ECF No. 241, PageID.34142.
3. Marc Ganz
Plaintiff Marc Ganz purchased a new 2012 Ram 3500 Truck from
an FCA-authorized dealership in Illinois in July 2013 for his business
and personal use. ECF No. 241, PageID.34145. Since purchasing his
Truck in 2013, Ganz has driven it for over 140,000 miles and believes it
to be in good condition. Id.; ECF No. 221, PageID.28586.
Ganz admits that he did not recall seeing any advertisement about
“clean diesel” specific to the Trucks prior to purchase. ECF No. 241,
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PageID.34144. Similarly, the Monroney label on Ganz’s Truck did not
reference emissions or “clean diesel.” Id. But Ganz claims that in
researching the Trucks, he found advertisements highlighting the
Trucks’ “clean emissions” as “better than the competition,” even though
he did not know what type of emissions his Truck produces. Id. at
PageID.34144–45. Ganz also recalls that a salesperson at the FCAauthorized dealership made representations about the Truck’s estimated
fuel economy. Id. at PageID.34145.
4. Jeremy Perdue
Plaintiff Jeremy Perdue purchased a used 2009 Dodge Ram 2500
Truck from a Chevrolet dealership in North Carolina in July 2014 for
business and personal use. Id. Perdue concedes that he did not rely on
advertisements about the Truck, nor did he research the Truck’s
emissions prior to purchase. Id. But Perdue claims that he investigated
the Truck and its fuel economy before buying. Id. Perdue did not know
what type of emissions his Truck produces and did not know whether
vehicles emit NOx. Id.; ECF No. 221, PageID.28586.
Perdue does not track his Truck’s fuel mileage and does not have
an opinion on whether the fuel economy is better or worse than he
expected. ECF No. 241, PageID.34145–46. Perdue has driven his Truck
for over 323,000 miles and believes that it “drives well.” Id. at
PageID.34146; ECF No. 221, PageID.28587. In 2018, Perdue removed his
Truck’s diesel particulate filter (“DPF”) and replaced it with a DPF
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exhaust pipe kit and DPF delete kit. Id. Perdue does not dispute
Cummins’ contention that installing a DPF exhaust pipe kit and DPF
delete kit “illegal[ly]” disables the Truck’s emissions aftertreatment
system and “result[s] in dramatically higher emissions.” ECF No. 218,
PageID.27380; ECF No. 241, PageID.34141.
5. Dawn Roberts
Plaintiff Dawn Roberts purchased a new 2012 Ram 2500 Truck
from a dealership in Illinois. ECF No. 221, PageID.28587; ECF No. 241,
PageID.34146. Roberts claims that she “anticipated the truck was ‘clean
burning’ as was advertised to her when she purchased the truck.” ECF
No. 241, PageID.34183. Even so, Roberts admits that emissions was not
“one of the key factors” in Roberts’ purchase decision. ECF No. 221,
PageID.28587; PageID.31346. Relatedly, Roberts did not have any
expectations about the Truck’s emissions, and she did not purchase her
Truck based on it having a “clean diesel system.” Id. Instead, Roberts was
motivated to purchase the Truck because of its towing capabilities, the
size of the backseat, and its “pretty” appearance. Id.
When she bought the Truck, Roberts did not know what type of
emissions the Truck produces and was not familiar with NOx emissions.
Id. Until early 2019 when the Truck’s circuit board shorted out, Roberts
had no problems with the Truck’s engine. Id. Although Roberts traded in
her inoperable Truck for a newer Dodge Ram truck, Roberts stated that
she felt “financially stuck” in making the trade-in decision. Id.
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6. Michael Erben
Plaintiff Michael Erben purchased a new 2008 Ram 2500 Truck
from an FCA-authorized dealership in Idaho in 2008. Erben Fact Sheet
(July 2, 2021), ECF No. 175-44, PageID.19664; ECF No. 241,
PageID.34162. Erben testified that he considered the price of the vehicle,
his affinity for the Dodge brand, and “fuel mileage” to be “important
factors” in purchasing his Truck. Erben Dep. (July 2, 2021), ECF No. 23914, PageID.33413–14. Erben also recalled that his expectations of fuel
mileage came from a sticker on the window of the Truck and from talking
to a dealership salesperson about the Truck. Id. at PageID.33414. Erben
admits that he did not have any specific expectations about the Truck’s
emissions. ECF No. 218, PageID.27380.
Erben’s claims against FCA were previously dismissed, but his
claims against Cummins remain. ECF No. 215. Erben admits that he did
not rely on any representations by Cummins in purchasing the Truck and
cannot identify any statements by Cummins on the Truck’s fuel economy.
ECF No. 218, PageID.27381; ECF No. 241, PageID.34142.
7. James Forshaw
Plaintiff James Forshaw is a resident of South Carolina. Forshaw
Fact Sheet (July 2, 2021), ECF No. 175-44, PageID.19668. Forshaw
purchased a new 2007 Ram 3500 Truck from an FCA-authorized
dealership based in North Carolina on September 24, 2007. Id. at
PageID.19670; ECF No. 241, PageID.34162. Forshaw testified that he
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officially purchased the Truck from a dealership salesperson in South
Carolina after test driving the Truck. Forshaw Dep. (June 25, 2021), ECF
No. 239-15, PageID.33424–25. The salesperson told Forshaw that the
Truck would be “perfect” for towing his boat, and Forshaw noted that he
was “impressed” by the fact that the Truck did not have a “diesel exhaust
smell” when he test drove it. Id. at PageID.33423, PageID.33425.
Forshaw’s claims against FCA were previously dismissed, but his
claims against Cummins remain. ECF No. 215. Forshaw admits that he
did not rely on any representations by Cummins in purchasing the Truck
and cannot identify any statements by Cummins on the Truck’s fuel
economy. ECF No. 218, PageID.27381; ECF No. 241, PageID.34142.
8. Marty Ward
Plaintiff Marty Ward purchased a new 2012 Ram 3500 Truck from
an FCA-authorized dealership in New Mexico on March 31, 2012. ECF
No. 221, PageID.28588; ECF No. 241, PageID.34146. Before buying the
Truck, Ward reviewed the Dodge website and brochures, but did not
recall seeing any representations about the Truck’s emissions or fuel
mileage. ECF No. 221, PageID.28588; ECF No. 241, PageID.34147.
However, Ward spoke with a dealership salesperson about the Truck’s
fuel economy and emissions. Id. Specifically, the salesperson informed
Ward that the Truck was a “clean emissions truck,” which Ward
interpreted to mean that the Truck “met the EPA guidelines that was
required without using DEF [diesel exhaust fluid].” Id.
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9. Martin Witberg
Plaintiff Martin Witberg is a resident of Tennessee. Witberg Fact
Sheet (July 2, 2021), ECF No. 175-44, PageID.19688. Witberg purchased
a new Ram 2500 Truck from an FCA-authorized dealership in Michigan
in 2008. Id. at PageID.19689; Witberg Dep. (June 8, 2021), ECF No. 2399, PageID.33363.
Witberg

testified

that

he

recalled

hearing

or

reading

representations that the Trucks used “more advanced” technology to
reduce their environmental impact, and believed that the Truck he
purchased was the most environmentally friendly truck available at the
time he bought it. ECF No. 239-9, PageID.33365–67. Witberg also
explained that he purchased a diesel truck specifically because he was
concerned about “fuel economy[,] number one, torque[,] and towing.” Id.
at PageID.33367.
Witberg’s claims against FCA were previously dismissed, but his
claims against Cummins remain. ECF No. 215. Witberg admits that he
did not rely on any representations by Cummins in purchasing the Truck
and cannot identify any statements by Cummins on the Truck’s fuel
economy. ECF No. 218, PageID.27381; ECF No. 241, PageID.34142.
10.

Donovan Kerber

Plaintiff Donovan Kerber was added to this case on July 20, 2022,
when Plaintiffs filed their Third Amended Class Action Complaint
(“TCAC”). The Court granted Plaintiffs’ request for leave to file their
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TCAC to add new named plaintiffs with claims against FCA only under
the laws of California, Idaho, South Carolina, Michigan, and Texas. Case
Management Order, ECF No. 249, PageID.34862–63. While the Court
permitted Plaintiffs to add multiple new plaintiffs through the TCAC,
Plaintiffs added only Kerber as a potential class representative for
putative class members in California. ECF No. 255.
Over three years after this lawsuit was initially filed, on June 12,
2020, Kerber purchased a then eight-year-old used 2012 Ram 2500 Truck
from a dealership in California. ECF No. 263, PageID.37017; ECF No.
264, PageID.37614. Kerber’s Truck had approximately 111,000 miles on
it when purchased, and it was not covered by any FCA warranty. ECF
No. 263, PageID.37017–18; ECF No. 264, PageID.37614. Kerber never
communicated with FCA regarding the Truck prior to or after purchasing
it. ECF No. 263, PageID.37018; ECF No. 264, PageID.37614. Kerber
admits that he has not seen any contract between FCA and the
dealership where he purchased his Truck, and he is not aware of whether
any such contract exists. ECF No. 263, PageID.37020; ECF No. 264,
PageID.37616.
Although Kerber conducted “some research” on the Truck and
reviewed “three or four Internet forums with discussions of Ram diesel
trucks,” he claims that “his searches did not reveal the existence of this
lawsuit or the defects identified in the lawsuit.” ECF No. 264,
PageID.37614. Kerber does not know what type of emissions his Truck
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produces and was unaware of the state and federal regulatory emissions
requirements. ECF No. 263, PageID.37019; ECF No. 264, PageID.37616.
Kerber concedes that he did not see or rely upon any advertisement,
brochure, or Monroney label from FCA in purchasing his Truck. ECF No.
263, PageID.37018; ECF No. 264, PageID.37614. In addition, Kerber does
not recall encountering or relying on any statements about the Trucks’
“clean diesel” or emissions in purchasing his Truck. Id. Before
purchasing, Kerber contends that he read about the Truck’s fuel economy
on third-party websites and briefly discussed the Truck’s emissions with
a dealership salesperson. ECF No. 264, PageID.37615–16. Specifically,
Kerber recalled that the salesperson told him the Truck would run at 16
or 17 miles per gallon on the freeway. ECF No. 263, PageID.37109.
FCA did not make any representations directly to Kerber about the
Truck’s fuel economy. ECF No. 264, PageID.37616. Kerber also did not
receive any published fuel economy estimates from the dealership. Id.;
ECF No. 263, PageID.37019. And Kerber could not recall whether there
were EPA-promulgated fuel estimates for his Truck at the time he
purchased it. Id.
Since purchasing his Truck, Kerber has not kept written records of
his fuel mileage, but uses his Truck’s trip meter and fuel mileage
readouts to assess fuel economy. ECF No. 264, PageID.37616. After
driving his Truck for over 23,000 miles, Kerber believes that his Truck is
in overall good condition. Id.; ECF No. 263, PageID.37020. Kerber has
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complained that the Truck requires additional fuel to complete
“regeneration cycles to clean the diesel particulate filter,” but admits that
the Truck’s owner’s manual described this regeneration process. ECF No.
263, PageID.37020–21; ECF No. 264, PageID.37617.
C. Plaintiffs’ Experts Juston Smithers and Edward Stockton
Plaintiffs’ claims are supported by expert opinions and reports from
two experts, Juston Smithers and Edward Stockton. As discussed in
detail in this Court’s Daubert Order (ECF No. 262), Smithers provides
technical opinions on how the Trucks’ components and operations
purportedly increased NOx emissions in real-world settings. Stockton is
Plaintiffs’ damages expert. Stockton provides two primary damages
models—an Overpayment model and an Excess Fuel Consumption
model—to quantify the alleged harm to putative class members in
purchasing and driving Trucks that emitted higher levels of NOx than
advertised and, as a result, consumed more fuel than buyers anticipated.
1. Smithers’ Technical Opinions
a. Excessive Active Regeneration as an Excessive
Emissions Device (“EED”)
Smithers opines that the Trucks are equipped with what he calls
“excessive emissions devices” (“EEDs”). Smithers’ Ram 2500 Class
Certification Report (Aug. 16, 2021), ECF No. 184-2, PageID.21577.
Smithers uses EED as shorthand for software controls that cause NOx
emissions to exceed regulatory test limits. Id.

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Of particular relevance here, Smithers identifies the active
regeneration that takes place in the Trucks as an EED. Smithers
explains that all modern diesel vehicles, including the Trucks, are
equipped with an emission control device called a diesel particulate filter
(“DPF”) to control emissions of particulate matter (soot). Id. at
PageID.21577. These DPFs must undergo a periodic change in engine
conditions, called active regeneration, to clean and remove the
accumulated particulate matter. Id.
In addition to consuming significant quantities of fuel, active
regeneration causes higher NOx emissions. Id. Because these active
regeneration events are not accurately captured on a single emissions
test cycle, Regulators have developed a concept called Upward
Adjustment Factors (“UAFs”), to account for the increases in NOx
emissions caused by active regeneration. Id. In other words, because
active regeneration impacts emissions, its effect must be quantified and
factored into the regulatory certification of a vehicle’s emissions. Id. at
PageID.21615. Active regeneration is factored into emissions values as
an Infrequent Regeneration Adjustment Factor (“IRAF”). Id. IRAFs that
increase emissions are referred to as UAFs. Id. Therefore, Regulators
require calculating the impact of active regeneration on overall NOx
emissions by adding UAFs onto a base NOx measurement for vehicle
emissions certification. Id.

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The more often a vehicle must actively regenerate, the higher the
UAF value will become, increasing the overall NOx emissions to an
extent that may exceed emissions standards. Id. Consequently, a vehicle
that undergoes excessive active regeneration could fail to achieve
certification by the Regulators. Id.
Moreover, excessive active regeneration consumes additional fuel.
Through his testing, Smithers found that the Trucks’ active regeneration
caused an average net decrease in fuel economy of 4.1% and 3.7% for city
and highway driving, respectively. Id. at PageID.21577, PageID.21622–
23. Smithers’ testing also revealed that for both city and highway driving,
the Trucks’ actual UAF and NOx emissions in real-world operation are
significantly higher than the values reported for the Trucks in
Defendants’ certification applications to the Regulators. Id. at
PageID.21577. Therefore, Smithers concludes that the NOx values
Defendants provided for certification are a gross misrepresentation of
real NOx emissions during normal and expected vehicle operation. Id. at
PageID.21622. Smithers further opines that consumers would not expect
these fuel economy losses, making excess fuel consumption a hidden cost
of operating the Trucks. Id. at PageID.21624.
Smithers explains that the Trucks’ excessive active regeneration,
and resulting excessive NOx emissions, is largely due to Cummins’ choice
to use a NOx adsorber catalyst (“NAC”) as the NOx aftertreatment
system for the Trucks. ECF No. 184-2, PageID.289001. This technology
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was not required for the 2007-2009 model years in which it was used, but
Cummins deployed it voluntarily in part to generate valuable NOx
credits. Id. Smithers opines that Cummins cannot validly argue that it
was limited by current technology because it attempted to go above and
beyond what then-existing regulations required (though, according to
Smithers, it ultimately failed by designing a system that produced
excessive emissions). Id.
Smithers also details results from his testing to identify ambient
temperature, higher power/load conditions, and start temperature as
other EEDs. ECF No. 221-10, PageID.289001. As with excessive active
regeneration, Smithers concludes that Cummins falls short in explaining
why these EEDs are necessary. Id. In sum, Smithers opinions on EEDs
plainly fit into Plaintiffs’ allegations and the factual disputes and theories at
issue. But as discussed below, Smithers’ opinions on defeat devices are
inadmissible, and cannot be considered to raise a genuine dispute of
material fact for summary judgment purposes.
b. Smithers’ Inadmissible Opinions on Defeat Devices
and Cummins’ Alleged Fraud on the Regulators
In Smithers’ December 16, 2021 Merits Report, Smithers opined
that the active regeneration EED identified in his first report is a defeat
device. Smithers’ Merits Report (Dec. 16, 2021), ECF No. 221-10,
PageID.28900. Federal regulations define a “defeat device” as “an
auxiliary emission control device (AECD) that reduces the effectiveness

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of the emission control system under conditions which may reasonably
be expected to be encountered in normal vehicle operation and use.” 40
C.F.R. § 86.1803-01. There are two relevant exceptions to this definition:
(1) “the need for the AECD is justified in terms of protecting the vehicle
against damage or accident” or (2) “such conditions are substantially
included in the Federal emission test procedure.” Id.; see also ECF No.
221-10, PageID.28901.
Smithers concluded that the UAFs (the values that account for the
NOx-increasing effect of active regeneration) that Cummins presented to
Regulators in its certification applications grossly underrepresent the
Trucks’ real-world emissions. ECF No. 221-10, PageID.28900–01. While
Cummins provided the Regulators with UAF values for each of its
emission tests, Smithers opined that it misapplied the UAF calculation
methodology, thus underestimating the effect on NOx emissions. Id. at
PageID.28903. Based upon his assumption that Cummins misled the
Regulators in the UAF certification process, Smithers explained that
Cummins’

excessive

regeneration

feature

cannot

be

considered

“substantially covered” by the federal emissions test procedure. Id. at
PageID.28916. Accordingly, Smithers determined that the Trucks’ active
regeneration represented by the UAF values was a defeat device
producing NOx emissions far above the certified limit without falling
under a federally recognized exemption. Id.

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But as detailed in the Court’s Daubert Order, Smithers failed to state
a reliable basis for his opinion that the Regulators did not fully understand
the UAF values that Cummins reported or the methodology used to
generate those values. ECF No. 262, PageID.36967–72. Consequently,
the Court excluded Smithers’ opinions on Cummins’ alleged fraud on the
Regulators and the existence of a defeat device. As such, Plaintiffs may not
rely on Smithers’ defeat device and fraud opinions to create a genuine
dispute of material fact on their fraud-related claims.
2. Stockton’s Damages Opinions
In excluding Smithers’ opinions on defeat devices, the Court also
excluded Stockton’s opinions “to the extent that Stockton’s opinions are
specifically based upon any of the [alleged EEDs theorized by Smithers]
being defeat devices under the fraud-on-the-regulators theory.” Id. at
PageID.36986.

But

Stockton’s

damages

opinions

are

otherwise

admissible to raise genuine disputes of material fact.
Stockton presents two damages models. The Overpayment model
measures overpayment at point of sale for the Truck’s “clean diesel” system.
Stockton Decl. (Aug. 16, 2021), ECF No. 175-3, PageID.19367. The Excess
Fuel Consumption model calculates the additional fuel costs Plaintiffs
incurred from the Trucks’ decreased fuel economy. Id.
Stockton’s Overpayment model provides an “estimate of economic
harm from Overpayment from the EED,” and “is predicated on finding
that the EED offsets the incremental positive benefit of the premium
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emissions feature.” Stockton Merits Report (Dec. 16, 2021), ECF No. 2172, PageID.26525. Moreover, Stockton recognizes that EEDs are “inferior
and non-conforming . . . emissions features” that diminish the positive
value of the Truck, and notes that “models that quantify overpayment
harm attributable to the EED also measure negative impact on vehicle
emissions.” Id. at PageID.26509, PageID.26525.
The Excess Fuel Consumption model “tak[es] into account Excess
Fuel Consumption attributable to the EED.” Id. at PageID.26518. As
summarized above, Smithers opines that the Trucks’ excessive active
regeneration, an EED, causes the Trucks to use more fuel than a
reasonable consumer would anticipate. Stockton opines that regardless of
consumers’ specific expectations on fuel economy, putative class members
have paid more for fuel “because of an undisclosed vehicle attribute.” ECF
No. 197-2, PageID.25042–43.
Plaintiffs have clearly alleged that they overpaid for both the Trucks
and fuel based on their lack of awareness that Defendants’ product
generated higher emissions and, as a result, worse fuel economy. Stockton’s
damages models are germane to assessing the injury caused by these
allegations and are admissible for that purpose.
D. General Principles of Article III Standing
Federal courts have limited jurisdiction and may only adjudicate
“cases” and “controversies” as permitted by Article III of the Constitution.
U.S. Const. art. III, § 2. A plaintiff’s “standing implicates the United
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States Constitution’s Article III case-or-controversy requirement, which
must be satisfied for a federal court to hear the case.” TCG Detroit v. City
of Dearborn, 206 F.3d 618, 622 (6th Cir. 2000). Accordingly, courts must
resolve questions of subject matter jurisdiction before ruling on the
merits of a particular claim. Gross v. Hougland, 712 F.2d 1034, 1036 (6th
Cir. 1983). Where a plaintiff lacks Article III standing, a court must
dismiss the case. TCG Detroit, 206 F.3d at 622.
There are three fundamental elements to Article III standing. First,
“[t]he plaintiff must have suffered an injury in fact.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). Injury in fact is “an invasion of a
legally protected interest which is (a) concrete and particularized; and (b)
actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal
citations and quotation marks omitted). Second, the plaintiff’s injury
must be causally connected or “fairly traceable” to the defendant’s
conduct. Id. And third, the plaintiff’s injury must be “likely” to be
redressed by a favorable judicial decision. Id. at 561.
In putative class actions, “Plaintiffs are not absolved of their
individual obligation to satisfy the injury element of Article III just
because they allege class claims.” Soehnlen v. Fleet Owners Ins. Fund,
844 F.3d 576, 582 (6th Cir. 2016). “A potential class representative must
demonstrate individual standing vis-as-vis [sic] the defendant; he cannot
acquire such standing merely by virtue of bringing a class action” on
behalf of absent putative class members who experienced cognizable
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injuries. Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.
1998). Therefore, potential “[c]lass representatives without personal
standing cannot predicate standing on injuries suffered by members of
the class but which they themselves have not or will not suffer.” Rosen v.
Tenn. Comm’r of Fin. & Admin., 288 F.3d 918, 928 (6th Cir. 2002).
Here, Defendants argue that Plaintiffs claims must be dismissed
because they cannot satisfy the injury-in-fact and causation elements of
the standing inquiry. ECF No. 218, PageID.27385–93; ECF No. 221,
PageID.28594–95. Defendants further argue that Plaintiffs lack standing
to bring claims under the laws of the states where they do not reside, on
behalf of putative class members in states where Plaintiffs did not
purchase a vehicle, and on behalf of putative class members in states
where Plaintiffs could not have been injured by Defendants’ conduct.
ECF No. 218, PageID.27418; ECF No. 221, PageID.28614.
E. Plaintiffs Have Sufficiently Demonstrated Injury-in-Fact
and Causation
Plaintiffs bear the burden of demonstrating each element to
establish standing. Rosen, 288 F.3d at 930. The proof necessary to meet
this burden increases as the case progresses. At summary judgment,
Plaintiffs “cannot rely on allegations alone but must set forth evidence
demonstrating [their] standing.” Huff v. TeleCheck Servs., Inc., 923 F.3d
458, 462 (6th Cir. 2019).

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1. Plaintiffs’ Alleged Overpayments
Because They Are Injuries-in-Fact

Confer

Standing

As noted, an injury in fact must be both “concrete and
particularized,” and “actual or imminent not conjectural or hypothetical.”
Lujan, 504 U.S. at 560; see also Spokeo, Inc. v. Robins, 578 U.S. 330, 340
(2016). An injury is not “concrete and particularized” unless it “affect[s]
the plaintiff in a personal and individual way” and “must actually exist.”
Spokeo, 578 U.S. at 339 (internal citations omitted).
The admissible opinions of Plaintiffs’ experts are sufficient to
demonstrate that Plaintiffs have suffered injury in fact at the summary
judgment stage. Smithers’ technical opinions on the Trucks’ EEDs,
including excessive active regeneration, create a triable issue of whether
the Trucks “lacked a feature for which Plaintiffs paid a premium.” Counts
v. Gen. Motors, LLC, No. 16-12541, 2022 WL 2079757, at *5 (E.D. Mich.
June 9, 2022). And relatedly, Stockton’s Overpayment model posits that
Defendants overcharged Plaintiffs for a product that Plaintiffs did not
actually

receive—specifically,

a

“clean

diesel”

Truck

without

nonconforming, inferior EEDs. In addition, Stockton’s Excess Fuel
Consumption model estimates the amount of extra fuel costs Plaintiffs
unanticipatedly incurred because of the Trucks’ undisclosed EEDs.
Defendants make much of the fact that Plaintiffs cannot
demonstrate injury based on the existence of a defeat device. ECF No.
218, PageID.27387–88; ECF No. 221, PageID.28956–98. In deciding

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Defendants’ Daubert motions, the Court agreed that Smithers’ opinions
on the existence of a defeat device were inadequately supported by the
factual record. But Plaintiffs have raised a genuine dispute of material
fact as to whether the Trucks emitted excessive NOx and consumed
excess fuel because of the EEDs. Thus, even if the EEDs fall short of
constituting a defeat device, Plaintiffs may still succeed by showing that
Defendants “misrepresented the emissions output,” and “injured
Plaintiffs though a deceptive act or unfair practice.” Counts, 2022 WL
2079757, at *5; see also In re Duramax Diesel Litig., 298 F. Supp. 3d 1037,
1061 (E.D. Mich. 2018) (explaining that “Plaintiffs will not be required to
prove that the engine component which is the source of the harm meets
the EPA’s definition of an illegal defeat device” to succeed on fraudulent
concealment and consumer protection claims).
Plaintiffs’ alleged injury is also sufficiently particularized. In
overpaying for their Trucks, Plaintiffs suffered an injury “particular” to
them as individuals. See Counts, 2022 WL 2079757, at *5 (“In overpaying
for their 2014 or 2015 diesel Cruzes, . . . Plaintiffs suffered an injury
‘particular’ to them.”); Raymo v. FCA US LLC, 475 F. Supp. 3d 680, 694
(E.D. Mich. 2020) (“[A] plaintiff who pays a premium for a product but
does not receive the anticipated benefit demonstrates a cognizable injury
in fact sufficient to establish Article III standing.”); Gamboa v. Ford
Motor Co., 381 F. Supp. 3d 853, 886 (E.D. Mich. 2019) (same); Chapman
v. Gen. Motors LLC, 531 F. Supp. 3d 1257, 1275 (E.D. Mich. 2021) (same).
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Therefore, Plaintiffs have standing based on allegations of overpayment
that are supported by admissible evidence to establish standing.
2. Plaintiffs Demonstrate Causation Because Their Alleged
Injuries Are Fairly Traceable to Defendants’ Conduct
To establish standing, Plaintiffs must also demonstrate that their
alleged injuries were caused by Defendants, such that the injuries are
“fairly traceable to [Defendants’] challenged conduct.” Spokeo, 578 U.S. at
338. Although causation and redressability are often intertwined, see
Lujan, 504 U.S. 555 at 562, Defendants here do not challenge Plaintiffs’
ability to satisfy the redressability element of standing. And in fact, if
Plaintiffs prevail, requiring Defendants to compensate them for the
overpayments they incurred would remedy Plaintiffs’ economic injury. See
Counts, 2022 WL 2079757, at *6. Instead, Defendants argue that Plaintiffs
cannot trace their alleged overpayment injuries to Defendants’ conduct.
Plaintiffs’ claims under RICO, state law breach of contract,
fraudulent concealment, and consumer protection claims rely on
substantially similar allegations of Defendants’ misconduct. For
example, Plaintiffs’ RICO claims are premised on demonstrating that
Defendants “misrepresent[ed] or conceal[ed] the true nature of the
Polluting Vehicles from the public.” TCAC, ECF No. 255, PageID.35149,
¶ 310(g).
This alleged misrepresentation or concealment also serves as the
challenged conduct for Plaintiffs’ state law consumer protection,

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deceptive trade practices, and fraudulent concealment claims. See, e.g.,
id. at PageID.35199, ¶ 463 (alleging that Defendants violated the Illinois
Consumer Fraud and Deceptive Business Practices Act by “willfully
fail[ing] to disclose and actively conceal[ing] that the NOx reduction
system in the Polluting Vehicles . . . is limited during normal driving
conditions . . . [and] represent[ed] that Polluting Vehicles have
characteristics, uses, benefits, and qualities which they do not have”).
The same challenged conduct underlies all of Plaintiffs’ state law breach
of contract claims. See, e.g., id. at PageID.35203–04, ¶ 479 (alleging
breach

of

contract

under

Illinois

law

due

to

Defendants’

“misrepresentations and omissions” including Defendants’ “failure to
disclose the existence of the Adsorber Engine’s defect and/or defective
design of emissions controls”).
Through their experts, Plaintiffs have provided admissible evidence
to support their allegations of Defendants’ misconduct. As detailed in the
Court’s Daubert Order, Smithers’ opinions are admissible to show that
the Trucks were equipped with undisclosed EEDs, Defendants’ diesel
aftertreatment system design increased NOx emissions, the Trucks’ NOx
emissions were significantly higher in real-world operating conditions
than in testing conditions, and excessive active regeneration decreased
the

Trucks’

fuel

economy.

ECF

PageID.36961.

38

No.

262,

PageID.36925–33,

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Stockton’s damages models demonstrate that Plaintiffs paid a
premium for an “ultra-clean diesel” (“UCD”) system that did not perform
as promised. Specifically, Stockton’s Overpayment model illustrates the
alleged overpayment injury Plaintiffs suffered by purchasing their
preferred Truck “without knowing that the Trucks’ EEDs cancel out [the
Trucks’] purportedly ‘clean’ qualities.” Id. at PageID.36976–77. And
Stockton’s Excess Fuel Consumption model concretizes the alleged
economic harm of “purchasing incrementally more fuel for reasons
attributable to the EEDs.” Id. at PageID.36978. Therefore, to the extent
that Defendants support their summary judgment motions by disputing
the admissibility or weight of Plaintiffs’ experts’ opinions that have since
been deemed admissible, those arguments are meritless.
But Cummins maintains that Plaintiffs’ injuries relating to excess
fuel costs are not traceable “to anything that Cummins said or did.” ECF
No. 218, PageID.27398. For example, Cummins contends that it “did not
make any representations to anyone—not FCA, not the regulators, and not
Plaintiffs—about the fuel economy performance of the Trucks.” Id.
Cummins further explains that the Regulators did not require “the Trucks
to meet any fuel economy standard,” nor did the Trucks’ Monroney label
“include any representation as to estimated fuel economy.” Id. Cummins
also points out that “Plaintiffs had different expectations for their Trucks’
fuel economy.” Id.

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Meanwhile, FCA argues that Stockton’s damages models cannot
establish Plaintiffs’ standing because “the models have nothing to do with
misrepresentations or non-disclosures.” ECF No. 221, PageID.28596. As
the Court found in deciding Defendants’ Daubert motions, these
arguments misapprehend Plaintiffs’ theory of liability. Plaintiffs argue
that Defendants’ intentional design choices resulted in EEDs that
deliberately decreased fuel economy and increased NOx emissions. ECF
No. 241, PageID.34170. In turn, Plaintiffs claim that they spent more on
fuel than they anticipated, and did not receive the “clean diesel” Trucks
for which they bargained. Id.
Defendants are correct that Stockton’s damages models do “not
depend on anything Truck owners heard, saw, or expected.” Id. at
PageID.34171. But Plaintiffs intend to show that “no rational person
would want to incur additional, unnecessary fuel costs or overpay for a
feature the Trucks did not have.” Id. Indeed, Plaintiffs claim that
Defendants “had a duty to disclose these hidden costs or overcharges
based on their exclusive knowledge of the system.” Id. at PageID.34131.
Moreover, Plaintiffs have evidence of Defendants’ statements on the
Trucks’ “clean” diesel engine and reduced emissions that a reasonable
jury could find to be false or misleading. See id. at PageID.34195–96 n.29.
Therefore, before addressing the merits of their claims, the Court
concludes that Plaintiffs have satisfied the elements of Article III
standing.
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F. Plaintiffs Lack RICO Standing as Indirect Purchasers
Cummins argues that Plaintiffs lack standing to raise RICO claims
because they are indirect purchasers. ECF No. 218, PageID.27396–97.
Accordingly, before addressing the merits of Plaintiffs’ RICO claims, the
Court must assess whether Plaintiffs have standing as to Cummins
and/or FCA for their RICO claims.
In Trollinger v. Tyson Foods, Inc., the Sixth Circuit explained that
just as under federal antitrust statutes and the rule set out by the
Supreme Court in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977),
“indirect purchasers lack standing under RICO . . . to sue for overcharges
passed on to them by middlemen.” 370 F.3d 602, 616 (6th Cir. 2004). And
under identical circumstances in Counts, the court held that the plaintiffs
were indirect purchasers, and thus lacked standing for RICO claims
against car manufacturers. 2022 WL 2079757, at *12.
Just as in Counts, Defendants here did not sell the Trucks directly
to Plaintiffs. By purchasing their vehicles from dealerships, Plaintiffs are
indirect purchasers “who are two or more steps removed from the violator
in a distribution chain.” Apple Inc. v. Pepper, 139 S. Ct. 1514, 1520 (2019).
As the Counts court noted, the rule that indirect purchasers lack
standing to bring antitrust and RICO claims is a “bright-line rule.” 2022
WL 2079757, at *12; see also Pepper, 139 S. Ct. at 1520.
Plaintiffs have failed to demonstrate why their RICO claims are not
barred under this bright-line standing rule. Plaintiffs are correct that in
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Gamboa v. Ford Motor Co., the plaintiffs’ RICO claim against a
manufacturer survived a motion to dismiss, where the court relied on the
“coconspirator exception” to the indirect purchaser rule. No. 18-10106,
2020 WL 7047612, at *8 (E.D. Mich. Nov. 30, 2020). But the Gamboa
court noted that this exception has not been recognized by the Sixth
Circuit, and the plaintiffs’ RICO standing was entirely contingent upon
their ability to prove that the manufacturer conspired with car
dealerships. Id. at *8–9. Unlike the Gamboa plaintiffs, Plaintiffs here
have no evidence that Defendants conspired with dealerships; Gamboa
thus fails to support their RICO standing.
Moreover, Plaintiffs’ arguments that they were directly injured by
Defendants also miss the mark. ECF No. 241, PageID.34198–200. While
the Supreme Court has held that proximate cause is a necessary element
to establish statutory standing for a RICO claim, Holmes v. Sec. Inv. Prot.
Corp., 503 U.S. 258, 268 (1992), Plaintiffs are indisputably indirect
purchasers. In cases like this one “where the plaintiffs had no
relationship with the defendants except through intermediaries,”
Plaintiffs simply lack standing to bring RICO claims. Trollinger, 370 F.3d
at 616; see also Counts, 2022 WL 2079757, at *13.
In their surreply, Plaintiffs argue that the indirect purchaser rule
is limited to antitrust-related RICO claims. ECF No. 257, PageID.36313.
Plaintiffs contend that rather than precluding their RICO standing,
“Trollinger extended RICO claims to indirect targets of fraudulent
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schemes,” like Plaintiffs here. Id. at PageID.36310. But the Court is not
persuaded by Plaintiffs’ arguments on this point. Notably, Trollinger,
Holmes, and Illinois Brick are based upon well-accepted principles of
causation, and direct, indirect, and derivative injuries that are not
cabined to antitrust claims only. Furthermore, federal courts commonly
rely upon principles of antitrust standing in interpreting RICO, making
the Pepper Court’s foreclosure of indirect purchaser standing in the
antitrust context equally applicable to RICO standing. See Trollinger,
370 F.3d at 612 (“Congress modeled [RICO’s civil suit] provision on
similar language in the antitrust laws.”); Holmes, 503 U.S. at 268.
Plaintiffs’ attempt to distinguish the policy considerations of
Illinois Brick is also unavailing. In County of Oakland v. City of Detroit,
the Sixth Circuit declined to adopt a “pass-on approach” that would allow
consumers, the parties ultimately injured by the wrongdoer’s overcharge,
to bring antitrust claims. 866 F.2d 839, 849 (6th Cir. 1989). The Oakland
court explained that under the pass-on approach, “the appropriate
plaintiffs in this case are not a few dozen municipalities, but thousands
of individual householders, businesses, and other consumers” that
overpaid for sewerage services at inflated prices set by the City of Detroit.
Id. In rebuking this approach as unmanageable, the court cited Illinois
Brick’s rejection of “an attempt by indirect purchasers to make offensive
use of the ‘passing on’ concept.” Id. at 848. Even if Plaintiffs have
identified reasons why Illinois Brick and Oakland’s manageability
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concerns are less salient here, that does not bypass the Sixth Circuit’s
wholesale rejection of the pass-on approach for indirect purchasers.
In short, Plaintiffs have not articulated a principled distinction
limiting application of the indirect purchaser rule only to RICO claims
arising under antitrust law. Because Plaintiffs lack standing to bring
their RICO claims as indirect purchasers, the Court grants Defendants’
motions for summary judgment on Plaintiffs’ RICO claims.
G. Plaintiffs’ Claims Are Not Preempted by the Clean Air Act
Defendants argue that the Clean Air Act (“CAA”) preempts
Plaintiffs’

state

law

claims

challenging

the

Trucks’

emissions

performance. Defendants contend that if Plaintiffs cannot show a
“measurable expectation” of the Trucks’ emissions performance, their
claims are preempted by the CAA. ECF No. 218, PageID.27406–08; ECF
No. 221, PageID.28603–04. For the same reasons that the Court has
previously rejected Defendants’ CAA preemption arguments, the Court
again declines to find Plaintiffs’ claims preempted by the CAA.
As relevant here, the CAA provides that: “No State or any political
subdivision thereof shall adopt or attempt to enforce any standard
relating to the control of emissions from new motor vehicles or new motor
vehicle engines subject to this part.” 42 U.S.C. § 7543(a). But as the Court
emphasized at the motion to dismiss phase, “Plaintiffs’ claims do not
depend on proof of noncompliance with federal emissions standards,” nor

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do they seek to introduce stricter emissions criteria through state tort
claims. Bledsoe, 378 F. Supp. 3d at 642.
Although Plaintiffs allege that the Trucks emit excessive NOx in
real-world driving, Plaintiffs’ state law claims are premised on
Defendants’

conduct

in

misrepresenting

the

Trucks’

emissions

performance to consumers. In essence, “[r]ather than imposing
requirements regarding the type of emissions technology which
[Defendants] must include in its vehicles, Plaintiffs’ suit seeks
compensation for [Defendants’] fraudulent concealment of the actual
operation of the emissions technology in its diesel vehicles from
consumers.” In re Duramax Diesel Litig., 298 F. Supp. 3d at 1059.
To prove their state law claims, Plaintiffs intend to show that
Defendants knowingly advertised and sold the Trucks (or their
components) as if they had a “clean diesel” system with low emissions.
ECF No. 241, PageID.34180. Plaintiffs will also need to demonstrate that
consumers paid a premium for the feature that did not work as advertised
in real-world driving. Id.
Defendants argue that the CAA preempts these claims because the
Trucks met the Regulators’ emission requirements, as evidenced by the
Cummins’ receipt of certificates of conformity based on its complete
disclosures. ECF No. 250, PageID.34893; ECF No. 251, PageID.34913.
But Defendants read Plaintiffs’ claims too narrowly and selectively. The
mere fact that the Trucks passed the Regulators’ scrutiny is not the end
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of the story. Rather, “it is conceivably possible that Defendants could
simultaneously comply with EPA regulations while still concealing
material information from consumers.” In re Duramax Diesel Litig., 298
F. Supp. 3d at 1062.
Even if the Trucks did not emit NOx beyond federal and state
emission standards—which is a material fact in dispute—Plaintiffs have
admissible evidence to demonstrate that Defendants touted the Trucks
as having environmentally friendly “clean diesel” engines, were aware
that the “clean diesel” engines did not function as advertised, and
charged Plaintiffs a premium for a nonexistent feature. As the In re
Duramax court noted, “the significant market for environmentally
friendly vehicles—which are designed to emit pollution far below the
regulatory maximums” supports Plaintiffs’ claims that consumers care
about more than just “compliance with emissions standards.” Id.
Therefore, as this Court has emphasized, Plaintiffs are seeking
ascertainable loss from the design of the emissions system, not
attempting to enforce federal or state emissions regulations. See Bledsoe,
378 F. Supp. 3d at 640. Plaintiffs’ state law consumer protection and
fraudulent concealment claims here are not preempted by the CAA.
H. State Law Consumer Protection, Fraudulent Concealment,
and Breach of Contract Claims
Plaintiffs seek to bring state law consumer protection, fraudulent
concealment, and breach of contract claims on behalf of themselves and

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putative class members in the states of California, Illinois, Michigan,
Idaho, New Mexico, North Carolina, South Carolina, Tennessee, and
Texas. While Plaintiffs concede that they will not seek class certification
on behalf of a nationwide class for their consumer protection and
fraudulent concealment claims brought against both Defendants, Plaintiffs
intend to pursue breach of contract claims against FCA only on a
nationwide basis. Therefore, with respect to the state law claims for which
Defendants have moved for summary judgment, the Court must determine
whether Plaintiffs have demonstrated genuine disputes of material fact.
1. Fraud-Related Claims Generally
While each state has developed nuanced rules for fraudulent
concealment and fraud-based consumer protection law claims, the
essential elements for fraud-based claims are:
(1) an intentional misrepresentation
(2) of fact
(3) that proximately causes harm and
(4) is material,
(5) intended to induce and
(5) does induce reliance by the plaintiff,
(6) which is reasonable or “justifiable.”
Dan B. Dobbs, et al., The Law of Torts § 664 (2d ed.) (footnotes omitted).
Plaintiffs’ fraud-related claims are premised on two general theories.
First, under a traditional fraudulent misrepresentation theory that
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underlies their consumer protection law claims, Plaintiffs argue that
Defendants made material statements about the Trucks’ emissions and
fuel economy, which induced them to buy the Trucks. And because
Defendants had exclusive knowledge of the existence of EEDs and the
Trucks’ propensity to consume excess fuel, their failure to disclose these
alleged defects made the initial representations misleading. See ECF No.
241, PageID.34183.
Second, under a fraudulent concealment or “silent fraud” theory,
Plaintiffs suggest that even if they did not see or hear Defendants’ material
statements about the Trucks’ emissions and fuel economy, Defendants still
had an affirmative duty to disclose the existence of the alleged defects
based on their exclusive knowledge alone. See ECF No. 241, PageID.34189;
see also Counts v. Gen. Motors, LLC, 237 F. Supp. 3d 572, 599 (E.D. Mich.
2017) (summarizing that even without demonstrating that the defendants
made material statements about the vehicles, the plaintiffs had stated a
claim for fraudulent concealment under certain states’ fraudulent
concealment statutes).
In moving for summary judgment on Plaintiffs’ fraud-related claims,
Defendants argue that they did not conceal any material facts with intent
to deceive, did not have a duty to disclose, and further claim that Plaintiffs
cannot demonstrate their reliance on any representation about the Trucks’
NOx emissions or fuel economy to show actionable fraud. See, e.g., ECF No.
218,

PageID.27413;

ECF

No.

221,
48

PageID.28605–06.

Relatedly,

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Defendants also contend that all of their public statements and advertising
are either irrelevant or mere “puffery.” ECF No. 250, PageID.34888.
The Court has previously addressed the materiality of Defendants’
affirmative statements about the Trucks at the motion to dismiss phase.
There, the Court recognized that Defendants “simply touting the
‘cleanliness’ of their vehicles” or claiming to be “the cleanest or best in the
world” constituted mere puffery. Bledsoe, 378 F. Supp. 3d at 649. But other
statements claiming that the Trucks satisfied an “ascertainable and
quantifiable standard for fuel efficiency and emissions set in place by a
third-party regulator (implying independent corroboration) rise above
nonactionable puffery.” Id. And Defendants’ statements about fuel
efficiency

and

lower

emissions

taken

together,

reflected

their

“understanding that emissions and fuel efficiency were important
considerations for consumers.” Id. Accordingly, if Defendants concealed the
existence of EEDs that “rendered the trucks more environmentallyharmful and less fuel-efficient than the advertisements they propagated,”
Defendants’ statements “which induced reasonable consumers to purchase
the trucks” were materially misleading. Id. at 643.
But Defendants argue that even if they made actionable material
statements regarding the Trucks, Plaintiffs did not rely on Defendants’
statements about NOx emissions or fuel economy in purchasing the
Trucks.

While

reliance

is

an

essential

element

of

fraudulent

misrepresentation, Plaintiffs’ fraudulent concealment theory is not
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premised on Defendants’ affirmative representations of the Trucks’
emissions or fuel economy. Instead, Plaintiffs argue that Defendants had
a duty to disclose material facts about the Trucks’ emissions systems that
were

within

Defendants’

exclusive

knowledge.

ECF

No.

241,

PageID.34192. Accordingly, without such disclosures, Plaintiffs were
misled to believe that the Trucks did not have EEDs. See Counts, 2022 WL
2079757, at * 14.
Plaintiffs have affirmatively conceded that they fail to make out
claims under the Michigan Consumer Protection Act and South Carolina
Unfair Trade Practices Act. ECF No. 241, PageID.34190 n.26. As such,
Defendants’ motions for summary judgment with respect to those claims
are granted, and the claims are dismissed with prejudice. But Defendants
have also raised specific arguments against Plaintiffs’ fraud-related claims
arising under Michigan, Illinois, California, Idaho, New Mexico, North
Carolina, and Texas law. The Court thus proceeds to addresses the merits
of Defendants’ arguments under the laws of each respective state.
2. Breach of Contract Claims
Plaintiffs also raise state-specific breach of contract claims against
FCA only. Plaintiffs further intend to move for certification of breach of
contract claims on a nationwide basis. ECF No. 241, PageID.34208. FCA
has moved for summary judgment on Plaintiffs’ state-specific breach of
contract claims and argues that Plaintiffs lack standing to pursue such

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claims on behalf of a nationwide class. See ECF No. 221, PageID.28593–
94, PageID.28606.
Because Plaintiffs do not have a direct contractual relationship with
FCA, Plaintiffs argue that they are third-party beneficiaries to contracts
between FCA and the dealerships where they purchased their Trucks. See
ECF No. 241, PageID.34184. FCA contends that Plaintiffs fail to show how
any contracts between FCA and the dealerships were undertaken for
Plaintiffs’ direct benefit, rather than providing incidental benefits. See
ECF No. 251, PageID.34917–18.
I. State-by-State Discussion of Plaintiffs’ Individual State Law
Claims
1. Michigan State Law Claims
Through Plaintiff Martin Witberg, Plaintiffs seek to bring consumer
protection and fraudulent concealment claims on behalf of the putative
Michigan subclass against Defendant Cummins.3 As noted, Plaintiffs
The Court has previously dismissed Plaintiffs’ Michigan law claims as
to Defendant FCA. ECF No. 221, PageID.28614 n.27. From Plaintiffs’
TCAC, Plaintiff Witberg is also purported to serve as a potential class
representative for putative subclass members in Tennessee. Defendant
Cummins cites one Tennessee state court case in its summary judgment
brief, but provides no factual or substantive legal context. And from the
Court’s review, this case does not demonstrate that Plaintiffs’ fraudbased claims under Tennessee law must fail. To the extent Cummins
intended to move for summary judgment on Tennessee law claims
brought by Witberg, it has failed to meet its burden. See Celotex, 477 U.S.
at 328 (White, J., concurring) (“It is not enough to move for summary
judgment without supporting the motion in any way or with a conclusory
3

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explicitly concede their Michigan Consumer Protection Act claim.
Therefore, summary judgment is granted in favor of Cummins as to that
claim.
But as for Plaintiffs’ remaining Michigan fraudulent concealment
claim, Cummins cites only two Michigan state court cases in discussing
its lack of duty to disclose as an element of fraudulent concealment.
Moreover, Cummins fails to provide any factual or substantive legal
context for the cases upon which it relies. Only in its response to Plaintiffs’
notice of supplemental authority does Cummins begin to clearly articulate
its arguments against Plaintiffs’ Michigan fraudulent concealment claim.
ECF No. 248. Such disjointed briefing is unhelpful to the Court in
considering the question of summary judgment. Indeed, “[c]ourts in this
Circuit have denied summary judgment motions where the movant fails
to support its motion with developed legal argument or citation to the
record.” Gard v. Grand River Rubber & Plastics Co., No. 20-125, 2021 WL
6000039, at *26 (N.D. Ohio Dec. 20, 2021).
Nonetheless, Plaintiffs were clearly on notice of the Counts summary
judgment ruling, which squarely addresses fraudulent concealment under
Michigan law. Therefore, the Court will address the merits of the parties’

assertion that the plaintiff has no evidence to prove his case.”). Therefore,
the Court denies summary judgment on Plaintiffs’ Tennessee law claims
as to Cummins.
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arguments as to whether Cummins is entitled to summary judgment on
Plaintiffs’ Michigan fraudulent concealment claim.
a. Michigan Fraudulent Concealment Claim
Under Michigan law, fraudulent concealment (also referred to as
“silent fraud”) requires showing that “the purchaser expresses some
particularized concern or makes a direct inquiry relative to or touching
on the condition at issue and the parties engage in a general discussion
on the topic.” Elliott v. Therrien, No. 288235, 2010 WL 293071, at *5
(Mich. Ct. App. Jan. 26, 2010); see also Hord v. Env’t Rsch. Inst. of Mich.,
617 N.W.2d 543, 550 (Mich. 2000) (summarizing the requirement that a
buyer make “an inquiry” to which the defendant provides a misleading
response); M&D, Inc. v. W.B. McConkey, 585 N.W.2d 33, 38 (Mich. Ct.
App. 1998) (“[T]he touchstone of liability for misdirection or ‘silent fraud’
is that some form of representation has been made and that it was or
proved to be false.”); Matanky v. Gen. Motors LLC, 370 F. Supp. 3d 772,
794 (E.D. Mich. 2019) (concluding that a “fraudulent concealment claim
under Michigan law is not viable” where the plaintiffs did not allege that
the defendant “made incomplete or misleading statements in response to
a specific purchaser inquiry”).
In Counts, the court explained that “Plaintiffs had to inquire with
Defendants about their emissions-control systems to bring a claim for
fraudulent concealment (i.e., silent fraud).” 2022 WL 2079757, at *21. And
in finding that the plaintiffs “had no contact with Defendants regarding
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their diesel Cruzes and have not demonstrated that they made any inquiry
with Defendants” regarding the emissions systems, the Counts court
granted summary judgment to the defendants on the plaintiffs’ Michigan
fraudulent concealment claim. Id. at *22.
Here, Plaintiffs concede that they did not rely on any of Cummins’
statements in purchasing their Trucks. ECF No. 218, PageID.27381; ECF
No. 241, PageID.34142. Nor have Plaintiffs presented any evidence that
they made direct inquiries of Cummins regarding their Trucks’ diesel
engines. Accordingly, Plaintiffs’ Michigan fraudulent concealment claim
fails as a matter of law. Therefore, summary judgment is granted in favor
of Cummins on this claim, and it is dismissed with prejudice.
2. Illinois State Law Claims
Through Plaintiffs Dawn Roberts and Marc Ganz, Plaintiffs seek to
bring consumer protection, fraudulent concealment, and breach of
contract claims on behalf of the putative Illinois subclass.
a. Illinois Consumer Fraud and Deceptive Business
Practices Act (“ICFA”) Claim
Defendants argue that the Illinois Consumer Fraud and Deceptive
Business Practices Act (“ICFA”) permits only “consumers”—those who
purchase merchandise for household use—to raise claims under the
statute. The statutory definition of “consumer” explicitly excludes
business purchasers who buy products “for resale in the ordinary course
of [their] trade or business.” 815 Ill. Comp. Stat 505/1(e). Here, Defendants

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point out that Plaintiff Ganz admits to purchasing the Truck in a
representative capacity for his business, Ganz Services, Inc. ECF No. 22118, PageID.29084–85; ECF No. 241, PageID.34144. Defendants contend
that Ganz did not purchase the Truck for his use or that of a member of
his household, as required for him to be classified as a consumer under
ICFA.
But the Illinois Supreme Court has made clear that ICFA is
“intended to protect consumers, borrowers, and business persons against
fraud, unfair methods of competition, and other unfair and deceptive
business practices.” Robinson v. Toyota Motor Credit Corp., 775 N.E.2d
951, 960 (Ill. 2002) (emphasis added). Therefore, businesses that are “a
consumer of [another] business’s product” may still bring ICFA claims,
even if the product is used for business purposes, so long as the product is
not intended for resale. Lefebvre Intergraphics, Inc. v. Sanden Mach. Ltd.,
946 F. Supp. 1358, 1368 (N.D. Ill. 1996). There is no evidence that Ganz
intends to resell his Truck in the ordinary course of his business, a
snowplowing company. ECF No. 241, PageID.34190–91. Furthermore,
Ganz has also testified that he frequently uses the Truck for personal
reasons. Id. Drawing all inferences in Ganz’s favor, a reasonable jury could
find that he is not prohibited from bringing an ICFA claim.
Defendants further argue that Plaintiffs cannot show actual reliance
on a representation or omission, as required for a successful ICFA claim.
ECF No. 221, PageID.28605. Relatedly, Defendants claim that Plaintiffs
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cannot demonstrate causation to prove their ICFA claim. Id. These
arguments are also meritless.
The Illinois Supreme Court has unequivocally held that ICFA “does
not require actual reliance,” Siegel v. Levy Org. Dev. Co., 607 N.E.2d 194,
198 (Ill. 1992), but does require showing that the consumer fraud
proximately caused the plaintiff’s injury. Wheeler v. Sunbelt Tool Co., 537
N.E.2d 1332, 1346 (Ill. 1989). So long as Plaintiffs establish “(1) a
deceptive act or practice, (2) intent on the defendants’ part that plaintiff
rely on the deception, and (3) that the deception occurred in the course of
conduct involving trade or commerce,” they can succeed on an ICFA claim.
Siegel, 607 N.E.2d at 198. Therefore, while Plaintiffs concede that they did
not “consider any statement by Cummins in making their purchasing
decision,” ECF No. 218, PageID.27381; ECF No. 241, PageID.34142,
Cummins may still be held liable under ICFA.
To the extent FCA argues that lack of “reliance” on alleged the
misrepresentations is fatal to Plaintiffs’ ability to demonstrate proximate
cause, the Court disagrees. Plaintiffs have demonstrated a genuine
dispute of material fact as to whether Plaintiffs Ganz and Roberts relied
on FCA’s alleged misrepresentations in purchasing their Trucks. For
example, Plaintiff Ganz testified that he “heard the term ‘clean diesel’
being advertised” and, at the time of purchasing his Truck, believed that
“all the technology had advanced to the point where they were cleaner.”
ECF No. 241, PageID.34183. Similarly, Plaintiff Roberts testified that
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“she anticipated the [T]ruck was ‘clean burning’ as was advertised to her
when she purchased the [T]ruck.” Id. Although FCA has compelling
evidence that Plaintiffs did not specifically rely on these alleged
statements in purchasing the Trucks and did not have clear expectations
about the Trucks’ emissions or fuel economy, these are factual disputes as
to proximate cause that a jury must resolve.
Ultimately, ICFA permit claims based on the premise that “[a]n
omission or concealment of a material fact in the conduct of trade or
commerce constitutes consumer fraud,” even absent a common law duty
to disclose. Connick v. Suzuki Motor Co., 675 N.E.2d 584, 595 (Ill. 1996).
Where Defendants had knowledge of the alleged defects that were
material to Plaintiffs’ purchase and failed to disclose those defects,
Plaintiffs can make out an ICFA claim. Id. Therefore, summary judgment
is inappropriate on Plaintiffs’ ICFA claims.
b. Illinois Fraudulent Concealment Claim
Unlike under ICFA, a common law fraudulent concealment claim
requires proving additional elements. In particular here, Plaintiffs must
demonstrate that Defendants had a duty to disclose and Plaintiffs relied
on Defendants’ silence. Bauer v. Giannis, 834 N.E.2d 952 (Ill. Ct. App.
2005).
Defendants argue that Plaintiffs’ Illinois fraudulent concealment
claim fails because Defendants did not have a duty to disclose. Specifically,
Defendants claim that Plaintiffs did not have a fiduciary or confidential
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relationship with Defendants, the requisite type of special relationship
triggering a duty to disclose. ECF No. 218, PageID.27416–17; ECF No.
221, PageID.28605–06.
Plaintiffs respond that a fiduciary or confidential relationship is not
required because Illinois courts have recognized that a defendant may
“owe a duty to speak under the ‘trust and confidence’ standard while not
being in a fiduciary relationship with the plaintiff.” Benson v. Stafford,
941 N.E. 2d 386, 402 (Ill. App. Ct. 2010). While very similar to a fiduciary
relationship, Illinois courts have clarified that a “relationship of
confidence and trust” requires showing that the plaintiffs trusted the
defendant, and the defendant had “a position of influence over them.” Id.
at 403.
Moreover, where plaintiffs can demonstrate that defendants told
“half-truths” about a product, Illinois courts have found that defendants
have a duty to disclose even absent a fiduciary-type relationship. “A halftruth is a disclosure that is misleading because it omits important
information.” BCBSM, Inc. v. Walgreen Co., 512 F. Supp. 3d 837, 855 (N.D.
Ill. 2021). Under such circumstances, there is a duty to disclose additional
information to ensure that a partial disclosure is not misleading. See
Abazari v. Rosalind Franklin Univ. of Med. & Sci., 40 N.E.3d 264, 276 (Ill.
Ct. App. 2015); Toulon v. Cont’l Cas. Co., 877 F.3d 725, 737 (7th Cir. 2017).
Here, Plaintiffs Ganz and Roberts have testified that they relied on
FCA’s statements about the “cleanliness” of the Trucks’ engines in
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purchasing their Trucks. Although such statements are arguably mere
puffery, see Counts, 237 F. Supp. 3d at 597, Illinois courts have recognized
that “statements that ascribe specific virtues to a product that it does not
possess are not considered puffing.” Reid v. Unilever U.S., Inc., 964 F.
Supp. 2d 893, 908 (N.D. Ill. 2013). And “[w]hether a statement is puffery
or actionable is generally a factual question.” Bietsch v. Sergeant’s Pet Care
Prod., Inc., No. 15-5432, 2016 WL 1011512, at *3 (N.D. Ill. Mar. 15, 2016).
But on the other hand, if Plaintiffs cannot demonstrate that
Defendants told half-truths, Defendants’ silence alone is not enough to
establish fraudulent concealment without showing a special relationship.
Cosentino v. Kunkle, 2019 IL App (2d) 181001-U, ¶¶31–33; see also Roe v.
Ford Motor Co., No. 18-12528, 2021 WL 2529825, at *9 (E.D. Mich. June
21, 2021) (holding that absent evidence of half-truths or a special
relationship between the parties, a manufacturer is not liable for silence
on an alleged defect). Plaintiffs admit that they never considered
Cummins’ statements in purchasing their Trucks. ECF No. 218,
PageID.27381; ECF No. 241, PageID.34142. And without being able to
rely on Cummins’ telling of “half-truths,” Plaintiffs must demonstrate that
Cummins had an independent duty to disclose. But contrary to Plaintiffs’
position, the mere fact that a manufacturer or seller is more sophisticated
or knowledgeable than the consumer is insufficient to trigger a special
relationship. Rodriguez v. Ford Motor Co., No. 21-2553, 2022 WL 972306,
at *5 (N.D. Ill. Mar. 31, 2022) (explaining that a manufacturer’s superior
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knowledge “as to the functionality of its vehicles and their parts” does not
constitute “an overwhelming influence” requiring disclosure of latent
defects).
As to FCA, a factfinder must determine whether FCA’s “half-truths”
are actionable and whether Plaintiffs reasonably relied upon FCA’s
statements. Therefore, FCA is not entitled to summary judgment on
Plaintiffs’ Illinois fraudulent concealment claim. But because Plaintiffs
cannot demonstrate that Cummins similarly told “half-truths” nor that
Cummins had an independent duty to disclose, summary judgment must
be granted in favor of Cummins on this claim.
c. Illinois Breach of Contract Claim
The existence of a valid contract is a fundamental element of a
breach of contract claim. See Ivey v. Transunion Rental Screening Sols.,
Inc., 2022 IL 127903, ¶ 28. FCA argues that because Plaintiffs Ganz and
Roberts purchased their Trucks from third-party dealerships, they did not
have a contract with either Defendant. ECF No. 221, PageID.28606. In
fact, Plaintiffs seem to concede that no contract existed between Plaintiffs
and FCA. Instead, Plaintiffs argue that they are third-party beneficiaries
of the contracts between FCA and the dealerships from which Plaintiffs
purchased their Trucks. ECF No. 241, PageID.34184.
To determine whether a person can be considered a third-party
beneficiary, the court “must look to the contracts to determine the intent
of the parties.” Fed. Ins. Co. v. Turner Const. Co., 660 N.E.2d 127, 132 (Ill.
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Ct. App. 1995). In particular, the third-party beneficiary must be the
“direct” beneficiary of the contract, not just a recipient of an incidental
benefit arising from the contract. Id. Moreover, for a contract to be
“undertaken for the plaintiff’s direct benefit[,] . . . the contract itself must
affirmatively make this intention clear.” Waterford Condo. Ass’n v.
Dunbar Corp., 432 N.E.2d 1009, 1011 (Ill. Ct. App. 1982).
Plaintiffs have failed to proffer any evidence that they were the
direct intended beneficiaries of contracts between FCA, Cummins, and/or
the car dealerships that ultimately sold them the Trucks. Plaintiffs claim
that FCA had knowledge of Plaintiffs’ requirements and expectations for
the Trucks, making them third-party beneficiaries of FCA’s contracts with
the Truck dealerships. ECF No. 241, PageID.34185. But in general, the
mere fact that a “remote seller knows that a dealer will resell the seller’s
product will not support a third party beneficiary claim.” Chi. Heights
Venture v. Dynamit Nobel of Am., Inc., 575 F. Supp. 214, 219 (N.D. Ill.
1983), aff’d, 782 F.2d 723 (7th Cir. 1986).
Plaintiffs have also failed to meaningfully distinguish O’Connor v.
Ford Motor Co., where the Northern District of Illinois court rejected the
plaintiffs’ third-party beneficiary arguments under similar circumstances.
Plaintiffs claim that O’Connor is inapt because the plaintiffs there “had
simply failed to allege requirements specific to them.” ECF No. 241,
PageID.34185. While this is partially accurate, Plaintiffs overlook the
O’Connor court’s emphasis on how the plaintiffs’ allegations as to their
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expectations for vehicle safety “relate to consumers generally, not any
particular Illinois customer.” 567 F. Supp. 3d 915, 945 (N.D. Ill. 2021).
Plaintiffs point to testimony from Ganz and Roberts on their
expectations on vehicle emissions. But fatally, Plaintiffs have no evidence
that Defendants knew Plaintiffs’ identities or their specific requirements,
or that Defendants intended to manufacture the Truck tailored to their
expectations. Id.; Allstate Ins. Co. v. Toyota Motor Mfg. N. Am., Inc., No.
09-1517, 2009 WL 3147315, at *2 (N.D. Ill. Sept. 28, 2009) (rejecting the
plaintiff’s third-party beneficiary argument absent evidence that he “had
Toyota manufacture the minivan specifically to meet his requirements”).
Therefore, Plaintiffs’ third-party beneficiary argument is meritless.
Lastly, whenever a provision of the Uniform Commercial Code
(“UCC”) applies to the parties’ claims, the UCC displaces common law
breach of contract claims. See Crawford Supply Grp., Inc. v. Bank of Am.,
N.A., 829 F. Supp. 2d 636, 645 (N.D. Ill. 2011). Plaintiffs concede that their
breach of contract claims under Illinois law are governed by the UCC. ECF
No. 241, PageID.34184 n.25. As such, Plaintiffs’ third-party beneficiary
contract claim is displaced by the UCC, and it must be dismissed. Fullerton
v. Corelle Brands, LLC, No. 18-4152, 2019 WL 4750039, at *8 (N.D. Ill.
2019). Summary judgment is entered in favor of FCA on Plaintiffs’
Illinois breach of contract claim, and it is dismissed with prejudice.

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3. Idaho State Law Claims
Through Plaintiff Michael Erben, Plaintiffs seek to bring consumer
protection and fraudulent concealment claims on behalf of the putative
Idaho subclass against Defendant Cummins.4 Cummins now moves for
summary judgment on Plaintiffs’ Idaho consumer protection and
fraudulent concealment claims.
d. Idaho Consumer Protection Act (“ICPA”) Claim
Cummins argues that the Idaho Consumer Protection Act (“ICPA”)
requires a privity of contract between the parties, which does not exist
between Plaintiffs and Cummins. ECF No. 218, PageID.27412. As the In
re Duramax court summarized, “[w]ith one exception, federal courts
applying Idaho law have interpreted the Idaho Supreme Court’s analysis
as predicating ICPA standing on direct privity.” No. 17-11661, 2018 WL
3647047, *8 (E.D. Mich. Aug. 1, 2018); see also Taylor v. McNichols, 243
P.3d 642, 662 (Idaho 2010) (explaining that under ICPA, “the aggrieved
party must have been in a contractual relationship with the party alleged
to have acted unfairly or deceptively”).
Plaintiffs are correct that a Northern District of California court has
concluded that ICPA does not require “direct” privity, meaning that a
contract between Plaintiffs and the Truck dealership can suffice. ECF No.
241, PageID.34191. But having reviewed the weight of authority, the

The Court has previously dismissed Plaintiffs’ Idaho law claims as to
Defendant FCA. ECF No. 221, PageID.28614 n.27.
4

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Court agrees with the In re Duramax court’s assessment that waiving the
privity requirement runs afoul of the Idaho Supreme Court’s clear
interpretation of ICPA. 2018 WL 3647047, at *9; see also Moto Tech, LLC
v. KTM N. Am., Inc., No. 13-00165, 2013 WL 6446239, at *4 (D. Idaho Dec.
9, 2013) (“[T]he Idaho Supreme Court has unequivocally stated that a
contractual relationship must exist between the aggrieved party and the
alleged aggrieving party.”). Because there is no privity of contract between
Plaintiffs and Cummins, the Court must enter summary judgment in
favor of Cummins on Plaintiffs’ ICPA claim. The claim is dismissed with
prejudice.
e. Idaho Fraudulent Concealment Claims
Under Idaho’s fraudulent concealment law, Plaintiffs must
demonstrate that Defendants owed them a duty to disclose even without
a direct privity relationship. The Supreme Court of Idaho has recognized
that “a duty to disclose may arise in the context of third party
beneficiaries.” Printcraft Press, Inc. v. Sunnyside Park Utils., Inc., 283
P.3d 757, 771 (Idaho 2012). Relatedly, aside from a formal fiduciary
relationship, Idaho law permits showing other types of “similar relation of
trust and confidence between the two parties” that triggers a duty to
disclose. Sowards v. Rathbun, 8 P.3d 1245, 1250 (Idaho 2000). A party may
also have a duty to disclose “to prevent a partial statement of the facts
from being misleading.” Humphries v. Becker, 366 P.3d 1088, 1096 (Idaho
2016).
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Plaintiffs fail to cite a single case to rebut Cummins’ argument that
it lacked a duty to disclose under Idaho law. For example, Cummins points
to Sowards v. Rathbun, where the Idaho Supreme Court held that real
estate sellers did not have a duty to disclose irrigation issues to the buyers
because the parties lacked a trust and confidence relationship. 8 P.3d at
1250. Here, Plaintiffs are even further removed from Cummins than the
buyers in Sowards. As the Trucks’ engine manufacturer, Cummins did not
have a trust and confidence relationship with Plaintiffs, who purchased
their Trucks from dealerships. Furthermore, Plaintiffs concede that they
did not rely on statements by Cummins in purchasing the Trucks, thus
subverting any duty to disclose based on a partial statement of fact. ECF
No. 218, PageID.27381; ECF No. 241, PageID.34142. Therefore, summary
judgment is granted in favor of Cummins on Plaintiffs’ Idaho fraudulent
concealment claims. Those claims are dismissed with prejudice.
4. California State Law Claims
Through Plaintiffs James Bledsoe and Donovan Kerber, Plaintiffs
seek to bring consumer protection, fraudulent concealment, and breach of
contract claims on behalf of the putative California subclass. As previously
noted, Plaintiffs’ TCAC added Kerber to represent the putative California
subclass raising claims against Defendant FCA. FCA has moved for
summary judgment as to Kerber in a separate motion for summary
judgment. ECF No. 263.

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a. California Unfair Competition Law (“UCL”), Consumer
Legal Remedies Act (“CLRA”), False Advertising Law
(“FAL”), and Fraudulent Concealment Claims
Defendants argue that Plaintiffs’ California Unfair Competition Law
(“UCL”), Consumer Legal Remedies Act (“CLRA”), False Advertising Law
(“FAL”), and fraudulent concealment claims fail because Plaintiffs cannot
demonstrate that Defendants made misrepresentations or non-disclosures
upon which Plaintiffs relied and caused Plaintiffs’ injury. ECF No. 218,
PageID.27413–16;

ECF

No.

263,

PageID.37030–32.

Additionally,

Defendants contend that California courts have rejected imposing a duty
to disclose product defects under similar circumstances. ECF No. 218,
PageID.27416–18; ECF No. 263, PageID.37033–34.
At the outset, the Court recognizes that “[w]hile the CLRA, UCL,
and FAL proscribe much of the same conduct, the statutes sometimes have
distinct requirements.” In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F.
Supp. 3d 1067, 1100 (N.D. Cal. 2021). For example, at least one California
federal court has concluded that the CLRA and UCL do not require
showing that the defendants had a duty to disclose. Chamberlan v. Ford
Motor Co., 369 F. Supp. 2d 1138, 1144 (N.D. Cal. 2005) (finding no
requirement that “a duty must be alleged in order to state a claim under
either the CLRA or the [UCL],” such that “pure omissions are actionable”
under the statutes). Meanwhile, the Ninth Circuit has accepted that the
CLRA, UCL, and FAL all require the plaintiff to establish a duty to
disclose. See Hodsdon v. Mars, Inc., 891 F.3d 857, 861–67 (9th Cir. 2018).
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Despite the complicated statutory regimes, none of the parties
clearly articulate the proper elements or standards related to these
California claims. And Plaintiffs seem to accept the requirement of
demonstrating that Defendants had a duty to disclose to succeed on their
CLRA, UCL, and FAL claims. ECF No. 264, PageID.37633. Accordingly,
the Court follows the In re Toyota RAV4 court’s approach in focusing on
the most heavily briefed issue—“namely, whether [Defendants] had a
duty to disclose . . ., as Plaintiffs’ omission-based claims require.” 534 F.
Supp. 3d at 1100.
Under California law, a manufacturer has a duty to disclose a design
defect under four circumstances: “(1) when the defendant is in a fiduciary
relationship with the plaintiff; (2) when the defendant had exclusive
knowledge of material facts not known to the plaintiff; (3) when the
defendant actively conceals a material fact from the plaintiff; and (4) when
the defendant makes partial representations but also suppresses some
material facts.” LiMandri v. Judkins, 60 Cal. Rptr. 2d 539, 543 (Cal. Ct.
App. 1997). Here, because Plaintiffs lack a fiduciary relationship with
Defendants, they must rely on one of the other three Judkins factors to
demonstrate

fraudulent

misrepresentation

through

omission

or

affirmative misrepresentation. See Falk v. Gen. Motors Corp., 496 F. Supp.
2d 1088, 1095 (N.D. Cal. 2007).
For an omission-based theory in the latent defect context, a fact is
only considered “material” where the alleged defect relates to safety
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concerns or the product’s central functionality. See People v. Johnson &
Johnson, 292 Cal. Rptr. 3d 424, 448 (Cal. Ct. App. 2022) (noting that
“omissions-based claims can be pure-omissions claims or partialmisrepresentation claims,” but the omissions must be “material”); Wilson
v. Hewlett-Packard Co., 668 F.3d 1136, 1142 (9th Cir. 2012); In re Sony
Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television
Litig., 758 F. Supp. 2d 1077, 1096 (S.D. Cal. 2010); Hodsdon, 891 F.3d at
863.
Meanwhile, to base a CLRA, UCL, or FAL claim on affirmative
misrepresentations, Plaintiffs must show that Defendants’ statements
were “about ‘specific or absolute characteristics of a product,’” rather than
“non-actionable puffery.” Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1136
(N.D. Cal. 2010) (quoting Southland Sod Farms v. Stover Seed Co., 108
F.3d 1134, 1145 (9th Cir. 1997)). Moreover, if a plaintiff alleges that the
defendant made affirmative misrepresentations, they must show that
they actually relied upon the allegedly deceptive statements. See Kwikset
Corp. v. Superior Ct., 246 P.3d 877, 888 (Cal. 2011) (summarizing that
actual reliance is an element of UCL and FAL claims based on affirmative
misrepresentations); In re Toyota Motor Corp., 790 F. Supp. 2d 1152, 1170
(C.D. Cal. 2011) (identifying “actual causation and reliance” as
“requirements for purposes of the CLRA”). Importantly, however, an FAL
claim must be based on affirmative misrepresentations. “The plain
language of the statute—which prohibits making, disseminating, or
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causing the dissemination of false or misleading statements—does not
encompass omissions.” McCoy v. Nestle USA, Inc, 173 F. Supp. 3d 954, 969
(N.D. Cal. 2016), aff’d, 730 F. App’x 462 (9th Cir. 2018).
But for an omissions-based misrepresentation under the CLRA,
UCL, and common law fraudulent concealment, a plaintiff can satisfy
reliance and causation by showing that they relied on the defendant’s
material representations about the product, but the plaintiff “would have
made a different purchasing decision had it been disclosed that” the
product was defective. In re Toyota, 790 F. Supp. 2d at 1169. In other
words, the failure to disclose a fact “material to a reasonable person”
satisfies “actual causation and reliance” under the CLRA, UCL, and
fraudulent concealment laws. Id. at 1169–70.
i. Bledsoe’s UCL, CLRA, FAL, and Fraudulent
Concealment Claims Against Cummins
Plaintiff Bledsoe testified that prior to purchasing his Truck, he was
told that the Truck would “meet the 2010 more stringent [regulatory]
requirements] and would also get “great fuel mileage.” ECF No. 241,
PageID.34180 n.24. Because Plaintiffs cannot attribute these statements
to Cummins, they proffer an omissions-based theory where “Cummins
ha[d] a duty to disclose based on its exclusive knowledge (vis-à-vis the
truck owners) about the emissions system.” Id. at PageID.34192.
To demonstrate that Cummins “ha[d] a duty to disclose a defect
based on exclusive knowledge,” Plaintiffs must show that Cummins “knew

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of this defect while plaintiffs did not, and, given the nature of the defect,
it was difficult to discover.” Beck v. FCA US LLC, 273 F. Supp. 3d 735, 752
(E.D. Mich. 2017) (quoting Herron v. Best Buy Co., Inc., 924 F. Supp. 2d
1161, 1176 (E.D. Cal. 2013)). As Plaintiffs point out, “Cummins never
suggests that it did not have exclusive knowledge about the emissions.”
ECF No. 241, PageID.34192. And based on Plaintiffs’ admissible expert
evidence on Cummins’ engine design process, a reasonable jury could
conclude that “a plausible inference of knowledge” exists. Beck, 273 F.
Supp. 3d at 753; see also In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales
Pracs., & Prod. Liab. Litig., 295 F. Supp. 3d 927, 1012 (N.D. Cal. 2018)
(permitting inference of exclusive knowledge based on allegations that the
“defendants involved in the design and manufacturing process”
manipulated the engine so that it would “pass the emissions tests but
[lacked] proper emissions control under normal driving conditions”).
Nonetheless, Plaintiffs must also demonstrate that Cummins failed
to disclose a material fact. In the manufacturing defect context, omissions
are considered material only where the alleged latent defect is related to
safety or the product’s central functionality. Plaintiffs do not appear to
argue that the EEDs and fuel economy defects at issue are safety concerns.
Nor do Plaintiffs explicitly claim that the defects are part of a product’s
central functionality. But Cummins has not met its burden to show that
the defects alleged cannot be considered safety-related, central to
functionality, or otherwise immaterial as a matter of law. And in In re
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Chrysler, the court reasoned that if the defendants promoted the vehicles
“as environmentally friendly[,] . . . they believed that such information was
material to the consuming public.” 295 F. Supp. at 1014. Therefore, the
materiality of the omitted facts remains a disputed issue that a jury must
resolve. As such, summary judgment on Bledsoe’s CLRA, UCL, and
fraudulent concealment claims against Cummins is improper.
On the other hand, FAL claims under California law require
showing the existence of an affirmative misrepresentation. Bledsoe has
conceded that he did not rely on any statements by Cummins in
purchasing the Truck. ECF No. 218, PageID.27381; ECF No. 241,
PageID.34142.

Therefore,

without

evidence

of

an

affirmative

misrepresentation by Cummins, summary judgment must be granted in
favor of Cummins as to Bledsoe’s FAL claim.
ii. Kerber’s UCL, CLRA, FAL, and Fraudulent
Concealment Claims Against FCA
Plaintiff Kerber’s fraud-related claims against FCA present
additional complications. As Defendant FCA emphasizes, Plaintiff Kerber
purchased his Truck over three years after this lawsuit was filed. ECF No.
263, PageID.37016. FCA thus argues that Kerber’s fraud-based claims
must fail because he is “presumed” to have knowledge of the alleged defect.
Id. at PageID.37030–31. FCA also contends that the affirmative
misrepresentations upon which Kerber relies cannot be imputed to FCA
because they were made by a dealership salesperson. ECF No. 266,

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PageID.37692.

And

if

Kerber

cannot

rely

on

affirmative

misrepresentations to prove his fraud-related claims, FCA argues that the
claims are barred by the economic loss rule. ECF No. 263, PageID.37035.
First, FCA’s substantive support for its “presumed” knowledge
theory falls short. Almost every case FCA cites relates to the inquiry notice
defense for enforcing the statute of limitations in fraud-based claims. And
none of FCA’s cases address whether inquiry notice serves as a defense to
the substantive elements of a timely CLRA, UCL, FAL, or fraudulent
concealment claim under the present circumstances.
Even FCA’s most on-point case, Stathakos v. Columbia Sportswear
Co., is readily distinguishable. There, the court granted summary
judgment in favor of the defendant where the plaintiffs continued
purchasing clothes from the defendant’s stores after they personally filed
suit alleging that the defendant’s price tags were deceptive. No. 15-04543,
2017 WL 1957063, at *9 (N.D. Cal. May 11, 2017). With respect to those
plaintiffs, the Stathakos court concluded that “they could not have actually
relied on the reference prices on the price tags on any of the garments at
defendants’ outlet stores,” having already sued the defendant for allegedly
misrepresenting the prices. Id. Here, Kerber was not an original plaintiff
who initiated the lawsuit against FCA, and he claims that he had no
knowledge of the lawsuit before purchasing his vehicle.
Moreover, in the omissions-based fraud context, California courts
have recognized that “even the presence of information online does not
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automatically defeat exclusive knowledge.” In re MyFord Touch Consumer
Litig., 46 F. Supp. 3d 936, 960 (N.D. Cal. 2014). For example, in Terstate
Restoration v. Seaman, the defendant, a receiver charged with liquidating
and disbursing assets of a defunct company called MedCap, argued that
he did not have exclusive knowledge of the allegedly concealed information
because “all of the documents that would have disclosed the concealed
facts were posted to the receivership website, and were filed on the public
docket of the MedCap court case.” No. 13-00706, 2014 WL 12569347, at *8
(C.D. Cal. July 9, 2014). In rejecting the defendant’s argument that the
plaintiff could have discovered the information through court filings, the
Terstate Restoration court summarized that “California law appears
unwilling, even in the case of more sophisticated parties, to find public
dissemination alone enough to defeat a claim of fraudulent concealment.”
Id.
Similarly, the public availability of allegedly concealed information
does not defeat justifiable reliance even among sophisticated parties. In
Vega v. Jones, Day, Reavis & Pogue, the defendant law firm argued that
“with reasonable diligence,” the plaintiff shareholder would have
discovered the allegedly concealed information through a public document
filed two weeks before the merger that “contain[ed] all the financing
terms.” 17 Cal. Rptr. 3d 26, 35 (Cal. Ct. App. 2004). The Vega court denied
the defendant’s motion to dismiss because whether the financing terms
were “reasonably accessible” to the plaintiff was a question of fact. Id.
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In the consumer context, California courts have repeatedly
emphasized that “[n]egligence on the part of the plaintiff in failing to
discover

the

falsity

of

a

statement

is no

defense

when the

misrepresentation was intentional rather than negligent.” All. Mortg. Co.
v. Rothwell, 900 P.2d 601, 614 (Cal. 1995) (quoting Seeger v. Odell, 115
P.2d 977, 980 (Cal. 1941)). “Nor is a plaintiff held to the standard of
precaution or of minimum knowledge of a hypothetical, reasonable man”
in determining whether their reliance was reasonable. Id. Instead,
California law treats reasonable reliance as a highly fact specific question
of whether the plaintiff’s conduct “is manifestly unreasonable in light of
his own intelligence or information.” Hartong v. Partake, Inc., 72 Cal. Rptr.
722, 737 (Cal. Ct. App. 1968). Therefore, FCA is not entitled to summary
judgment based on Kerber’s purported ability to discover information
about the alleged defects.
Second, FCA argues that the allegedly misleading statements made
by a salesperson at an FCA-authorized dealership cannot be attributed to
FCA for lack of agency. FCA points out that “an authorized dealership of
a vehicle manufacturer is not an agent per se of the manufacturer.”
Murphy v. Toyota Motor Sales, No. 20-05892, 2021 WL 2801452, at *6
(C.D. Cal. July 1, 2021). Indeed, at the motion to dismiss phase, California
courts appear to closely scrutinize whether plaintiffs have adequately
alleged an agency relationship between dealerships and manufacturers.
See Banh v. Am. Honda Motor Co., Inc., No. 19-05984, 2019 WL 8683361,
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at *5 (C.D. Cal. Dec. 17, 2019) (collecting cases). But in general, “unless
only one conclusion may be drawn, existence of an agency [relationship]
and the extent of an agent’s authority is a question of fact and should not
be decided on summary judgment.” C.A.R. Transp. Brokerage Co. v.
Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
In the “ostensible” or “apparent” authority context, a plaintiff must
show that “there is information that might lead one to believe that [the
purported agent] spoke on behalf of [the purported principal] even if, as a
matter of actual or classical agency, he did not.” Gil v. Sea Shepherd
Conservation Soc’y, No. 14-7049, 2015 WL 11387765, at *3 (C.D. Cal. Jan.
22, 2015). However, “the ostensible authority of an agent cannot be based
solely upon the agent’s conduct.” C.A.R., 213 F.3d at 480. But even so, “it
is not true that the principal must make explicit representations
regarding the agent’s authority to the third party before ostensible
authority can be found.” Id. For example, “a franchisee’s authorized use of
the franchisor’s name and logo was sufficient to show that the franchisee
was the ostensible [agent] of the franchisor.” Holt v. Kormann, No. 111047, 2012 WL 2150070, at *5 (C.D. Cal. June 12, 2012) (citing Kaplan v.
Coldwell Banker Residential Affiliates, Inc., 69 Cal. Rptr. 2d 640, 643 (Cal.
Ct. App. 1997)).
Here, Kerber has evidence that he purchased his Truck from an
FCA-authorized dealership that is listed on Chrysler’s website. ECF No.
264, PageID.37629. A review of the dealership’s website reveals that it
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uses Ram, Chrysler, Dodge, and Jeep logos in its primary logo, and
includes images of the car brand logos on its “Showroom” page.5 A
reasonable jury could conclude that in discussing the Truck with the
dealership salesperson, Kerber reasonably believed that the salesperson
served as FCA’s agent or representative. While FCA may be able to
present compelling evidence that the dealership salesperson should not be
considered its apparent agent, there are factual disputes that preclude
summary judgment on this agency issue.
Lastly, under California law, “the economic loss rule does not bar . .
. fraud and intentional misrepresentation claims.” Robinson Helicopter Co.
v. Dana Corp., 102 P.3d 268, 274 (Cal. 2004). Because Kerber has raised
genuine disputes of material fact as to affirmative misrepresentations
attributable to FCA through an apparent agency theory, the Court cannot
grant summary judgment based on the economic loss doctrine. Therefore,
FCA is not entitled to summary judgment on Kerber’s CLRA, UCL, FAL,
or California fraudulent concealment claims.
b. Kerber’s MMWA Claim
Plaintiffs concede that they have not pled “an underlying state law
warranty claim,” to sustain an MMWA claim brought by Plaintiff Kerber.
ECF No. 264, PageID.37636 n.11. Summary judgment is entered in favor

Showroom San Bernardino, Moss Bros. San Bernadino,
https://www.mossbroscjdrsanbernardino.com/showroom/index.htm (last
visited March 23, 2023).
5

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of Defendant FCA on Plaintiffs’ MMWA claim, and it is dismissed with
prejudice.
c. Kerber’s California
Against FCA

Breach

of

Contract

Claim

FCA argues that Plaintiff Kerber’s breach of contract claim fails
because he has not met his burden of demonstrating the requisite privity
of contract between himself and FCA. ECF No. 263, PageID.37036–37.
Plaintiffs failed to respond to FCA’s argument in their opposition brief,
and have not presented any evidence that Kerber can establish privity on
a third-party beneficiary theory. And indeed, Kerber’s admission that he
was not aware of whether a contract between FCA and his dealership
exists and what terms that purported contract contains are fatal to his
ability to demonstrate privity. Id. at PageID.37020; ECF No. 264,
PageID.37616. Therefore, summary judgment on Kerber’s breach of
contract claim against FCA is warranted. Plaintiff Kerber’s California
breach of contract claim is dismissed with prejudice.
5. South Carolina Law Claims
Through Plaintiff James Forshaw, Plaintiffs seek to bring consumer
protection and fraudulent concealment claims against Defendant
Cummins on behalf of a putative South Carolina subclass.6 Plaintiffs
explicitly concede their South Carolina Unfair Trade Practices Act
(“SCUTPA”) claims. ECF No. 241, PageID.34190 n.26. But Plaintiffs also
The Court has previously dismissed Plaintiffs’ South Carolina law
claims as to Defendant FCA. ECF No. 221, PageID.28614 n.27.
6

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failed to respond to Cummins’ argument that their claim under South
Carolina’s Regulation of Manufacturers, Distributors, and Dealers Act
(“SCRMDD”) does not apply to Cummins as a manufacturer. In neglecting
to rebut Cummins’ contention that Plaintiffs cannot raise a SCRMDD
claim, the Court must grant summary judgment on this claim. Therefore,
summary judgment is entered in favor of Cummins on Plaintiffs’
SCUTPA claim, and it is dismissed with prejudice. Summary judgment
is also entered in favor of Cummins on Plaintiffs’ SCRMDD claim, and it
is dismissed with prejudice.
As for Plaintiffs’ South Carolina fraudulent concealment claims,
Cummins cites one South Carolina state court case in its summary
judgment brief, but provides no meaningful legal context. While the
Court understands Cummins’ general contention that it did not have a
duty to disclose, Cummins fails to explain how Pitts v. Jackson National
Life Insurance Co. (which involved the sale of insurance and a clearcut
answer that “there is no relationship of trust and confidence between an
applicant and an insurance agent”) applies to the present circumstances.
574 S.E.2d 502, 510 (S.C. Ct. App. 2002). Because this is insufficient to
meet its summary judgment burden, the Court denies summary
judgment on Plaintiffs’ South Carolina fraudulent concealment claims.
6. New Mexico Law Claims
Through Plaintiff Marty Ward, Plaintiffs seek to bring New Mexico
Unfair Trade Practices Act (“NMUTPA”), fraudulent concealment, and
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breach of contract claims on behalf of the putative New Mexico subclass.
Defendant FCA7 argues that Ward’s NMUTPA and fraudulent
concealment claims are time-barred. FCA further claims that Ward’s
fraudulent concealment claim is barred by the economic loss rule. Id. at
PageID.28609. In addition, FCA contends that Ward’s breach of contract
claim fails for lack of privity and is preempted by the UCC. Id. at
PageID.28609–10.
a. Whether Plaintiff Ward’s New Mexico Unfair Trade
Practices Act (“NMUTPA”) Claim is Time-Barred
FCA argues that Plaintiff Ward’s New Mexico Unfair Trade
Practices Act (“NMUTPA”) and fraudulent concealment claims are barred
by

the

applicable

four-year

limitations

period.

ECF

No.

221,

PageID.28608. FCA points out that Ward purchased his Truck on March
31, 2012, but did not file suit until more than four years later on November
14, 2016. Id. And because Ward started having “regen issues on [his]
truck” and decreased fuel mileage in June 2012, two-and-a-half months
after he bought it, FCA contends that Ward cannot invoke the “discovery
rule.” Id.

Defendant Cummins cites one New Mexico state court case in its
summary judgment brief, but provides no factual or substantive legal
context. And from the Court’s review, this case does not demonstrate that
Plaintiffs’ fraud-based claims under New Mexico law must fail. This is
plainly insufficient to meet its summary judgment burden, such that the
Court denies summary judgment on Plaintiffs’ New Mexico claims as to
Cummins.
7

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“When a defendant makes a prima facie showing that a claim is time
barred, a plaintiff attempting to invoke the discovery rule has the burden
of ‘demonstrat[ing] that if [he or] she had diligently investigated the
problem [he or] she would have been unable to discover’ the facts
underlying the claim.” Butler v. Deutsche Morgan Grenfell, Inc., 140 P.3d
532, 539 (N.M. Ct. App. 2006) (alterations in original) (quoting Martinez
v. Showa Denko, K.K., 964 P.2d 176, 181 (N.M. Ct. App. 1998)). Here, FCA
has made a prima facie showing that Ward’s NMUTPA claim is timebarred. In response, Plaintiffs argue that Ward’s awareness of “regen
issues” or decreased fuel mileage were not enough to show that he had
sufficient knowledge of the issue to bring suit earlier. ECF No. 241,
PageID.34186.
But Plaintiffs’ rebuttal does not fully demonstrate why Ward “could
not have discovered his claims through the exercise of reasonable diligence
within the limitations period.” Butler, 140 P.3d at 540. As the Court
understands it, however, Plaintiffs’ expert testimony can be used to
demonstrate that “most reasonable people who had been subjected to the
misconduct alleged in this case would not have been able to appreciate the
causal connection between the misconduct and the . . . injury.” MartinezSandoval v. Kirsch, 884 P.2d 507, 512 (N.M. Ct. App. 1994). A reasonable
jury could conclude that Ward, an average consumer, would not attribute
“regen issues” or decreased fuel mileage to FCA’s alleged misconduct, such
that these concerns would not even trigger a diligent investigation.
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Therefore, whether the discovery rule extends the limitations period
for Ward is itself a materially disputed fact issue that the jury must decide.
The statute of limitations is not grounds for summary judgment on Ward’s
NMUTPA claim.
b. Duty to Disclose Under the NMUTPA
FCA argues that Ward was not exposed to any statements by FCA
about emissions or fuel mileage, meaning he cannot demonstrate the
existence of a predicate statement requiring subsequent disclosure. ECF
No. 221, PageID.28608. In response, Plaintiffs claim that Ward read
several statements from FCA regarding his Truck, “including Dodge’s
website which stated that FCA’s vehicles ‘met the new green emissions
standards.’” ECF No. 241, PageID.34186. Even so, FCA contends that
Ward’s inability to recall specific statements on fuel economy or emissions
is fatal to his NMUTPA claim. ECF No. 251, PageID.34920–21.
To bring a claim under the NMUTPA, a plaintiff must demonstrate
that:
(1) the defendant made an oral or written statement that was either
false or misleading; (2) the false or misleading representation was
knowingly made in connection with the sale of goods or services; (3)
the conduct complained of occurred in the regular course of
defendant’s business; and (4) the representation may, tends to, or
does deceive or mislead any person.
Belanger v. Allstate Fire & Cas. Ins. Co., 588 F. Supp. 3d 1249, 1262
(D.N.M. 2022). Accordingly, the NMUTPA “imposes a duty to disclose
material facts ‘reasonably necessary to prevent any statements from being

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misleading.’” Id. (quoting Smoot v. Physicians Life Ins. Co., 87 P.3d 545,
549 (N.M. Ct. App. 2004)). Moreover, unlike other state consumer
protection statutes, New Mexico courts have interpreted that the
NMUTPA does not require demonstrating “reliance upon a defendant’s
deceptive conduct.” Lohman v. Daimler-Chrysler Corp., 166 P.3d 1091,
1098 (N.M. Ct. App. 2007).
Plaintiffs have created a genuine dispute of material fact as to
whether FCA made affirmative misrepresentations upon which Ward
relied in purchasing his Truck. While FCA’s arguments that Ward could
not recall specific statements about the Trucks’ emissions or fuel economy
are evidence of lack of reliance, NMUTPA does not require actual reliance.
Therefore, drawing all reasonable inferences in Plaintiffs’ favor, the Court
must deny summary judgment on Plaintiffs’ NMUTPA claim.
c. New Mexico Economic Loss Rule
FCA argues that Ward’s fraudulent concealment claim is barred by
the New Mexico economic loss rule. ECF No. 221, PageID.28609. But as
Plaintiffs point out, the economic loss doctrine does not “bar a tort claim
where an independent duty exists.” Bull v. BGK Holdings, LLC, 859 F.
Supp. 2d 1238, 1243 (D.N.M. 2012). As explained above, NMUTPA
imposed a duty on FCA to disclose material facts based on the alleged
misrepresentations it made about the Trucks. Accordingly, the economic
loss doctrine does not bar Plaintiffs’ claims based on an alleged breach of
duty. See id. (holding that the economic loss rule does not bar negligent
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and intentional misrepresentation claims because they “arise from an
independent and recognized duty of care”); Farmers All. Mut. Ins. Co. v.
Naylor, 452 F. Supp. 2d 1167, 1174 (D.N.M. 2006) (holding that the
economic loss rule does not bar professional negligence claims that arise
from an independent duty of care).
d. New Mexico Breach of Contract Claim
FCA argues that Ward’s breach of contract claim fails because of lack
of privity and UCC preemption. First, it is undisputed that Ward
purchased his Truck from a third-party dealership, and Ward has no
evidence of a contract between himself and either Defendant. ECF No.
241, PageID.34187–88. Even so, Ward argues that he is a third-party
beneficiary of a contract between FCA and the dealership from which
Ward purchased his Truck. Id. at PageID.34187.
Ward “has the burden of showing that the parties to that contract
intended to benefit [him], individually or as a member of a class of
beneficiaries.” Casias v. Cont’l Cas. Co., 960 P.2d 839 (N.M. Ct. App. 1998).
This intent must “appear either from the contract itself or from some
evidence that the person claiming to be a third party beneficiary is an
intended beneficiary.” Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1264
(N.M. 1987).
Without evidence of a contract between Defendants and/or thirdparty dealerships, Ward argues that FCA’s awareness that Ward
“required” a Truck that met emissions standards demonstrates his
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intended beneficiary status. ECF No. 241, PageID.34187–88. Ward also
claims that he relied on FCA’s representations, “made both directly on its
website and through a salesperson at FCA’s third-party dealership.” Id. at
PageID.34188. But no reasonable jury could find this evidence sufficient
to demonstrate that FCA intended to give Ward “a right to enforce a
contract to which he is not a party.” Thompson v. Potter, 268 P.3d 57, 61
(N.M. Ct. App. 2011). Therefore, as a mere incidental beneficiary, Ward
cannot bring a breach of contract claim against FCA. Fleet Mortg. Corp. v.
Schuster, 811 P.2d 81, 83 (N.M. 1991).
In addition, Ward’s breach of contract claim is preempted by the
UCC. Ward does not dispute that his Truck purchase was a contract for
the sale of goods governed by the UCC, which limits his remedies to those
available under the UCC. See Badilla v. Wal-Mart Stores E., Inc., 389 P.3d
1050, 1052 (N.M. Ct. App. 2016). Accordingly, summary judgment is
entered in favor of FCA on Plaintiffs’ New Mexico breach of contract
claim, and it is dismissed with prejudice.
7. North Carolina State Law Claims
Through Plaintiff Jeremy Perdue, Plaintiffs seek to bring consumer
protection, fraudulent concealment, and breach of contract claims on
behalf of the putative North Carolina subclass.

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a. North Carolina Unfair and Deceptive Trade Practices Act
(“NCUDTPA”) and Fraudulent Concealment Claims
Defendants argue that Plaintiffs cannot demonstrate actual reliance
or causation based on a misrepresentation or non-disclosure to succeed on
their North Carolina Unfair and Deceptive Trade Practices Act
(“NCUDTPA”) claim. ECF No. 218, PageID.27413, PageID.27415–16; ECF
No. 221, PageID.28611. To raise a NCUDTPA claim “based upon deception
and ‘fraudulent statements,’ plaintiffs must allege ‘actual reliance’ on a
misrepresentation and that such reliance was the proximate cause of the
injury.” Cross v. Ciox Health, LLC, 438 F. Supp. 3d 572, 584 (E.D.N.C.
2020) (quoting Arnesen v. Rivers Edge Golf Club & Plantation, Inc., 781
S.E.2d 1, 9–10 (N.C. 2015)). Furthermore, as with fraudulent concealment
claims, if an NCUDTPA claim is premised on “failure to disclose a material
fact, there must have been a duty to speak or the party accused of fraud
must have taken steps to actively conceal facts.” Withers v. BMW of N.
Am., LLC, 560 F. Supp. 3d 1010, 1020 (W.D.N.C. 2021); see also Lawrence
v. UMLIC-Five Corp., No. 06-20643, 2007 WL 2570256, at *3 (N.C. Super.
Ct. June 18, 2007). North Carolina law also specifically recognizes that
“once a party speaks[,] it has a duty to reveal other pertinent information,”
to avoid making the “original statement” misleading. Jones v. Am. Tobacco
Co., No. 89-1477, 1990 WL 101455, at *5 (4th Cir. July 6, 1990).
Although Plaintiffs contend that North Carolina courts “apply a duty
to disclose under circumstances similar to those present in this case,” ECF

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No. 241, PageID.34194, their support for this contention is sparse.
Plaintiffs cite Packrite, LLC v. Graphic Packaging International, LLC,
which enumerates instances where a duty to disclose arises in arm’s
length transactions even absent a fiduciary relationship. For example,
where “one party has knowledge of a latent defect in the subject matter of
the negotiations about which the other party is both ignorant and unable
to discover through reasonable diligence,” the party with knowledge has a
duty to disclose. No. 17-1019, 2020 WL 7060395, at *3 (M.D.N.C. Dec. 2,
2020) (quoting Hardin v. KCS Int’l, Inc., 682 S.E.2d 726, 733 (N.C. Ct.
App. 2009)). But Packrite involved an undisputed existence of “arm’slength negotiations” as part of the parties’ contractual relationship and
allegations that the defendant made partial disclosures upon which the
plaintiff relied. Id.
In the most on-point cases the Court could identify, vehicle
manufacturers were found to have a duty to disclose latent defects because
the plaintiffs purchased their cars at authorized dealerships that were
presumed to be agents of the manufacturer. Wheeler v. BMW of North
America LLC, 534 F. Supp. 3d 527, 534, 535 n.2 (W.D.N.C. 2021); Jones v.
BMW of North America, LLC, No. 20-00057, 2020 WL 5752808, at *1 n.1,
*10 (M.D.N.C. Sept. 25, 2020); Withers, 560 F. Supp. 3d at 1019, 1019 n.3.
And in Wheeler, Jones, and Withers, the plaintiffs all proffered evidence
that dealership employees gave misleading information about the alleged
defect. Specifically, when the plaintiffs raised complaints about the
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alleged defect to the authorized dealers, they were told that the car was
“normal.” Wheeler, 534 F. Supp. 3d at 532; Jones, 2020 WL 5752808, at *1;
Withers, 560 F. Supp. 3d at 1018.
But here, Plaintiffs never engaged in similar arms-length
negotiations with Defendants or their purported agents. Furthermore,
Plaintiffs admit that Perdue did not rely on any partial disclosures that
would trigger Defendants’ duty to disclose. In fact, Plaintiffs concede that
Perdue “relied on no advertisements” by FCA before purchasing his Truck
and did not rely on any of Cummins’ statements. ECF No. 218,
PageID.27381; ECF No. 221, PageID.28586; ECF No. 241, PageID.34142,
PageID.34145.
Unlike in Wheeler, Jones, and Withers, Perdue purchased his Truck
“used from a third-party Chevrolet dealership that is unaffiliated with
FCA US.” ECF No. 221, PageID.28612. Plaintiffs do not rebut FCA’s
contention that the Chevrolet dealership is unaffiliated with FCA and
cannot be considered an FCA agent. Nor do they articulate a theory to
justify a “contractual or other similar relationship” with Cummins. In the
absence of such a relationship and because they cannot demonstrate
Perdue’s reliance on Defendants’ partial disclosures, Plaintiffs cannot
succeed on their NCUDTPA claim or fraudulent concealment claim under
North Carolina law.
Relatedly, the North Carolina economic loss doctrine bars
NCUDTPA claims “where the only damage alleged is damage to the
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product itself and the allegations of unfair trade practices are intertwined
with the

breach of contract or warranty claims.”

Bussian

v.

DaimlerChrysler Corp., 411 F. Supp. 2d 614, 627 (M.D.N.C. 2006).
Without demonstrating a breach of “a duty, independent of a contractual
duty,” NCUDTPA claims are foreclosed by the economic loss doctrine.
Withers, 560 F. Supp. 3d at 1021. Therefore, summary judgment is
granted in favor of Defendants on Plaintiffs’ NCUDTPA and fraudulent
concealment claims. Those claims are dismissed with prejudice.
b. North Carolina Breach of Contract Claim
FCA argues that Plaintiffs’ breach of contract claim fails because
North Carolina courts have declined to recognize privity between
manufacturers and consumers. ECF No. 221, PageID.28613. Plaintiffs
respond by claiming that Perdue was a third-party beneficiary of the
contract between FCA and the dealership from which he purchased his
Truck. ECF No. 241, PageID.34190. But Plaintiffs have not proffered any
evidence of a contract between Defendants and/or the dealership where
Perdue purchased his Truck. In fact, Plaintiffs lack any evidence
demonstrating that Perdue was an intended beneficiary of such contracts,
assuming they exist. Therefore, Plaintiffs simply cannot maintain a
breach of contract claim or a third-party beneficiary claim under North
Carolina law. See Raritan River Steel Co. v. Cherry, Bekaert & Holland,
407 S.E.2d 178, 182 (N.C. 1991); Pearson v. Gardere Wynne Sewell LLP,
814 F. Supp. 2d 592, 601 (M.D.N.C. 2011). Summary judgment is entered
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in favor of FCA on Plaintiffs’ North Carolina breach of contract claim, and
it is dismissed with prejudice.
8. Texas State Law Claims
Through Plaintiff Paul Chouffet8, Plaintiffs seek to bring consumer
protection and fraudulent concealment on behalf of the putative Texas
subclass. Defendant Cummins9 has moved for summary judgment on
Plaintiffs’ consumer protection and fraudulent concealment claims under
Texas law.
a. Texas Deceptive Trade Practices Act (“DTPA”) and
Fraudulent Concealment Claims
Just as with its arguments against Plaintiffs’ Michigan fraudulent
concealment claims, Cummins cites several federal and state Texas court
cases in its opening summary judgment brief, but does not contextualize
much of its legal support. Instead, Cummins most clearly outlines its
arguments against Plaintiffs’ Texas law claims in response to Plaintiffs’
notice of supplemental authority. ECF No. 248. As noted above, the Court
disfavors this disorganized method of summary judgment briefing. Even

Although Plaintiff Natalie Beight is still listed as a Texas plaintiff in
the TCAC (ECF No. 255, PageID.35026–30), Beight has been dismissed
from this case. ECF No. 153. Similarly, Plaintiff Martin Rivas is listed as
a Texas Plaintiff, but Plaintiffs’ counsel has been permitted to withdraw
as his attorney, and Rivas has not indicated his intent to continue as a
pro se party to this case. ECF No. 154.
8

The Court has previously dismissed Plaintiffs’ Texas law claims as to
Defendant FCA. ECF No. 221, PageID.28614 n.27.
9

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so, Plaintiffs were indisputably on notice of the DTPA and Texas
fraudulent concealment issues addressed by the Counts court under
factually and procedurally similar circumstances. As such, the Court will
address the merits of the parties’ arguments.
In general, Cummins argues that Plaintiffs’ Texas consumer
protection and fraudulent concealment claims fail because Plaintiffs
cannot demonstrate actual reliance nor that Cummins had a duty to
disclose. As the Texas Supreme Court has recognized, “downstream
purchasers” generally cannot “bring DTPA claims against remote
manufacturers and suppliers.” PPG Indus., Inc. v. JMB/Houston Ctrs.
Partners Ltd. P’ship, 146 S.W.3d 79, 88 (Tex. 2004). Specifically, where the
“deceptive acts alleged were not committed against or communicated to
[downstream purchasers] in connection with their own purchases,”
upstream manufacturers are not liable under the DTPA. Id.; see also
Bailey v. Smith, No. 05-085, 2006 WL 1360846, at *11 (Tex. Ct. App. May
18, 2006) (summarizing that Texas courts have dismissed “DTPA claims
against upstream manufacturers where none of their representations
reached the consumer”).
In Amstadt v. U.S. Brass Corp., the Texas Supreme Court found that
even where a manufacturer “exercised significant control over the design
and installation” of the defective component product, it ultimately “had no
role in the sale [of the finished product] to the plaintiffs.” 919 S.W.2d 644,
652 (Tex. 1996). Moreover, the manufacturer’s “marketing efforts were not
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intended to, nor were they, incorporated into the marketing of the
[finished product] to the plaintiffs.” Id. Even more significantly, the
manufacturer’s “products were subject to independent evaluation” by state
regulators and other professionals. Id. As such, the court held that the
manufacturer’s “actions were not connected with the plaintiffs’
transactions . . . in a way that justifies liability under the DTPA.” Id.
Cummins is entitled to summary judgment on Plaintiffs’ DTPA
claim. While the Counts court denied summary judgment on the DTPA
claim, the Counts plaintiffs presented evidence that they “viewed and
relied on Defendants’ advertisements regarding the diesel Cruze’s
emissions.” 2022 WL 2079757, at *23. But here, Plaintiffs concede that
Chouffet “did not consider any statement by Cummins in making [his]
purchasing decision.” ECF No. 218, PageID.27381; ECF No. 241,
PageID.34142.
Indeed, Cummins is very similarly positioned to the manufacturer
in Amstadt. Even though Cummins designed the diesel engine that was
incorporated into the Trucks, it never communicated directly to
consumers. Nor did Plaintiffs rely on any of Cummins’ statements in
purchasing the Trucks. Lastly, independent Regulators evaluated
Cummins’ engines, further removing Cummins from a direct relationship
with consumers. Without a connection to Plaintiffs’ transactions or
evidence that consumers were exposed to any of Cummins’ alleged
misrepresentations, Plaintiffs cannot succeed on a DTPA claim. See James
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V. Mazuca & Assocs. v. Schumann, 82 S.W.3d 90, 95–96 (Tex. Ct. App.
2002) (explaining that in the absence of actionable misrepresentations, the
defendant’s “silence amounts to nothing more than potentially negligent
omissions, but falls short of the affirmative deception required by the
DTPA”).
For similar reasons, Plaintiffs’ fraudulent concealment claim under
Texas law must be dismissed. “Under Texas law, a duty to disclose in the
context of fraudulent concealment arises only in limited circumstances
where there is a fiduciary or confidential relationship.” Adams v. Nissan
N. Am., Inc., 395 F. Supp. 3d 838, 849 (S.D. Tex. 2018). A party can also
assume a duty to disclose if it “voluntarily elects to make a partial
disclosure . . . even though the speaker was under no duty to make the
partial disclosure in the first place.” Union Pac. Res. Grp., Inc. v. RhonePoulenc, Inc., 247 F.3d 574, 584 (5th Cir. 2001); see also Bombardier
Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 220
(Tex. 2019). But in general, “[s]ilence is a false representation only when
the circumstances impose a duty on the party to speak and he deliberately
remains silent.” Suzlon Wind Energy Corp. v. Shippers Stevedoring Co.,
662 F. Supp. 2d 623, 648 (S.D. Tex. 2009). Furthermore, fraudulent
concealment requires showing actual reliance. Peltier Enters., Inc. v.
Hilton, 51 S.W.3d 616, 623 (Tex. Ct. App. 2000).
Plaintiffs cannot demonstrate that Cummins made partial
disclosures that it had a duty to supplement or that Cummins had an
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independent duty to disclose based on a special relationship. Plaintiffs
admit that they were not exposed to any of Cummins’ alleged
misrepresentations, making it impossible for them to have relied on any
partial disclosures. Moreover, absent any special relationship with
Plaintiffs, Cummins did not have an independent duty to disclose. See
Adams, 395 F. Supp. 3d at 850 (“No duty [to disclose] arises in an armslength transaction between a manufacturer and consumer, particularly
where Plaintiffs did not purchase or lease their vehicles directly from the
manufacturer.”). Therefore, Cummins is entitled to summary judgment on
Plaintiffs’ Texas fraudulent concealment claims. Those claims are
dismissed with prejudice.
J. Standing Issues Related to State Law Claims Lacking a
Corresponding Potential Class Representative
Defendants further argue that Plaintiffs lack standing to bring
claims arising under the laws of any states for which there is no putative
class representative identified as a party. ECF No. 218, PageID.27418;
ECF No. 221, PageID.28614–15. Plaintiffs effectively concede this point,
clarifying that they are seeking class certification only for “state-specific
classes corresponding to the claims of the remaining [potential] class
representatives.” ECF No. 241, PageID.34208. Plaintiffs further concede
that “they are not seeking to certify any remaining claims.” Id. As such,
Plaintiffs need not justify their standing for state law claims they no
longer intend to pursue, and those abandoned claims are dismissed with

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prejudice. At the same time, the Court notes that Plaintiffs are seeking
to raise RICO and state breach of contract claims on behalf of a
“nationwide class.” Id.
Defendants are correct that Plaintiffs must demonstrate standing
for every claim they raise. This Court has previously indicated that “the
certification issues in the instant case are logically antecedent to the
Article III standing concerns, and the determination of standing will be
postponed until a class certification ruling.” Bledsoe, 378 F. Supp. 3d at
642. As discussed above, however, “where the putative plaintiffs’ injury
is in doubt, Article III standing issues should be resolved in the first
instance.” In re Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642, 657
(E.D. Mich. 2011).
Here, the Court has concluded that Plaintiffs lack standing to bring
RICO claims against Defendants. Accordingly, Plaintiffs may not raise
RICO claims on behalf of a nationwide class. See Fallick, 162 F.3d at 422–
23. Furthermore, the Court has granted summary judgment in favor of
FCA on all of Plaintiffs’ state-specific breach of contract claims. If named
Plaintiffs themselves have not suffered redressable injury on a certain
claim, they are “not eligible to represent a class of persons who did
allegedly suffer injury.” E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431
U.S. 395, 403–04 (1977). Therefore, Plaintiffs cannot bring breach of
contract claims on a nationwide basis because they have not

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demonstrated the elements of injury for their own respective breach of
contract claims.10
IV.

CONCLUSION

For the foregoing reasons, the motions for summary judgment of
Defendant Cummins Inc. (ECF No. 218) and Defendant FCA US LLC
(ECF Nos. 221, 263) are DENIED IN PART and GRANTED IN PART.
Given the complexity of the TCAC and the fact that some of Plaintiffs’
claims have been previously dismissed in prior Orders of the Court, the
table below summarizes all claims that have been dismissed as a result
of this Order, as well as the Court’s previous Orders.

At the motion to dismiss phase, courts in this circuit have consistently
concluded that where the named plaintiffs did not allege that they
suffered injuries in states other than the ones related to their individual
injuries, they lack standing to raise claims on behalf of a nationwide
class. See, e.g., McKee v. Gen. Motors LLC, 376 F. Supp. 3d 751, 755 (E.D.
Mich. 2019); Withrow v. FCA US LLC, No. 19-13214, 2021 WL 2529847,
at *10 (E.D. Mich. June 21, 2021), amended, No. 19-13214, 2021 WL
9629458 (E.D. Mich. July 21, 2021); Wozniak v. Ford Motor Co., No. 1712794, 2019 WL 108845, at *1 (E.D. Mich. Jan. 4, 2019); Szep v. Gen.
Motors LLC, 491 F. Supp. 3d 280, 291 (N.D. Ohio 2020). Now at summary
judgment, the Court has not only concluded that Plaintiffs’ individual
breach of contract claims fail on the merits, but also that Plaintiffs cannot
demonstrate how FCA’s alleged violations of other states’ breach of
contract laws have caused them injury in any other states. Plaintiffs thus
lack standing to raise nationwide breach of contract claims for this
related reason.
10

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The following counts of the TCAC are DISMISSED with prejudice:
Count
Count A.I

Count A.II
Counts B.I–II
Count C.III

Claim
Racketeer Influenced
& Corrupt
Organizations Act
(“RICO”)
Magnuson-Moss
Warranty Act
(“MMWA”)
Michigan CPA,
Fraudulent
Concealment
California FAL

Count C.IV

California Breach of
Contract

Count D.II

Illinois Breach of
Contract

Count D.III

Illinois Fraudulent
Concealment

Count G.III

New Mexico Breach
of Contract

Counts H.I–II

South Carolina
UTPA, RMDD

Counts J.I,
J.III

Texas DTPA,
Fraudulent
Concealment

Dismissed as to:
Cummins and FCA

FCA (Plaintiff Kerber)
[previously dismissed against Cummins
and FCA (ECF No. 97)]
Cummins
[previously dismissed against FCA (ECF
No. 215)]
Cummins (Plaintiff Bledsoe)
[previously dismissed against FCA
(Plaintiff Bledsoe) (ECF No. 215)]
(California FAL remains as to FCA
through Plaintiff Kerber)
FCA (Plaintiff Kerber)
[previously dismissed against FCA
(Plaintiff Bledsoe) (ECF No. 215)]
FCA
(No breach of contract claims brought
against Cummins)
Cummins
(Illinois fraudulent concealment claim
remains as to FCA)
FCA
(No breach of contract claims brought
against Cummins)
Cummins
[previously dismissed against FCA (ECF
No. 215)]
Cummins
[previously dismissed against FCA (ECF
No. 215)]

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Counts W.I,
W.III
Counts MM.I–
II
Count MM.III

Idaho CPA,
Fraudulent
Concealment
North Carolina
UDTPA, Fraudulent
Concealment
North Carolina
Breach of Contract

Cummins
[previously dismissed against FCA (ECF
No. 215)]
Cummins and FCA
FCA
(No breach of contract claims brought
against Cummins)

Any other state law claims abandoned by Plaintiffs are also
DISMISSED with prejudice. All other counts of the TCAC not
dismissed by this Order remain.
IT IS SO ORDERED.
Dated: March 23, 2023

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT
J
U
D
G
E

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