LAURENS et al v. VOLVO CARE OF NORTH AMERICA, LLC et al
Filing
215
OPINION. Signed by Judge Julien Xavier Neals on 2/6/2023. (qa, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KHADIJA LAURENS,
Plaintiff,
v.
VOLVO CARS OF NORTH AMERICA
LLC,
Defendant.
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Civil Action No. 18-cv-8798 (JXN) (JRA)
OPINION
NEALS, District Judge:
THIS MATTER comes before the Court upon the filing of three motions: 1) Plaintiff
Khadija Lauren’s (“Plaintiff”) renewed motion to certify class [ECF No. 168]; 2) Defendant Volvo
Car USA, LLC’s (“VCUSA” or “Defendant”) motion to strike the expert declaration of Charles
Lawson [ECF No. 173]; and 3) Defendant’s motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56 [ECF No. 191]. 1 Plaintiff filed opposition to Defendant’s summary
judgment motion [ECF. No. 198], to which Defendant replied [ECF No. 200]. This Court has
jurisdiction over the parties and the subject matter of this proceeding pursuant to 28 U.S.C. §
1332(d)(2). Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(1). After
carefully considering the parties’ written and oral arguments, for the reasons that follow,
Defendant’s motion for summary judgment [ECF No. 191] is GRANTED, and the renewed
motion to certify class [ECF No. 168] and the motion to strike [ECF No. 173] are DENIED as
moot.
1
The unredacted version of Defendant’s summary judgment motion papers are located on the docket at ECF No. 192.
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I.
FACTUAL BACKGROUND
Plaintiff initiated this lawsuit alleging that Defendant VCUSA promised her that her
vehicle, a 2016 Volvo XC90 T8 (“T8”), is capable of driving 25 miles using only electric power
when it is not. In the Amended Complaint, Plaintiff alleges four claims for consumer fraud,
common-law fraud, express warranty, and unjust enrichment based on the same underlying
allegations. Following the close of discovery, Defendant moved for summary judgment on all
claims. The facts relevant to this motion are discussed herein.
Volvo Car Corporation (“VCC”) 2 is the Swedish manufacturer of Volvo vehicles.
Defendant’s Statement of Undisputed Facts (“DSOF”) ¶ 1, ECF No. 192-3; Plaintiff’s Responsive
Statement of Undisputed Facts (“PRSOF”) ¶ 1, ECF No. 198-1. 3 VCUSA acts as VCC’s sales and
distribution arm in the United States. Plaintiff’s Statement of Undisputed Facts (“PSOF”) ¶ 4,
ECF No. 198; Defendant’s Responsive Statement of Undisputed Facts (“DRSOF”) ¶ 4, ECF No.
201. VCUSA purchases Volvo vehicles from VCC and then sells those vehicles to authorized
Volvo dealers in the United States. Id. Volvo dealers then sell the vehicles to the ultimate
consumers. Id. While VCUSA cannot dictate the price at which a dealer ultimately sells a Volvo
vehicle to a consumer, it does generate a Manufacturer’s Suggested Retail Price (“MSRP”) for its
Volvo vehicles. PSOF ¶ 5; DRSOF ¶ 5. The MSRP is the “baseline” for the final sale price. Id.
In October 2014, VCC revealed its all-new generation XC90 luxury sport utility vehicle.
DSOF ¶ 1; PRSOF ¶ 1. The XC90 was offered in two power drive versions, the 2016 XC90 T6
Inscription (“T6”) and the Twin Engine T8. Id. ¶ 2. The T8 version was introduced as a first-ofits-kind seven-passenger plug in hybrid (“PHEV”) version of the luxury XC90. Id. ¶ 3. The T8
The Court notes that VCC is not a party in this litigation.
For the sake of brevity, all citations to the parties’ Rule 56.1 statements in this Opinion incorporate the evidentiary
citations contained therein.
2
3
2
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had two modes of electric driving capability as a result of its electric motor combined with the
gasoline engine – hybrid mode, and pure electric mode. Id. ¶ 10. The T8’s most basic model had
a MSRP of $68,100.00. PSOF ¶ 50; DRSOF ¶ 50. The T6 had an MSRP of $55,400.00. Id. The
T6 is the most similar, non-hybrid version of the T8. Id.
October 2014 Press Release
Prior to and after its release in the US, a number of press releases pertaining to the 2016
XC90 were made available on the “Media/Press” portion of VCUSA’s website. DSOF ¶ 79;
PRSOF ¶ 79. On October 21, 2014, VCUSA issued a press release in advance of the European
launch of the T8. Id. ¶ 86. The press release stated that “[n]ormal driving is conducted in the
default hybrid mode. But at the push of a button the driver can switch to quiet and emission-free
city driving on pure electric power where the range will be around 40 kilometers.” Id. The October
21, 2014 press release also disclosed that the statements in the release “relate to Volvo Car Group’s
international car range” and that “[v]ehicle specifications may vary from one country to another
and may be altered without prior notification.” Id. ¶ 87. The October 21, 2014 press release does
not state what the EPA certified pure electric range of the T8 will be. Id. ¶ 88.
December 2014 Press Release
On December 8, 2014, VCUSA issued a press release, which states that hybrid is the
“default mode” for driving, and states that in pure electric mode, the T8 “has a range of more than
40km using just electricity.” DSOF ¶ 89; PRSOF ¶ 89. The December 8, 2014 press release also
states that the “data used in the press release is based on the NEDC certification cycle used in the
EU. The figures are preliminary.” Id. ¶ 90. It further states that “Descriptions and facts in this
press material relate to Volvo Car Group’s international car range. Described features might be
optional. Id. Vehicle specifications may vary from one country to another and may be altered
3
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without prior notification.” Id. ¶ 91. The December 8, 2014 press release does not state what the
EPA certified pure electric range of the T8 will be. Id. ¶ 92. 4
April 2015 Press Release
On April 16, 2015 VCUSA issued a press release, which states that the hybrid drive mode
is the “default mode.” DSOF ¶ 93; PRSOF ¶ 93. The April 16, 2015 press release states that
“Preliminary testing based on EPA criteria produced an estimated range of 17 miles using just
electricity . . . .” Id. ¶ 94. The April 16, 2015 press release does not state what the EPA certified
pure electric range will be. Id. ¶ 95. 5
Nearly two-weeks later, on April 30, 2015, VCUSA issued a press release, which states
that the XC90 T8 “delivers 49 g/km CO2, combined 407 hp*, 640 Nm, just 2.1 l/100km and 43
km pure electric range.” DSOF ¶ 96; PRSOF ¶ 96. Later, it states that the “XC90 T8 has a range
of more than 40km using just electricity.” Id. The April 30, 2015 press release also states that
“All figures are based on the NEDC driving cycle for hybrids.” Id. ¶ 97. It further states that
“Descriptions and facts in this press material relate to Volvo Car Group’s international car range.
Described features might be optional. Vehicle specifications may vary from one country to another
and may be altered without prior notification.” Id. ¶ 98. The April 30, 2015 press release does not
state what the EPA certified pure electric range of the T8 will be. Id. ¶ 99. 6
January 2016 Press Release
VCUSA issued a press release on January 21, 2016, after Plaintiff took delivery of her
vehicle, that provides that the T8 “has a range of more than 40km using just electricity.” DSOF ¶
100; PRSOF ¶ 100. The January 21, 2016 press release states that “Descriptions and facts in this
Plaintiff does not dispute the substance of the statement but contends that “[c]osumers generally do not know what
the differences between NEDC and EPA testing[.]” PRSOF ¶ 92.
5
See n.3.
6
See n.3.
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press material relate to Volvo Car Group’s international car range. Described features might be
optional. Vehicle specifications may vary from one country to another and may be altered without
prior notification.” Id. ¶ 101. The January 21, 2016 press release does not refer to the EPA
certified pure electric range figure, and does not reference the EPA at all. Id. ¶ 102. 7
Brochure for the XC90
The brochure for the 2016 XC90 vehicle states “Fully charged, the T8 Twin Engine
provides 17 miles (estimated) of pure electric driving . . . . ” DSOF ¶ 103; PRSOF ¶ 103. This
brochure does not state what the EPA certified pure electric range of the T8 will be. DSOF ¶ 104.8
Third Party Media Publications
In addition to press releases, third party media publications also published information
about the 2016 XC90 T8, including the T8’s pure electric range. DSOF ¶ 105; PRSOF ¶ 105. A
February 15, 2015 Green Car Reports article stated that “Volvo quotes a range of 40 km (25 miles),
but that’s on the European NEDC cycle. We estimate that the comparable EPA number is likely
to be between 18 and 21 miles.” DSOF ¶ 107; PRSOF ¶ 107 (emphasis added).
Another Green Car Reports article, dated May 21, 2015, states: “The XC90 T8 has a 9.2kilowatt-hour lithium-ion battery pack, which provides enough capacity for 25 miles of electric
range, Volvo claims. (The EPA rated range may be lower.)” Id. ¶ 108 (emphasis added).
An April 16, 2015 media review published on Edmunds.com states that the “Volvo plugin hybrid has an estimated electric range of 17 miles. Id. ¶ 110. The EPA has not released official
fuel economy numbers on the XC90 T8 Twin Engine.” Id. (emphasis added).
See n.3.
Plaintiff disputes this fact, contending that the brochure provides an electric range based on EPA criteria. PRSOF
¶ 104.
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An April 20, 2015 article published by Autoweek states that the XC90 T8’s lithium battery
“provides the juice for an electric-only range of 17 miles, though that’s not an official EPA
estimate – we’ll have to wait a few more weeks for the numbers that’ll go on the window sticker.”
Id. ¶ 111 (emphasis added).
The Inside EV article referenced in Paragraph 28 of the Amended Complaint states that the
T8’s battery is “large enough to offer up to 40 km (25 miles) in the pure electric mode under NEDC
conditions (expect less in the real world).” Id. ¶ 112.
Plaintiff’s T8 Purchase and Knowledge and Understanding of Driving Range
Publications
Plaintiff pre-ordered her 2016 XC90 T8 in early 2015, almost one year before it became
available for purchase in the United States. DSOF ¶ 125; PRSOF ¶ 125. Plaintiff completed her
purchase and took delivery of her T8 vehicle on January 9, 2016. Id. ¶ 126. Plaintiff did not
personally read a single press release, brochure, or article discussing the T8’s pure electric range
before purchasing her T8. Id. ¶ 128. Plaintiff did not view any of the representations cited in her
complaint before purchasing her T8. Id. ¶ 129. Nor did Plaintiff do any independent research
herself before purchasing her T8. Id. ¶ 130. Instead, Plaintiff testified that she relied on a
“summary of the representations” that her husband relayed to her. DSOF ¶ 131. 9
Prior to Plaintiff’s purchase of her T8, Plaintiff’s husband viewed publications that noted
that the information contained therein was related to Volvo Car Group’s international car range,
that the specifications contained therein may vary from country to country, and that the data
contained in certain press releases he viewed was based on the NEDC cycle. DSOF ¶¶ 132, 134,
Plaintiff disputes this fact, contending that “the quoted portion of this paragraph is not actually Laurens’s testimony.
They are words that VCUSA’s counsel used.” PRSOF ¶ 125. During Plaintiff’s deposition, counsel asked Plaintiff
the following question: “So what you relied on when deciding to purchase your car is [your husband’s] summary of
the representations that he read when doing his review of the product literature?” See Exhibit 19, at 27:5-9, ECF No.
191-24. In response to counsel’s question, Plaintiff answered: “Yes.” Id.
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136; PRSOF ¶¶ 132, 134, 136. Prior to Plaintiff’s purchase of her T8, Plaintiff’s husband viewed
a press release that stated that “preliminary testing based on EPA criteria produced an estimated
range of 17 miles using just electricity . . ..” DSOF ¶ 140; PRSOF ¶ 140.
Plaintiff’s husband did not tell her that the data contained in certain press releases he
viewed was based on the NEDC cycle. Id. ¶ 137. Plaintiff’s husband also did not tell Plaintiff
before she purchased her T8 that any of the publications he viewed contained preliminary figures
or stated that the EPA range was still forthcoming. Id. ¶ 144. Although the press releases often
provided the T8 range in terms of kilometers, Plaintiff stated that her husband only communicated
that the range would be 25 miles, and could not remember any mention of kilometers. Id. ¶ 145.
Plaintiff’s husband did not ask, at any point before Plaintiff finalized her T8 purchase, to see a
finalized electric mileage range. Id. ¶ 147. Plaintiff’s husband never spoke with anyone at Volvo
about the T8’s pure electric mileage. Id. ¶ 148. Plaintiff’s husband was aware that variables like
temperature, speed, and road type impact electric mileage. Id. ¶ 149. Plaintiff could not recall
whether her husband ever mentioned to her that driving conditions and how a vehicle is driven can
affect the electric range on the T8. Id. ¶ 152.
II.
LEGAL STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”
Federal Rule of Civil Procedure 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Orson,
Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). A factual dispute is genuine only
if there is “a sufficient evidentiary basis on which a reasonable jury could find for the non-moving
party,” and it is material only if it has the ability to “affect the outcome of the suit under governing
law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment. Anderson, 477 U.S. at 248. “In considering a motion for
summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all
justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (citation omitted).
The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 322. If the movant satisfies its initial burden, the nonmoving
party cannot rest upon mere allegations in the pleadings to withstand summary judgment; rather,
the nonmoving party “must counter with specific facts which demonstrate that there exists a
genuine issue for trial.” Orson, 79 F.3d at 1366. Specifically, the nonmoving party “must make
a showing sufficient to establish the existence of each element of his case on which he will bear
the burden of proof at trial.” Huang v. BP Amoco Corp, 271 F.3d 560, 564 (3d Cir. 2001); see
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) (“[A] plaintiff cannot resist a
properly supported motion for summary judgment merely by restating the allegations of his
complaint, but must point to concrete evidence in the record that supports each and every essential
element of his case.”). Thus, “a mere ‘scintilla of evidence’ in the nonmovant’s favor” is
insufficient to create a genuine issue of fact.” Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660,
666 (3d Cir. 2016) (citation omitted); see Lackey v. Heart of Lancaster Reg’l Med. Ctr., 704 F.
App'x 41, 45 (3d Cir. 2017) (“There is a genuine dispute of material fact if the evidence is sufficient
for a reasonable factfinder to return a verdict for the nonmoving party.”). Ultimately, it is not the
Court’s role to make findings of fact, but to analyze the facts presented and determine if a
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reasonable jury could return a verdict for the nonmoving party. See Brooks v. Kyler, 204 F.3d 102,
105 n.5 (3d Cir. 2000).
III.
DISCUSSION
A. Illinois Consumer Fraud Act
A successful ICFA claim requires a plaintiff to prove “(1) the defendant undertook a
deceptive act or practice; (2) the defendant intended that the plaintiff rely on the deception; (3) the
deception occurred in the course of trade and commerce; (4) actual damage to the plaintiff
occurred; and (5) the damage complained of was proximately caused by the deception.” Davis v.
G.N. Mortg. Corp., 396 F.3d 869, 883 (7th Cir. 2005) (citation omitted). 10 For purposes of this
decision, the Court will only focus on the first and fifth elements.
i.
False or Deceptive Statements about the T8’s Pure Electric Range
Courts apply a “reasonable consumer” standard in evaluating the likelihood of deception
under the ICFA. Alleman v. Collection Prof’ls, Inc., Case No. 1:17-cv-9294, 2019 WL 5576872,
at *6 (N.D. Ill. Oct. 29, 2019). And critically, “when determining whether a statement is deceptive
or misleading . . . a court considers the statement in context, viewing the product as a whole” and
evaluating all the information available to the consumer. Deckers Outdoor Corp. v. Australian
Leather Pty. Ltd., 340 F. Supp. 3d 706, 719 (N.D. Ill. 2018); Bober v. Glaxo Wellcome Plc, 246
F.3d 934, 938-39 (7th Cir. 2001); Davis, 396 F.3d at 884. Courts applying Illinois law have
repeatedly awarded summary judgment—or dismissed claims at the pleading stage—when the
challenged statements and representations could not be false or misleading under this carefully
crafted standard. See, e.g., Bober, 246 F.3d at 938-940; Davis, 396 F.3d at 884; Killeen v.
McDonald’s Corp., 317 F. Supp. 3d 1012, 1013-14 (N.D. Ill. 2018); Ibarrola v. Kind, LLC, 83 F.
10
The parties do not dispute that Illinois law applies.
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Supp. 3d 751, 756-59 (N.D. Ill. 2015); Wiegel v. Stork Craft Mfg., Inc., 946 F. Supp. 2d 804, 81017 (N.D. Ill. 2013); Trujillo v. Apple Comput., Inc., 581 F. Supp. 2d 935, 938-39 (N.D. Ill. 2008);
Deckers Outdoor Corp., 340 F. Supp. 3d at 719.
The crux of Plaintiff’s ICFA claim is her contention that VCUSA misrepresented the
distance her T8 would be able to travel when operating solely on electric power. In her Amended
Complaint, Plaintiff alleges that VCUSA misrepresented that her T8 would achieve a range of 25
miles using solely electric power from the T8’s battery, while knowing that the “real” range was
less. See Am. Compl. ¶ 55, ECF No. 22. In support of her claim, Plaintiff identifies several
statements which she alleges contain misrepresentations about the T8’s pure electric range. See
id. ¶¶ 15-20, 25-29, ECF No. 22. Plaintiff claims that she relied on these misrepresentations, which
provide the basis for her ICFA claim.
Id. ¶ 56.
The Court will address each alleged
misrepresentation in turn.
First, Plaintiff alleges that on “October 21, 2014, VCUSA issued a press statement in the
United States directed to United States consumers about the “all-new Volvo XC90.” Am. Compl.
¶ 15. In that press release, VCUSA stated that the range for driving on pure electric power “will
be around 40 kilometers.” Id. (emphasis added). Plaintiff claims that 40 kilometers translates to
a range of 24.85 miles. Id. This press release, which is attached at Exhibit 1 to Plaintiff’s Amended
Complaint and cited in Defendant’s statement of undisputed facts, also provides that the statements
“relate to Volvo Car Group’s international car range” and that “[v]ehicle specifications may vary
from one country to another and may be altered without prior notification.” DSOF ¶ 87 (emphasis
added).
As to the second misrepresentation, Plaintiff alleges that “[o]n December 8, 2014, VCUSA
issued a press release in the United States directed to United States consumers stating that ‘[t]he
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XC90 T8 has a range of more than 40km using just electricity, which covers the total distance
most people drive in one day.’” Am. Compl. ¶ 16. This press release, which is attached at Exhibit
2 to Plaintiff’s Amended Complaint and cited in Defendant’s statement of undisputed facts, also
provides that the “data used in the press release is based on the NEDC certification cycle used in
the EU. The figures are preliminary.” DSOF ¶ 90 (emphasis added).
Plaintiff further alleges that on April 16, 2015, VCUSA issued another press release in the
United States directed to United States consumers about the T8. Am. Compl. ¶ 17. Plaintiff claims
that VCUSA stated “[p]reliminary testing based on EPA criteria produced an estimated range of
17 miles using just electricity, which represents a high percentage of drivers’ typical daily usage.”
Id. (emphasis added). This press release, which is attached at Exhibit 3 to Plaintiff’s Amended
Complaint and cited in Defendant’s statement of undisputed facts, emphasizes that the testing was
preliminary and that the range of miles using just electricity was estimated. See DSOF ¶ 90.
As to the fourth misrepresentation, Plaintiff alleges that VCUSA produced a marketing
brochure directed to United States consumers that stated: “Fully charged, the T8 Twin Engine
provides 17 miles (estimated) of pure electric driving – sufficient to cover most commutes and
everyday scenarios.” Am. Compl. ¶ 18 (emphasis added). This press release, which is attached at
Exhibit 4 to Plaintiff’s Amended Complaint and cited in Defendant’s statement of undisputed
facts, provides an estimated range the T8 would travel for most commutes.
Next, Plaintiff alleges that on April 30, 2015, VCUSA went back to its original claims
concerning the T8’s electric range from its April 16 press release and surpassed them, stating that
the T8 delivers “43km pure electric range.” Am. Compl. ¶ 19. According to Plaintiff, “[a] range
of 43km translates to a range of 26.72 miles.” Id. This press release, which is attached at Exhibit
5 to Plaintiff’s Amended Complaint and cited in Defendant’s statement of undisputed facts, also
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notes that “[a]ll figures are based on the NEDC driving cycle for hybrids.” DSOF ¶¶ 96-97
(emphasis added).
It further notes that the press release pertains to Volvo Car Group’s
international car range and that specifications can vary from country to country. Id. ¶ 98.
Finally, on January 21, 2016, which is almost two weeks after Plaintiff received her T8,
Plaintiff alleges that VCUSA issued a press release in the United States directed to United States
consumers stating that “[t]he XC90 T8 has a range of more than 40 km using just electricity, which
covers the total distance many people drive in one day.” Am. Compl. ¶ 20. This press release,
which is attached at Exhibit 5 to Plaintiff’s Amended Complaint, also provides that “[d]escriptions
and facts in this press material relate to Volvo’s Car Group’s international car range . . . Vehicle
specifications may vary from one country to another and may be altered without prior notification.
ECF No. 22-6 at 3.
In addition to the press releases, Plaintiff produced the following third-party internet
publications that contained information about the T8 and its pure electric performance:
•
A February 15, 2015 Green Car Reports article stated that “Volvo quotes a range of40 km
(25 miles), but that’s on the European NEDC cycle. We estimate that the comparable EPA
number is likely to be between 18 and 21 miles.” DSOF ¶ 107; PRSOF ¶ 107.
•
On May 21, 2015, the same outlet published another article stating that “The XC90 T8 has
a 9.2-kilowatt-hour lithium-ion battery pack, which provides enough capacity for 25 miles
of electric range, Volvo claims. (The EPA rated range may be lower.)” Id. ¶ 108.
•
The Car Magazine UK article cited in Paragraph 27 of the FAC references the “European
test” when discussing the T8’s pure electric range. Id. ¶ 109.
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•
An April 16, 2015 review published on Edmunds.com stated that the “Volvo plugin hybrid
has an estimated electric range of 17 miles. The EPA has not released official fuel
economy numbers on the XC90 T8 Twin Engine.” Id. ¶ 110 (emphasis added).
•
The Inside EV article referenced in paragraph 28 of the Amended Complaint says that the
T8’s battery is “large enough to offer up to 40km (25 miles) in the pure electric mode under
NEDC conditions (expect less in the real world).” Id. ¶ 112.
•
An Autoweek review published on April 20, 2015, likewise, stated that the T8’s lithium
battery “provides the juice for an electric-only range of 17 miles, though that’s not an
official EPA estimate – we’ll have to wait a few more weeks for the numbers that’ll go on
the window sticker.” Id. ¶ 111.
See DSOF ¶¶ 107-12 (citations to the exhibits cited therein); PRSOF ¶¶ 107-12.
When determining whether a statement is deceptive or misleading, a court considers the
statement in context, viewing the product as a whole and evaluating all the information available
to the consumer. See Deckers Outdoor Corp., 340 F. Supp. 3d at 719 (citing Pernod Ricard USA,
LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 250–51 (3d Cir. 2011)). In Deckers, Australian Leather
alleged that Deckers falsely represents that its boots are made in Australia in violation the Illinois
Consumer Fraud Act, among other violations. Id. Australian Leather argued that it is deceptive
to use the slogan “UGG Australia” when the boots are not manufactured in Australia. Id. Although
the boots were labeled “UGG Australia,” the court noted that Deckers accurately labeled the inside
of each pair of boots with the country of manufacture. Id. Finding that no reasonable juror could
conclude that Deckers deceptively marketed its boots as being made in Australia, the court
explained that “every pair of boots with that label also contains a more specific country of origin
label” and “the UGG Australia label does not state that the boots were made in Australia.” Id. In
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rendering its decision, the court considered the statements in context, viewing the product as a
whole. Id.
When reviewing all the statements in the press releases, third party publications, and
vehicle literature discussed above as a whole, the court cannot conclude that Defendant acted
deceptively. Although the representations in the materials that Plaintiff relied on includes a range
that the T8 is projected to travel using solely electric power, the materials also include clear
statements that the range information provided is “estimated,” “preliminary based on EPA
criteria,” based on the NEDC cycle, and that “vehicle specifications may vary from one country to
another.” In fact, Plaintiff does not dispute that the information contained in many of the press
releases that her husband saw contained test results in kilometers, the common European unit of
measurement. PRSOF ¶ 145, DSOF ¶ 145. Nor does Plaintiff dispute that her husband read press
releases that explicitly stated that the 40-kilometer range was based on testing performed under
the NEDC test criteria mandated in Europe, where the T8 was manufactured and first offered for
sale. Id. ¶¶ 64, 136-37. There is no evidence in the record that any of the materials guarantee or
make a promise about what range Plaintiff, or any driver, would achieve when driving their T8.
Reading the representations that were available to Plaintiff prior to purchasing the T8, in their full
context as directed by the Deckers court, no reasonable consumer could have thought that the T8
was guaranteed to travel, in all circumstances, 25 miles, or even 17 miles, on a single charge using
solely electric power.
Nevertheless, Plaintiff maintains that the T8 is not capable of achieving the advertised pure
electric range and that a reasonable consumer could believe that VCUSA’s representations were
the official EPA certified range. Despite the lack of guarantee or promises in the representations
in the press releases, third party publications, or vehicle literature, the materials do represent that
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the T8 has an estimated electric range of 17 to 25 miles. Defendant submitted evidence that
Plaintiff’s T8 traveled in a range of 18-20 miles in pure electric mode when the vehicle was
preconditioned, and safety and power features were used. See Ex. 21, ECF No. 192-12; see also
Ex. 22, Walter Dep., at 27:21-28:19, ECF No. 192-13. After Plaintiff’s husband complained to
his local dealer that he was unable to obtain the range that he expected, Paul Walter tested
Plaintiff’s T8 by driving it in pure electric mode under a variety of conditions. DSOMF ¶¶ 16263. Based on the results of the tests, Mr. Walter concluded that “[g]iven the expected % of battery
power loss for the ambient temperatures while testing, the vehicle performed within Volvo’s stated
range of 17-25 miles.” See Ex. 21, ECF No. 192-12. In response to this evidence, Plaintiff
contends that David Sacco, a representative of the dealership from which Plaintiff purchased her
T8, found Mr. Walter’s results “to be the result of, in essence, cooking the books, as well as
inconsistent with VCUSA’s advertisements.” ECF No. 198 at 22. Despite Mr. Sacco’s claim,
Plaintiff has not submitted sufficient evidence to rebut Mr. Walter’s report.
Having reviewed the representations in the press releases, third party publications, and
vehicle literature, which Plaintiff relied on before purchasing the T8, the Court concludes that the
representations did not guarantee or promise that the T8 would travel, in all circumstances, 25
miles on a single charge. Thus, the Court finds that no reasonable juror could conclude that
Defendant deceptively represented that the T8 would achieve a certain range of miles using solely
electric power.
ii.
Damages
Notwithstanding the above, Plaintiff has not submitted sufficient evidence regarding
damages to survive summary judgment. As Defendant correctly notes, damages are an essential
element of every claim Plaintiff brings in this case, including her cause of action under the ICFA.
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ECF No. 192-1 at 27. “As courts have held in a variety of contexts, a nonmovant’s failure to
produce sufficient evidence of the damages element of its claim calls for the entry of summary
judgment.” Dunkin’ Donuts Inc. v. N.A.S.T., Inc., 428 F. Supp. 2d 761, 767 (N.D. Ill. 2005).
Although damages need not be proven “to an absolute certainty,” the plaintiff “must present
enough evidence to create a genuine issue of fact pertaining to damages,” including “a basis for
computing damages with a fair degree of probability.” Petty v. Chrysler Corp., 343 Ill. App. 3d
815, 823 (2003); Ace Hardware Corp. v. Marn, Inc., No. 06-cv-5335, 2008 WL 4286975, at *18
(N.D. Ill. Sept. 16, 2008). As the Seventh Circuit has observed, “[a]ssessing damages is often and
permissibly speculative, but only within limits.” Ace Hardware, 2008 WL 4286975, at *18
(quoting Haslund v. Simon Prop. Group, Inc., 378 F.3d 653, 658 (7th Cir. 2004)). “[M]ere
speculation, hypothesis, conjecture, or whim” will not suffice. Petty, 343 Ill. App. 3d at 823
(quotation omitted).
Here, in calculating her damages, Plaintiff contends that she did not receive the benefit of
her bargain because VCUSA did not live up to its represented electric range. ECF No. 198 at 45.
More specifically, Plaintiff contends that “she paid for a T8 with an MSRP that factored in a 25mile electric charge, but only received, at best, 13 miles per the EPA.” Id. Plaintiff notes that the
T6’s MSRP is $55,400.00 and the T8’s MSRP is $68,100.00. Plaintiff further notes that “the
electric driving capability at a rate of 25 miles per electric charge is worth $12,700.00.” Id. Based
on this, Plaintiff contends that her damages are “calculated by multiplying the 12/25 fraction (the
amount of the advertised electric range that she did not receive (25 minus 13) over the actual
electric range factored into the MSRP) by $12,700.00. That equals $6,096.00.” Id.
In response, Defendant contends that Plaintiff’s “entire damages case hinges on her
demonstrably false premise that the only difference between her T8 hybrid and the T6 model of
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the XC90 vehicle is the T8’s pure electric driving capability.” ECF No. 200 at 18. Defendant
further contends that Plaintiff’s T8 conformed with each range representation from VCUSA. Id.
at 20. Defendant argues that Plaintiff has adduced no evidence as to how the MSRP of the T8 was
originally set, and what value, if any, VCUSA, placed on EPA ratings in pure electric mode.
Finally, Defendant argues that Plaintiff cannot dispute that the T8’s MSRP was advertised long
before final EPA ratings were released, so it is difficult to see how the MSRP could have anything
to do with EPA results.” Id. The Court agrees.
As an initial matter, Defendant has submitted sufficient evidence to support its contention
that Plaintiff’s T8 conformed with each range representation from VCUSA. See Waler Dep., at
27:21-28:19, ECF No. 192-13 (finding that Plaintiff’s T8 traveled in a range of 18-20 miles in pure
electric range when the vehicle was preconditioned, and safety and power features were used.);
see also Ex. 21, ECF No. 192-12 (Mr. Walter concluded that “[g]iven the expected % of battery
power loss for the ambient temperatures while testing, the vehicle performed within Volvo’s stated
range of 17-25 miles.”).
Though Plaintiff contends that the only difference between her T8 and the T6 is the T8’s
pure electric driving capability, Plaintiff concedes through her responses to Defendant’s statement
of facts that the T6 and T8 have several differences. For example, Plaintiff does not dispute the
following facts:
•
•
•
•
•
•
•
•
The T6 had a power output of 316 horsepower. DSOF ¶ 21; PRSOF ¶ 21.
The T8 had a power output of 400 horsepower. PRSOF ¶ 22.
The T6 does not have an MPGe rating. DSOF ¶ 26; PRSOF ¶ 26.
The T8 has hybrid electric driving capability at the range of 53 MPGe. Id. ¶ 191.
The T6’s acceleration from 0-60 m.p.h. is 6.1 seconds. Id. ¶ 28.
The T8’s acceleration from 0-60 m.p.h. is 5.3 seconds. Id. ¶ 27.
The T8s were equipped with a unique, handmade Orrefors crystal gear shift knob
not available on the T6. Id. ¶ 33.
Plaintiff has not claimed that her T8 does not achieve any of the following benefits
provided by the electric motor in her vehicle:
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o
o
o
o
hybrid electric driving capability at the range of 53 MPGe;
power output of 400 horsepower;
a 472 torque rating;
acceleration from 0-60 m.p.h. in 5.3 seconds. Id. ¶ 191.
Based on the undisputed evidence, the T6 and T8 have several differences, which are not accounted
for in Plaintiff’s damages calculations. Her failure to account for these differences is fatal to her
damage claim.
Moreover, Plaintiff’s assumption that the T8’s MSRP was based on a 25-mile EPA pure
electric rating is also fatal to her damage claim. To date, Plaintiff has adduced no evidence as to
how the MSRP of the T8 was set, including how (and whether) the T8’s actual electric mileage
capability factored into the MSRP. Plaintiff has likewise identified no evidence that the EPA
certified range in pure electric mode had any impact on the T8’s MSRP. At this stage of the
litigation, to survive Defendant’s summary judgment motion, Plaintiff must present some evidence
on which the jury could reasonably find in her favor. See Siegel v. Shell Oil Co., 612 F.3d 932,
936 (7th Cir. 2010). Plaintiff has not. Accordingly, summary judgment is granted in favor of
Defendant on this claim.
B. Common law Fraud
Plaintiff’s common law fraud claim, which is based on the same underlying facts as
Plaintiff’s ICFA claim, fails for the same reasons her ICFA claim failed. See Am. Compl. ¶ 60
(“Plaintiffs re-allege and incorporate by reference the allegations contained in paragraphs 1
through 52 above as if fully set forth herein.”). To succeed in advancing a common law fraud
claim, a plaintiff must establish (1) a false statement of material fact; (2) defendant’s knowledge
that the statement was false; (3) defendant’s intent that the statement induce plaintiff to act: (4)
plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s damages resulting from
reliance on the statement. Davis, 396 F.3d at 881-82. As set forth above, Plaintiff has not
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presented evidence of a deceptive act or false statement of material fact and has not satisfied her
burden to establish damages. These failings are equally fatal to her fraud claim. Id. at 881-84
(affirming summary judgment on ICFA and fraud claims). Accordingly, summary judgment is
granted in favor of Defendant on this claim.
C. Unjust Enrichment
Plaintiff’s unjust enrichment claim is based on the same alleged course of conduct that
forms the basis of her ICFA and common law fraud claims and, accordingly, fails for the same
reasons. See Am. Compl. ¶ 75 (“Plaintiffs re-allege and incorporate by reference the allegations
contained in paragraphs 1 through 52 above as if fully set forth herein.”). Under Illinois law, an
unjust enrichment claim “is not a separate cause of action that, standing alone, will justify an action
for recovery.” Siegel, 612 F.3d at 937. As such, the fate of an unjust enrichment claims which
rests “on the same improper conduct alleged in another claim” stands or falls with the related
claims. Cleary v. Philip Morris, Inc., 656 F.3d 511, 517 (7th Cir. 2011). Because Plaintiff has not
identified any false, misleading or deceptive conduct, and has failed to carry her burden on
damages, her unjust enrichment claim fails, and summary judgment is proper. See Siegel, 612
F.3d at 936-37 (affirming summary judgment of unjust enrichment claim based on same premise
as failed ICFA claim); Wiegel, 946 F. Supp. 2d at 817 (same); Ibarrola, 83 F. Supp. 3d at 760-61
(same); Kremers, 712 F. Supp. 2d at 775 (same). Accordingly, summary judgment is granted in
favor of Defendant on this claim.
D. Breach of Express Warranty
Plaintiff’s breach of express warranty claim is based on the same alleged course of conduct
that forms the basis of her ICFA and common law fraud claims and fails for the same reasons.
See Am. Compl. ¶ 68 (“Plaintiffs re-allege and incorporate by reference the allegations contained
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in paragraphs 1 through 52 above as if fully set forth herein.”). To seek damages for breach of an
express warranty, Plaintiff bears the burden to show “by a preponderance of the evidence the terms
of the warranty, the failure of some warranted part, a demand upon the defendant to perform under
the terms of the warranty, a failure of the defendant to do so, a compliance with the terms of the
warranty by the plaintiff, and damages measured by the term of the warranty.” Oggi Trattoria &
Caffe, Ltd. v. Isuzu Motors America, Inc., 372 Ill. App. 3d 354, 360 (2007). “To be actionable
under the theory of express warranty the claim must be based on an affirmation of fact or
promise…which is false.” MacNeil Auto Prods., Ltd. v. Cannon Auto. Ltd., 715 F. Supp. 2d 786,
794 (N.D. Ill. 2010). The warrantor is the master of the express warranty, and the language of the
warranty controls and dictates the rights of the parties. Collins Co. v. Carboline Co., 532 N.E.2d
834, 838 (Ill. 1988). As such, an express warranty “must be interpreted in a manner that is
consistent with the clear and express language contained therein.” Hasek v. Daimler Chrysler
Corp., 745 N.E.2d 627, 636 (Ill. App. Ct. 2001).
Plaintiff’s breach of express warranty claim is based on the premise that Defendant falsely
represented that the T8 would achieve a range of 25 miles solely on electric power. See Am.
Compl. ¶ 69. Because the Court finds that Defendant did not deceptively represent that the T8
would achieve a certain range of miles using solely electric power and further finds that Defendant
submitted sufficient evidence that Plaintiff’s T8 conformed with each range representation from
VCUSA, Plaintiff’s breach of express warranty claim fails. Accordingly, summary judgment is
granted in favor of Defendant on this claim.
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IV.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment [ECF No. 191] is
GRANTED, and the renewed motion to certify class [ECF No. 168] and the motion to strike [ECF
No. 173] are DENIED as moot.
s/ Julien Xavier Neals
JULIEN XAVIER NEALS
United States District Judge
DATED: February 6, 2023
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