Fellows v. Ford Motor Company

Filing 27

OPINION AND ORDER: Defendant's Motion To Dismiss is granted in part and denied in part. To the extent that Plaintiffs make claims based on the mere use of EPA fuel economy estimates in advertisements or on Monroney Stickers, those claims are dismissed because they are preempted by federal law and, in any event, fail to state a claim. Additionally, Plaintiffs' MMW A claim and unjust enrichment claim under California and New York law are dismissed. The Clerk is respectfully requested to terminate the Motion. (Dkt. No. 63.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 11/12/2015) Filed In Associated Cases: 7:13-md-02450-KMK et al. (lnl) (Main Document 82 replaced on 11/17/2015) (mml). (Additional attachment(s) added on 11/17/2015: #1 Part 2) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

In re:
FORD FUSION AND C-MAX FUEL ECONOMY
LITIGATION,

Case No. 13-MD-2450 (KMK)
OPINION AND ORDER

This Document Relates to All Actions

Appearances:
Paul Geller, Esq., Stuart Davidson, Esq., Mark Dearman, Esq., & Sheri Coverman, Esq.
Robbins Geller Rudman & Dowd LLP
Boca Raton, FL
Co-Lead Counsel for Plaintiffs and the Class
Samuel Rudman, Esq.
Robbins Geller Rudman & Dowd LLP
Melville, NY
Co-Lead Counsel for Plaintiffs and the Class
Rachel Jensen, Esq.
Robbins Geller Rudman & Dowd LLP
San Diego, CA
Co-Lead Counsel for Plaintiffs and the Class
Eric Gibbs, Esq., Geoffrey Munroe, Esq., & David Stein, Esq.
Girard Gibbs LLP
San Francisco, CA
Co-Lead Counsel for Plaintiffs and the Class
John Yanchunis, Esq. & Rachel Soffin, Esq.
Morgan & Morgan
Tampa, FL
Counsel for Plaintiffs’ Executive Committee
Peter Safirstein, Esq.
Morgan & Morgan
New York, NY
Counsel for Plaintiffs’ Executive Committee

Richard McCune, Esq. & Elaine Kusel, Esq.
McCune Wright LLP
Redlands, CA
Counsel for Plaintiffs’ Executive Committee
Jonathan Shub, Esq. & Scott George, Esq.
Seeger Weiss LLP
New York, NY
Counsel for Plaintiffs’ Executive Committee
Stephen Jaffe, Esq., Mark Fistos, Esq., & Seth Lehrman, Esq.
Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.
Fort Lauderdale, FL
Counsel for Plaintiffs’ Executive Committee
Bruce Steckler, Esq. & Mazin Sbaiti, Esq.
Steckler Law LLP
Dallas, TX
Counsel for Plaintiffs’ Executive Committee
Cory Fein, Esq.
Caddell & Chapman
Houston, TX
Counsel for Plaintiffs’ Executive Committee
Joel Dewey, Esq., Jeffrey Yeatman, Esq., Matthew Goldberg, Esq., & Timothy Birnbaum, Esq.
DLA Piper LLP
New York, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiffs are “consumers who purchased or leased a 2013 Ford Fusion Hybrid (“Fusion”)
or 2013 Ford C-MAX (“C-MAX”) (collectively, the “Vehicles”) from dealerships licensed by
Ford Motor Company (“Ford,” or “Defendant”), an automobile manufacturer based in Dearborn,
Michigan, allegedly in reliance on Ford’s “misrepresentations and material omissions” about the
Vehicles’ fuel economy. (Consolidated Am. Class Action Compl. (“CAC”) ¶¶ 7–9, 41 (Dkt. No.
51).) Plaintiffs bring this Consolidated Amended Class Action Complaint (“CAC”), on their
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own behalf and on behalf of members of a putative class (“Class”), alleging that they would not
have otherwise purchased or leased the Vehicles, or would not have paid as much for them, had
it not been for Ford’s misrepresentations, and that they have otherwise been damaged because of
higher fuel costs and the diminution in the Vehicles’ value. (Id. ¶ 8.) Before the Court is
Defendant’s Motion To Dismiss the CAC. For the reasons stated herein, the Motion is denied in
part and granted in part.
I. Background
A. Factual Background
1. Advertising Campaign
The following facts are drawn from the CAC, and they are assumed to be true for
purposes of deciding Defendant’s Motion.
Until 2012, following Ford’s release of its first hybrid sedan—the Fusion—Ford’s
“efforts to break into the . . . market for hybrid vehicles had been largely unsuccessful.” (Id.
¶¶ 2, 47.) As of mid-2012, Ford had only a 3% share of that market. (Id. ¶ 3.) Plaintiffs allege
that this was due to an inability of Ford’s “primary hybrid offering,” the Fusion, with offered an
estimated combined 39 miles per gallon (“MPG”)—36 MPG city, 41 MPG highway—fuel
economy, to compete with the Toyota Prius and its estimated combined 51 MPG city, 48 MPG
highway. (Id. ¶¶ 2, 48.)
In 2013, Ford “launched a massive,” and allegedly misleading, “advertising campaign”
focusing on two of its new hybrid models—the Fusion and the C-MAX, highlighting their
estimated 47 MPG. (Id. ¶ 3.) The campaign included a “Times Square ‘47’ kick-off,” which
featured Ryan Seacrest and “the number ‘47’ featured prominently and in a variety of ways,”
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including a sign held by Ford’s CEO, the number “47” on “giant LED screens,” and “crowds of
people” wearing “47” t-shirts and holding “up signs to make a ‘47’ montage visible from the
sky.” (Id. ¶¶ 3, 56.)
Ford also launched a “‘47 Challenges, 47 Days’ multi-media campaign” designed to
“target all hybrid [buyers] on the fence” about purchasing a hybrid vehicle. (Id. ¶¶ 3, 57
(brackets and internal quotation marks omitted).) The campaign included commercials aired
“thousands of times, in all major media markets, on major networks, and at all times of day
touting the fuel economy of the Vehicles,” magazine advertisements in “numerous and varied
magazines . . . with collective national circulations in the tens of millions,” newspaper
advertisements, a social media campaign on “Facebook, Twitter, and other social media” which
included the “47 Day Photo Challenge,” in which “consumers were asked to submit photos that
‘captured the spirit of the Hybrid Fusion’s 47 [MPG]’,” promotional brochures “touting . . . 47
MPG,” on-line profiles on Ford’s website, and “a number of national press releases boasting
about the Vehicles’ improved fuel economy and the success of [Ford’s] 47 MPG advertising.”
(Id. ¶¶ 3, 58.) Ultimately, the campaign was a “tremendous success” and contributed to “record
hybrid sales,” allegedly attributable to the increase in fuel economy. (Id. ¶ 4.) By the end of
2012, Ford had increased its share of the hybrid market to 16% and by April 2013 was the
“second-leading auto company in the hybrid market,” with record hybrid sales continuing
through August 2013. (Id. ¶¶ 4, 52–53.)
The problem, Plaintiffs contend, is that Ford’s advertising was “highly misleading.” (Id.
¶ 5.) Plaintiffs allege that while the campaign “emphasized that the ‘47 MPG’ was something
the Vehicles would actually deliver,” (id. ¶ 59), designed to convey “real vehicle[] performance”
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and “truly reflect the vehicle,” (id. ¶ 60 (internal quotation marks omitted), “under real-world
driving conditions, consumers . . . [were] consistently unable to get anywhere near the advertised
47 MPG,” (id. ¶ 5). Plaintiffs further aver that only “[s]ome of Ford’s advertisements include[d]
small type at the bottom that read[] ‘EPA-estimated 47 city/47 hwy [sic]/47 combined [MPG].
Actual mileage may vary,’” and that, even so, this “standard boilerplate language . . . did not
alter the campaign’s overall impression on consumers,” (id. ¶ 62), in part because “nowhere in
the [advertising] campaign did [Ford] make a distinction between real-world performance and
the EPA-estimated rating,” (id. ¶ 63.)1
Plaintiffs maintain that the offending representations included:

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“The . . . Fusion delivers a remarkable 47 mpg city and highway[.]”
“The . . . Fusion delivers a U.S. EPA-certified 47 mpg city, 47 mpg
highway[,] and 47 mpg combined in its hybrid model!”
“47 mpg in the city and on the highway? Yes, it’s true. The all new Fusion
. . . achieves 47 combined mpg—doubling the fuel economy of the average
vehicle.”
“Fusion . . . gets 47 MPG in the city, on the highway[,] and combined.”
“C-MAX . . . is Ford’s first hybrid vehicle to offer 47 mpg across the board.”
“C-MAX Hybrid delivers EPA-certified 47 mpg city, 47 mpg highway
ratings—7 mpg better than the Toyota Prius [V] on the highway—for a 47
mpg combined rating.”
“47 mpg hybrid for me."

(Id. (emphasis and internal quotation marks omitted).) Plaintiffs further allege that Ford made
two misleading posts on the C-MAX official Facebook page: (1) On August 7, 2012, a post
noting that “[i]f someone asks what MPG the C-MAX Hybrid gets, you can tell them 47[,] [and]
[t]hat’s because the all-new . . . C-MAX . . . delivers EPA-certified 47 mpg city and 47 mpg

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Plaintiffs fail, however, to identify any advertisement that did not include the
disclaimer.
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highway ratings for a 47-mph combined rating”; (2) On August 21, 2012, a post indicating that
“the C-MAX . . . can more than keep up [with the 2013 Ford Escape] and achieve an estimated
570 miles on a single tank of gas.” (Id. ¶ 67.) Additionally, Plaintiffs allege that on February 6,
2013, during a “Ford Fusion Lunch Date,” Gil Portalatin, the Chief Programming Engineer for
Electrified Programs and Integration at Ford, “told a consumer asking about the ability to get the
advertised fuel economy of the . . . Fusion . . . that, ‘You can get it. It is there.” (Id. ¶ 64).
Finally, Plaintiffs allege that, in a press release, Ford stated that the “C-MAX . . . returns the
same fuel economy whether driving cross-county or across the city—stemming mostly from a
growing list of Ford innovations that have helped the vehicle to deliver an impressive list of
metrics, such as its 570-mile overall range, taking customers from Los Angeles to Las Vegas and
back on one tank of gas,” a range Ford referred to as “real car range” which “beat[s] Toyota
Prius [V] by 120 miles.”2 (Id. ¶¶ 65–66 (internal quotation marks omitted).)
Plaintiffs also allege that several other advertisements compared the Fusion and C-MAX
to other hybrid cars available for sale. These advertisements include the following:
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An advertisement indicating that the Fusion “tops the Toyota Camry Hybrid
by 8 mpg highway and 4 mpg city, and delivers the highest-ever fuel economy
numbers in city and highway driving for a midsize sedan.” (Id. ¶ 70 (internal
quotation marks omitted).)
An advertisement entitled “Wrong Direction” in which the narrator indicated
that the Fusion was “the most fuel efficient midsize sedan in America.” (Id.
¶ 71 (internal quotation marks omitted).)
An advertisement entitled “New Idea” which claimed that the “Fusion doubles
the fuel economy of the average vehicle.” (Id. ¶ 72.)
An advertisement indicating that the C-MAX “beats Prius V with better mpg”
and is “Miles Per Gallon Ahead of the Competition.” (Id. ¶ 73 (internal
quotation marks omitted).)

Plaintiffs provide no date or title for the press release.
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As indicated above, the advertising campaign targeted the Toyota Prius V in particular, which
“provided space comparable to Ford’s 2012 Fusion Hybrid, but was advertised as achieving 44
MPG city, 40 MPG highway, for a combined 42 MPG.” (Id. ¶¶ 51, 74.) Plaintiffs allege that, in
its advertisements, Ford “regularly compared the mileage of the C-MAX to that of the Toyota
Prius. (Id. ¶ 74.) For example, in July and August 2012, Ford “boasted that the C-MAX raises
the bar for hybrid fuel economy and takes customers further than the Toyota Prius.” (Id. ¶ 76.)
Ford reinforced this message in two cartoon advertisements. The first, “Ford C-MAX vs. Toyota
Prius [V], How Far on a Tankful,” shows a Prius stopping for gas before a C-MAX, and says “CMAX 571 miles, Prius only 450 miles,” “C-MAX . . . Maximizes a Tank of Gas,” and “Stop
Less, Go More.” (Id. ¶ 77 (internal quotation marks omitted).) The second, “C-MAX Hybrid
MPG,” shows how the “C-MAX beat the Prius V in combined MPG,” pairing the Prius V with
“44 MPG combined” and the C-MAX with “47 MPG combined,” and says “C-MAX Hybrid
Maximizes MPG, Stop Less, Go More.” (Id. ¶ 78 (internal quotation marks omitted).)
A series of advertisements reinforced Ford’s comparative message. In an internet
advertisement entitled “The Hybrid Games, MPG Showdown,” “two actors portray reporters
trying to determine whether the C-MAX or Prius V had better MPG,” wherein the announcers
state, and it is graphically depicted, that “the total range of the C-MAX is 571 miles while the
Prius’ driving range is 560 miles,” and that the “C-MAX should go further on a tank of fuel.”
(Id. ¶ 79.) Also in this advertisement, a Prius and C-MAX owner are shown “going about daily
errands,” and the Prius owner stops for gas first. (Id. ¶ 79 (internal quotation marks omitted).)
Likewise, an advertisement called “Say Whee,” indicates that the “C-MAX ‘bests’ the Toyota
Prius V in MPG,” and concludes by pairing the tagline “Say Hi to the all[-]new 47 combined
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mpg C-MAX Hybrid,” with an image of the C-MAX and a 47 MPG graphic. (Id. ¶¶ 80–81
(some internal quotation marks omitted).) In an advertisement entitled “Be Great,” the narrator
indicates that the C-MAX “beats Prius V with better MPG . . . Say hi to the all new 47 combined
mpg C-MAX.” (Id. ¶ 79 (second alteration in original) (internal quotation marks omitted).)3
Plaintiffs allege that, unlike the claims in the comparisons described above, “the Prius actually
achieves better MPG than the C-MAX in real-world driving conditions.” (Id. ¶ 85.) Thus, the
gist of Plaintiffs’ claim is that Ford’s representations about the Fusion and the C-MAX were
“false and misleading” because “they left reasonable consumers with the overall impression that
[the Vehicles] did, in fact, deliver 47 MPG . . . under real world driving conditions.” (Id. ¶ 68.)
2. Consumer Complaints and Subsequent Action
Even before the 47-MPG advertising campaign was in full swing, and shortly after the
Fusion and C-MAX were made available for sale, Plaintiffs allege that “buyers began
complaining in droves about the low gas mileage they were able to achieve,” with many
“report[ing] an inability to even reach MPG in the high 30s,” never mind fuel economy that
“beats Toyota’s Prius.” (Id. ¶ 89.) Plaintiffs also allege that subsequent independent testing has
confirmed that the Vehicles do not achieve the advertised 47 MPG. (Id. ¶ 90.) They claim that
in October 2012, Larry Vellequette of Automotive News found that the C-MAX “only achieved
slightly above 37 MPG,” that Consumer Reports, in December 2012, found that the Fusion

Further, Plaintiffs allege that in two unidentified advertisements “Ford stated that the CMAX ‘delivers EPA-certified 47 mpg city, 47 mpg highway ratings—7 mpg better than the Prius
V’ and claimed that customers would pay less at the dealership and the pump for a C-MAX
versus a Prius V,” that Ford “refers to the C-MAX as ‘[t]he country’s most fuel-efficient and
affordable hybrid[,]’ and [that Ford] tout[s] the ‘C-MAX . . . at 47 mpg combined [which] beats
Prius V by 7 mpg in the compact hybrid utility segment.” (CAC ¶¶ 83–84.)
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achieved only about 39 MPG, and that the C-MAX achieved only about 37 MPG, “concluding
that Ford overstated the fuel economy [of the Vehicles] by . . . about 20 percent,” the largest
discrepancy among the vehicles it tested. (Id. ¶¶ 90–92.) In April 2013, Plaintiffs further allege
that Autoblog found that the Fusion only achieves 37 MPG under normal use; the best they could
achieve was just over 40 MPG. (Id. ¶ 93.)
Importantly, Plaintiffs contend that Ford knew that the Vehicles did not achieve 47 MPG
in real-world conditions, and acknowledged as much near the end of the 2013 model year. (Id.
¶ 5.) Specifically, Plaintiffs allege that Ford “would have known” because “Ford and other
automakers do field testing where a number of vehicles are subject to extensive real-world
driving and the resulting data—which includes actual gas mileage—is recorded and analyzed.”
(Id. ¶ 94.) Plaintiffs further allege that Ford implicitly recognized that its advertising campaign
was misleading, by “offering . . . Fusion . . . and C-MAX . . . owners a software upgrade to
improve their fuel economy,” even as “consumers continue[d] to report average mileage well
below 47 MPG,” and without disclosing any possible “performance trade-offs associated with
the upgrade,” (id. ¶ 97), and that Ford also “lowered the estimated MPG for the C-MAX, from
47/47/47 to 45 city, 40 hwy, for a combined 43 MPG,” (id. ¶ 98.) Plaintiffs also aver that Ford
announced that it derived the MPG figures for the C-MAX based “solely on the testing of the
2013 Fusion Hybrid, although the [Fusion] is smaller and has a more aerodynamic shape.” (Id.
¶ 6; see also id. ¶ 100.) As a result, Plaintiffs allege that “Ford is [] now offering ‘good will’
payments to C-MAX owners and lessees,” namely “partial compensation . . . as reimbursement
for . . . increased fuel costs.” (Id. ¶ 102.)

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3. Regulatory Context
As Defendant notes in its Motion, “[t]he testing and disclosure of estimated fuel economy
for new vehicles sold in the United States is governed by a comprehensive federal regulatory
scheme” created by the Environmental Policy and Conservation Act (“EPCA”), and enforced by
the Federal Trade Commission (“FTC”) and Environmental Protection Agency (“EPA”). (Def.’s
Mem. of Law in Support of Mot. To Dismiss (“Def.’s Mem.”) 14 (Dkt. No. 64).) In 1975,
Congress passed the EPCA with the intent of improving motor vehicle energy efficiency. See
Green Mtn. Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 305–07 (D. Vt.
2007). It provides that every new vehicle sold in the United States be labeled with a sticker (a
“Monroney Sticker”) indicating estimated fuel economy, and that a booklet comparing fuel
economies of similar vehicles, prepared by the EPA, be made available by vehicle dealerships.
See 49 U.S.C. § 32908(b); see also Gilles v. Ford Motor Co., 24 F. Supp. 3d 1039, 1045 (D.
Colo. 2014) (identifying the sticker as a “Monroney Sticker”). The Monroney Sticker must also
include a disclaimer indicating that “[a]ctual results will vary for many reasons, including
driving conditions and how you drive and maintain your vehicle.” 40 C.F.R. 600.302-12(b)(4)
(internal quotation marks omitted); see also Gilles, 24 F. Supp. 3d at 1045.
The EPA regulates the calculation of estimated fuel economy. The current regime allows
automobile manufacturers to choose between two methods of calculating fuel economy. A
manufacturer can either directly test fuel economy using a “5-cycle” method, or can it can derive
fuel economy estimates using a series of equations and data from directly-tested, similar
vehicles. See 40 C.F.R. § 600.210-12; Press Release, “EPA Announces Revised Fuel Economy
Label Estimates for 2013 Ford C-MAX; Initiates Effort to Update Labeling Procedures to Keep
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Pace with Industry Trends,” (“Press Release”) Aug. 15, 2013, available at
http://yosemite.epa.gov/opa/admpress.nsf/6424ac1caa800aab85257359003f5337/8a00bfd7633d5
48f85257bc800637d37!OpenDocument (last visited November 2, 2015) (“EPA label regulations
allow, but do not require, vehicles with the same engine, transmission[,] and weight class to use
the same fuel economy label value data . . . .”); see also 40 C.F.R. § 600.115-11 (providing
criteria for using this method).4 Ford used the former approach with the Fusion and the latter
with the C-MAX. See Press Release (“Ford based the 2013 Ford C-MAX label on testing of the
related Ford Fusion hybrid, which has the same engine, transmission[,] and test weight as
allowed under EPA regulations.”)
The FTC, by contrast, regulates the advertisement of fuel economy estimates to
consumers. Its regulations provide, in relevant part, that “[n]o manufacturer or dealer
shall make any express or implied representation in advertising concerning the fuel
economy of any new automobile unless . . . the [EPA] is the source of the ‘estimated city
mpg’ and estimated highway mpg’ and that the numbers are estimates” and marked as
such. 16 C.F.R. § 259.2(a); see also Gilles, 24 F. Supp. 2d at 1046–47 (describing these
regulations and noting that, “[s]imply put, when a manufacturer includes miles per gallon
numbers in an advertisement, it must, in a clear and conspicuous manner, include the
EPA mileage estimates, state that they are estimates, and indicate that the EPA is the
source of the estimates”). The FTC regulations further provide that “[f]uel economy

Of note, manufacturers may also “voluntarily lower fuel economy values . . . if they
determine that the label values from any method are not representative of the fuel economy
. . . for that model type.” 40 C.F.R. § 600.210-12(a).
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estimates derived from a non-EPA test may be disclosed provided that,” inter alia, the
EPA estimates have “substantially more prominence than any other estimate.” 16 C.F.R.
§ 259.2(c).5 Unlike the EPA regulations, the FTC regulations do not require an “actual
results will vary” disclaimer. Gilles, 24 F. Supp. 3d at 1047. If a manufacturer fails to
comply, the FTC may take “corrective action . . . under appropriate statutory provisions.”
16 C.F.R. § 1.5.
4. Experience of Each Plaintiff
In the CAC, Plaintiffs provide background on each of the Plaintiffs. While Defendant’s
Motion focuses on the allegations in the CAC as a whole, the Court briefly summarizes the
experiences of each Plaintiff here, grouped by state and by vehicle. Plaintiffs allege that fuel
economy is a central consideration when consumers shop for a new car, (CAC ¶¶ 42–46), and
that the represented fuel economy of the Vehicles played a pivotal role in Plaintiffs’ purchasing
decisions, (id. ¶¶ 13–40).
a. Fusion
Johanna Fontenot, of Altadena, California, purchased a Fusion in November 2012 in
Duarte, California, in reliance on representations on Ford’s website and in Ford brochures that
the Fusion “got 47 MPG in highway and in city driving,” and, in fact, waited until the 2013
model year to purchase the Fusion for this reason. (Id. ¶ 16.)

The EPA estimate may have equal prominence to the non-EPA estimate in “radio and
television advertisements in which any other estimate is used only in the audio.” 16 C.F.R. §
259.2(c).
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Dan Wilkins, of Holyoak, Colorado, purchased a Fusion in November 2012 in
Lakewood, Colorado, in reliance on representations on Ford’s website that the Fusion “would get
47 MPG,” as well as statements in a brochure at the dealership where he purchased his Fusion
that it “got 47 MPG in the city and on the highway.” (Id. ¶ 17.)
Jeremy Dobbs, of Orlando, Florida, purchased a Fusion in December 2012 in reliance on
representations on Ford’s website that the Fusion “would get 47 MPG city, 47 MPG hwy [sic][,]
and 47 MPG combined,” as well as a brochure “he was given” at the dealership where he bought
his Fusion that “reinforced the 47/47/47 fuel economy message.” (Id. ¶ 20.)
Richard Weglarz, of Antioch, Illinois, purchased a Fusion in November 2012 in reliance
on representations on Ford’s website that the Fusion “would achieve 47 MPG whether in the city
or on the highway.” (Id. ¶ 22.)
Matthew Romak, of Gibraltar, Michigan, purchased a Fusion in January 2014 in reliance
on representations on Ford’s website that the Fusion “achieved 47 MPG in the city, on the
highway[,] and combined,” as well as a brochure at a dealership which stated that the Fusion
“achieved 47 MPG on the highway as well as in city driving.” (Id. ¶ 26.)
Dean Majkzrak, of Elk River, Minnesota, purchased a Fusion in January 2013 in reliance
on representations on Ford’s website and Facebook page that the Fusion “would achieve 47
MPG on the highway, as well as in the city.” (Id. ¶ 27.)
Michael Hendrickson, of Rogersville, Missouri, purchased a Fusion in January 2013 in
reliance on representations on Ford’s website and from “Ford Salespersons” that the Fusion
“would achieve 47 [MPG] in both highway and city driving,” as well as a brochure which stated
that the Fusion “would achieve 47 [MPG] in any type of driving.” (Id. ¶ 28.)
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Sal Lazuka, of Painesville, Ohio, purchased a Fusion in November 2012 in reliance on
Ford’s presentation at the Detroit Auto show, which indicated that the Fusion was “supposed to
achieve 47 MPG in city, highway, and combined,” as well as representations on Ford’s website
that the Fusion “would get 47 MPG in all types of driving.” (Id. ¶ 34.)
Mark Goodale, of Beaverton, Oregon, purchased a Fusion in January 2013 in reliance on
representations on Ford’s website that the Fusion “achieved 47 MPG in the city and on the
highway . . . in any type of driving.” (Id. ¶ 35.)
Gary Duckenmiller, of Lewistown, Pennsylvania, purchased a Fusion in December 2012
in reliance on representations on Ford’s website that the Fusion “achieved 47 MPG city,
highway[,] and combined,” as well as assurances from a dealer’s salesperson that the Fusion
“really got 47 MPG.” (Id. ¶ 36.) William Huff, of Boalsburg, Pennsylvania, purchased a Fusion
in November 2012 in State College, Pennsylvania, in reliance on representations on Ford’s
website that the Fusion “would achieve 47 MPG city, highway[,] and combined.” (Id. ¶ 37.)
Richard and Carol Fox, of Ridgefield, Washington, purchased a Fusion in November
2012 in reliance on representations in “My Ford” magazine indicating that the Fusion “would get
47 MPG city, highway[,] and combined,” as well representations on Ford’s website that the
Fusion “achieved 47 MPG in all types of driving.” (Id. ¶ 39.)
b. C-MAX
Gregory Holman, of Phoenix, Arizona, purchased a C-MAX in December 2012 in
reliance on a television commercial which indicated that “the C-MAX got better gas mileage
than the Prius V and achieved 47 [MPG] highway, city[,] and combined,” and the C-MAX

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Facebook page, which echoed this message and “included a video ad series called the Hybrid
Games” which compared the C-MAX favorably to the Prius. (Id. ¶ 13.)
Bruce Keller, of San Mateo California, purchased a C-MAX in November 2012 in
reliance on representations on Ford’s website that the C-MAX “achieved 47 MPG highway, city,
and combined,” and a television commercial indicating the C-MAX “had better horsepower than
Prius V, beat Prius V in MPG[,] and got 47 combined MPG.” (Id. ¶ 14.) Richard Pitkin, of
Roseville, California, purchased a C-MAX in October 2012 in Folsom, California, in reliance on
representations on Ford’s website that the C-MAX “achieved 47 MPG highway, city, and
combined,” and that its fuel economy was “better . . . than the Prius.” (Id. ¶ 15.)
April Tibbets, of Terryville, Connecticut, purchased a C-MAX in November 2012 in
reliance on a television commercial indicating that the C-MAX “got 47 MPG in highway and
city driving which was better than the Prius V,” as well as statements in a brochure at the
dealership where she purchased her C-MAX that “reiterated the 47 combined MPG message.”
(Id. ¶ 18.)
James Oldcorn, of Naples, Florida, purchased a C-MAX in December 2012 in reliance on
representations on Ford’s website that the C-MAX “achieved 47 miles per gallon highway,
city[,] and combined.” (Id. ¶ 19.)
Gary Cole, of Wakarusa, Indiana, purchased a C-MAX in January 2013 in reliance on
representations on Ford’s website that “C-MAX achieved 47 MPG hwy [sic], 47 MPG city[,] and
47 MPG combined,” as well as statements in a brochure at a dealership that “reinforced the
message that the C-MAX would get 47 MPG in all types of driving.” (Id. ¶ 21.)

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Raymond Belden, of Odenton, Maryland, purchased a C-MAX in January 2013 in
reliance on a television commercial which indicated that the C-MAX “got better gas mileage
than the Prius V and achieved 47 miles per gallon highway, city[,] and combined,” as well as
internet ads that stated that the C-MAX “got 47 MPG in both city and highway driving and
combined.” (Id. ¶ 23.)
James Griffiths, of Bay City, Michigan, purchased a C-MAX in September 2012 in
reliance on representations on Ford’s website that the C-MAX “would achieve 47 miles per
gallon highway, city, and combined,” as well as statements in a brochure at a dealership that
“reinforced the message that the C-MAX got 47 MPG whether it was driven in the city or on the
highway.” (Id. ¶ 24.) Charles Kroner, of Brownstown, Michigan, purchased a C-MAX in
January 2013 in Taylor, Michigan, in reliance on statements in a brochure that indicated that the
C-MAX “would achieve 47 MPG city, 47 MPG hwy [sic][,] and 47 MPG combined.” (Id. ¶ 25.)
Leah Broome, of Rolla, Missouri, purchased a C-MAX in December 2012 in reliance on
the “Ford Hybrid Games commercial which claimed that the C-MAX had better fuel economy
than the Prius and got 47 MPG in all types of driving,” as well as another television commercial
which “compared the Prius V’s gas mileage unfavorably to the C-MAX.” (Id. ¶ 29.) Michael
McComas, of Kansas City, Missouri, purchased a C-MAX in September 2012 in reliance on
representations on Ford’s website that the C-MAX “got 47 MPG whether driven in the city or on
the highway.” (Id. ¶ 30.)
James DeVito, of Brewster, New York, purchased a C-MAX in December 2012 in
reliance on a television commercial which indicated that “the C-MAX got better fuel economy
than the Prius V and got 47 MPG in highway or city driving,” as well as representations on
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Ford’s website that “the C-MAX got 47 MPG in all types of driving.” (Id. ¶ 31.) Robert Fellow,
of Valley Cottage, New York, leased a C-MAX in October 2012 in reliance on representations
on Ford’s website that “the C-MAX would achieve 47 MPG, in the city, on the highway[,] and
combined,” as well as a television commercial which indicated that “the C-MAX got better MPG
than the Prius V.” (Id. ¶ 32.) Octavio Hoyos, of Howard Beach, New York, purchased a CMAX in December 2012 in reliance on a television commercial which indicated that “the CMAX got 47 MPG in city and on the highway and better MPG than the Prius V,” as well as
representations on Ford’s website that “the C-MAX got 47 MPG in all types of driving.” (Id. ¶
33.)
Martin Babb, of Burien, Washington, purchased a C-MAX in December 2012 in reliance
on representations on Ford’s website that “the C-MAX delivered 47 MPG in the city, on the
highway[,] and combined,” a message which he later “saw everywhere.” (Id. ¶ 38.)
Dennis Harkins, of Fitchburg, Wisconsin, purchased a C-MAX in November 2012 in
reliance on Ford’s “Hybrid Games” advertisement which indicated that the C-MAX “got better
fuel economy than the Prius V, achieving 47 MPG city, highway[,] and combined,” as well as
representations on Ford’s website which “reinforced the message that the C-MAX got 47 MPG
in any type of driving.” (Id. ¶ 40.)
5. Class Allegations
Plaintiffs define the class as “[a]ll persons in the United States who purchased and/or
leased one of the Vehicles,” excluding individuals affiliated with Ford. (Id. ¶ 104.) Plaintiffs
allege that the class is as large as the number of Vehicles sold in the United States: 30,000 C-

17

MAX and 20,000 Fusion purchasers/lessees. (Id. ¶ 105.) Plaintiffs also allege common legal
and factual issues, namely:
a. whether the Vehicles achieve gas mileage materially lower than the advertised
mileage;
b. whether the Vehicles achieve [a] mileage range on a single tank of gas
materially less than the advertised range;
c. whether Ford’s overstatement of its Vehicles’ fuel economy was materially
misleading;
d. whether Ford’s statements were false and deceptive in conveying that the
Vehicles would achieve the advertised gas mileage in normal, real-world
highway usage;
e. whether Ford’s advertisements failed to provide material disclosures that the
gas mileage cannot be achieved in normal, real-world highway usage;
f. whether Ford willfully concealed the misrepresentations regarding MPG or
recklessly disregarded their falsity;
g. whether Ford breached any warranties in selling the Vehicles which
misrepresented MPG;
h. whether Ford’s conduct violates the laws as set forth in the causes of action;
i. whether Plaintiffs and Class members are entitled to equitable or injunctive
relief;
j. whether Plaintiffs and the Class are entitled to restitution or damages, and
what is the proper measure of damages;
k. whether Ford’s software upgrade to improve fuel economy was in response to
this litigation;
l. whether Ford’s goodwill payments to C-MAX customers was in response to
this litigation; and
m. whether there are undisclosed performance trade-offs associated with Ford’s
software upgrade.
(Id. ¶ 106.) Plaintiffs also allege that their claims are typical of the Class, and will fairly
and adequately represent the interests of the class because they “have retained counsel
who are experienced and competent trial lawyers in complex litigation and class action
litigation,” and there are no material conflicts “that would make class certification
inappropriate.” (Id. ¶¶ 107–08.) Plaintiffs further make general allegations about the
predominance of class claims and superiority of a class action in this circumstance, and

18

note that they “contemplate the eventual issuance of notice to the proposed Class
members” based on Ford’s business records. (Id. ¶¶ 109–10.)

B. Procedural History
1. Multi-District Litigation
The instant Action, consolidated from seventeen lawsuits concerning Ford’s
advertisement of the fuel economy of the Vehicles, was centralized and consolidated in
this Court by recommendation of the United States Judicial Panel on Multidistrict
Litigation (the “Panel”). (See Dkt. No. 1.) The Court was initially assigned Fellows v.
Ford Motor Co., No. 13-CV-906, on February 7, 2013, and Teppich v. Ford Motor Co.,
No. 13-CV-1144, three weeks later as related. (See Order (“Order No. 1”) (Dkt. No. 18).)
On June 7, 2013, the Panel assigned five other cases from other districts to this Court:
three actions in the Central District of California, one in the District of New Hampshire,
one in the District of New Mexico. On June 18, 2013, by recommendation of the Panel,
several other pending actions were added: one from the District in Arizona, two from the
Southern District of Florida, two from the Northern District of Illinois, one from the
District of Massachusetts, and one from the Eastern District of Pennsylvania. (See Dkt.
No. 7.) On June 21, 2013, by recommendation of the Panel, one pending action from the
District of Nevada was added. (See Dkt. No. 13.) On July 1, 2013, by recommendation
of the Panel, one pending action from the Western District of Missouri was added. (See

19

Dkt. Nos. 7, 16.) Finally, on August 8, 2013, by recommendation of the Panel, one
pending action from the Western District of Washington was added. (See Dkt. No. 44.)6
On July 10, 2013, the Court issued an Order addressing various administrative
issues and setting an initial schedule. (See Order No. 1.) On July 18, 2013, the Parties
filed their “Initial Report,” detailing their positions on pretrial issues. (See Dkt. No. 22.)
The Court held an initial conference on July 25, 2013, and thereafter, on July 30, 2013,
adopted an Order designating Lead Counsel, Liaison Counsel, and members of Plaintiffs’
Executive Committee, and set a schedule for the filing of the CAC and Motion To
Dismiss. (See Order (Dkt. No. 30).) Plaintiffs filed the CAC on October 15, 2013, (Dkt.
No. 51), deemed timely filed nunc pro tunc, (see Dkt. No. 50). Defendant filed its
Motion to Dismiss and associated documents on November 22, 2013, (Dkt. Nos. 63–65),
Plaintiffs filed their Opposition on January 21, 2014, (Dkt. No. 67), and Defendant filed
its Reply on March 7, 2014, (Dkt. No. 68). The Court also so-ordered a Stipulated
Protective Order on December 12, 2013. (Dkt. No. 66.) The Court held oral argument
on April 22, 2015. (See Dkt. (minute entry for Apr. 22, 2015).)
2. Plaintiffs’ Claims7
Plaintiffs allege several state statutory causes of action, including one each for
violations of the California Business & Professions Code § 17200, et seq. (Unfair

6

The Court notes that, on July 29, 2015, after oral argument was held, one pending action
from the Central District of California was added. (See Dkt. No. 81.) No allegations pertaining
to Plaintiff in that case, Dave Deluca, were included in the CAC, and therefore his claims are not
specifically considered in this Opinion and Order.
7
Each set of state Plaintiffs referred to herein, e.g., “California Plaintiffs,” refers to the
Plaintiffs whose causes of action accrued in that state.
20

Competition Law), California Business & Professions Code § 17500, et seq. (False
Advertising Laws), and California Civil Code § 1750, et seq. (Consumer Legal Remedies
Act) “on [b]ehalf of [a]ll Plaintiffs or, [a]lternatively, the California Plaintiffs”; one cause
of action for violations of the Arizona Consumer Fraud Act §§ 44-1521–34 on behalf of
the Arizona Plaintiff; one cause of action for violations of the Colorado Revised Statutes
§§ 6-1-101, et seq. (Colorado Consumer Protection Act), on behalf of the Colorado
Plaintiff; one cause of action for violations of the Connecticut General Statutes §§ 42110a, et seq. (Connecticut Unfair Trade Practices Act (“CUTPA”)), on behalf of the
Connecticut Plaintiff; one cause of action for violations of the Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201, et seq., on behalf of the
Florida Plaintiffs; one cause of action for violations of the Illinois Consumer Fraud and
Deceptive Business Practices Act, § 815 Illinois Compiled Statutes Annotated 505/1, et
seq., on behalf of the Illinois Plaintiffs; one cause of action for violations of the Maryland
Consumer Protection Act, Md. Code Com. Law § 13-101, et seq., on behalf of the
Maryland Plaintiff; one cause of action for violations of the Michigan Consumer
Protection Act, Mich. Comp. Laws §§ 445.901, et seq., on behalf of the Michigan
Plaintiffs; one cause of action for violations of the Minnesota Consumer Fraud Act,
Minnesota Statutes §§ 325f.68–69, on behalf of the Minnesota Plaintiff; one cause of
action for violations of the Missouri Merchandising Practices Act, Missouri Revised
Statutes §§ 407.010, et seq., on behalf of the Missouri Plaintiffs; one cause of action each
for deceptive acts and practices in violation of N.Y. Gen. Bus. Law § 349, and false
advertising in violation of N.Y. Gen. Bus. Law § 350, et seq., on behalf of the New York
21

Plaintiffs; one cause of action each for violations of the Consumer Sales Practices Act,
Ohio Revised Code §§ 1345, et seq., and Deceptive Trade Practices Act, Ohio Revised
Code §§ 4165, et seq., on behalf of the Ohio Plaintiffs; one cause of action for violations
of the Oregon Unlawful Trade Practices Act (“UTPA”), §§ 646.607–08, et seq., on behalf
of the Oregon Plaintiff; one cause of action for violations of the Pennsylvania Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1, et seq., on
behalf of the Pennsylvania Plaintiffs; one cause of action for violations of Washington
Revised Code §§ 19.86.010, et seq., (Washington Consumer Protection Act), on behalf of
the Washington Plaintiffs; and one cause of action for violations of the Wisconsin
Deceptive Trade Practices Act, Wisc. Stat. § 110.18, on behalf of the Wisconsin Plaintiff.
(Id. ¶¶ 112–317.)
Plaintiffs also allege several common law claims on behalf of all plaintiffs,
though they do not specify upon which jurisdiction’s common law they are based. These
claims include one for fraud, one for negligent misrepresentation, one for breach of
contract, one for breach of the covenant of good faith and fair dealing, one for breach of
express warranties, and one for unjust enrichment. (Id. ¶¶ 318–51, 361–65.)8 Plaintiffs

8

In alleging their breach of express warranty claim, Plaintiffs also allege that 48 states
and the District of Columbia “have codified and adopted the provisions of the Uniform
Commercial Code governing express warranty of merchantability.” (CAC ¶ 349.) Of note,
Plaintiffs have chosen to voluntarily dismiss their claims for negligent misrepresentation, breach
of contract, and breach of the covenant of good faith and fair dealing. (See Pls.’ Mem. of Law in
Opp’n to Defendant Ford Motor Company’s Mot. To Dismiss (“Pls.’ Opp’n”) 50 (Dkt. No. 67).)
Plaintiffs also allege that Ford has indicated it has “no desire to participate” in any
informal dispute resolution because it has failed to “remedy the problems associated with the
Vehicles.” (CAC ¶ 359.)
22

also allege one federal statutory claim for violations of the Magnuson-Moss Warranty
Act (“MMWA”), 15 U.S.C. §§ 2301, et seq. (Id. ¶¶ 352–60.)
In connection with their state law claims, Plaintiffs make several additional
allegations against Ford not included in other parts of the Complaint, namely (1) a failure
to “comply with FTC regulations governing [the] advertising of fuel economy as set forth
in 16 C.F.R. § 259.2(a),” (2) a failure to provide a “disclaimer that the advertised [fuel
economy] rates will vary with actual MPG ratings achieved in the real world, consistent
with the requirements of 40 C.F.R. §[§] 600.302-08(b)(4),” (3) a failure “to disclose that
the MPG figures that [Ford] repeatedly touted and advertised for the C-MAX [were] not
based on actual tests of the C-MAX,” (5) “violations of California Civil Code §§ 1572–
1573, 1709, 1711, and 1770, and the common law,” (6) violat[ions] of the declared
legislative policies as set forth by the federal government in” 40 C.F.R. §
600.307(a)(ii)(A) and 16 C.F.R. § 259.2(a), and (7) that Ford “failed to respond to
Plaintiff’s [Consumer Legal Remedy Act] letters within 30 days,” as required by
California Civil Code § 1782(b). (Id. ¶¶ 114–15, 130.) While the Court does not
consider these allegations as separate causes of action, because they are not listed as such
in the CAC, the Court considers them in the context of the enumerated causes of action.
As relief from Ford’s alleged misconduct, Plaintiffs ask that the sales and leases
of the Vehicles be rescinded or reimbursed, that all profits and compensation improperly
obtained be disgorged, that Ford cease its false advertising and other unlawful business
practices, and that Plaintiff be awarded damages, including punitive damages, attorneys’
fees, interest, and costs of suit. (Id. at 77–78.)
23

II. Discussion
A. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient
facts which, taken as true, state a plausible claim for relief.” Keiler v. Harlequin Enters. Ltd.,
751 F.3d 64, 68 (2d Cir. 2014). In reviewing a complaint, the Court “accept[s] all factual
allegations as true and draw[s] every reasonable inference from those facts in the plaintiff’s
favor.” In re Adderall XR Antitrust Litig., 754 F.3d 128, 133 (2d Cir. 2014) (internal quotation
marks omitted). Moreover, along with the CAC itself, the Court “may consider . . . any written
instrument attached to the complaint as an exhibit, any statements or documents incorporated in
it by reference, and any document upon which the complaint heavily relies.” ASARCO, LLC v.
Goodwin, 756 F.3d 191, 198 (2d Cir. 2014) (internal quotation marks omitted), cert. denied, 135
S. Ct. 715 (2014).
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide
the ‘grounds’ of his [or her] ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (third alteration in original) (citations omitted). Instead, the
Supreme Court has emphasized that the “[f]actual allegations must be enough to raise a right to
relief above the speculative level,” id., and that “once a claim has been stated adequately, it may
be supported by showing any set of facts consistent with the allegations in the complaint,” id. at
563. A plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. But if a plaintiff has “not nudged [his or her] claims across the line from
24

conceivable to plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (“Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” (alteration in original) (citation omitted)
(quoting Fed. R. Civ. P. 8(a)(2))).
B. Applicability of Rule 9(b)
1. Claims Subject to Rule 9(b)
Under Federal Rule of Civil Procedure 9(b), “[i]n alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake,” though “malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.” To comply with
this rule, a complaint must: “(1) specify the statements that the plaintiff contends were
fraudulent; (2) identify the speaker; (3) state where and when the statements were made; and (4)
explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d
Cir. 2006); Rombach v. Chang, 355 F.3d 164, 170 (2d Cir. 2004) (same); see also Jovel v. iHealth, Inc., No. 12-CV-5614, 2013 WL 5437065, at *11 (E.D.N.Y. Sept. 27, 2013) (“Rule 9(b)
generally requires that a plaintiff specify the who, what, where, when[,] and why of the alleged
fraud; specifying which statements were fraudulent and why, who made the statements to whom,
and when and where the statements were made.” (citing Mills v. Polar Molecular Corp., 12 F.3d
1170, 1175 (2d Cir. 1993)). These details principally serve to provide a defendant with fair

25

notice of a plaintiff’s claim. See O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676
(2d Cir. 1991).
Rule 9(b) applies broadly to claims “premised on allegations of fraud,” In re Morgan
Stanley Info. Fund. Sec., 592 F.3d 347, 358 (2d Cir. 2010); see also Police & Fire Ret. Sys. of
City of Detroit v. Goldman, Sachs & Co., No. 10-CV-4429, 2014 WL 1257782, at *5 (S.D.N.Y.
Mar. 27, 2014), i.e., “to all averments of fraud,” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 319 (2007) (internal quotation marks omitted), and “is not limited to allegations styled
or denominated as fraud or expressed in terms of the constituent elements of a fraud cause of
action,” Rombach, 355 F.3d at 171; see also Meserole v. Sony Corp. of Am., Inc., No. 08-CV8987, 2009 WL 1403933, at *3 (S.D.N.Y. May 18, 2009) (explaining that Rule 9(b) applies “not
only to formal averments of fraud, but also to allegations that sound in fraud, or where the
wording and imputations of the complaint are classically associated with fraud” (internal
quotation marks omitted)); Matsumura v. Benihana Nat’l Corp., 542 F. Supp. 2d 245, 251
(S.D.N.Y. 2008) (noting that Rule 9(b) applies to “any cause of action that bears a close legal
relationship to fraud” and “any non-fraud claim that the plaintiffs have made little, if any, effort
to differentiate from the fraud allegations upon which the action is predicated” (internal
quotation marks omitted”); cf. Delgado v. Ocwen Loan Servicing, LLC, No. 13-CV-4427, 2014
WL 4773991, at *14 (E.D.N.Y. Sept. 24, 2014) (noting, in context of California state law claim,
that “[e]ven if fraud is not a necessary element of a particular claim, Rule 9(b) will apply if the
plaintiff has alleged a unified cause of fraudulent conduct and relied entirely on that course of
conduct as the basis of the claim.” (brackets and internal quotation marks omitted)).

26

A threshold question is the extent to which Rule 9(b) applies to Plaintiffs’ claims.
Defendant contends that the CAC, as a whole, must comply with Rule 9(b) because all of
Plaintiffs’ causes of action sound in fraud and/or are based on fraudulent conduct. (See Reply
Br. in Support of Def. Ford Motor Company’s Mot. to Dismiss (“Def.’s Reply.) 4 (Dkt. No. 68)
(arguing that “nearly all of the consumer fraud claims found in the CAC” are subject to Rule
9(b), and therefore Rule 9(b) should apply to “all of [Plaintiff’s] consumer protection claims”);
Def.’s Mem. 22 (“Because the CAC, as a whole, is both implausible and not pleaded with the
specificity required by Rule 9(b), it should be dismissed in its entirety and with prejudice.”). In
support of its argument, Defendant quotes several lines from the CAC, which it argues are
“quintessential averments of fraud,” for example, the allegation that “Ford disseminated
advertisements in print, online, and on television formats containing materially misleading and
deceptive information and omitted material information . . . for purposes of inducing customers
to purchase and/or lease” the Vehicles. (Def.’s Reply 4 (quoting (CAC ¶ 120).) Defendant also
argues that several portions of the CAC are “averments classically associated with fraud,”
namely:






“Ford has been engaged in a ‘scheme’ to ‘wrongfully misrepresent[] the
quality’ of the subject vehicles, and . . . Plaintiffs suffered a loss based on
Ford’s ‘reckless or knowing’ acts.”
“Ford has engaged in deceptive practices and false advertising ‘knowingly,
willfully, and deliberately.’”
“The ‘conduct complained of’ constitutes, among other things, ‘deception’ or
‘fraud’ by Ford undertaken with the ‘intent that the Maryland Plaintiff and the
other Class members would rely upon such concealment, suppression, or
omission.’”
“‘Ford knew that the [Vehicles] did not achieve the represented fuel
economy[,]’ and concealed that fact from . . . [P]laintiffs.”

27




“ . . . Ford engaged in, among other things ‘unlawful schemes’ that were
‘intended to induce the Missouri Plaintiffs and members of the Class’ to
purchase or lease the subject vehicles.”
“ . . . Ford ‘engaged in fraudulent conduct in their false marketing of the
[V]ehicles,’ and that the Class relied on Ford’s ‘fraudulent
misrepresentations.’”

(Def.’s Reply 4–5 (quoting CAC ¶¶ 141, 147, 153–54, 198, 209–10, 238, 300, 302). Defendant
further contends that because “Plaintiffs make absolutely no effort in the CAC or their opposition
brief to distinguish those consumer protection claims allegedly founded on ‘unfairness’ from
those allegedly founded on ‘fraud,’” Rule 9(b) should apply to all of Plaintiffs’ claims. (Id. at 5.)
Plaintiffs counter by arguing that only their common law fraud claim (claim 22) is subject
to Rule 9(b), and that their other 27 claims, including their false advertising claims and claims
“founded on unfair conduct” are not subject to Rule 9(b). (Pls.’ Mem. of Law in Opp’n to Def.’s
Mot. To Dismiss (“Pls.’ Opp’n”) 28–30 (Dkt. No. 67) (collecting cases).)9
The Court is persuaded that Plaintiffs’ action is founded on, and based in, fraud. While
Plaintiffs assert that only their explicit fraud claim sounds in fraud, the first paragraph of the
CAC refers to the action as a whole as “consumer fraud class action,” (CAC ¶ 1), and Plaintiffs
have, for the most part, and especially through the first half of the CAC (in which most of the
substantive allegations appear), made no effort to distinguish their non-fraud claims from their

9

In evaluating the applicability of Rule 9(b), the Court also notes that, as is always the
case, it is bound by Second Circuit law pertaining to the applicability of Rule 9(b). See Nw. Mut.
Life Ins. Co. v. Banc of Am. Sec., LLC, 254 F. Supp. 2d 390, 396-97 (S.D.N.Y. 2003) (“[T]his
Court is required to follow the precedent of the Court of Appeals for the Second Circuit with
respect to the interpretation and application of Rule 9(b).”); see also Schwartzco Enters., LLC v.
TMH Mgmt., LLC, No. 14-CV-1082, 2014 WL 6390299, at *26 (E.D.N.Y. Nov. 17, 2014)
(same). Accordingly, while Plaintiffs cite a number of cases outside our Circuit in support of
their contention that many of their claims are not governed by Rule 9(b), the authorities are only
persuasive under the aforementioned Second Circuit standard.
28

fraud claim beyond categorizing their claims into false advertising, consumer protection, and
unfair conduct buckets. (See, e.g., id. ¶ 95 (“Even though Ford knew that its 2013 Fusion
. . . and C-MAX did not actually get anywhere near 47 MPG, it still chose to implement a
massive ‘47 MPG’ advertising campaign overstating the real world fuel economy of the
Vehicles.”). In fact, Plaintiffs admit the predominance of their allegations of fraud in their
Opposition to Defendant’s Motion. For example, Plaintiffs contend that “the gravamen of [their]
case is simple: Ford knew that the fuel efficiency numbers and gas savings it promoted could not
realistically be achieved by consumers, but promoted them anyway as a primary selling point for
the Vehicles.” (Pls.’ Opp’n 23; see also id. at 36 (“Ford’s advertisements were . . . deceptive and
misleading because they included additional, voluntary statements that were designed to leave
consumers with the impression that 47 MPG was also an EPA estimate.”); id. at 42
(“[T]hroughout the CAC, Plaintiffs allege that Ford engaged in a uniform, widespread marketing
campaign in which it perpetuated misrepresentations regarding the Vehicles’ fuel economy, with
the intent to defraud Plaintiffs, who reasonably relied on those statements to their detriment.”).)
In fact, as Defendant points out, the CAC, both before Plaintiffs lay out their individual claims,
as well as within many of the allegations specific to those claims, is replete with allegations that
sound in fraud. (See, e.g. CAC ¶¶ 114 (referring to “Ford’s unlawful, unfair, and fraudulent
business acts and practices”), 198 (finding “Ford’s conduct complained of herein constitutes
. . . fraud”), 300 (“Ford engaged in fraudulent conduct in their false marketing of the Vehicles.”),
321 (“Plaintiffs and the Class allege that Ford misrepresented material facts with the intent to
defraud Plaintiffs and the Class.”).)

29

The Court is not “required to sift through allegations of fraud” in order to find claims not
subject to Rule 9(b). See Rombach, 355 F.3d at 176. Indeed, as one court has observed, “[i]n
some cases, the plaintiff may allege a unified course of fraudulent conduct and rely entirely on
that course of conduct as the basis of a claim. In that event, the claim is said to be grounded in
fraud or to sound in fraud, and the pleading of that claim as a whole must satisfy the particularity
requirement of Rule 9(b).” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103–04 (9th Cir.
2003). Accordingly, with the exception of the few claims discussed below, the Court finds that
because Plaintiffs have failed to “meaningfully distinguish [their] fraud allegations in the [CAC]
or their [O]pposition” from their non-fraud claims, they are subject to Rule 9(b). See Matsumura
542 F. Supp. 2d at 251; see also L.S. v. Webloyalty.com, Inc., No. 10-CV-1372, 2014 WL
3547640, at *6 (D. Conn. July 17, 2014) (“[The] overarching claim of fraud permeates several of
the claims for relief asserted in the pleading. The heightened pleading requirements of Fed. R.
Civ. P. 9(b) apply to such claims.”); In re Rezulin Prods. Liab. Litig., 133 F. Supp. 2d 272, 285
(S.D.N.Y. 2001) (dismissing claims for failure to comply with Rule 9(b) because “although [the]
plaintiffs . . . characterized their claims as being for negligence, in substance they charge[d]
fraud”); cf. In re Suprema Specialties, Inc. Secs. Litig., 438 F.3d 256, 273 (2d Cir. 2006)
(“[W]here [a] plaintiff has exercised care in differentiating asserted negligence claims from fraud
claims and in delineating the allegations that support the negligence cause of action as distinct
from the fraud, the determination [of whether to apply Rule 9(b)] is straightforward.”); In re FBR
Inc. Secs. Litig., 544 F. Supp. 2d 346, 353 (S.D.N.Y. 2008) (same).
Plaintiffs do specifically attempt to distinguish a few causes of action from their other
claims as not subject to Rule 9(b). (See Pls.’ Opp’n 29–30.) These claims are those under
30

Connecticut law (claim 6), Florida law (claim 7), Illinois law (claims 8 and 9), Minnesota law
(claim 12) New York law (claims 14 and 15), Oregon law (claim 18), Pennsylvania law (claim
19), and Washington law (claim 20). The Court will address each of these claims in turn.
Starting with Plaintiffs’ Connecticut law claim, the case that Plaintiffs cite suggests that
“CUTPA claims need not meet the heightened pleading requirements of Rule 9(b).” Quinn v.
Walgreen Co., 958 F. Supp. 2d 533, 543 (S.D.N.Y. 2013). While CUTPA is undoubtedly
“broader in scope than traditional common law remedies for fraud,” Fed. Paper Bd. Co., Inc. v.
Amata, 693 F. Supp. 1376, 1390 (D. Conn. 1988), other cases have concluded that “CUTPA
claims brought in federal court . . . must satisfy Rule 9(b) if such claims are based on fraud
allegations,” Tatum v. Oberg, 650 F. Supp. 2d 185, 195 (D. Conn. 2009); see also In re
Trilegiant Corp., Inc., 11 F. Supp. 3d 82, 120 (D. Conn. 2014) (“The Court holds that to the
extent the Plaintiffs have alleged a CUTPA action based on fraud, they have failed to sufficiently
plead with the particularity required in Rule 9(b) . . . .”); U.S. Bank Nat. Ass’n v. PHL Variable
Ins. Co., No. 12-CV-6811, 2013 WL 791462, at *8 (S.D.N.Y. Mar. 5, 2013) (“When CUTPA
claims rely on claims of fraud, . . . Rule 9(b) applies.”); Lentini v. Fidelity Nat. Title Ins. Co. of
N.Y., 479 F. Supp. 2d 292, 298 n.2 (D. Conn. 2007) (“[T]o the extent that fraud claims in Count I
rely on affirmative statements or omissions involving fraud or mistake, Rule 9(b) applies.”). But
cf. Milo v. Galante, No. 09-CV-1389, 2011 WL 1214769, at *8 (D. Conn. Mar. 28, 2011)
(“[T]he mere fact that transactions alleged in the . . . complaint give rise to some claims
grounded in fraud does not mean that all the claims rising out of the same transactions are
subject to 9(b).”). The allegations pertaining to this claim sound in fraud, because (a) they
incorporate the other allegations in the CAC by reference and, as explained above, the thrust of
31

the CAC is fraudulent conduct by Defendant, and (b) Plaintiffs allege in the section pertaining to
this specific cause of action that Defendant “uniformly and falsely advertised the Vehicles’ fuel
efficiency,” (CAC ¶ 159), and that such actions were “done with a reckless indifference to the
rights of the Connecticut Plaintiff and Class members or were an intentional and wanton
violation of those rights,” (id. ¶ 161). See Conntect, Inc. v. Turbotect, Ltd., No. 97-CV-784,
1998 WL 91067, at *6 n.4 (D. Conn. Feb. 23, 1998) (“[W]here common law fraud is being
alleged under the guise of a CUTPA claim, . . . such a claim [must] be alleged in accordance
with the particularity requirements of [Rule 9(b)].”); NCC Sunday Inserts, Inc. v. World Color
Press, Inc., 692 F. Supp. 327, 330 (S.D.N.Y. 1988) (explaining that “if fraudulent intent is being
alleged under CUTPA in federal court, then the complaint must meet the particularity
requirements of Rule 9(b),” and finding CUTPA claim subject to Rule 9(b) because it
“incorporate[d] the same allegations as that for fraudulent overcharges” from a previous count);
cf. Telemedia Partners Worldwide, Ltd. v. Hamelin, Ltd., No. 95-CV-2452, 1996 WL 41818, at
*9 (S.D.N.Y. Feb. 2, 1996) (“To adequately plead a defendants’ involvement in a scheme to
defraud, in turn, a plaintiff must allege that the defendant engaged in intentional fraud or acted
with reckless indifference to the truth” under Rule 9(b).). Accordingly, Rule 9(b) applies.
Regarding Plaintiffs’ Florida law claim, while Plaintiffs are correct that FDUTPA claims
are generally not subject to Rule 9(b), “where FDUTPA claims do happen to sound in fraud,
federal courts will apply the heightened pleading standard of Rule 9(b).” Morano v. BMW of N.
Am., LLC, 928 F. Supp. 2d 826, 833 (D.N.J. 2013) (collecting cases); see also Blair v. Wachovia
Mortg. Corp., No. 11–CV–566, 2012 WL 868878, at *3 (M.D. Fla. Mar. 14, 2012) (noting that
“federal district courts have split as to whether FDUTPA claims are subject to Rule 9(b),” but
32

holding that “where the gravamen of the claim sounds in fraud, as here, the heightened pleading
standard of Rule 9(b) would apply”); D.H.G Props., L.L.C. v. Ginn Cos., No. 09-CV-735, 2010
WL 5584464, at *5 n.9 (M.D .Fla. Sept. 28, 2010) (“The Court need not determine the extent to
which FDUTPA claims in other contexts may or may not be subject to the heightened pleading
requirements of Rule 9(b); it suffices to recognize that the allegations of misrepresentation
comprising Plaintiff's FDUTPA claim in this action are grounded in fraud, and thus, required to
be pled with particularity.”). Given that, as discussed, Plaintiffs’ claims, at core, not only
contain allegations of false advertising and deceptive practices, but also allegations that those
practices were knowingly intended to induce reliance, they therefore sound in fraud, and
accordingly Rule 9(b) applies to Plaintiffs’ FDUTPA claim. (See CAC ¶ 169 (alleging that
Defendant “engag[ed] in the unfair and deceptive practices described herein” and “uniformly and
falsely advertised the Vehicles’ fuel efficiency and fail[ed] to disclose that the fuel economy
figures repeatedly touted and advertised for the C-MAX were not based on actual tests
performed on the C-MAX” in order to induce consumers to purchase cars).)
Regarding the Illinois law claims, the case that Plaintiffs cite applies to the Illinois
Consumer Fraud Act, not the Illinois Uniform Deceptive Trade Practices Act, the law under
which those claims are brought. See Windy City Metal Fabricators & Supply, Inc., 536 F.3d
663, 670 (7th Cir. 2008). Indeed, several decisions from the Northern District of Illinois have
applied Rule 9(b) to a fraud claim under the latter statute. See, e.g., Medscript Pharmacy, LLC v.
My Script, LLC, — F. Supp. 3d —, 2015 WL 149062, at *2 (N.D. Ill. Jan. 12, 2015) (applying
Rule 9(b) to “allegations of fraud” in violation of the Illinois Uniform Deceptive Trade Practices
Act); Platinumtel Comms., LLC v. Zefcom, LLC, No. 08-CV-1062, 2008 WL 5423606, at *1
33

(N.D. Ill. Dec. 30, 2008) (applying Rule 9(b) to “allegations of consumer fraud” in violation of,
inter alia, IUDPTA); Cardionet, Inc. v. Lifewatch Corp., No. 07-CV-6625, 2008 WL 567031, at
*2 (N.D. Ill. Feb. 27, 2008) (“IUDPTA . . . claims sounding in fraud must meet the pleading
requirements of Rule 9(b).”). Accordingly, because Plaintiffs rely on fraud allegations in support
of their Illinois law claims, Rule 9(b) applies. (See, e.g., CAC ¶ 184 (“Ford’s illegal and
wrongful conduct . . . including Ford[’s] self-dealing, misrepresentations, and material
omissions, intended to benefit Ford at the expense of the Illinois Plaintiffs and the Class . . .
[and] was perpetrated by evil motive . . . .”).)
With respect to Plaintiffs’ Minnesota law claim, the case that Plaintiffs cite in their
Opposition recognizes that “Rule 9(b) can apply where fraud is an essential element of a claim or
where [the] [p]laintiffs allege some fraudulent and some non-fraudulent conduct.” Vernon, 643
F. Supp. 2d at 1256. Beyond the general allegations of the CAC, which are sufficient on their
own to justify applying Rule 9(b) in this instance, see Tuttle v. Lorillard Tobacco Co., 118 F.
Supp. 2d 954, 963 (D. Minn. 2000) (applying Rule 9(b) because “the gravamen of the complaint
[was] fraud”), Plaintiffs also make fraud allegations specific to their claim under Minnesota law,
for example, that Defendant “affirmatively misrepresent[ed]” the Vehicles’ fuel efficiency and
“fail[ed] to alert the public and purchasers” of the Vehicles’ “true fuel efficiency,” (CAC
¶¶ 225(c)–(d)), which constituted a “conscious” and “deliberate disregard for the rights of
others,” (id. ¶ 22). Therefore, Rule 9(b) applies. See Masterson Pers., Inc. v. McClatchy Co.,
No.05-CV-1274, 2005 WL 3132349, at *4–5 (D. Minn. Nov. 22, 2005) (applying Rule 9(b) to
claims under the Minnesota Consumer Fraud Act); Apogee Enters., Inc. v. State St. Bank & Trust
Co., No. 09-CV-1899, 2010 WL 3632697, at *4 (S.D.N.Y. Sept. 17, 2010) (applying Rule 9(b)
34

because the claims at issue “sound[ed] in allegations that [the defendant] fraudulently
misrepresented information”).
Regarding Plaintiffs’ New York law claims, courts in the Second Circuit have
consistently found that claims under New York General Business Law § 349 are not subject to
the heightened pleading standards of Rule 9(b), because § 349 “extends well beyond commonlaw fraud” and a claim under that statute “does not require proof of the same essential elements
. . . as common-law fraud.” Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d
Cir. 2005); see also Angermeir v. Cohen, 14 F. Supp. 3d 134, 145 (S.D.N.Y. 2014) (same).
Accordingly, even given the fact that the thrust of the CAC is fraud, the Court must follow the
law of the Second Circuit, and, therefore, Rule 9(b) does not apply to Plaintiffs’ New York law
claims. See Leonard v. Abbott Labs., Inc., No. 10-CV-4676, 2012 WL 764199, at *19 (E.D.N.Y.
Mar. 5, 2012) (“Pelman . . . establish[es] a categorical rule that [§ 349] claims, regardless of
whether they ‘sound in fraud,’ or are premised on specific misrepresentations rather than an
‘advertising scheme,’ are not subject to the heightened pleading requirement of Rule 9(b).”).
With respect to Plaintiffs’ Oregon law claim, the case that Plaintiffs’ cite, McKie v. Sears
Protection Co., No. 10-CV-1531, 2011 WL 1587103 (D. Or. Apr. 27, 2011), is one of the only
cases to address the applicability of Rule 9(b) to claims under the Oregon UTPA. The Court in
McKie adopted a Report and Recommendation (“R&R”), finding that Rule 9(b) did not apply
because UTPA claims are distinguishable from common law fraud claims. The district court
found this conclusion “correct [and] sound” and adopted it, noting that UTPA claims “do not
require proof of reliance” and that require “only negligence misrepresentation.” McKie, 2011

35

WL 1587103, at *3 (internal quotation marks omitted). Therefore, in the absence of contrary
authority, the Court concludes that Plaintiffs’ Oregon law claim is not governed by Rule 9(b).
Regarding Plaintiffs’ Pennsylvania law claim, the case that Plaintiffs cite in their
Opposition makes clear that their Pennsylvania UTPCPL claim is subject to Rule 9(b), because
Plaintiffs explicitly allege in the paragraph dedicated to that claim that “Ford engaged in
fraudulent conduct.” (Id. ¶ 300). See Seldon, 647 F. Supp. 2d at 469 (“[T]his court concludes
that for a claim under the catchall provision of the UTPCPL, if a plaintiff alleges deceptive
conduct, a plaintiff need not allege the elements of common law fraud, but, conversely, must do
so if a plaintiff alleges fraudulent conduct.”).
In support of the Washington law claim, Plaintiffs cite the same case as they cited for
their Minnesota claim which, as noted above, recognizes that Rule 9(b) applies when even some
fraudulent conduct is alleged. While the portion of the CAC pertaining to the Washington cause
of action contains more sparse allegations, because it “incorporate[s] by reference the previous
allegations” of the CAC, (CAC ¶ 304), Plaintiffs still allege that Defendant “falsely advertised
the Vehicles’ fuel efficiency” and thereby “deceiv[ed] a substantial portion of the public” by
“induc[ing] [them] into purchasing and/or leasing [the] Vehicles and paying a higher price for
the Vehicles,” (id. ¶ 308). Accordingly, because the allegations here contain the key elements of
fraud, namely knowing misrepresentation with an intent to induce reliance, the Court finds that
Rule 9(b) applies to Plaintiffs’ Washington law claim, as well.
Additionally, while the Court has already found that Plaintiffs’ failure to distinguish their
other state law claims from their overarching claim of fraud renders them subject to Rule 9(b),
the case law and allegations specific to each of those claims also indicate that Rule 9(b) should
36

apply. These include Plaintiffs’ claims under the California Business & Professions Code and
California Legal Remedies Act (claims 1–3), see Kearns v. Ford Motor Co., 567 F.3d 1120,
1125–27 (9th Cir. 2009) (applying Rule 9(b) to claim for false advertising, noting that if a
plaintiff “allege[s] a unified course of fraudulent course of conduct . . . the claim is said to be
‘grounded in fraud’”); Vess, 317 F.3d at 1102–04 (applying Rule 9(b) to claim for false
advertising); Janney v. Mills, 944 F. Supp. 2d 806, 818 (N.D. Cal. 2013) (noting that “in a
deceptive advertising case, Rule 9(b) requires that the plaintiff(s) identify specific advertisements
and promotional materials; alleged when the plaintiff[s] were exposed to the materials; and
explain how such materials were false or misleading”); Hughes v. Ester C Co., 930 F. Supp. 2d
439, 465 (E.D.N.Y. 2013) (applying Rule 9(b) to California law claims of “false advertising and
unfair, unlawful, or deceptive business practices” because they “sound[ed] in fraud”); the
Arizona Consumer Fraud Act (claim 4), see Williamson v. Allstate Ins. Co., 204 F.R.D. 641, 644
(D. Ariz. 2001) (noting that Rule 9(b)’s particularity requirement applies to fraud claims brought
under the ACFA); the Colorado Consumer Protection Act (claim 5), see HealthONE of Denver,
Inc. v. UnitedHealth Grp., Inc., 805 F. Supp. 2d 1115, 1120–21 (D. Colo. 2011) (applying Rule
9(b) to Colorado Consumer Protection Act claim relating to “a deceptive or unfair trade
practice”); Hansen v. Auto-Owners Ins. Co., No. 09-CV-2736, 2010 WL 749820, at *2 (D. Colo.
Mar. 4, 2010) (applying Rule 9(b) to Colorado Consumer Protection Act claim), the Maryland
Consumer Protection Act (claim 10), see Currie v. Wells Fargo Bank, N.A., 950 F. Supp. 2d 788,
799 (D. Md. 2013) (noting that claims under this law that sound in fraud must be pleaded with
particularity); Green v. Wells Fargo Bank, N.A., 927 F. Supp. 2d 244, 248 (D. Md. 2013) (“[The]
[p]laintiffs’ claims alleging fraud and violation of the Maryland Consumer Protection Act are
37

subject to the heightened pleading standard of Federal Rule of Civil Procedure 9(b).”), the
Michigan Consumer Protection Act (claim 11), see Williams v. Scottrade, Inc., No. 06-CV10677, 2006 WL 2077588, at *7 (E.D. Mich. July 24, 2006) (dismissing Michigan Consumer
Protection Act claim which involved allegations of false advertising under Rule 9(b), and
characterizing that claim as alleging “fraudulent conduct”), the Missouri Merchandising
Practices Act (claim 13), see Hughes, 930 F. Supp. 2d at 470 (“Rule 9(b) governs the applicable
standard of pleading for plaintiff’s claims under the MMPA.”); Blake v. Career Educ. Corp., No.
08-CV-821, 2009 WL 140742, at *2 (E.D. Mo. Jan. 20, 2009) (dismissing claim under this law
based on Rule 9(b), and noting that “the United States District Courts in Missouri have
consistently applied Rule 9(b) to cases arising under [this statute]”), Ohio’s Consumer Sales
Practices Act (claim 16), see Morrison v. Skestos, No. 04-CV-244, 2004 WL 2944159, at *1, *4
(Ohio Ct. App. Dec. 21, 2004) (affirming dismissal of claim under this statute because, inter alia,
the plaintiffs failed to comply with Ohio Civil Rule 9(b), the state equivalent of Federal Rule of
Civil Procedure 9(b)), Ohio’s Deceptive Trade Practices Act (claim 17), see Crown Battery Mfg.
Co. v. Club Car, Inc., No. 13-CV-2158, 2015 WL 845732, at *2–3 (N.D. Ohio Feb. 25, 2015)
(applying Rule 9(b) to Ohio Deceptive Trade Practice Act claim); Koorndyk v. Midway Motor
Sales, Inc., No. 04-CV-333, 2005 WL 1802343, at *1, *5 (W.D. Mich. July 28, 2005) (same),
and the Wisconsin Deceptive Trade Practices Act (claim 21), see Am. Orthodontics Corp. v.
Epicor Software Corp., 746 F. Supp. 2d 996, 999 (E.D. Wisc. 2010) (applying Rule 9(b) to
Wisconsin Deceptive Trade Practice Act claim); Moscinski v. Bristol-Myers Squibb Co., No. 06CV-6055, 2009 WL 5216962, at *6–8 (D.N.J. Dec. 30, 2009) (dismissing Wisconsin Deceptive
Trade Practice Act claim for failure to comply with Rule 9(b)).
38

Unlike the state consumer protection claims discussed above, two of Plaintiffs’ other
common law claims—breach of express warranty (claim 26) and violations of the MagnusonMoss Warranty Act (claim 27)—refer to conduct sufficiently separate from the fraud allegations
contained throughout the rest of the Complaint that the Court finds that Rule 9(b) does not apply
to them. See LaSalle Bank Nat’l Assoc. v. Citicorp Real Estate Inc., No. 01-CV-4389, 2002 WL
31729632, at *3 (S.D.N.Y. Dec. 5, 2002) (declining to apply Rule 9(b) to a breach of warranty
claim); Columbia Sav. and Loan Ass’n v. Am. Int’l Grp., Inc., No. 91-CV-589, 1994 WL 114828,
at *5 (S.D.N.Y. Mar. 31, 1994) (same). However, Plaintiffs’ claim for unjust enrichment (claim
28) is subject to Rule 9(b) because, as discussed above, that claim involves averments of fraud.
See Sgaliordich v. Lloyd’s Asset Mgmt., No. 10–CV–03669, 2012 WL 4327283, at *5 (E.D.N.Y.
Sept. 20, 2012) (noting that a claim of unjust enrichment “must be pled with specificity when the
underlying acts are allegedly fraudulent”); Welch v. TD Ameritrade Holding Corp., No. 07-CV6904, 2009 WL 2356131, at *21 (S.D.N.Y. July 27, 2009) (holding that Rule 9(b) applied to
unjust enrichment claim premised on alleged fraudulent acts).
In sum, because the gravamen of the CAC is fraud, the Court concludes that Rule 9(b)
applies to all of Plaintiffs’ claims except for Plaintiffs’ New York law claim, Plaintiffs’ Oregon
law claim, and two claims for breach of warranty.
2. Relaxed Rule 9(b) Standards
Plaintiffs also argue that, even if Rule 9(b) applies to Plaintiffs’ claims, the “[s]tandards
[a]re [r]elaxed.” (Pls.’ Opp’n 30.) Beyond the fact that Rule 9(b) generally “must be read in
light of the liberal pleading requirement of Rule 8” such that “[p]laintiffs are not required to
plead with detailed evidence,” Gildepath Holding B.V. v. Spherion Corp., 590 F. Supp. 2d 435,
39

451 (S.D.N.Y. 2007), Plaintiffs argue that “Rule 9(b) must be considered in light of its purposes
and the [CAC’s] factual context and circumstances.” (Pls.’ Opp’n 31 (citing, inter alia, United
States v. Wells Fargo Bank, N.A., 972 F. Supp. 2d 593, 616 (S.D.N.Y. 2013); U.S. Bank Nat’l
Ass’n v. PHL Variable Ins. Co., No. 12-CV-6811, 2013 WL 791462, at *9 (S.D.N.Y. Mar. 5,
2013)). Accordingly, Plaintiffs argue that because the “‘misstatements [at issue] are alleged to
have occurred over a period of time . . . the pleadings are not required to provide the date and
time of every communication,’” (id. at 31 (some internal quotation marks omitted) (quoting
Lehman Bros. Comm. Corp. v. Minmetals Int’l Non-Ferrous Metals Trading Co., No. 94-CV8301, 1995 WL 608323, at *2 (S.D.N.Y. Oct. 16, 1995))), nor do they need to be pled with
“‘absolute particularity or a recital of the evidence’” because “‘some matters . . . beyond the
knowledge of the pleader . . . can only be developed through discovery,’” (id. at 32 (quoting 5A
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1298 (3rd ed.
2010))).) Plaintiffs also point out that their “knowledge and state of mind,” namely their reliance
on the representations at issue, need only be averred generally, placing particular emphasis on
True v. American Honda Motor Co., Inc., 520 F. Supp. 2d 1175 (C.D. Cal. 2007). (See Pls.’
Opp’n 33 (citing True, 520 F. Supp. 2d at 1183).) See also Fed. R. Civ. P. 9(b) (“Malice, intent,
knowledge, and other conditions of mind of a person may be averred generally.”).
Defendant argues in response that the opposite is true, namely that because Plaintiffs’
allegations are “wholly generic,” “it is of the utmost importance that Plaintiffs identify the
specific advertisement or advertisements that allegedly induced them to purchase their vehicles,
in order to determine whether they have a plausible claim and to place Ford on notice of its
allegedly unlawful conduct.” (Def.’s Reply 6 (emphasis omitted).) Accordingly, Defendant
40

asserts that Plaintiffs fail to respond to Defendant’s introduction of “copies of the actual
advertisements at issue,” and “why those advertisements are not actionable as a matter of law
and/or why [the] claims . . . are preempted,” “at their peril.” (Id. at 6–7 (citing Rombach, 355
F.3d at 170; The Chicago Faucet Shoppe, Inc. v. Nestle Waters N. Am. Inc., 24 F. Supp. 2d 762–
63 (N.D. Ill. 2014)).)
While the Court finds that, in general, there is no reason to relax the requirements of Rule
9(b) in this case, see Nugent v. Searle Pharms., Inc., No. 86-CV-675, 1987 WL 15328, at *1
(W.D.N.Y. Aug. 5, 1987) (refusing to relax requirements of Rule 9(b) where “the plaintiffs
[were] required to reveal [only] the specifics of the false advertising allegedly relied on by [one
plaintiff]”), the Court agrees with Plaintiffs that they do not need to provide the date and time of
every allegedly fraudulent statement. For example, in Gilles, which concerned the gas mileage
of 2013 Ford Escape SE, Ford argued that the plaintiff had not pled fraud with the requisite
specificity because, among other things, he did “not say exactly when, how many times, which
portions he viewed, or whether his viewing was connected to the purchase.” 24 F. Supp. 3d at
1049. The court found that this argument went to the reasonability of reliance “that [could] be
more fruitfully addressed after discovery,” and that the plaintiff’s mere identification of “videos
on YouTube and Ford’s 2014 Product Sheet” that did not disclose the source of fuel economy
estimates and similar statements made by Ford’s salespeople met the requirements of Rule 9(b),
noting that “[i]f [the plaintiff] were able to give more specific dates or tell us exactly where he
was when he saw these materials, it does not seem more likely to put Ford on notice of the
claims against it.” Id. at 1048–49. The Court applies the same standard here. The Court also

41

agrees that general allegations about malice and state of mind are sufficient, as explicitly
provided by Rule 9(b).
Certainly, the mere allegation that fraudulent statements were made is insufficient under
Rule 9(b) to state a claim. The Second Circuit, as discussed above, requires under Rule 9(b) that
the alleged fraudulent statements be specifically identified. See Rombach, 355 F.3d at 170. In
other words, Plaintiffs must “identify specific advertisements and promotional materials; allege
when the [Plaintiffs] were exposed to the materials; and explain how such materials were false or
misleading.” In re Frito-Lay N. Am., Inc. All Natural Litig., No. 12-MD-2413, 2013 WL
4647512, at *24 (E.D.N.Y. Aug. 29, 2013) (citations omitted). In In re Frito-Lay, the court
found that allegations about the a campaign concerning “All Natural” ingredients in certain
snack foods “in advertising and online” was insufficiently specific because it did not identify
“the marketing and advertising to which [the] plaintiffs were exposed, and whether that material
[was] identical to, or . . . different from . . . the ‘All Natural’ stamp that appeared on the
products’ packaging.” Id. at *25. Likewise, in L.S. v. Webloyalty.com, another court found
Plaintiffs’ fraud claims did not pass muster under Rule 9(b) because the plaintiff did “not
identify with factual specificity the misrepresentations or specific advertisement that he relied
on” beyond “vague allegations of [a] coupon coffer.” 2014 WL 3547640, at *6–7.
There is support in the Second Circuit for the proposition that when there are a number of
advertisements at issue spanning a long period of time, it is too burdensome for a plaintiff to
produce each and every advertisement, and therefore Rule 9(b) should not be strictly applied.
See, e.g., Gillette Co. v. Philips Oral Healthcare, Inc., No. 99-CV-807, 2001 WL 1442637, at *6
(S.D.N.Y Nov. 15, 2001) (“[I]t would not make sense to apply Rule 9(b) strictly in this case,
42

given the potential burdensomeness of [producing every allegedly offending advertisement].”);
Philip Morris Inc. v. Heinrich, No. 95-CV-328, 1997 WL 781907, at *10 (S.D.N.Y. Dec. 18,
1997) (“When the issues are complicated or the transactions cover a long period of time, courts
tend to require less of a pleader. Furthermore, when a large number of documents are [sic]
involved, it is sufficient that a plaintiff has identified the categories of documents which
allegedly contain misstatements . . . .” (citations omitted)). That is not the case here, however.
Given the limited time span of the marketing campaign, and Plaintiffs’ demonstrated ability to
produce advertisements from the marketing campaign at issue, the Court finds that, under Rule
9(b), Plaintiffs must identify each and every advertisement Plaintiffs relied upon in order to
establish the “who . . . where, when[,] and why” of the fraud. Jovel, 2013 WL 5437065, at *11.
C. Analysis
Defendant contends that Plaintiffs’ Complaint should be dismissed on several grounds,
namely that: (a) Plaintiffs’ lack standing; (b) Plaintiffs’ claims are preempted under federal law;
(c) the Court should abstain under the “primary jurisdiction doctrine,” and (d) Plaintiffs have
otherwise failed to state a claim under Rules 8(a) and 9(b). Defendant’s other contentions
relating to Plaintiffs’ negligent misrepresentation, breach of contract, and breach of the good
faith and fair dealing are not addressed below because, as noted above, Plaintiffs have
voluntarily dismissed those claims.
At the outset, the Court notes that Plaintiffs’ claims have evolved from the CAC. In the
CAC, as noted above, a portion of Plaintiffs’ claims consist of criticism of Ford’s failure to
disclose so-called “actual” fuel economy estimates. (See CAC ¶ 114–15, 130, 169.) Now,
Plaintiffs claim that they do not allege that Ford “should have provided more accurate fuel
43

economy numbers.” (Pls.’ Opp’n 36–37.) Further, in the CAC, Plaintiffs contended that at least
some of the advertisements at issue did not include the EPA estimate disclaimer. (CAC ¶ 62.)
Now, however, Plaintiffs contend that they “do not allege that Ford failed to include disclosures
stating that 47 MPG was an ‘EPA estimate.’” (Pls.’ Opp’n 36.) Plaintiffs also initially took
issue with the Vehicles’ Monroney Stickers and the fact that Ford derived the C-MAX fuel
estimate from testing performed on the Fusion, (CAC ¶ 97, 100–01, 331, 343), but they did not
press those claims in its Opposition to Defendant’s Motion. Therefore, at this point, it appears
that the thrust of Plaintiffs’ claims is that “Ford’s advertisements were . . . deceptive and
misleading because they included additional, voluntary statements that were designed to leave
consumers with the impression that 47 MPG was the fuel economy the Vehicles could achieve
irrespective of whether 47 MPG was also an EPA estimate.” (Id.) In particular, Plaintiffs allege
that “Ford’s promotion of the [Vehicles] revolved around its 47 MPG promise and that its
marketing campaign was designed to convey its real-world 47 MPG to all would-be purchasers.”
(Id.)
1. Standing
Defendant alleges that Plaintiffs’ claims are, at heart, “a direct attack upon Ford’s
disclosure and advertisement of the EPA estimated fuel economy,” which Defendant contends is
“impermissible by a private litigant.” (Def.’s Mem. 22.) In support of this contention,
Defendant cites the EPCA, which vests enforcement authority in the Secretary of Transportation,
and which Defendant contends contains no “private enforcement mechanism.” (Id. at 12, 22
(citing 49 U.S.C. §§ 32911–12).)

44

Defendant is correct that the EPCA does not provide for a private right of action. See
Metro. Taxicab Bd. of Trade v. City of N.Y., No. 08-CV-7837, 2008 WL 4866021, at *6
(S.D.N.Y. Oct. 31, 2008) (“Nothing in the EPCA expressly grants rights to individual drivers or
owners”); see also Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2002) (“Since in this
case, no private right of action exists under the relevant statute, the plaintiffs’ efforts to bring
their claims as state common-law claims are clearly an impermissible ‘end run’ around [the
statute].”). Plaintiffs distinguish their claims, however, by arguing that they are not seeking to
enforce provisions of the EPCA. (See Pls.’ Opp’n 23–25.) Rather, Plaintiffs allege that “Ford’s
advertisements about the Vehicles’ fuel economy, which went beyond the disclosures required
by the EPCA, were false and misleading.” (Id. at 25.) It is on this basis that Plaintiffs assert that
the instant case is distinct from Grochowski, where the plaintiffs brought claims under state law
seeking compensation guaranteed by the Davis-Bacon Act, which did not provide for a private
right of action, Grochowski, 318 F.3d at 83–86, and from Metropolitan Taxicab, where the
EPCA was found to preempt a city rule imposing different fees on hybrid taxis, because they
addressed the same issue, Metropolitan Taxicab, 2008 WL 4866021, at *6, *9, *11.
The Court agrees with Plaintiffs. Defendant cites no cases applying Grochowski outside
the breach of contract context, see Grochowski, 318 F.3d at 86 (noting that allowing “a thirdparty private contract action aimed at enforcing . . . wage schedules would be inconsistent with
the underlying purpose of the legislative scheme”); cf. Gunther v. Capital One, N.A., 703 F.
Supp. 2d 264, 271 (E.D.N.Y. 2010) (discussing Grochowski in breach of contract context), nor
does Defendant explain in any detail why each of Plaintiffs’ claims would constitute an “end
run” around the EPCA. In fact, the chapter of the EPCA at issue only governs the calculation of
45

fuel economy and the production of Monroney Stickers/fuel-economy booklets, not
advertisement of EPA-estimated fuel economy. See 49 U.S.C. §§ 32901–32919; see also Gilles,
24 F. Supp. 3d at 1046 (finding that the EPCA “and the regulations issued pursuant to it do not
purport to regulate advertising of fuel economy beyond the requirements of the Monroney
Sticker and the dealer booklet”); True, 520 F. Supp. 2d at 1181 (finding that “[n]othing in the
EPCA or its accompanying regulations purports to regulate advertising of fuel economy beyond
the requirements regarding these stickers and booklets” (italics omitted)). Here, Plaintiffs are
not challenging Defendant’s compliance with the EPCA, including the accuracy of the
Monroney Stickers or other information Defendant provided about the EPA-estimated MPG for
the Vehicles. In particular, while reserving judgment on preemption, which is addressed in the
next section, the Court finds that far from constituting an “end run” around the EPCA, Plaintiffs
here rely on causes of action provided by state and common law that exist separate and apart
from the provisions of the EPCA. They contend that Defendant went beyond a discussion of the
EPA-estimated MPG itself by representing what MPG would actually be achieved. For the
Vehicles (See Pls.’ Opp’n 13 (“[T]he gravamen of the CAC is Ford’s advertising campaign was
deceptive because it portrayed a false impression about the ‘superior’ fuel economy of the Fusion
and C-MAX, beyond the mere disclosure of EPA estimates.”) See Wigod v. Wells Fargo Bank,
N.A., 673 F.3d 547, 585 (7th Cir. 2012) (rejecting applicability of Grochowski where applicable
federal law provided no private right of action because the plaintiff had a common law breach of
contract claim “under the plain language” of the applicable contract). Accordingly, Plaintiffs
claims survive Defendant’s standing challenge.
2. Preemption
46

The Supremacy Clause “invalidates state laws that ‘interfere with, or are contrary to,’
federal law.” Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985).
“State action may be foreclosed by express language in a congressional enactment, by
implication from the depth and breadth of a congressional scheme that occupies the legislative
field, or by implication because of a conflict with a congressional enactment.” Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 531 (2001) (citations omitted); accord Wachovia Bank,
N.A. v. Burke, 414 F.3d 305, 313 (2d Cir. 2005). Defendant alleges that Plaintiffs’ claims are
preempted on the first and third of these grounds, namely “as a matter of express preemption and
conflict preemption.” (Def.’s Mem. 24.) The Court addresses each of these claims in turn.

a. Express Preemption
State law is expressly preempted under the Supremacy Clause when “Congress
. . . define[s] explicitly the extent to which its enactments pre-empt state law.” English v. Gen.
Elec. Co., 496 U.S. 72, 78–79 (1990). In evaluating express preemption provisions, the “task of
statutory construction must in the first instance focus on the plain wording of the clause, which
necessarily contains the best evidence of Congress’ pre-emptive intent,” Sprietsma v. Mercury
Marine, 537 U.S. 51, 62–63 (2002), but also must include an analysis of the purpose and
structure of the statute and associated regulatory scheme, which the Supreme Court has called
“the ultimate touchstone” in every preemption case, Wyeth v. Levine, 555 U.S. 555, 565 (2009)
(internal quotation marks omitted); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485–86
(1996) (same). There is also a general “presumption that the historic police powers of the States
47

[are] not to be superseded . . . unless that is the clear and manifest purpose of Congress.” See
Wyeth, 555 U.S. at 565; see also Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 237
(2d Cir. 2006) (“Our Federalism prescribes that the national government, anxious though it may
be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways
that will not unduly interfere with the legitimate activities of the states.” (internal quotation
marks omitted)). “Thus, when the text of a pre-emption clause is susceptible [to] more than one
plausible reading, courts ordinarily accept the reading that disfavors pre-emption.” Altria Grp.,
Inc. v. Good, 555 U.S. 70, 77 (2008) (citation and internal quotation marks omitted). However,
“when Congress has unmistakably ordained that its enactments alone are to regulate a part of
commerce, state laws regulating that aspect of commerce must fall.” Jones v. Rath Packing Co.,
430 U.S. 519, 525 (1977) (citation and internal quotation marks omitted). The party arguing that
federal law preempts a state law bears the burden of establishing preemption. See In re Methyl
Tertiary Butyl Ethanol (MTBE) Prods. Liability Litig., 725 F.3d 65, 96 (2d Cir. 2013).
Defendant argues that Plaintiffs’ claims are expressly preempted in two ways. First,
Defendant contends that Plaintiffs’ claims are contrary to § 32919(b) of the EPCA, a “broad”
provision, Green Mtn., 508 F. Supp. 2d at 353, which provides that “a State or a political
subdivision of a State may adopt or enforce a law or regulation on disclosure of fuel economy or
fuel operating costs for an automobile covered by [49 U.S.C. § 32908] only if the law or
regulation is identical to that requirement,” because Plaintiffs’ claim is based on an alleged
additional obligation to test and disclose the so-called “actual” fuel economy of the vehicles.
(Def.’s Mem. 25–26 (citing 49 U.S.C. § 32919(b)); Def.’s Reply 11–13.) Indeed, Defendant
asserts that any false advertisement claims based on advertisements that contain federally48

mandated disclosure language “should be deemed pre-empted” based on the Espinosa and Kim
cases. (See id. at 13–14 (citing Espinosa, Ex. A, at 3; Yung-Kim, 2015 WL 1668366, at *10).)
Second, Defendant argues that pursuant § 32919(a) of the EPCA, which bars “a law or regulation
related to fuel economy standards for automobiles covered by an average fuel economy
standard,” (Def.’s Mem. at 27 (citing 49 U.S.C. § 32919(a)), Plaintiffs “fundamentally
challenge” the fuel economy testing regime “by treating EPA fuel economy numbers as
deceptive per se,” (id. at 28 (italics omitted).)
In response, Plaintiffs allege that consumer protection laws are “quintessentially within
the states’ historic police powers,” and that, accordingly, “the presumption against preemption
applies with particular force.” (Pls.’ Opp’n 10.) Regarding the first provision at issue,
§ 32919(b), Plaintiffs argue that it does not preempt state laws of general applicability “because
they are not ‘based on’ conflicting fuel economy obligations.” (Id. at 11.) Plaintiffs specifically
argue that the state laws at issue are not based on the disclosure of fuel economy or fuel
operating costs, but rather are based on the more general duty not to deceive, which Defendant
allegedly violated by “portray[ing] a false impression about the ‘superior’ fuel economy of the
[Vehicles], beyond the mere disclosure of EPA estimates.” (Id. at 12–13 (citing Altria Grp. 555
U.S. at 79–81).) In support, Plaintiffs rely principally on three cases from the Central District of
California in which each court found that § 32919(b) does not preempt false advertising claims.
(See id. at 14 (citing id. Ex. A (Yung-Kim v. Gen. Motors, LLC, — F. Supp. 3d —, 2015 WL
1668366, at *5 (C.D. Cal. Mar. 9, 2015); Espinosa v. Hyundai Motor Am., No. 12-CV-800 (C.D.
Cal. Apr. 23, 2012) (“Espinosa”), at 3; True, 520 F. Supp. 2d at 1181 (concluding that “no clear
and manifest Congressional intent to regulate advertising exists,” and that therefore “Congress
49

intended to leave the regulation of false advertising, and unfair business practices of auto
manufacturers, to the state”)).)10 Regarding the second provision at issue, § 32919(a), Plaintiffs
contend that “a state law is ‘related to’ the preempted subject matter when ‘the challenged law
contains a reference to the preempted subject matter or makes the existence of the preempted
subject matter essential to the law’s operation,’” and that the statutes at issue “do not refer to fuel
economy disclosures or testing, nor are fuel economy disclosures or testing essential to their
operation.” (Id. at 15–16 (citing Paduano, 88 Cal. Rptr. 3d at 108–110) (quoting Metro.
Taxicab, 615 F.3d at 156).) Plaintiffs, distinguishing contrary authority, contend that their
claims “do not seek to impose contrary fuel economy standards,” and are rooted not in the idea
that Defendant said “too little,” but that, through its advertisement campaign, “said too much.”
(Id. at 16–18.)
The Court concludes that Plaintiffs’ claims are partially preempted. At the outset, the
Court recognizes that a presumption against preemption applies in consumer protection cases.
See Langan v. Johnson & Johnson Consumer Cos., Inc., — F. Supp. 3d —, 2015 WL 1476400,
at *4 (D. Conn. Mar. 31, 2015) (noting that the presumption against preemption applies to claims
related to “[t]he advertising and labeling of consumer products” because it is “a field
traditionally subject to state regulation” (citing Altria Grp., 550 U.S. at 77)). Additionally, as
discussed above, and contrary to the characterization of Plaintiffs’ claims made by both Plaintiffs
and Defendant, Plaintiffs’ claims appear to rest on two separate strands of alleged wrongdoing.
Some of Plaintiffs’ allegations challenge Defendant’s guarantees of a real-world fuel economy

The Espinosa opinion is marked as “tentative” and is unavailable on Westlaw.
Plaintiffs attached the opinion to their Opposition as Exhibit A.
10

50

that go beyond including EPA estimates in advertisements, (see, e.g., CAC ¶ 59 (“Ford’s
campaign emphasized that ‘47 MPG’ was something that the Vehicles would actually deliver.”);
id. ¶ 63 (noting that “Ford stressed that the 47 MPG figure was one that its 2013 hybrids actually
‘deliver,’ that ‘it’s true’ the hybrids get 47 MPG, that they actually ‘achieve’ 47 MPG, and that
consumers can expect ‘47 [MPG] for me’” )), whereas others appear to challenge the mere use of
EPA fuel estimates, in ways that the EPA contemplated using them, as opposed to “actual” fuel
economy, (see, e.g., CAC ¶ 95 (“Even though Ford knew that its 2013 Fusion . . . and C-MAX
did not actually get anywhere near 47 MPG, it still chose to implement a massive ‘47 MPG’
advertising campaign overstating the real world fuel economy of the Vehicles.”); id. ¶ 100
(“[W]ithout ever actually testing the fuel economy of the C-MAX under EPA standards, Ford
repeatedly touted its ‘47 MPG’ message creating the impression that consumers would be able to
achieve these results under real world conditions”); id. ¶ 101 (“[A]t the time Ford made the
statements touting C-MAX’s class-leading fuel economy, Ford knew that the ‘47 MPG’
estimates were not achieved by the C-MAX. However, Ford continued to defend its advertised
figures.”); id. ¶¶ 331, 343 (identifying “window stickers” as a source of misleading
representations). The Court considers both aspects of Plaintiffs’ claims in determining whether
or not they are preempted.
First, it is clear § 32919(a) has no relevance here. That provision governs fuel economy
standards for “entire fleets and/or fleets of subclasses of vehicles,” rather than individual model
vehicles. Paduano, 88 Cal. Rptr. 3d at 109; see also Yung-Kim, 2015 WL 1668366, at *5
(finding this statute inapplicable for the same reason, and noting that the plaintiff’s claims were
different because they “pertain[ed] largely to representations made by [the defendant] in
51

characterizing what sort of fuel economy their vehicle achieves” (italics omitted); Metro.
Taxicab, 2008 WL 4866021, at *6 (“The focus of the EPCA is on regulating fuel economy
standards across an entire fleet of manufacturer vehicle models.” (citing 49 U.S.C. § 32919(a))).
It accordingly “simply has no application in this case,” Paduano, 88 Cal. Rptr. 3d at 110, which
only involves advertisements allegedly used to discuss the mpg estimates of the Vehicles.
Second, applying § 32919(b), false advertisement claims based on fuel economy are not,
in all forms, expressly preempted by the provisions cited by Defendant. As argued by Plaintiffs,
analogizing to the Supreme Court’s decision in Altria Group, Plaintiffs’ state law false
advertising claims are rooted in an extrinsic duty not to deceive, one that is not equivalent to
disclosure obligations under the EPCA. The Paduano and True cases are particularly persuasive
on this point. The Court in True, in an extensive discussion of the EPCA, made clear that
“[n]othing in the EPCA or its accompanying regulations purports to regulate advertising of fuel
economy beyond the requirements regarding these stickers and booklets,” and that it is an
“unreasonable assumption” to conclude that “Congress intended to preempt states from
regulating false or misleading advertising of a vehicle’s fuel efficiency and cost savings.” 520 F.
Supp. 2d at 1175. Similarly, adopting a more textual approach, the Paduano court made clear
that “the phrase ‘on disclosure of fuel economy or fuel operating costs’ . . . cannot be construed
to encompass the general duty not to make fraudulent or misleading statements” 98 Cal. Rptr. 3d
at 111 (quoting 49 U.S.C. § 32919(b)). The Gilles court likewise found these two cases
persuasive, explaining that the EPCA “and the regulations issued pursuant to it do not purport to
regulate advertising of fuel economy beyond the requirements of the Monroney Sticker and the

52

dealer booklet,” and therefore holding that state false advertising claims “are not preempted by
this body of federal law.” 24 F. Supp. 3d at 1046.
Third, and more specifically, any allegations that go beyond the mere disclosure—with
appropriate caveats—of the estimated fuel economy of the Vehicles, go beyond the scope of the
EPCA. See Green Mtn., 508 F. Supp. 2d at 353 (encouraging a narrower reading of this
provision of the EPCA). It stands to reason that Congress did not intend to protect car
manufacturers that may have falsely advertised facts about their vehicles—including facts that
might go beyond merely reporting the EPA-estimated MPG. As the Supreme Court noted, “If
‘relate to’ were taken to extent to the furthest reach of its indeterminacy, then for all practical
purposes preemption would never run its course,” effectively “read[ing] the presumption against
pre-emption out of the law whenever Congress speaks to the matter with generality.” N.Y.
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).
Indeed, as Defendant admits, Congress’ intent in regulating EPA fuel economy disclosures was
not to prevent false advertising but rather was to “provid[e] consumers with uniform and
comparable fuel economy information.” (Def.’s Mem. 29.) Here, Plaintiffs’ allegation that Ford
did not only rely on the EPA estimate, but also guaranteed real-world fuel economy based upon
it, is an allegation that goes “beyond” that estimate. The Court therefore concurs with holdings
of other courts that considered similar allegations, namely that advertisements functioned to
guarantee specific, real-world performance, and concludes that such claims are not preempted.
See Yung-Kim, 2015 WL 1668466, at *6 (finding allegations that “statements[] made in
advertisements . . . that . . . could lead a reasonable consumer to believe that the vehicle [at issue]
[was] capable of achieving . . . EPA estimates under real world conditions” not to be preempted);
53

Sanchez v. Ford Motor Co., No. 13-CV-1924, 2014 WL 218278, at *3 (D. Colo. May 29, 2014)
(finding claims highlighting “advertisements about the Lincoln MKZ Hybrid beyond the EPA
estimate itself,” including an alleged suggestion that an MKZ Hybrid “could travel 717 miles on
tank,” to “not [be] preempted by federal law”); Espinosa, Ex. A at 3 (same); True, 520 F. Supp.
2d at 1181 (finding the plaintiff’s claim not preempted because it “challenge[d] the manner in
which [the] [d]efendant advertised the Honda Civic Hybrid in mediums other than the Monroney
Sticker and information booklet”).
On the other hand, as noted in Espinosa, “[t]o the extent that Plaintiff[s’] claims rest on
Defendant’s mere use of EPA estimates . . . such claims are preempted.” Espinosa, Ex. A, at 3.
The use of EPA estimates themselves clearly falls within the scope of the relevant FTC
regulations, and any state law indicating otherwise would constitute “a law or regulation on
disclosure of fuel economy or fuel operating costs” that is not identical to those contained in, or
contemplated by, the EPCA. 49 U.S.C. § 32919(b); see also Gilles, 24 F. Supp. 3d at 1046
(“Although the EPA did not undertake regulation of automobile manufacturers’ advertising
beyond the Monroney Sticker and the booklet, the Federal Trade Commission (FTC) did.”);
Green Mtn., 508 F. Supp. 2d at 353 (“A state law that controlled or superseded a core EPCA
function—to set fuel economy standards for automobiles—would appear to be preempted.”
(citing Gerosa v. Savasta & Co., 329 F.3d 317, 324 (2d Cir. 2003)); cf. Yung-Kim, 2015 WL
1668366, at *8 (distinguishing claims based on the “manner in which” car companies
“represent[] . . . EPA figures in various advertisements, which is not covered by, nor . . . [in]
conflict with[,] FTC regulations”). Likewise, as Defendant contends, any obligation to include
“actual” fuel economy based on independent testing of each Vehicle goes beyond what
54

automobile manufacturers are required to do under the EPCA. Accordingly, to the extent that
Plaintiffs’ claims are premised on the idea that the advertisements (or Monroney Stickers)
included EPA estimates, rather than some other “actual” fuel economy calculation, or to the
extent that Plaintiffs’ claims are based on the contention that Defendant failed to independently
test and disclose the fuel economy of the C-MAX in order to determine its “actual” performance,
(CAC ¶¶ 97, 100–01), the Court finds that those claims are preempted by the EPCA and FTC,
because they seek to impose a regime above and beyond that required by those regulations.
b. Conflict Preemption
Defendant also contends that Plaintiffs’ claims are barred by conflict preemption.
Conflict preemption occurs when “compliance with both state and federal law is impossible, or
when the state law stands as an obstacle to the accomplishment and execution of the full
purposes and objective[s] of Congress.” United States v. Locke, 529 U.S. 89, 109 (2000).11 A
finding of conflict preemption “turns on the identification of ‘actual conflict,’” and “a court
should not find pre-emption too readily in the absence of clear evidence of a conflict.” Geier v.
Am. Honda Motor Co., Inc., 529 U.S. 861, 884–85 (2000). Indeed, “[t]he mere fact of tension
. . . is generally not enough to establish an obstacle supporting preemption.” Madeira, 469 F.3d
at 241.
Defendant asserts that there is a “comprehensive set of statutes and regulations to further
the federal objective of providing consumers with uniform and comparable fuel economy
information.” (Def.’s Mem. 29.) The statutes include 49 U.S.C. § 32904 (vesting the EPA with

“Federal regulations have no less pre-emptive effect than federal statutes.” Fid. Fed.
Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982).
11

55

responsibility for establishing test methods and calculation procedures for fuel economy
estimates); § 32908(b)(1) (requiring automobile manufacturers to display fuel economy estimates
on new automobiles offered for sale); and § 32908(c)(3) (requiring that the EPA prepare an
annual fuel economy guide), and the regulations include 40 C.F.R. § 600.405–08 (requiring
automobile dealers to make a printed copy of the annual fuel economy guide available to
customers). Accordingly, together with the FTC’s advertising requirements, Defendant argues
that this scheme is “comprehensive,” that Plaintiffs are attempting to require that Defendant
follow a standard “different than what is dictated by EPA requirements,” and that the proper
venue for addressing Plaintiffs’ concerns about the Vehicles’ fuel economy is the EPA. (Def.’s
Mem. 28–29.)
In response, Plaintiffs argue that they do not seek a change in labeling, but rather only
target “specific affirmative statements about the fuel efficiency of the . . . Fusion . . . and CMAX vehicles that were false or misleading . . . [and] went beyond mere reiteration of EPA
estimates,” as in True and Paduano. (Pls.’ Opp’n 20 (citing True, 520 F. Supp. 2d at 1181).)
Plaintiffs likewise cite those cases for the proposition that “[f]alse advertising claims regarding
fuel economy do not stand as an obstacle to accomplishing the purpose of the EPCA.” (See id. at
20 (citing True, 520 F. Supp. 2d at 1181).)
The Court finds that the core of Plaintiffs’ claims, as narrowed in the motion papers (and
as described above), is not in conflict with labeling and fuel economy guide requirements of the
federal scheme. As the Yung-Kim court noted, “the existence of the federal regulatory scheme
does not preclude states from barring the misuse of EPA fuel efficiency data in advertising or
other promotional materials,” and “allowing states to regulate false advertising and unfair
56

business practices may further the goals of the EPCA.” 2015 WL 1668366, at *7. Moreover, as
noted in the previous section, regulation of false advertising is a traditional state police power,
and so the presumption against preemption applies with equal force here, counseling against a
finding of conflict preemption. See, e.g., Gilles, 24 F. Supp. 3d at 1046. Accordingly, Plaintiffs’
claims regarding additional guarantees about the Vehicles’ fuel economy that go beyond the
mere use of EPA estimates are not conflict-preempted.
Additionally, while the Court has already found these claims to be expressly preempted,
to the extent that Plaintiffs suggest that Defendant had an obligation to release so-called “actual”
fuel economy estimates, while in tension with the FTC’s requirement that EPA fuel estimates be
the most prominent in automobile advertisements, see 16 C.F.R. § 259.2(a) (requiring that
automobile manufacturers use EPA estimates as the most prominent mileage figure in any
advertisement that makes “any express or implied representation in advertising concerning the
fuel economy of any new automobile”), those claims are not preempted because it is not
impossible to comply with both the regulation and the obligations that Plaintiffs identify. See
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. Abrams, 899 F.2d 1315, 1322 (2d Cir. 1990)
(explaining that “for preemption to occur . . . , there must be more than mere differences between
the state and federal regulatory systems; rather compliance with the two must be a physical
impossibility,” and finding that state law was not conflict preempted for this reason (internal
quotation marks omitted)). Indeed, a manufacturer could disclose an alternative fuel economy
estimate yet still ensure that EPA estimates are the most prominent. For the same reason,
Defendant has not indicated any reason why Ford could not have included other fuel economy
estimates in addition to an EPA estimate. Therefore, Plaintiffs’ claims are not conflict
57

preempted, though, as discussed above, some are expressly preempted. Cf. Cangemi v. U.S., 939
F. Supp. 2d 188, 198 (E.D.N.Y. 2013) (“Where a defendant could comply with state and federal
law by following the stricter state law requirements, there is no conflict preemption.”); Ins. Corp.
of N.Y. v. Monroe Bus Corp., 491 F. Supp. 2d 430, 440 (S.D.N.Y. 2007) (finding no conflict
preemption because, inter alia, “it would not be impossible for a party to comply with both state
and federal law, and state law is not an obstacle to the achievement of federal objectives”).
3. Primary Jurisdiction Doctrine
Defendant also argues that, even if “Plaintiffs’ claims are not preempted or otherwise
insufficient, the Court should nonetheless decline to exercise jurisdiction . . . under the doctrine
of primary jurisdiction.” (Def.’s Mem. 30.) The primary jurisdiction doctrine applies “to claims
properly cognizable in court that contain some issue within the special competence of an
administrative agency.” Reiter v. Cooper, 507 U.S. 258, 268 (1993); see also S. New Eng. Tel.
Co. v. Global NAPs, 624 F.3d 123, 135–36 (2d Cir. 2010). This doctrine is “designed to protect
agencies possessing quasi-legislative powers . . . that are actively involved in the administration
of regulatory statutes,” particularly when a case “implicates technical and policy questions that
should be addressed in the first instance by the agency with regulatory authority over the relevant
agency rather than by the judicial branch.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114–
15 (9th Cir. 2008) (internal quotation marks omitted); see also Far E. Conference v. United
States, 342 U.S. 570, 575 (1952) (noting that primary jurisdiction doctrine applies when a case
raises “issues of fact not within the conventional experience of judges”). “No fixed formula
exists for applying the doctrine of primary jurisdiction.” United States v. W. Pac. R.R. Co., 352

58

U.S. 59, 64 (1956). However, while application of the doctrine is done on a case-by-case basis,
the Second Circuit has suggested that courts apply four factors:
(1) whether the question at issue is within the conventional experience of judges
or whether it involves technical or policy considerations within the agency’s
particular field of expertise;
(2) whether the question at issue is particularly within the agency’s discretion;
(3) whether there exists a substantial danger of inconsistent rulings; and
(4) whether a prior application to the agency has been made.
Ellis v. Tribune Television Co., 443 F.3d 71, 82–83 (2d Cir. 2006); see also RCA Global
Commc’ns, Inc. v. W. Union Tel. Co., 521 F. Supp. 998, 1006 (S.D.N.Y. 1981).
Defendant asserts that the EPA has primary jurisdiction over Plaintiffs’ claims because it
“audits . . . data from testing performed by manufacturers and performs its own testing on some
of these vehicles to confirm the manufacturers’ results.” (Def.’s Mem. 31 (brackets omitted)
(quoting Emission and Fuel Economy Test Data, available at http://epa.gov/oms/testdata.htm
(last visited Apr. 15, 2015).) Defendant further contends that the EPA’s responsibility extends to
all use of these figures, and that “any question about the accuracy of EPA mileage estimates
implicates on-going EPA regulatory activity,” particularly because “[t]he EPA has full
administrative and regulatory authority to enforce its obligations,” including “the power to
subpoena witnesses, . . . to bring civil enforcement actions[,] . . . to conduct proceedings to
determine a manufacturer’s compliance[,] and to impose significant financial penalties for
noncompliance.” (Id. (quoting 49 U.S.C. §§ 32901, 32910–12).) In fact, Defendant argues that
it is these enforcement powers that led Ford to relabel the C-MAX with lower estimated fuel
economy figures, and that the EPA should therefore “reach an appropriate determination” of how
59

to proceed in this case “based on its technical expertise and knowledge of the industry.” (Id. at
32.)
In response, Plaintiffs argue that “primary jurisdiction doctrine does not automatically
apply whenever the factual subject matter of a lawsuit touches and concerns issues within the
purview of an agency.” (Pls.’ Opp’n 21.) Plaintiffs further contend that because the CAC
concerns “conduct [that] violates garden variety consumer protection laws,” the primary
jurisdiction doctrine has no application here. (Id. at 23.) Defendant offers no response in its
Reply.
The Court finds that Plaintiffs have the better of the argument. While Defendant is
correct that Plaintiffs’ claims relate to the accuracy of EPA-estimated fuel economy (and perhaps
suggest deficiencies in the current estimation formula), the question of whether the
advertisements related to such information were misleading is a question conventionally left to
the courts to answer. See Jovel, 2013 WL 5437065, at *7 (declining to apply primary
jurisdiction doctrine in false advertising case concerning healthcare products because “every day
courts decide whether conduct is misleading”) (internal quotation marks omitted); In re FritoLay, 2013 WL 4647512, at *8 (noting that “the primary jurisdiction doctrine does not apply
when ‘the issue at stake is legal in nature and lies within the traditional realm of judicial
competence,’” and finding that this case fell within that competence because the “case is far less
about science than about whether a label is misleading”) (some internal quotation marks omitted)
(quoting Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 851 (2d Cir. 1988)).
Therefore, the Court properly may determine whether Defendant’s alleged guarantees of realworld fuel economy were misleading to consumers without treading on the calculation methods
60

devised by the EPA, or their disclosure as mandated by the FTC. On the other hand, passing
judgment on whether there is a way to calculate fuel economy for the C-Max, and whether that
should be disclosed, directly implicates the methods devised by the EPA, and the disclosure
requirements devised by the FTC. Accordingly, those claims are barred here by the primary
jurisdiction doctrine, as they fall within the competence, and mandate, of the EPA and FTC.
4. Failure to State a Claim
Defendant also seeks to dismiss Plaintiffs’ claims based on Rule 12(b)(6) for failure to
state a claim. The crux of Defendant’s position is that “no individual Plaintiff pleads facts
demonstrating that he or she relied upon and/or was injured by an actionable representation from
Ford, i.e., a representation lacking federally mandated disclosure language or one that ‘goes
beyond’ the EPA estimate.” (Def.’s Mem. 32 (italics omitted).) In particular, Defendant
contends that “[w]hile the CAC lists a series of advertisements . . . , only 4 of the 29 Plaintiffs
plead that they were exposed to one of those specified advertisements,” and that that
advertisement, titled “Hybrid Games,” “contains federally mandated disclosure language” such
that claims based on it are “either preempted and/or not actionable as a matter of law.” (Id. at
33.)12 Defendant then proceeds to discuss individual categories of Plaintiffs’ claims, each of
which the Court addresses (to the extent Defendant’s arguments remain applicable).

12

As discussed above, the Hybrid Games advertisement portrays two actors
commentating while two individuals drive a C-MAX and Prius V around Los Angeles, and
concludes that the C-MAX delivers better fuel economy. (See Decl. of Jeffrey M. Yeatmen in
Supp. of Motion To Dismiss Ex. 24 (“Hybrid Games”) (Dkt. No. 65).) Defendant points to the
fact that when the C-MAX’s EPA estimated fuel economy appears 25 seconds into the
advertisement, a footnote includes the “federally mandated disclosure language, i.e., ‘EPAEstimated. Actual [m]ileage [m]ay [v]ary.’” (Def.’s Mem. 33; Hybrid Games.) Defendant also
contends that the next fuel economy representation, at 1 minute and 4 seconds into the
61

a. Consumer Protection Claims
Defendant addresses all of Plaintiffs’ state law claims together (albeit with reference to
precedent from some state-specific cases), arguing that each “require[s] either a showing of
reliance on an actionable misrepresentation, or a showing that an actionable misrepresentation
caused injury to the complaining party,” and that “none of the Plaintiffs have pleaded facts
sufficient to make this showing.” (Def.’s Mem. 34–35.)13 Defendant relies principally on a case
from the Middle District of Florida, Brett v. Toyota Motor Sales, U.S.A., Inc., No. 08-CV-1168,
2008 WL 4329876, at *7 (M.D. Fla. Sept 15, 2008), wherein the court found that allegations of a
failure to disclose “actual” fuel economy of the Toyota Prius did not state a claim under the
FDUTPA because the “‘practice of advertising the EPA’s estimates and identifying the EPA as
the source of those estimates is not unfair or deceptive’” as it is consistent with the “‘legislative

advertisement, indicates “C-MAX total range 571 miles. Prius [V] total range 450 miles. Based
on fueleconomy.gov,” is also not actionable because it is drawn directly from a website hosted
by the U.S. Department of Energy and the EPA. (Def.’s Mem. 33; Hybrid Games.) There is one
further fuel economy representation in the advertisement, beginning 2 minutes and 33 seconds
into the advertisement, wherein a graphic appears indicated that the C-MAX gets “47 MPG
combined” and has a “total range” of “571 miles,” without any disclaimer or source citation.
(Hybrid Games.) While the Court can consider the content of this advertisement because it is
incorporated by reference into the CAC, see Chambers v. Time Warner, Inc., 282 F.3d 147, 152–
53 (2d Cir. 2002) (noting that, in resolving a motion to dismiss, a court may consider “any
written instrument attached to [the complaint] as an exhibit or any statements or documents
incorporated in it by reference,” and any “document . . . not incorporated by reference . . . where
the complaint relies heavily upon its terms and effect, . . . render[ing] the document integral to
the complaint” (internal quotation marks omitted)), the Court finds more generally, as noted
below, that Plaintiffs have stated a claim on the basis of the advertisements cited in the
Complaint, including Hybrid Games, and that whether Plaintiffs’ reliance was reasonable given
the disclaimers is a question of fact not to be addressed at the motion-to-dismiss stage.
13
Even though Plaintiffs’ New York consumer protection claim is only subject to Rule
8(a), as discussed above, the Court does not discuss it separately because it finds that Plaintiffs’
claims survive under Rule 9(b).

62

and regulatory scheme for fuel economy labeling and advertising.’” (Def.’s Mem. 36 (citing
Brett, 2008 WL 4329876, at *7).) The Brett court also found that, because disclosure of the EPA
estimates is “specifically permitted or required by federal law,” it fell within a safe harbor
provision of the FDUTPA. (Id. (citing Brett, 2008 WL 4329876, at *7).) Defendant accordingly
contends that its actions are “not unfair or deceptive as a matter of law” and that “a majority of
the state consumer protection laws under which Plaintiffs bring their claims contain a [safe
harbor] clause similar to that found in the FDUTPA[,]” which likewise apply. (Def.’s Mem. 36–
37.) See also Paduano, 88 Cal. Rptr. 3d at 105 (“As a matter of law, there is nothing false or
misleading about . . . advertising with regard to its statements that identify the EPA fuel
economy estimates . . . .”).14 Defendant also independently maintains that claims based on
“advertisements that contain federally mandated disclosure language” are not actionable as a
matter of law. (See Def.’s Reply 13–14 (citing Espinosa, Ex. A, at 3; Yung-Kim, 2015 WL
1668366, at *10)).
In response, Plaintiffs argue that their consumer protection claims are sufficiently pled
under Rule 9(b) because they allege the “where” (TV commercials, magazine ads, social media,
etc.), “what” (specifically-identified advertisements touting the real world fuel economy of the
Fusion and C-MAX), “when” (2013 Model year advertisements, beginning in September 2012),
and “why” (the advertisements were misleading insofar as they guaranteed a certain real world

14

Defendant also asserts—inaccurately, as the Court has already described—that
Plaintiffs’ claims are not actionable because they assert only that “they were injured by Ford’s
failure to advertise more accurate fuel economy estimates,” meaning “Plaintiffs have [not] set
forth facts establishing they were exposed to advertising from Ford that departs from” federal
regulations which require disclosure, and attribution, of EPA fuel economy estimates. (Def.’s
Mem. 38.)
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fuel economy that Ford allegedly knew the Vehicles would not achieve), and that those
allegations are sufficient to put Defendant on notice of Plaintiffs’ claims. (Pls.’ Opp’n 34–36.)
(See id. at 34–36 (citing Rosales v. FitFlop USA, LLC, 882 F. Supp. 2d 1168, 1175–77 (S.D. Cal.
2012); Von Koenig v. Snapple Beverage Corp., 713 F. Supp. 2d 1066, 1077 (E.D. Cal. 2010).)
Plaintiffs also, importantly, distinguish Brett, arguing that in that case, the “plaintiffs alleged that
the advertisement of the EPA estimates, alone, misrepresented the fuel economy of the Prius in
violation of the FDUTPA,” and that “Toyota should have provided more accurate fuel economy
numbers,” as compared to Plaintiffs’ claim here that Defendant went beyond EPA-estimated fuel
economy representations. (Id. at 36.) Finally, Plaintiffs contend that “[a]dvertisers cannot use
fine print to contradict other statements in an ad,” such that the mere use of the EPA-mandated
“actual mileage may vary” does not inoculate a misleading advertisement. (See id. at 25–26, 37–
38 (citing, inter alia, In re Frito-Lay, 2013 WL 4647512, at *20–23; In re Horizon Organic Milk
Plus DHA Omega-3 Marketing and Sales Practice Litig., 955 F. Supp. 2d 1311, 1344–47 (S.D.
Fla. 2013)); Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 133 F. Supp. 2d 162,
175–76 (E.D.N.Y. 2001).)
In evaluating Plaintiffs’ consumer protection claims, the Court notes that, as Plaintiffs
indicate, consumer protection statutes are remedial in nature, and should be liberally construed in
favor of protecting consumers. (See Pls.’ Opp’n 40 (citing N.Y. v. Feldman, 210 F. Supp. 2d
294, 301 (S.D.N.Y. 2002); Quinn, 958 F. Supp. 2d at 543; Khoday v. Symantec Co., 858 F. Supp.
2d 1004, 1011, 116 (D. Minn. 2012); Trunzo v. Citi Mortg., 876 F. Supp. 2d 521, 541 (W.D. Pa.
2012); Wright v. Kia Motors Am., Inc., No. 06-CV-6212, 2007 WL 316531, at *2 (D. Or. Jan.
29, 2007); Tandy v. Marti, 213 F. Supp. 2d 935, 937 (S.D. Ill. 2002)).) Further, as noted above,
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because Defendant addresses Plaintiffs’ consumer protection claims as a whole, and Plaintiffs
respond in kind, the Court notes that there is no need to treat each of Plaintiffs’ consumer
protection claims individually. The Court, accordingly, addresses those claims as a whole.
Keeping this context in mind, and recognizing that the Court has already found these
claims to be preempted, the Court is persuaded that any claims based on the mere inclusion of
EPA estimated fuel economy and associated disclaimers do not state a claim upon which relief
can be granted. The case law makes clear, and Plaintiffs cite no cases indicating otherwise, that
the mere use of EPA estimates, as opposed to any other supposed estimates of “actual” fueleconomy, are not actionable. See, e.g., Gray v. Toyota Motor Sales, USA, No. 08-CV-1690,
2012 WL 313703, at *6 (D. Cal. Jan. 23, 2012) (“[T]he claims must fail as they rely solely on
advertisements that merely repeat the approved EPA mileage estimates, without any additional
representations as to, for example, a consumer’s ability to achieve those figures under normal
driving conditions.”), aff’d sub nom. Gray v. Toyota Motor Sales, USA, Inc., 554 F. App’x 608,
609 (9th Cir. 2014) (“Thus, no misrepresentation occurs when a manufacturer merely advertises
EPA estimates.”); Paduano, 88 Cal. Rptr. 3d at 105 (“As a matter of law, there is nothing false
or misleading about . . . advertising with regard to its statements that identify the EPA fuel
economy estimates . . . .”).
By contrast, however, the Court finds that Plaintiffs’ other claims, namely those targeting
specific “additional” representations that go beyond those EPA estimates, state a claim under
state consumer protection law, even under the strict requirements of Rule 9(b). First, Plaintiffs
have sufficiently distinguished these additional representations from the mere use of EPA
estimates in their papers. The best example is the “Hybrid Games” advertisement, given the
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purpose of the advertisement is to visually illustrate the impact of the difference in real-world
fuel economy between the C-Max and Prius V in the course of regular driving. (Decl. of Jeffrey
M. Yeatmen in Supp. of Motion To Dismiss Ex. 24 (“Hybrid Games”) (Dkt. No. 65).) In fact,
after familiarizing the viewer with the “specs,” namely EPA-estimated fuel economy, the
narrator indicates that the purpose of the competition between the C-Max and Prius V is to see if
the difference in the specs proves true in actual use. (Id.). Additionally, while the FTCmandated disclosure is present in most of the Hybrid games advertisement (and the other
advertisements at issue), Defendant offers no response to Plaintiffs’ argument that the use of this
disclaimer (i.e., “actual mileage may vary”) does not inoculate those representations, as they do
not contradict the representation. The disclaimer is not meant to address any representations
regarding how far a C-Max or Fusion (or Prius) driver will go on a tank of gas, thus its presence
does not defeat Plaintiffs’ claims. See Yung-Kim, 2015 WL 1668366, at *11 (denying motion to
dismiss regarding additional representations beyond EPA-estimated fuel economy, specifically
the implication “that a consumer will be able to actually achieve the EPA fuel economy figures
when driving in the real world”); cf. Hughes, 930 F. Supp. 2d at 473 (declining to consider
reasonability of reliance because the court could not “conclude as a matter of law that the cited
statements . . . could not have been reasonably relied on by consumers”); State Coll. Area Sch.
Dist. v. Royal Bank of Can., 825 F. Supp. 2d 573, 590 n.5 (M.D. Pa. 2011) (“If we were to find
that the [letter] contained a false or incorrect representation, the question of reasonable reliance,
given the disclaimer, would become one of fact requiring the opportunity for discovery.”).
In this context, Defendant’s characterization of Espinosa and Kim is unhelpful. Those
cases do not stand for the proposition that the inclusion of an EPA-estimate-related disclosure in
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an advertisement renders the entire advertisement, no matter its content, non-actionable. Rather,
as previously discussed, those cases both indicate that specific promises that constitute
representations beyond EPA estimates and related disclosures are actionable. See Espinosa,
Exhibit A, at 3 (denying motion to dismiss claims involving “additional assertions, beyond the
mere disclosure of the mileage estimates, that are untrue or misleading[,]” which “federal law
does not require, or even address” (internal quotation marks omitted)); Yung-Kim, 2015 WL
1668366, at *11 (denying motion to dismiss claims involving additional representations beyond
EPA-estimated fuel economy, specifically the implication “that a consumer will be able to
actually achieve the EPA fuel economy figures when driving in the real world”); see also Blue
Cross & Blue Shield, 133 F. Supp. 2d at 175–76 (finding that “[c]ompliance with regulations
does not immunize misconduct outside the regulatory scope,” and noting “no case holds that
when intentional deception is alleged, unregulated regulatory supervision immunizes[]” the
alleged misconduct).
Second, Plaintiffs allege, with sufficient specificity, the “circumstances constituting the
alleged fraudulent acts,” namely the nature and timing of the advertisements specifically
described in the CAC, to satisfy rule 9(b). Dornberger v. Metro. Life Ins. Co., 961 F. Supp. 506,
528 (S.D.N.Y. 1997). Those specific advertisements are paired with sufficient allegations
describing the nature, timing, and location of the statements therein in the context of the 2013
marketing campaign, and Plaintiffs ascribe a reasonable motive to Defendant in making those
misstatements, namely selling more of the Vehicles. As discussed above, this is all that is
required under Rule 9(b). Compare Weisblum v. Prophase Labs, Inc., — F. Supp. 3d —, 2015
WL 738112, at *13 (S.D.N.Y. 2015) (finding allegations that the defendant “made personal
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guarantees in national media advertisements,” that the plaintiff “heard [the] media
advertisements,” and that the plaintiff “relied on these representations” were sufficient under
Rule 9(b) (internal quotation marks omitted)); Gilles, 24 F. Supp. 3d at 1048–49 (finding
allegations that the plaintiff viewed “videos on YouTube and Ford’s 2014 Product Sheet” that
did not disclose the source of fuel economy estimates, and that “Ford’s salespeople made similar
statements about the Escape’s fuel economy,” to be sufficient to state a claim under California’s
consumer protection statute and Rule 9(b)); id. at 1049 (finding fact that the plaintiff did “not say
exactly when, how many times, and which portions [of Ford’s website] he viewed, or whether
his viewing was connected to the purchase” not to render his allegations insufficient under Rule
9(b)); id. (“If [the plaintiff] were able to give more specific dates or tell us exactly where he was
when he saw these materials, it does not seem more likely to put Ford on notice of the claims
against it.”) with Amos v. Biogen Idec Inc., 28 F. Supp. 3d 164, 172–73 (W.D.N.Y. 2014)
(“Plaintiff further claims that [the] defendants made misrepresentations in advertisements,
website statements, written and oral information provided to patients and doctors and other
marketing materials, but fails to identify any such misrepresentation, and fails to explain why
such misrepresentations were fraudulent. These general averments of fraud lack the particularity
required by Rule 9(b) . . . .”); Nat’l Sur. Corp. v. Minchin Buick Ponitac, No. 10-CV-1330, 2011
WL 2417103, at *2 (D. Conn. June 13, 2011) (finding that claim was insufficiently specific
under Rule 9(b) because it only alleged that “false advertisements, statements, representations,
assurances, and promises [were made] at an unspecified date, at an unspecified location, through
an unspecified agent.” (internal quotation marks omitted)); Rodriguez v. It’s Just Lunch, Int’l,
No. 07-CV-9227, 2010 WL 685009, at *5 (S.D.N.Y. Feb. 23, 2010) (“Simply averring that
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certain misrepresentations have been made, through a Web site and a ‘nationwide marketing
campaign,’ since 1993, does not provide the requisite specificity to satisfy Rule 9(b)”); Tuosto v.
Philip Morris USA Inc., 672 F. Supp. 2d 350, 361–62 (S.D.N.Y. 2009) (finding that “vague[]
refer[ences] to statements made in local [n]ewspapers . . . and . . . magazines” were insufficient
under Rule 9(b) (internal quotation marks omitted)); see also Dornberger, 961 F. Supp. at 528
(finding that the plaintiff sufficiently alleged fraudulent acts under Rule 9(b) when the plaintiff
alleged the existence of a marketing campaign of “false and misleading statements as to the
legality of . . . insurance policies” through “telephone marketing, mailings, face-to-face sales
representations, advertisements in specific publications, premium notices, pamphlets, letters, and
the like”). Accordingly, to the extent that Plaintiffs have referenced specific ads that made
specific promises as to the real-world performance of the Vehicles, they have sufficiently alleged
the who, what, when, where, and why of the fraud at issue under Rule 9(b), and have stated a
claim upon which relief may be granted.
However, without reviewing the allegations pertaining to each individual Plaintiff, it is
not clear that Plaintiffs have alleged the specific advertisements that each and every Plaintiff
relied upon, and the mere reference to advertisements generally contained in the 2013 advertising
campaign is insufficient. Therefore, as discussed above, to the extent that individual Plaintiffs
did not rely on any of the advertisements specifically alleged in the CAC, the claims of those
Plaintiffs are dismissed, without prejudice. Plaintiffs have thirty days to amend the CAC to
specifically allege the advertisements that each individual Plaintiff relied upon, in compliance
with Rule 9(b).
b. Common Law Fraud
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While, as noted above, it is not clear from the CAC what “common law” Plaintiffs’ fraud
claim is based upon, Defendant argues that Plaintiffs fail to state a claim for common law fraud
under New York law. “In New York, a claim for common law fraud requires a plaintiff to plead
(1) material misrepresentation of fact, (2) knowledge of its falsity, (3) intent to induce reliance,
(4) justifiable reliance by the plaintiff, and (5) damages.” Loreley Fin. (Jersey) No. 3 Ltd. v.
Wells Fargo Sec. LLC, No. 12-CV-3723, 2013 WL 1294668, at *9 (S.D.N.Y. Mar. 28, 2013). In
pleading scienter, “a plaintiff needs to allege facts that give rise to a strong inference of
fraudulent intent either by (1) showing that [the] [d]efendants had the motive and opportunity to
commit fraud, or (2) providing strong circumstantial evidence of their conscious misbehavior or
recklessness,” and “in pleading damages, a plaintiff must allege loss causation.” (Id.) The
particularity requirements of Rule 9(b) also apply. (Id.)
Defendant contends that Plaintiffs’ common law fraud claim does not meet these
standards because the relevant section of the CAC is “nothing more than a generic recitation of
the elements [of] a fraud claim under the law of some unknown jurisdiction” and “alleges no
facts” beyond referencing previous paragraphs of the CAC. (Def.’s Mem. 39.) Defendant
further argues that Plaintiffs have failed to “demonstrat[e] that they were exposed to an
actionable misstatement,” identify a particular advertisement or communication, “explain which
representations they found material,” or how they could have been misled by the use of EPA
estimates. (Id. at 39–40; Defs.’ Reply 14–15.) Finally, Defendant argues that Plaintiffs’ scienter
pleading consists of only “labels and conclusions,” particularly in the scienter section itself,
which is insufficient. (Id. at 40–41; Defs.’ Reply 16–17.)

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In response, Plaintiffs contend that their allegation that “Ford engaged in a uniform,
widespread marketing campaign in which it perpetuated misrepresentations regarding the
Vehicles’ fuel economy, with the intent to defraud Plaintiffs, who reasonably relied on those
statements to their detriment” is sufficient because (a) Rule 9(b) is relaxed when applied to
allegations describing the nature and operation of the fraudulent scheme at issue, and (b)
allegations of scienter “[do] not require ‘great specificity,’ and [are] ‘sufficient if supported by
facts giving rise to a strong inference of fraudulent intent.’” (Id. at 42 (quoting Tribune Co. v.
Purciglotti, 869 F. Supp. 1076, 1090 (S.D.N.Y. 1994)).)
Defendant’s recitation of the elements of common law fraud under New York law is
certainly accurate, see Terra Secs. Asa Konkursbo v. Citigroup, Inc., 740 F. Supp. 2d 441, 448
(S.D.N.Y. 2010), and the Court also agrees with Defendant that Plaintiffs’ only attempt to meet
these standards via “shotgun pleading” renders it difficult to identify the precise nature of
Plaintiff’s claims; the allegations contained in the fraud cause of action are, as Defendant alleges,
seemingly just a recitation of the elements of fraud, together with a note that “Plaintiffs
incorporate the above allegations by reference as if fully set forth therein,” (CAC ¶ 318). While
such pleading evidences “utter disrespect for Rule 8 of the Federal Rules of Civil Procedure,”
Manbeck v. Micka, 640 F. Supp. 2d 351, 366 (S.D.N.Y. 2009), the Court nonetheless finds that,
based on allegations through the CAC, Plaintiffs here have narrowly alleged enough facts to
survive Defendant’s Motion.
First, as discussed in the previous section, the Court finds that Plaintiffs have included
adequate allegations as to some advertisements with the requisite specificity under Rule 9(b).
The Complaint dedicates several paragraphs to identifying the statements Plaintiffs may have
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relied upon, as well as their source and the approximate time of exposure. (See CAC ¶¶ 13–40.)
Second, the Court finds that Plaintiffs have adequately pleaded scienter by alleging “facts
showing a motive for committing fraud and a clear opportunity for doing so,” namely allegations
that Ford was lagging in the hybrid market and sought to improve its positioning by advertising
improved fuel economy in its hybrid vehicles. Beck v. Mfrs. Hanover Trust Co., 820 F.2d 46, 50
(2d Cir. 1987) (identifying this as a “common method for establishing a strong inference of
scienter”), overruled on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir.
1989); see also 236 Cannon Realty, LLC v. Ziss, No. 02-CV-6683, 2005 WL 289752, at *5
(S.D.N.Y. Feb. 8, 20050 (same). Accordingly, Defendant’s Motion To Dismiss is denied as to
Plaintiffs’ common law fraud claim.

c. Breach of Express Warranty
Defendant also contends that Plaintiffs’ breach of express warranty claim is “[b]arred
[b]y [f]ederal [l]aw.” (Def.’s Mem. 44.) Specifically, aside from pointing out a “striking
absence of facts” suggesting that Plaintiffs obtained a warranty, Defendant contends that the
federal statute governing EPA estimates, which indicates that the use of EPA fuel economy
estimates cannot constitute a warranty (which, as Defendant points out, Plaintiffs do not dispute),
bars Plaintiffs’ claim, (id. at 45 (citing 49 U.S.C. 32908(d) (“A disclosure about fuel economy or
estimated annual fuel costs under this section does not establish a warranty under the law of the
United States or a State.”); Paduano, 88 Cal. Rptr. 3d at 102 (“Thus, to the extent that Honda
identified the EPA fuel economy estimates in the Monroney sticker and reiterated those EPA
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mileage estimates in its own advertising, Honda’s provision of those estimates does not
constitute an independent warranty . . . . .”); Defs.’ Reply 18), and that Plaintiffs’ claims are
“preempted to the extent that they rely on representations found on the window stickers of the
[V]ehicles or are otherwise directed to advertising that contains federally mandated EPA
disclosure language.” (Defs.’ Mem. 44; Defs.’ Reply 18–19.)
In response, Plaintiffs rely on Paduano and True, which, as discussed above, hold that
federal law regulating fuel economy does not preempt all lawsuits challenging statements made
by automobile manufacturers regarding fuel economy. (Pls.’ Opp’n 43–44 (citing True, 520 F.
Supp. 2d at 1181; Paduano, 88 Cal. Rptr. 3d at 98–99).) Plaintiffs contend that because its
breach of express warranty claims do not rely on the use of EPA-estimated fuel economy, but
rather on statements that go beyond those estimates, their express warranty claims should not be
dismissed. (Id. at 44.)
As discussed above, § 32908 refers only to Monroney Stickers and fuel economy
booklets; the FTC regulations that govern advertising do not include a similar warranty
provision. See generally 49 U.S.C. § 32908. Cf. Yung-Kim, 2015 WL 1668366, at *7 (rejecting
preemption argument based, in part, on the warranty provision of § 32908 because that section
“plainly relates solely to Monroney Stickers and booklets that federal law requires be given to
consumers”). However, even if Paduano is correct and the warranty provision also applies to
advertisements containing EPA estimates, see Paduano, 88 Cal. Rptr. 3d at 103 (“[I]t is clear
that the EPA mileage estimate does not constitute a warranty”), the statute only provides that a
“disclosure” does not constitute a warranty. Guarantees beyond a mere disclosure, namely the
alleged statements that Plaintiffs specifically challenge here, may still create such a warranty.
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Cf. Sanchez, 2014 WL 218278, at *3 (suggesting representation “that . . . an MKZ Hybrid could
travel 717 miles on one tank” went beyond the EPA estimate). Accordingly, Defendant’s
Motion To Dismiss is denied as to Plaintiffs’ breach of express warranty claim.
d. Violation of the MMWA
The MMWA provides a federal cause of action for breaches of written or implied
warranties under state law. See 15 U.S.C. § 2310(d)(1). However, this statute “does not provide
an independent cause of action for state law claims,” but rather “only [provides] additional
damages for breaches of warranty under state law.” Janke v. Brooks, No. 11-CV-837, 2012 WL
1229891, at *2 n.3 (D. Colo. Apr. 11, 2012) (internal quotation marks omitted); see also Fanok
v. Carver Boat Corp., 576 F. Supp. 2d 404, 417 (E.D.N.Y. 2008) (“[The] plaintiff has not
pointed to any provision of MMWA that would operate independent of his state law warranty
claims. Since the state law warranty claims fail, his MMWA claims fail as well.”). On this
basis, Defendant contends that Plaintiffs’ MMWA claim fails because Plaintiffs do not allege a
separate breach of implied warranty claim and otherwise fail to adequately allege that a written
warranty existed, and that their MMWA claim therefore fails for the same reason their state-law
warranty claim fails. (Def.’s Mem. 46–47; Def.’s Reply 19.) Defendant also contends that no
written warranty in the guide provided at the time the Plaintiffs’ purchased or leased the Vehicles
was breached, that Defendant’s advertising and marketing materials cannot constitute a written
warranty because they do not make the necessary guarantees required by law, namely that they
promise “a specified level of performance over a . . . specified period of time,” (Def.’s Mem. 47),
i.e., that the Vehicles would only consume a gallon of gas over a specified distance, (Def.’s

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Reply 20), and advertising EPA-estimated fuel economy does not create an actionable warranty,
(see Def.’s Mem. 48 (citing 49 U.S.C. § 32908(d))).
In response, Plaintiffs allege that written portions of Defendant’s advertising campaign
constituted a written warranty, in that these portions guaranteed a specified fuel economy
performance over the time required to drive a given distance (i.e., the distance required to use a
gallon or tank of gasoline). (See id. at 45–46 (citing Amrav. Samsung Elecs. Am., Inc., Nos. 11CV-6973, 12-CV-976, 2013 WL 3654090, at *8–9, *14 (D. N.J. July 11, 2013).)
The Court finds that Defendant’s challenge to Plaintiffs’ MMWA claim is meritorious.
While a fuel economy estimate, even with the additional representations alleged here, plausibly
constitutes a guarantee of a specific level of performance, it strains reason to believe that the
representation is for performance over a specified time period, which, unlike when alleging a
common law breach of warranty claim, is required by the MMWA. See In re Scotts EZ Seed
Litig., 2013 WL 2303727, at *4–5 (rejecting claim that advertisement was a written warranty
because it did not “include[] the requisite temporal element to be actionable under the MMWA”
and collecting cases, including one in which an advertisement for a car transmission was found
not to be a written warranty because the performance of the transmission was not guaranteed “for
the life of the transmission”) (citing Skelton v. Gen. Motors Corp., 660 F.2d 311 (7th Cir. 1981)).
Plaintiffs have not otherwise alleged an implied warranty claim from any other source.
Accordingly, Plaintiffs’ MMWA claim is dismissed.
e. Unjust Enrichment
Defendant also challenges Plaintiffs’ unjust enrichment claim under California, Florida,
and New York law. First, Defendant argues that “California courts have recognized repeatedly
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that ‘unjust enrichment is not an independent cause of action, or even a remedy, but rather a
general principle, underlying various legal doctrines and remedies.’” (Def.’s Mem. 48 (citing
McBride v. Boughton, 20 Cal. Rptr. 3d 115, 121 (Cal. Ct. App. 2004) (brackets, citation, and
some internal quotation marks omitted)); Def.’s Reply 22.) Second, Defendant contends that
Florida Plaintiff James Oldcorn cannot maintain an unjust enrichment claim against Defendant
“[b]ecause he does not allege to have purchased his C-MAX directly from Defendant,” but
instead from a dealer. (See id. (citing Szymczak v. Nissan N. Am. Inc., No. 10-CV-7493, 2011
WL 7095432, at *20 (S.D.N.Y. Dec. 16, 2011)).) Third, Defendant claims that “all of the unjust
enrichment claims stated in the CAC should be dismissed because . . . [they are] nothing more
than . . . generic and factually barren recitation[s] of the elements . . . from no particular state.”
(Id. at 49.) Specifically, Defendant also argues that the allegations only support the contention
that Ford’s entire advertising campaign was deceptive, and that Plaintiffs purchased the Vehicles
on that basis, which, according to Defendant, is, again, improper “shotgun pleading.” (Def.’s
Reply 20–22 (emphasis omitted).)
Because Plaintiffs do not specify a state’s common law on which the claim is based,
Defendant bases this portion of its Motion on the elements of New York unjust enrichment: (1)
defendant was enriched, (2) at the expense of the plaintiff, (3) under circumstance that, according
to equity and good conscience, the defendant should make restitution (wherein services must
have been performed for the defendant at the defendant’s behest, or wherein defendant assumed
an obligation to pay for services rendered). (See Def.’s Mem 49 (citing Nat’l Cas. Co. v.
Vigilant Ins. Co., 466 F. Supp. 2d 533, 543–44 (S.D.N.Y. 2006)).) Defendant argues that
Plaintiffs do not “set forth any allegations” that establish these elements. (Id. at 49–50.)
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In response, with regard to California law, Plaintiffs argue that unjust enrichment is not
uniformly rejected as a separate cause of action by California courts. (Pls.’ Opp’n 49 (citing
Ellis v. J.P. Morgan Chase & Co., 950 F. Supp. 2d 1062, 1090–91 (N.D. Cal. June 13, 2013); In
re Processed Egg Prods., 851 F. Supp. 2d 867, 913 (E.D.N.Y. 2012); In re Countrywide Fin.
Corp. Mortg. Mktg. & Sales Practs. Litig., 601 F. Supp. 2d 1201, 1220–21 (S.D. Cal. 2009)).)
With regard to Florida law, Plaintiffs argue that “a direct benefit is not required . . . [but] exists
when a downstream consumer purchases products.” (Id. at 49 (citing Williams v. Wells Fargo
Bank N.A., No. 11-CV-21233, 2011 WL 4368980, at *9 (S.D. Fla. Sept. 19, 2011); Romano v.
Motorola, Inc., No. 07-CV-60517, 2007 WL 4199781, at *2 (S.D. Fla. Nov. 26, 2007)).) With
regard to New York law, Plaintiffs contend that they made the “exact allegations” required for an
unjust enrichment claim under New York law, namely that Defendant benefitted from its 47
MPG advertising campaign at Plaintiffs’ expense because Plaintiffs purchased the Vehicles or
paid more for them than they would have otherwise in reliance on the advertisements at issue.
(Pls.’ Opp’n 47.) Plaintiffs further contend that a benefit “conferred on the [D]efendant
indirectly” is sufficient to state an unjust enrichment claim under Second Circuit law. (Id. at 47–
48 (citing, inter alia, Hughes, 930 F. Supp. 2d at 471; Waldman v. New Chapter, Inc., 714 F.
Supp. 2d 398, 403–04 (E.D.N.Y. 2010)).)
Addressing Plaintiffs’ state-specific claims in order, the Court first finds that
Plaintiffs cannot maintain a cause of action under California law for unjust enrichment.
Certainly, it is true that some California courts have entertained unjust enrichment claims in
various circumstances. See, e.g., Hirsch v. Bank of America, N.A., 132 Cal. Rptr. 2d 220, 229–
30 (Cal. Ct. App. 2003); see also Lectrodryer v. SeoulBank, 91 Cal.Rptr.2d 881, 883–84 (Cal.
77

Ct. App. 2000). However, as one court in the Northern District of California recently pointed
out, “[d]espite some inconsistency in the law, several recent decisions by the California Court of
Appeals have held that unjust enrichment is not a cause of action, just a restitution claim.”
Herskowitz v. Apple Inc., 940 F. Supp. 2d 1131, 1148 (N.D. Cal. 2013) (brackets and internal
quotation marks omitted) (citing Hill v. Roll Int’l Corp, 128 Cal. Rptr. 3d 109 (Cal Ct. App.
2011); Levine v. Blue Shield of Cal., 117 Cal. Rptr. 3d 262 (Cal Ct. App. 2010); Durell v. Sharp
Healthcare, 108 Cal. Rptr. 3d 682 (Cal Ct. App. 2010); Melchior v. New Line Prods., Inc., 131
Cal. Rptr. 2d 347 (Cal. Ct. App. 2003)). The Court accordingly will follow the weight of recent
authority and determines that there is no independent cause of action for unjust enrichment under
California law. See Segedie v. Hain Celestial Grp., No. 14-CV-5029, 2015 WL 2168374, at *14
(S.D.N.Y. May 7, 2015) (“Unjust enrichment is not available as an independent cause of action
under California law.”); Delgado, 2014 WL 4773991, at *23 (dismissing unjust enrichment
claim under California law because “California law does not recognize an independent cause of
action for unjust enrichment” and collecting cases).
Second, the Court finds that Plaintiffs’ Florida law claim survives because this case is
analogous to Romano v. Motorola, Inc., No. 07-CV-60517, 2007 WL 4199781 (S.D. Fla. Nov.
26, 2007), as cited by Plaintiffs, wherein a cell phone manufacturer was found to benefit from
the sale of a phone by a retailer and therefore was subject to an unjust enrichment claim. Id. at
*2. Third, the Court finds that Plaintiffs’ New York unjust enrichment claim fails, although for a
different reason than that identified by Defendant. Under New York law, “an unjust enrichment
claim ‘is available only in unusual situations when, though the defendant has not breached a
contract or committed a recognized tort, circumstances create an equitable obligation running
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from the defendant to the plaintiff.’” Weisblum, 2015 WL 738112, at *10–11 (quoting Corsello
v. Verizon N.Y., Inc., 967 N.E.2d 1177, 1185 (N.Y. 2012)). Plaintiffs have failed to show how
their unjust enrichment claim “differs from [their] . . . tort claims[,]” which seek relief from the
same conduct, and therefore “it must be dismissed” under New York law. Id. at *11; see also
Ebin v. Kangadis Food Inc., No. 13-CV-2311, 2013 WL 6504547, at *7 (S.D.N.Y. Dec. 11,
2013) (dismissing unjust enrichment claim as duplicative of fraud and breach of warranty
claims); Corsiello, 967 N.E. 2d at 740 (“An unjust enrichment claim is not available where it
simply duplicates, or replaces, a conventional contract or tort claim.”); cf. State Farm Mut. Auto
Ins. Co. v. Grafman, No. 04-CV-2609, 2013 WL 1911301, at *4 n.3 (E.D.N.Y. Jan. 3, 2013)
(refusing to consider unjust enrichment claims because “the damages sought on the unjust
enrichment claims are duplicative of those sought on the common law fraud claims”); Norez
Petroleum Ltd. v. Blavatnik, No. 650591/11, 2015 WL 5057693, at *19 (N.Y. Sup. Ct. Aug. 25,
2015) (denying “conspiracy jurisdiction based on unjust enrichment” because “[t]o be a coconspirator, some level of participation in a wrongful act is required,” which “conflicts” with
“[t]he definition of unjust enrichment, as outlined in Corsello,” since “[a] party cannot
simultaneously ‘be guilty of no wrongdoing[]’ while participating in a wrongful act”).
As Plaintiffs point out, while Defendant nominally argues that the entirety of Plaintiffs’
unjust enrichment claim should be dismissed, Defendant does not challenge Plaintiffs’ claims
under any state’s common law other than the three states discussed above. (See Pls.’ Opp’n 46
(“Ford attempts to fault Plaintiffs for not providing a state-by-state pleading in the CAC, yet only
addresses the elements of New York law [in addition to specific claims regarding California and
Florida law] in its motion.”).) Accordingly, the Court finds that Plaintiffs’ remaining state
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common law unjust enrichment claims survive for now. Cf. Clayton’s Auto Glass, Inc. v. First
Data Corp., No. 12-CV-5018, 2013 WL 5460872, at *5 (E.D.N.Y. Sept. 30, 2013) (noting that
while the plaintiffs failed to “specify under which state’s common law [they] [were] asserting
their claims,” the court applied the law the parties applied in their papers); In re LIBOR-Based
Fin. Instrum. Antitrust Litig., 935 F. Supp. 2d 666, 737 (S.D.N.Y. 2013) (“Although the
amended complaint does not specify which state’s law the plaintiffs are seeking to apply, the
parties have assumed for purposes of briefing that the claim is asserted pursuant to New York
common law. Accordingly, we analyze this claim under New York law.”); Funtional Pathways
of Tenn., LLC v. Wilson Sr. Care, Inc., No. 12-CV-922, 2013 WL 80373, at *2 (D.S.C. Jan. 7,
2013) (“Plaintiff’s failure to specify which state’s common law it was pleading is not fatal to its
claim.”).

D. Leave to Amend
In their Opposition, Plaintiffs argue that to the extent there are deficiencies in the CAC,
they should be granted leave to amend. Plaintiffs contend that this is particularly true to the
extent that their claims are evaluated under Rule 9(b), “in which case leave to amend is ‘almost
always’ granted.” (Pls.’ Opp’n 50 (quoting Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir. 1986)).)
Plaintiffs also say they have reserved the right to renew their negligent misrepresentation, breach
of contract, and breach of good faith and fair dealing claims in an amended complaint. (See id.).
In response, Defendant contends that Plaintiff should not be granted leave to amend because (a)
the CAC is already an amended complaint, having been consolidated from other complaints, (b)
Plaintiffs knew of the portions of the CAC Defendant would challenge because of a previous
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SO ORDERED.
DATED:

November 12, 2015
White Plains, New York
____________________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

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by those Plaintiffs, under Rule 9(b ), for whom the CAC does not specifically identify the
advertisements relied upon. Plaintiffs according have 30 days to amend the CAC only to

specifically allege the advertisements that each of these Plaintiffs relied upon.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion To Dismiss is granted in part and denied
in part. To the extent that Plaintiffs make claims based on the mere use of EPA fuel economy
estimates in advertisements or on Monroney Stickers, those claims are dismissed because they
are preempted by federal law and, in any event, fail to state a claim. Additionally, Plaintiffs'
MMW A claim and unjust enrichment claim under California and New York law are dismissed.
The Clerk is respectfully requested to terminate the Motion. (Dkt. No. 63.)

SO ORDERED.
DATED:

November 12, 2015
White Plains, New York

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