Warren v. Fiat Chrysler Automobiles N.V. et al

Filing 30

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2777) Transferring 2 action(s) to Judge Edward M. Chen in the N.D. California.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 4/5/2017. Associated Cases: MDL No. 2777, ALN/7:17-cv-00059, CAN/3:16-cv-06909, CAN/3:17-cv-00231, CAN/3:17-cv-00288, CAN/3:17-cv-00538, CAS/3:17-cv-00085 (LAH)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: CHRYSLER-DODGE-JEEP ECODIESEL
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

MDL No. 2777

TRANSFER ORDER

Before the Panel: Plaintiff in the Northern District of Alabama action listed on Schedule
A moves under 28 U.S.C. § 1407 to centralize pretrial proceedings in this litigation in the Northern
District of California.1 This litigation consists of six actions pending in three districts, as listed on
Schedule A. The actions involve allegations that certain 3.0 liter EcoDiesel-powered Jeep Grand
Cherokee and Dodge Ram 1500 vehicles were equipped with emissions-cheating devices that
engage emissions controls only when emissions testing was being performed. Since the filing of the
motion, the parties have notified the Panel of another fourteen related actions pending in nine
districts.2
All responding parties support centralization, but suggest different transferee districts.
Plaintiff in a Southern District of Ohio potential tag-along action suggests centralization in the
Southern District of Ohio. Plaintiffs in eight California cases suggest centralization in the Northern
District of California. Defendant FCA US LLC (FCA) supports centralization in an East Coast
transportation hub, particularly the Southern District of New York. Alternatively, FCA suggests the
Northern District of California. Defendant Robert Bosch LLC3 also supports centralization in a
district near an East Coast transportation hub, particularly the Southern District of New York or the

1

Moving plaintiff initially sought centralization in the Northern District of Alabama but, at
oral argument, stated that the Northern District of Alabama no longer appeared to be an appropriate
transferee forum and switched his support to a Northern District of California transferee forum.
2

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.
3

Without waiving any objection to service or personal jurisdiction, parent company Robert
Bosch GmbH authorized Bosch LLC to represent that it supports its position on transfer.

-2District of the District of Columbia. Finally, the United States of America4 supports centralization
in the Eastern District of Michigan or, alternatively, the District of the District of Columbia.5
On the basis of the papers filed and hearing session held, we find that these actions involve
common questions of fact, and that centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just and efficient conduct of this
litigation. These actions share common factual questions arising out of the January 12, 2017,
announcements by the U.S. Environmental Protection Agency (EPA) and the California Air
Resources Board that they had issued notices of violation to FCA for alleged failures to disclose
eight Auxiliary Emissions Control Devices (AECDs) in the 3.0 liter EcoDiesel-powered Jeep Grand
Cherokee and Dodge Ram 1500 vehicles.6 The agencies alleged that the undisclosed AECDs shut
off portions of the emissions control system, thereby causing excess nitrogen oxide emissions, when
not operating under testing conditions. Plaintiffs’ complaints contend that FCA marketed the
approximately 104,000 vehicles at issue as environmentally friendly, achieving better fuel efficiency,
better performance, and lower emissions than typical diesel engines. Plaintiffs’ complaints also
share allegations that defendants employed software designed to make the vehicles EPA
emission-compliant only during emissions testing, while under normal conditions, the vehicles
produce nitrogen oxide at levels that greatly exceed applicable standards. Centralization is warranted
to streamline the litigation, prevent inconsistent rulings (including with respect to class certification)

4

The United States asserts an interest in this matter because, among other things, the United
States, through the Administrator of the Environmental Protection Agency (EPA), is charged under
the Clean Air Act (CAA) with setting emission standards for light duty passenger vehicles and
administering the CAA’s certification program to ensure that those vehicles meet the emission
standards throughout their useful lives.
5

Plaintiffs in a securities action in the Southern District of New York (Pirnik), which has
recently-added claims involving the FCA emissions violations, oppose centralization of Pirnik. If
the Panel is inclined to include the action in the MDL, the Pirnik plaintiffs prefer a Southern District
of New York transferee forum. Defendant Fiat Chrysler Automobiles N.V. suggests that we delay
transfer of Prinik pending the outcome of its pending motion to dismiss the emissions-violations
allegations. Moreover, a plaintiff in the Northern District of California Fasching action opposes
inclusion of Pirnik in the MDL. Since Pirnik is a potential tag-along action, these arguments are best
addressed in the context of a motion to vacate a conditional transfer order, if one is issued, to cover
Pirnik.
6

FCA notes that not all AECDs (whether disclosed or otherwise) are “defeat devices.” See
40 C.F.R. § 86.1803-0 (setting forth “defeat device” criteria). Plaintiffs elaborate that, under the
Clean Air Act in order to obtain a certificate of conformity to sell a vehicle, automakers must submit
an application to the EPA disclosing all AECDs installed in the vehicle, a justification for each, and
an explanation of why the control device is not a defeat device. Regulators may then determine if
they will approve the AECDs.

-3and overlapping pretrial obligations, to reduce costs, and create efficiencies for the parties, courts,
and witnesses.
We select the Northern District of California as the appropriate transferee district for these
actions. California has a strong factual connection to this litigation, as the state with the most
affected vehicles and pending cases. Significant testing of affected vehicles occurred in California,
and the California Air Resources Board appears to have played an integral role in investigating and,
ultimately, revealing defendant’s use of eight AECDs. Moreover, the district enjoys the support of
several plaintiffs and defendant FCA. We select Judge Edward M. Chen to preside over this
litigation, a jurist well-versed in the nuances of complex and multidistrict litigation who can steer
this matter on a prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the Northern District of California are transferred to the Northern District of California and, with the
consent of that court, assigned to the Honorable Edward M. Chen for coordinated or consolidated
pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: CHRYSLER-DODGE-JEEP ECODIESEL
MARKETING, SALES PRACTICES AND
PRODUCTS LIABILITY LITIGATION

MDL No. 2777

SCHEDULE A

Northern District of Alabama
WARREN v. FIAT CHRYSLER AUTOMOBILES N.V., ET AL., C.A. No. 7:17!00059
Northern District of California
CHAVEZ v. FCA US LLC, ET AL., C.A. No. 3:16!06909
FASCHING, ET AL. v. FCA US LLC, ET AL., C.A. No. 3:17!00231
CARPENTER, ET AL. v. FCA US LLC, ET AL., C.A. No. 3:17!00288
KITCHEL, ET AL. v. FCA US LLC, ET AL., C.A. No. 3:17!00538
Southern District of California
SEBASTIAN v. FCA US LLC, ET AL., C.A. No. 3:17!00085