OPINION AND ORDER
[Regarding New GM’s Partial Motion To Dismiss the Fourth Amended Consolidated Class Action Complaint]
INTRODUCTION .. .391
BACKGROUND .. .392
LEGAL STANDARDS .. .394
DISCUSSION .. .395
A. Brand Devaluation Claims... .395
B. Damages for Lost Time .. .398
C. The Relevant Time Period for New GM’s Economic Loss Liability... .400
D. State Law Claims ... 404
1. Alabama .. .404
a. The ADTPA.. .404
b. Fraudulent Concealment .. .407
c. Unjust Enrichment .. .409
2. Illinois ... 409
a. The ICFA .. .410
b. Fraudulent Concealment ... 413
c. Unjust Enrichment .. .414
3. Massachusetts'.. .416
a. The Massachusetts CPA .. .417
b. Unjust Enrichment .. .418
4. Michigan .. .419
a. The MCPA;. .420
b. Fraudulent Concealment ... 424
c. Breach of Implied Warranty .. .426
d. Unjust Enrichment .. ,426
5. New York... .428
a. GBL Section 349.. .429
b. Fraudulent Concealment ., .431
c. Unjust Enrichment .. .433
6. Pennsylvania ... 434
a. Economic Loss Doctrine... .435
b. Manifestation ., ,436
c. The UTPCPL .. .440
d. Fraudulent Concealment ... 441
e. Unjust Enrichment .. .444
7. Texas .. .445 '
a. The Texas DPTA .. .446
b. Fraudulent Concealment .. .452
c. Unjust Enrichment .. .454
8. Wisconsin... .455
a. TheWDTPA ., .456
b. Fraudulent Concealment .460
c. Unjust Enrichment .. .461 CONCLUSION.. .461
INTRODUCTION
■ This multidistrict litigation (“MDL”), familiarity with which is assumed, arose from the recall in February 2014 by General Motors LLC (“New GM”) of General Motors (“GM”) vehicles that had been manufactured ' with a defective ignition switch — a switch that could too easily move from the “run” position to the “accessory” and. “off” positions, causing moving stalls and disabling critical safety systems (such as the airbag). Following that recall, New GM recalled millions of other vehicles, some for ignition switch-related defects and some for other defects. In this litigation, Plaintiffs seek recovery on behalf of a broad putative class of GM car owners and lessor^ whose vehicles were subject to those recalls, arguing that they have been harmed by, among other things, a drop in their vehicles’ value due to the ignition switch defect and other defects.
In conjunction with the parties, the Court decided early on not to entertain a motion to dismiss all of the Plaintiffs’ economic loss claims at once — given, among other things, the number and scope of those claims; the possibility that the litigation would be materially affected by parallel proceedings in (and arising out of) bankruptcy court; and the likelihood that the parties could ultimately agree upon how the Court’s rulings as to some state law claims would apply to others, saving the need for the parties to brief and the Court to decide the same issues in fifty-one different jurisdictions. In an opinion filed almost exactly one year ago with respect to the then-operative Third Amended Consolidated Complaint (“TACC”), the Court ruled on the validity of, among other things, Plaintiffs’ claims in eight jurisdictions. Since that time, Plaintiffs filed the FACC and New GM filed another partial motion to dismiss, pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure, focusing — by agreement — on the claims of Plaintiffs from eight jurisdictions that were not addressed in the Court’s last Opinion. This Opinion and Order addresses those claims and a few issues that are not state-specific (that is, that apply to all Plaintiffs’ claims) — namely, a revised version of Plaintiffs’ “brand devaluation” theory of damages, which was pled in the TACC and dismissed in the Court’s last Opinion; Plaintiffs’ claims for damages in the form of “lost time” spent having their vehicles repaired; and the viability of economic loss claims brought by Plaintiffs who purchased their vehicles before New GM came into existence on July 10, 2009, or who disposed of their vehicles prior to GM’s announcement of the recalls in 2014.
For the reasons stated below, New GM’s motion to dismiss is GRANTED in part and DENIED in part. More specifically, it is GRANTED with respect to Plaintiffs’ repleaded “brand devaluation” claims, but DENIED with respect to Plaintiffs Iost-time-to repair claims. Additionally, it is GRANTED with respect to Plaintiffs who purchased their vehicles prior to New GM’s inception or disposed of their vehicles prior to the recall announcement. And finally, New GM’s motion to dismiss Plaintiffs’ claims in Alabama, Illinois, Massachusetts, Michigan, New York, Pennsylvania, Texas, and Wisconsin is GRANTED in part and DENIED in part, depending on, among other things, whether each state’s law allows claims in the absence of a manifested defect, requires a special trust relationship between the parties for a duty to disclose to arise, and permits plaintiffs to plead both contract claims and unjust enrichment claims. Ultimately, for the reasons that follow, most of Plaintiffs’ consumer fraud, fraudulent concealment, and breach of implied warranty claims survive, while the bulk of Plaintiffs’ unjust enrichment claims must be and are dismissed.
BACKGROUND
The underlying facts giving rise to this MDL proceeding are set forth in this Court’s prior opinions, familiarity with which is presumed. See, e.g., In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF),
On June 12, 2014, the Judicial Panel on Multidistrict Litigation transferred to this Court fifteen actions relating to the alleged ignition switch defect for “coordinated or consolidated pretrial proceedings” pursuant to Title 28, United States Code, Section 1407. (Docket No. 1). The MDL has since grown to hundreds of cases (comprised of several thousand individual claims), with new cases transferred to, or filed directly with, the Court every month. Broadly speaking, the Court and the parties have divided the cases into two categories: personal injury and wrongful death claims, on the one hand, and economic loss claims, on the other. (See Docket No. 215). With respect to the latter, at issue here, the Court ordered Plaintiffs to proceed by submitting a “master” consolidated complaint that would supersede individual complaints, at least for purposes of pretrial proceedings (including motion practice). See In re Gen. Motors,
Plaintiffs did so, and later amended the consolidated complaint twice. On February 24, 2016, New GM filed a partial motion to dismiss the then-operative TACC. (Docket No. 2356). In an opinion entered on July 15, 2016, the Court granted New GM’s motion in part and denied it in part. See In re Gen. Motors,
On September 15, 2016, Plaintiffs filed the FACC at issue here. The FACC asserts claims on behalf of a class of millions of Old GM and New GM vehicle owners whose vehicles were affected by various alleged defects and recalls. (See FACC 2-4). The FACC defines the plaintiff class as “[a]ll persons who bought or leased (i) a Delta Ignition Switch Vehicle on or before February 14, 2014; (ii) a Low Torque Ignition Switch Vehicle prior to July 3, 2014; (iii) a Knee-to-Key Camaro Defect Vehicle prior to July 3, 2014; (iv) a Side Airbag Defect Vehicle prior to March 17, 2014; and/or (v) a Power Steering Defect Vehicle Prior to April 1, 2014.” (Id. ¶ 34; see also id. at 2-3; Docket No. 3578 (“GM Mem.”), at 2-7). It does not seek damages for physical injury or property damage; nor does it allege that Plaintiffs were promised defect-free vehicles. Instead, Plaintiffs allege that their vehicles diminished in value because of the recalls and New GM’s al
LEGAL STANDARDS
In evaluating a motion -to dismiss, a court must accept all facts set forth in the complaint as true and draw all reasonable inferences in the plaintiffs favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc.,
To the extent that a plaintiff alleges fraud, as Plaintiffs do here, Rule 9(b) requires a plaintiff to plead claims “with particularity,” specifying “the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). Rule 9(b) “provides that a party alleging fraud ‘must state with particularity the circumstances constituting fraud or mistake,” to ensure that the defendant has “fair notice of a plaintiffs claim and adequate information to frame a response.” United States v. Wells Fargo Bank,
DISCUSSION
As noted, New GM’s present motion is largely limited to claims of the named Plaintiffs from eight new states: Alabama, Illinois, Massachusetts, Michigan, New York, Pennsylvania, Texas, and Wisconsin. As in the earlier opinion concerning New GM’s partial motion to dismiss the TACC, the Court will address each state separately because there are differences, small and large, in the relevant law from one state to the next. Before doing so, however, the Court will address three broader (that is, non-state-specific) arguments made by New GM — namely, that the Court should dismiss (1) Plaintiffs’ revised version of the “brand devaluation” theory; (2) Plaintiffs’ claims for “lost time” (that is, time devoted to repairing vehicles as part of the recalls); and (3) benefit-of-the-bargain claims brought on behalf of (a) Plaintiffs who purchased their vehicles before July 2009, when New GM was created, and (b) Plaintiffs who disposed of their vehicles before New GM announced its recalls in 2014.
A. Brand Devaluation Claims
As an initial matter, New GM moves to dismiss the FACC to the extent that it repleads the brand devaluation claims that the Court dismissed in its prior Opinion. (Docket No. 3547 (“GM Supp. Br.”), at 1; see also Docket No. 3543; Nov. 10, 2016 Status Conf. Tr. 33-35). In its prior Opinion, the Court dismissed that theory of damages “as unprecedented and unsound.” In re Gen. Motors,
Plaintiffs'replead the brand devaluation theory in the FACC, but-contend that they do so in a “narrowed and revised” form that cures the defects identified by the Court in its last Opinion. (FACC ¶ 1086; Docket No. 3438 (“Pis.’ Ltr.”), at 1). Specifically, Plaintiffs identify two differences between the brand devaluation claims pleaded in the TACC and the brand devaluation claims pleaded in the FACC. First, Plaintiffs amended their brand devaluation claims to apply only to “Plaintiffs and pu
First, New GM is correct that the Court dismissed Plaintiffs’ brand devaluation claims with prejudice. In its motion to dismiss the TACC, New GM certainly asked that Plaintiffs’ brand devaluation claims be dismissed with prejudice. (Docket No. 2357, at 1-3). And while the Court was silent on the issue in its Opinion, see
Plaintiffs concede that “12(b)(6) dismissals unrelated to pleading infirmities ... are generally with prejudice, even if silent as to the point.” (Pis.’ Ltr. 1-2). Nevertheless, they argue that the Court “made clear that further amendments — without limitation — were authorized” in the final paragraph of its earlier Opinion. (Id. at 2). That argument barely passes the laugh test. The final paragraph of the Court’s earlier Opinion read in full:
Although this ruling addresses only some of the claims in the TACC, it will undoubtedly inform the parties with respect to the viability of other claims and, more generally, bear upon the furtherprogress of the MDL. The July 13, 2016 ruling from the Second Circuit, which held that purchasers of Old GM cars with ignition switch defects can bring claims for Old GM’s wrongdoing against New GM has, in all likelihood, also substantially redefined the scope of the claims that may proceed. The parties should be prepared to discuss the implir cations of this Court’s ruling and the Second Circuit’s ruling at the July 28, 2016 status conference — including but not limited to implications for the next phase of discovery. (See Docket Nos. 1569, 2156). Additionally, within thirty days from the date of this Opinion and Order, Plaintiffs shall submit their proposed amendments to the TACC. (See Docket No. 2323).
In re Gen. Motors,
Second, and in any event, Plaintiffs’ revised brand devaluation claims still fail as a matter of law. See, e.g., Williams v. Citigroup Inc.,
As they did in their briefing in opposition to New GM’s motion to dismiss the TACC, Plaintiffs rely primarily (if not exclusively) on In re Toyota Motor Corp.,
B. Damages for Lost Time
Next, New GM moves to dismiss Plaintiffs claims to the extent that they seek damages in the form of “lost time”— that is, the time they spent getting repairs done on their defective vehicles in connection with the recalls. (See GM Mem. 24-25; Docket No. 3734 (“GM Reply”), at 13-14; see also, e.g., FACC ¶¶1145, 2794, 3790, 3918, 5182, 5958, 6573, 7298; Pls.’ Opp’n 28-29). New GM contends that time spent having a vehicle repaired for free as part of a recall does not constitute a legally cognizable or compensable injury. (See GM Mem. 24-25; GM Reply 13-14). Significantly, however, it frames that argument in categorical terms. That is, New GM does not move to dismiss Plaintiffs’ claims under the law of any particular jurisdiction (either the eight states that are the focus of this round of motion practice or otherwise); instead, it argues that Plaintiffs’ theory of damages for lost time — a theory alleged for the first time in the FACC— fails as a matter of law, without regard for the substantive law to be applied. In light of that, the" question for present purposes is whether any jurisdiction would recognize Plaintiffs’ theory of “lost time” damages. If so, then New GM’s motion can be denied, and the question of whether any particular Plaintiff has,a viable claim for “lost time” damages under his or her jurisdiction’s law can be postponed 'to another day.
The Court concludes that some states do recognize “lost time” as a valid theory of consequential damages. Consequential damages are generally “defined as damages which arise from special circumstances that make them probable, although they would be unusual apart from such circumstances.” Nat’l Investor Servs. Corp. v. Integrated Fund Servs., Inc.,
More broadly, as Plaintiffs note (Pis.’ Opp’n 28-29), most state courts construe their consumer protection statutes to permit recovery beyond actual damages, including incidental and consequential damages. See, e.g., Jersild v. Aker,
In fact, despite New GM’s claims to the contrary (GM Reply 13-14), some courts-have even recognized “lost time” as a basis for recovery in cases involving vehicle recalls. See, e.g., Frederick v. DaimlerChrysler Corp., No. 05-CV-2085 (JWL),
Hadley v. Chrysler Group LLC,
None of this is to say that Plaintiffs in every jurisdiction will be able to recover for “lost time”; there may well be states that do (or would) not recognize “lost time” as a valid theory of damages. Additionally, with respect to jurisdictions that do recognize “lost time” as a valid theory, Plaintiffs may face obstacles to certification of a class. Compare, e.g., In re Myford Touch,
C. The Relevant Time Period for New GM’s Economic Loss Liability
Before turning to New GM’s state-specific arguments, the Court addresses two final issues that affect Plaintiffs in multiple jurisdictions (including jurisdictions beyond those specifically addressed in New GM’s current motion). The first issue is whether Plaintiffs who purchased their vehicles prior to July 10, 2009 — the date on which New GM purchased most of the assets of Old GM as part of the bankruptcy proceedings — can pursue claims for economic loss.
The Court agrees with New GM on both issues. As discussed at length in the Court’s prior Order (and reaffirmed above in the discussion of the reframed brand devaluation claims), Plaintiffs’ injuries here are limited to the “benefit-of-the-bargain defect theory.” See In re Gen. Motors,
That conclusion is consistent with the decisions of courts confronting similar facts. In Hadley, for example, the plaintiffs argued that they had been injured by the diminished value of their vehicles due to New Chrysler’s delay in implementing repairs. See
Plaintiffs’ attempts to distinguish these cases are weak at best. With respect to In re Old Careo, Plaintiffs make much of the fact that the purchasers in that case had knowledge of the design defects, whereas the purchasers here did not. (See Pis.’ Opp’n 27). But that is a distinction without a difference. That is, whether or not Plaintiffs who purchased their vehicles prior to July 10, 2009, knew at the time of their purchase that -a defect existed, they still purchased their vehicles prior to the creation of New GM. Moreover, although Plaintiffs are correct that the defendant-manufacturer had issued several recalls relating to the defect at issue in that case (specifically, a fuel-spit back problem), the plaintiffs there were the owners of particular models and years that had not previously been recalled. See In re Old Carco,
Finally, Plaintiffs rely on state-law cases allowing recovery for “diminished value” (see'Pis.’ Opp’n 24-26), but those cases are immaterial." The Court does not take New GM to be arguing that “diminished value” can never be a proper measure of damages. Several of the states at issue here plainly permit recovery, of that sort in some circumstances. See,, e.g., Miller v. William Chevrolet/GEO, Inc.,
This brings the Court to the final non-state-specific issue: New GM’s contention that economic loss claims brought by Plaintiffs who sold, traded-in, or returned their vehicles prior to the announcement of the recalls must also be dismissed. (GM Mem. 23-24). Plaintiffs’ respond solely by saying “this argument flatly contradicts New GM’s argument that only the point of sale is relevant.” (Pls.’ Opp’n 24 n.17). But the Court takes New GM to be arguing that, even under Plaintiffs’ theory, those who disposed of their vehicles before the recall could not have realized any “diminished value” because they did not own the defective vehicles when the recalls were announced. If so, the Court agrees. Crucially, though, New GM’s point is limited to economic loss damages. In all likelihood, a plaintiff who resold her car before the recall suffered no economic loss damages, as the then-unknown defect could not have affected the resale price. See, e.g., Avery v. State Farm Mut. Auto. Ins. Co.,
That said, for reasons not discussed by the parties, it does not necessarily follow that the claims of all such Plaintiffs must be dismissed in their entirety. In theory, a plaintiff who purchased her car after the Sale Order, but sold it before the recall was announced, could still plead and prove damages in the form of out-of-pocket expenses and lost time. For instance, Lisa McClellan, who purchased her car on November 22, 2010, but returned the car to the dealership prior to the announcement of the recalls, alleges that her car “shut off while she was driving at least fifty or sixty times” in the year and a half that she owned it, requiring her to take it to “the service repair shop often.” (FACC ¶ 275). McClellan further alleges that “[s]he suffered economically because of the vehicle,” presumably because of the need for frequent repairs. (Id.). By contrast, Greg Theobald — the only other Plaintiff who purchased a vehicle from New GM but traded in the car prior to the recalls — does not allege paying for any defect-related repairs or suggest that the defect, even if not announced, had any impact on the amount he received for the car. Accordingly, New GM’s motion to dismiss is denied with respect to McClellan and granted with respect to Theobald. Plaintiffs, however, are granted leave to amend to the FACC to allege other damages incurred by Theobald, if any.
The Court turns, then, to Plaintiffs’ state claims, which sound in consumer fraud, common law fraud, warranty law, unjust enrichment, and negligence. As noted, Plaintiffs bring claims under the laws of all fifty states and the District of Columbia, but this motion deals with claims under the laws of only eight jurisdictions: Alabama, Illinois, Massachusetts, Michigan, New York, Pennsylvania, Texas, and Wisconsin. In their briefs, the parties largely addressed these claims together on an issue-by-issue basis. By contrast — and despite the repetition it entails — the Court will address each claim with respect to each jurisdiction separately, as subtle differences in state law can compel different results for plaintiffs in different jurisdictions. By and large, however, Plaintiffs’ consumer fraud, common law fraud, and implied warranty claims survive, but their unjust enrichment claims fail.
1. Alabama
In light of the Court’s rulings above and the Order of June 16, 2017, the only remaining Alabama Plaintiff for purposes of this motion is Valeria Glenn. Glenn owns a 2006 Pontiac Solstice, which she purchased used on February 23, 2013, and which was subject to the Delta Ignition Switch recall. (Id. ¶ 47). Glenn’s car experienced a shutdown event once while she was driving, and her steering wheel also locked up. (Id.). Glenn had her car’s ignition switch replaced in April 2014 pursuant to the recall. (Id.). She brings claims under the Alabama Deceptive Trade Practices Act (“ADTPA”), Ala. Code § 8-19-1, et seq. (FACC ¶¶ 1123-1148); for fraudulent concealment (id. ¶¶ 1149-1162); and for unjust enrichment (id. ¶¶ 1185- 1195). The Court will address each of these claims in turn.
a. The ADTPA
Glenn’s first claim arises under the ADTPA (see FACC ¶¶ 1123-1148), which provides a remedy for certain “unlawful trade practices.” Ala. Code § 8-19-5. Before addressing the substance of Glenn’s claim under the statute, however, the Court must address a threshold issue raised by New GM — namely, that the “savings clause” of the ADTPA precludes Glenn’s claim outright. (See GM Mem. 45-46). That provision provides:
The civil remedies provided herein and the civil remedies available at common law, by statute or otherwise, for fraud, misrepresentation, deceit, suppression of material facts or fraudulent concealment are mutually exclusive. An election to pursue the civil remedies prescribed in this chapter shall exclude and be a surrender of all other rights and remedies available at common law, by statute or otherwise. ... An election to pursue any civil remedies available at common law ... arising out of any act, occurrence or transaction actionable under this chapter shall exclude and be a surrender of all rights and remedies available under this chapter.
Ala. Code § 8 — 19—15(a)—(b). In light of that language, Glenn wisely concedes that she
There is a split of authority on the ques- • tion of whether a plaintiff can plead claims under both the ADTPA and common law— that is, on whether a plaintiff must make her “election” under the savings clause at the pleading stage or may wait. Compare Holmes v. Behr Process Corp., No. 15-CV-0454 (WMA),
Finally, Rule 8(d)(3) of the Federal Rules of Civil Procedure — which applies in this forum — “allows parties to plead alternative, even inconsistent, theories.” Barcal,
Turning to the merits of Glenn’s ADTPA claim, to the extent relevant here, the statute makes it unlawful to represent “that goods or services have ... benefits[] or qualities that they do not have,” Ala. Code § 8-19-5(5); to represent “that goods or services are of a particular standard, quality, or grade,” id. § 8-19-5(7); or to engage “in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce,” id. § 8-19-5(27). Alabama case law “interpreting the scope of the specific unlawful trade practices described in [the Act]” is scant, but the “entire statutory scheme” makes clear that the Act’s provisions “are designed to have limited application, and are intended to replace the common law and statutory actions for fraud only in specifically designated situations.” Sam v. Beaird,
' Glenn’s ADPTA claim is sufficient to satisfy the heightened pleading requirements of Rule 9(b). Glenn’s car was subject to the Delta Ignition Switch recall (FACC ¶ 47), and New GM tacitly concedes that the consumer protection claims of Delta Ignition Switch Plaintiffs in every state (except Wisconsin, which the Court addresses below) are sufficiently pleaded to the extent that they rest on alleged omissions as opposed to misrepresentations. (See GM Mem. 35-38: Pls.’ Opp’n 35 n.28). Glenn’s claim easily survives bn that basis alone, but it also passes the Rule 9(b) test to the extent it rests on alleged misrepresentations. (See FACC ¶¶ 1135, 1137 (alleging affirmative misrepresentations)).
b. Fraudulent Concealment
In addition to her consumer fraud claim, Glenn also brings claims for common law fraudulent concealment (sometimes referred to as “suppression” under Alabama law). (See FACC ¶¶ 1149-1162). To prevail, Glenn must show: “(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act;' [and] (4) action by the plaintiff to his or her injury.” Parsons & Whittemore Enters. Corp. v. Cello Energy, LLC,
Courts look to several factors in determining whether the particular circumstances of a case required disclosure: “(1) the relationship of the parties; .(2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiffs’ opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.” Freightliner,
The decision in In re Takata is particularly illustrative here, The plaintiffs there
Glenn’s allegations are quite similar to the allegations made by the plaintiffs in In re Takata. She plausibly alleges that New GM knew of ignition switch-related defects by late 2009 or early 2010 and (at least arguably) took steps to conceal those defects — for example, by instructing New GM employees not to use terms that could alert the National Highway Traffic Safety Administration (“NHTSA”) or the public to the existence of a safety issue. (FACC ¶¶42, 1024, 1156).
In arguing otherwise, New GM points to Mason v. Chrysler Corp.,
c. Unjust Enrichment
Finally, Glenn brings an unjust enrichment claim. (See FACC ¶¶ 1185— 1195). To prevail on a claim for unjust enrichment under Alabama law, “the plaintiff must show that the defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to the defendant because of mistake or fraud.” Scrushy v. Tucker,
2. Illinois
The remaining Illinois Plaintiffs for purposes of this motion are Susan Benner, Debra Cole, Charlene Kapraun, Patrick Painter, and Cliff Redmon. Benner owned a 2007 Pontiac G5 that she bought as a certified pre-owned vehicle on August 22, 2011, which was subject to the Delta Ignition Switch recall. (FACC ¶ 115). Cole owned a 2004 Chevrolet Impala, which she purchased used in August 2009, and which was subject to the Low Torque Ignition Switch recall. (Id. ¶ 117). Kapraun owns a 2008 Chevrolet Impala, which she bought used from a private seller on May 27,2011, and which was also subject to the Low Torque Ignition Switch recall. (Id. ¶ 119). Painter owns a 2010 Chevrolet Cobalt SS that he purchased new in April 2010, which was subject to the Delta Ignition Switch and Power Steering recalls. (Id. ¶ 122). Finally, Redmon owned a 2010 Chevrolet Camaro that he purchased new in the spring of 2010, which was subject to the Knee-to-Key Ignition Switch recall. (Id. ¶ 123).
Benner’s car’s ignition switch was difficult to turn on and, since it was repaired
a. The ICFA
The ICFA “prorides a remedy for ‘unfair methods of competition and unfair or deceptive acts or practices’ in specific commercial transactions.1” Greenberger v. GEICO Gen. Ins. Co.,
With those standards in mind, the Court will address each of the remaining Illinois Plaintiffs’ claims. First, Benner’s claim — based on the Delta Ignition Switch recall (FACC ¶ 115) — requires little discussion. , New GM does not contest that Plaintiffs bringing claims relating to the Delta Ignition Switch recall on a concealment, theory satisfy Rule 9(b). And Plaintiffs plainly allege a “deceptive act” (or,
The next two Plaintiffs, Cole and Kapraun, purchased vehicles subject to Low Torque Ignition Switch recalls. (See Pis.’ Opp’n 4; GM Mem., Ex. 2 (“Recall Chart”), at 2). Specifically, Cole’s car was subject to the June 2014 recall for an Inadvertent Key Rotation Defect (Recall Chart 2), and Kapraun’s car was subject to the July 2014 recall for a Slotted Key Defect. (Id.). In simple terms, these defects both involved low torque ignition switches that could inadvertently move out of the run position (due to road conditions or weighted key chains), leading to a loss of power and loss of critical safety systems, including the airbags. (See FACC ¶¶ 562-655; GM Mem. 3-4, 5-6). As with the Delta Ignition Switch recall, New GM does not contest that Plaintiffs bringing claims relating to the Low Torque Ignition Switch recalls on a concealment theory generally satisfy Rule 9(b). Instead, New GM takes aim at Plaintiffs’ claims to the extent that they rest on the concealment of a “defective process” through which New GM built vehicles. (GM Mem. 39; see FACC ¶2777 (alleging the unlawful concealment of defects as well as a “defective process” that included “cost-cutting, minimizing the importance of safety issues, siloing, the depletion of resources devoted to recognizing and studying safety issues, etc.”)). New GM claims that the FACC contains “no facts regarding a defective manufacturing ‘process’ aside from allegations relating to the Delta- Ignition Switch vehicles.” (GM Mem. 39 (citation omitted)). Belatedly, it contends that the “allegation — that Delta Ignition Switch defects harmed owners of'all recalled vehicles— attempts to resurrect the ‘brand devaluation’ theory.” (Id. (citation omitted)).
If Plaintiffs were bringing free-floating “defective process” claims — that is, untethered to actual' defects' in particular vehicles — the Court would be inclined to agree with New GM that" the claims' would amount to little more than rebranded brand devaluation claims. But the Court does not understand that to be what Plaintiffs allege. Instead, the “defective process” allegations are more accurately viewed as an extension of, or gloss on, Plaintiffs’ concealment claims- as to particular defects. (See Pis.’ Opp’n 39-40). And contrary to New GM’s contentions, the “defective process” allegations are not limited to Delta Ignition Switch vehicles. Indeed, the FACC includes extensive allegations regarding New GM’s prioritization of cost-cutting over safety, contributing to a culture that allowed for all of the alleged defects to occur and remain concealed. (See FACC ¶¶ 772-821). These allegations include references to company-wide practices that were applied to both the Delta Ignition Switch and non-Delta Ignition Switch defects. For- example, when evaluating-whether to re-mail special bulletins regarding several known defects (including but not limited to the Delta Ignition ■Switch defect), a New GM director expressed concern that doing so would “drive a lot of cost and [would] create part issues.” (Id. ¶ 784). Additionally, New. GM
Next, New GM argues that Red-mon’s ICFA claim must be dismissed in its entirety because he cannot show that New GM was aware of the Knee-to-Key Bump defect (also referred to as the “Camaro Ignition Key Bump” defect) prior to his purchase of a Chevrolet Camaro. (See GM Mem. 41; FACC ¶ 123). The Court agrees. Plaintiffs allege that NHTSA received “numerous complaints of power failures in 2010-2014 Camaros,” starting “as early as January 2010, months after New GM’s formation.” (FACC ¶ 665; id. ¶¶ 669-783 (listing examples)). The only specific examples Plaintiffs allege, however, are (1) an undated complaint involving a model year 2010 car (see id. ¶ 666); (2) two complaints in May 2010 (see id. ¶¶667, 669); and (3) complaints between October 2012 and May 2014. (See id. ¶ 670). The problem for Red-mon is that the FACC is conspicuously vague about the specific date on which he purchased his car, describing it only as “in spring 2010” (id. ¶ 123) — a date that could be before or after the complaints in May 2010 and is obviously before the complaints in October 2010 and later. Thus, it is unclear whether any of the NHTSA complaints had been filed before Redmon’s car purchase. As the NHTSA complaints are the sole basis upon which Plaintiffs allege New GM’s knowledge of the Cama-ro Ignition Key Bump defect, it follows that Plaintiffs do not allege facts giving rise to a “strong inference” of New GM’s “actual knowledge.” Lemer,
Finally, New GM challenges Painter’s ICFA claim relating to the Power Steering defect on a similar ground— namely, that New GM did not know about the defect when Painter purchased his new 2010 Chevrolet Cobalt SS in April 2010. (GM Mem. 43-44; FACC ¶ 122). With respect to that defect, Plaintiffs allege that New GM knew “[f]rom the date of its inception” that “Old GM began receiving customer complaints regarding loss of power steering” in several car models as early as 2003. (Id. ¶ 753). Moreover, in 2010, “New GM first recalled MY 2005-2010 Chevy Cobalts” for these power steering issues. (Id. ¶755). Significantly, however, Plaintiffs do not allege when in 2010 this recall occurred.
Accordingly, New GM’s motion to dismiss Painter’s ICFA claim is granted to the extent that it pertains to the Power Steering defect. Notably, though, Painter’s car was also subject to the Delta Ignition Switch recall (FACC ¶ 122) — as to which his claim survives for the reasons stated above. In any event, assuming the 2010 power steering recall of 2010 Chevy Co-balts was initiated after Painter purchased his car in April 2010, he is granted leave to amend his ICFA claim with respect to the Power Steering defect. Additionally, for the reasons stated above, New GM’s motion is also granted with leave to amend as to Redmon. With respect to the other Illinois Plaintiffs’ ICFA claims, New GM’s motion is denied.
b. Fraudulent Concealment
The Illinois Plaintiffs also bring claims for common law fraudulent concealment. (See FACC ¶¶ 2797-2810). To state a claim for fraudulent concealment under Illinois law, a plaintiff must “allege that the defendant concealed a material fact when he was under a duty to disclose that fact to plaintiff.” Connick v. Suzuki Motor Co.,
First, if plaintiff and defendant are in a fiduciary or confidential relationship, then.defendant is under a duty to disclose all material facts. Second, a duty to disclose material facts may arise out of a situation where plaintiff places trust and confidence in defendant, thereby placing defendant in a position of influence and superiority over plaintiff. This position of superiority may arise by reason of friendship, agency, or experience.
Applying that Standard, the Connick Court affirmed dismissal of claims much like those here — namely, claims for economic losses resulting from an alleged vehicle defect that.had been concealed by the manufacturer. See id. As the Court explained, because “the complaint merely alleged that plaintiffs had purchased [their cars] from .an authorized Suzuki dealer, and that Suzuki manufactured and distributed [those cars],” the plaintiffs had not “sufficiently. allege[d] that they were in a confidential or fiduciary, relationship with Suzuki, or that Suzuki.was in a-position of superiority over them.” Id.,
Additionally, although not cited by Plaintiffs, at least two courts have held in circumstances similar to those presented here that a manufacturer of cars (or car parts) owed a duty to consumers under Illinois law to disclose “safety defects.” In re Volkswagen Timing Chain Prod. Liab. Litig., No. 16-CV-2765 (JLL),
c. Unjust Enrichment
Finally, the Illinois Plaintiffs bring claims for unjust enrichment against New GM. (FACC ¶¶ 2833-2843). To prevail on a claim for unjust enrichment under Illinois lav, a plaintiff must “allege that the defendant has unjustly retained a benefit to the plaintiffs detriment, and that the defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” Reid v. Unilever U.S., Inc.,
Under Illinois law, “a party may plead claims in the alternative, i.e., she may plead a claim for breach of contract as well as unjust enrichment,” Guinn v. Hoskins Chevrolet,
In this ease, the Illinois Plaintiffs do not base their unjust enrichment claims on the breach of an existing contract. Nor do they incorporate any reference to a contract into that count — indeed, none of the remaining Illinois Plaintiffs is even seeking to recover under a theory of express or implied warranty. (See, e.g., FACC ¶ 2835 (“This claim is pleaded in the alternative to any contract-based claims brought on behalf of Plaintiffs.”)). Thus, the case is easily distinguished from other Illinois precedents in which the viability of the unjust enrichment claim turned on an alleged contractual breach. See, e.g., Guinn,
New GM alternatively contends that Illinois law precludes unjust enrichment where a plaintiff has an adequate remedy at law. (See GM Mem. 28). Although it is “well settled that a party cannot seek equitable relief when he has an adequate legal remedy,” the precise nature of unjust enrichment under Illinois law has “led to numerous confusing statements in case law [implying] that it is equitable in nature,” though “it is essentially an action at law.” In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig., No. 05-CV-2623,
3. Massachusetts
The two remaining Massachusetts Plaintiffs for purposes of this motion are Debra Companion and Richard Leger. Companion owns a 2010 Chevrolet Cobalt that she purchased under warranty as a certified pre-owned vehicle from a Chevrolet dealer on December 31, 2011. (FACC ¶ 154). Her
Companion and Leger bring claims against New GM under the Massachusetts Consumer Protection Act (“Massachusetts CPA”), Mass. Gen. Laws ch. 93A, § 1 et seq. (FACC ¶¶ 3769-3793); for common law fraud by concealment (id. ¶¶3794-3807); for breach of the implied warranty of merchantability, ALM GL. CH. 106, § 2-314 (id. ¶¶ 3808-3817); and for unjust enrichment (id. ¶¶ 3840-3850). New GM moves to dismiss only two of these claims: the claim under the Massachusetts CPA and the unjust enrichment claim. The Court will address each of these claims in turn.
a. The Massachusetts CPA
The Massachusetts Plaintiffs’ claims under the Massachusetts CPA (otherwise known as Chapter 93A) can be addressed briefly. The Act prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Mass. Gen. Laws ch. 93A § 2(a). To prevail on such a claim, the plaintiff “must show that the defendant engaged in trade or business and committed an unfair or deceptive act, causing economic injury to the plaintiff.” Brown v. Bank of Am., Nat., Ass’n,
b. Unjust Enrichment
As noted, New GM also moves to dismiss the Massachusetts Plaintiffs’ unjust enrichment claims. To prevail on this claim under Massachusetts law, a plaintiff must show: “(1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) acceptance or retention by the defendant of the benefit under the circumstances would be inequitable without payment of its value.” Blake v. Professional Coin Grading Serv.,
4. Michigan
The remaining Michigan Plaintiffs for purposes of this motion are Sheree Anderson, Carter Bishop, Marquetta Chestnut, Rafael Lanis, Sophia Marks, Brian Semrau, and Franklin Wloch. Anderson owned a used 2008 Chevrolet HHR that she purchased under warranty from a dealership on November 15, 2011, which was subject to the Delta Ignition Switch defect. (FACC ¶ 158). Bishop owns a 2008 Chevrolet Impala that he purchased used and unwarranted from a dealership on August 7, 2012, which was subject to the Low Torque Ignition Switch recall. (Id. 11159). Chestnut - owns a 2005 Chevrolet Malibu that she purchased used and unwarranted from a dealership on February 17, 2011, which was subject to the Low Torque Ignition Switch and Power Steering recalls. (Id. ¶ 160). Lanis owns a 2006 Chevrolet Cobalt that he purchased used and unwarranted at auction in July 2011, which was subject to the Delta Ignition Switch recall. (Id. ■ ¶ 162). Marks owns a 2009 Chevrolet Impala that she purchased used from a dealership along with an extended warranty on July 28, 2009, and which was subject to Low Torque Ignition Switch recall. (Id. ¶ 163). Semrau leased a new 2013 Cadillac CTS from a Cadillac dealership on August 19, 2013, while the vehicle was under the manufacturer’s warranty, and it was later subject to the Low Torque Ignition Switch recall. (Id. ¶ 165). Finally, Wloch owns a 2011 Cadillac CTS that he purchased as a certified pre-owned vehicle from a Cadillac dealership along with an extended warranty on April 22,
Anderson’s car experienced issues with the ignition switch, including locking up such that she was unable to turn the key on several occasions. (FACC ¶ 158). Her car was repaired pursuant to the recall on June 10, 2014, after a several month delay waiting for the parts. (Id.). She finally sold the car for scrap on August 25, 2016, after additional mechanical issues rendered it unusable. (See id.). Bishop’s vehicle never manifested any defect, although it was repaired in June 2016 pursuant to the Low Torque Ignition Switch recall. (Id. ¶ 159). The power steering in Chestnut’s car twice went out, once causing her to spin out on ice and almost collide with an oncoming ambulance, and once forcing her to coast across a highway to an exit in order to restart her car. (Id. ¶ 160). Lanis experienced his ignition switch shutting down' approximately ten times after he started his car and removed his hand from the key, as well as one time while he was sitting idle at a traffic light. (Id. ¶ 162). On almost a daily basis, his key would stick in the ignition switch. (Id.). Lanis’s car was repaired in April 2014 pursuant to the ignition switch recall; afterwards, he twice tried to sell the vehicle but was unsuccessful. (See id.). Mark’s car shut off once while she was driving after hitting a bump in the road, requiring her to pull over and restart the car. (Id. ¶ 163). Her car was repaired in 2015 pursuant to the Low Torque Ignition Switch recall. (Id.). Like Bishop’s car, Semrau’s leased car never manifested any defect, although New GM sent him the parts to repair his ignition switch himself pursuant to the Low Torque Ignition Switch recall. (Id. ¶ 165). Semrau returned the vehicle on August 16, 2016, at the end of his lease. (Id.).
Together, the Michigan Plaintiffs bring claims against New GM under the Michigan Consumer Protection Act (“MCPA”), Mich. Comp. Laws § 445.903, et seq. (FACC ¶¶ 3896-3920); for common law fraud by concealment (id. ¶¶ 3921-3934); for breach of implied warranty of merchantability, see Mich. Comp. Laws § 440.2314 (id. ¶¶ 3935-3944); and for unjust enrichment (id. ¶¶ 3967-3977). The Court will address each of these claims in turn.
a. The MCPA
The MCPA “prohibits the use of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.” Zine v. Chrysler Corp.,
Applying those standards here, the Michigan Plaintiffs’ MCPA claims are sufficient to survive New GM’s motion to dismiss. First, Plaintiffs allege “how [New GM] violated the MCPA,” including “identify[ing] which MCPA sections” New GM purportedly violated. Muneio v. Fed. Nat. Mortg. Assoc., 09-CV-12973 (AC),
' Finally, the Michigan Plaintiffs’ MCPA claims satisfy the requirements of Rule 9(b). To the extent the Michigan Plaintiffs’ claims relate to the Delta Ignition Switch recall (Anderson and Lanis) and the Low Torque Ignition Switch recalls (everyone other than Anderson and Lanis), that is true for the reasons discussed above in connection with Alabama and Illinois. That leaves only Chestnut’s claim concerning the Power Steering recall. (FACC ¶ 160).
That leaves one final issue to address: whether Bishop, Semrau, and Wloch can maintain .their MPCA claims given that
At least one Michigan appellate decision lends strong support to this position. See Mayhall v. A.H. Pond Co., Inc.,
New GM’s arguments to the contrary fall flat. For one, New GM contends that Bridgestone/Firestone is not persuasive authority because it was subsequently overruled by the Seventh Circuit. That is true, but the Seventh Circuit overruled the district court decision on other grounds (namely, choice of law). See Bridgestone/Firestone,
In the absence of persuasive authority to the contrary, the Court thus concludes that the Michigan Plaintiffs “need only allege” that their vehicles are defective; “[t]hey are not required to allege and prove ... manifestation of [that] defect.” Bridgestone/Firestone,
b. Fraudulent Concealment
The Michigan Plaintiffs next bring a common law claim for fraudulent concealment (also known in Michigan as “silent fraud”). (See FACC ¶¶ 3921-3934). “Silent fraud is essentially the same [as traditional fraud] except that it is based on a defendant suppressing a material fact that he or she was legally obligated to disclose, rather than making an affirmative misrepresentation.” Barclae v. Zarb,
The Sixth Circuit’s decision in Cooley is instructive. In that case, graduates of the Thomas M. Cooley Law School sued their alma mater alleging that the school’s annual employment report and salary survey misrepresented the employment outcomes of its graduates — thereby inducing them to attend the school despite what were, in reality, bleak employment prospects upon graduation. See
These decisions are fatal to the Michigan Plaintiffs’ fraudulent concealment claims. The Michigan Plaintiffs do not allege that they made any inquiries directly to New GM regarding the safety of their vehicles or the existence of any potential defects. Such a "failure to inquire “dooms the silent-fraud claim.” Cooley,
Next, New GM challenges the viability of implied warranty claims asserted by the Michigan Plaintiffs whose vehicles did not manifest any defect — namely, Bishop, Semrau, and Wloch. The - Bridge-stone/Firestone Court considered and rejected' the same arguihent on the ground that the Uniform Commercial Code (“UCC”), which has been adopted by Michigan, “expressly provides” that a claim for the breach of an implied warranty'“‘accrues when the breach occurs” and that “there is no requirement that [plaintiffs demonstrate any injury to them person or property as a result of the breach, but only that they purchased an unmerchantable product.”
d. Unjust Enrichment
Finally, the Court turns to the Michigan Plaintiffs’ unjust enrichment claims. (See FACC ¶¶ 3967-3977). To state a claim for unjust enrichment under Michigan law, a plaintiff must show “(1) receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to plaintiff'because of the retention of the benefit by defendant.” Lipov v. Louisiana-Pac. Corp., No. 12-CV-439,
For an independent reason, however, all of the Michigan Plaintiffs’ unjust enrichment claims are subject to dismissal. That is because Michigan courts “only employ the doctrine of unjust enrichment in cases where the defendant directly receives a benefit from the plaintiff.” Smith v. Glenmark Generics, Inc., USA, No. 315898,
. Admittedly, Plaintiffs’ argument to the contrary finds some support in a handful of federal cases. See, e.g. In re Auto. Parts Antitrust Litig.,
5. New York
The remaining New York Plaintiffs for purpose of this motion are Renate Glyttov, Nicole Mason, Donna Quagliana, and Bed-ford Auto Sales, Inc. Glyttov owned a 2009 Chevrolet HHR that she purchased as a certified pre-owned vehicle under warranty from a Chevrolet dealer on March 28, 2012, which had a Delta Ignition Switch defect and was also subject to the Power Steering recall. (FACC ¶ 213). Mason owns a 2010 Chevrolet Cobalt that she purchased new with an extended warranty from a dealership on May 17, 2010, which was subject to the Delta Ignition Switch and Power Steering recalls. (Id. ¶ 215). Quagliana owns a 2005 Chevrolet Cobalt that she purchased used and unwarranted from a dealership in 2013, which was subject to the Delta Ignition Switch recall. (Id. ¶ 216). Finally, Bedford Auto Sales, Inc. is a car dealership with its principal place of business in Bedford, Ohio, which purchased two vehicles from New York dealers — a 2010 Chevy Cobalt subject to the Delta Ignition Switch and Power Steering recalls and a 2009 Chevrolet Cobalt subject to the Delta Ignition Switch recall, purchased in December 2013 and January 2013 respectively — both of which it ultimately sold at a loss. (See id. ¶ 212).
Glyttov’s car shut off spontaneously on several occasions, including while she was driving on the highway; the car would also shut off when she was driving on bumpy roads or hit a pothole. (Id. ¶ 213). Also, on several occasions, the key would not turn and would become stuck in the ignition. (Id.). In May 2012, her ignition lock cylinder was replaced during a routine oil change. (Id.). Two years later, on June 11, 2014, her ignition keys and switch were replaced. (Id.). She received notification of the Power Steering recall in June 2014, but the notice indicated the parts were not then available; her power steering was finally serviced on December 10, 2014, and she ultimately traded in the car in 2015. (See id.). Mason’s car spontaneously shut off on at least three occasions, including when her daughter was driving the vehicle home from a test to get her driver’s license; twice the vehicle had to be towed because it would not restart. (Id. ¶ 215). Her car’s ignition switch was replaced in June 2014 under the recall, and she believes her power steering was serviced under the recall in or shortly after November 2014. (Id.). Quigliana’s car turned off on two occasions while her daughter was driving to school; she attempted to have the vehicle fixed "without success until she was told about the ignition switch recalls. (See id.). In 2015, after the ignition switch was repaired, the car was totaled in an accident. (Id.). Finally, Bedford Auto Sales, Inc. does not allege that either car it purchased manifested a defect. (Id. ¶ 212). After the recalls were announced, Bedford sought to get the cars repaired, but it was consistently informed that the ignition switch replacement parts were not available. (Id. ¶ 216). The dealership ultimately sold both cars at a loss in February and April 2015.
a. GBL Section 349
New York consumer protection statute, General Business Law Section 349(a) (“Section 349”), prohibits “[d]ecep-tive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” To prove a claim under Section 349(a), a plaintiff must show, “first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” Stutman v. Chem. Bank,
The Court need not resolve the question of whether Rule 9(b) applies to the New York Plaintiffs’ Section 349 claims because it would make no difference to the Court’s analysis or conclusions. First, all of Bedford Auto’s Section 349 claims are subject to dismissal because New York law requires a manifested defect for a plaintiff to recover on any claim and its vehicles did not manifest any of the alleged defects. (See FACC ¶¶ 209-212). Unlike in Michigan, there is no shortage in New York of case law on this point. Most relevant here is Frank v. DaimlerChrysler Corp.,
The Frank Court also found support for its conclusion in precedents from other jurisdictions that had adopted the manifest defect requirement. See Frank,
b. Fraudulent Concealment
The Court turns next to the New York Plaintiffs’ common'law fraudulent concealment claims. (FACC ¶¶5184-5197). Notably,- New GM’s sole argument for dismissal of those claims is that they are barred by New York’s economic loss doctrine. (See GM Mem. 58-59; GM Reply 29 — 30). That rule generally “restricts plaintiffs who have suffered ‘economic loss,’ but not personal or property injury, to an action for the benefits of their bargain. If the damages' suffered are of the type remedial in contract, á plaintiff may not recover in tort.” EED Holdings v. Palmer Johnson Acquisition Corp.,
That approach is bolstered by the fact that New York courts have long “routinely permitted” fraud claims for pure economic loss to proceed. EED Holdings,
Some courts in the Circuit, however, have applied the economic loss rule to fraud claims under New York law. See, e.g., Kalimantano GmbH v. Motion in Time, Inc.,
The Court thus adheres to the view that claims for intentional torts are not precluded by New York’s economic loss doctrine. Accordingly, New GM’s motion to dismiss the New York Plaintiffs’ fraudulent concealment claim on the ground that the doctrine does apply is denied (except with respect to Bedford Auto, as discussed above).
c. Unjust Enrichment
Finally, the New York Plaintiffs bring claims of unjust enrichment. To prevail on an unjust enrichment claim under New York law, a plaintiff must show that “(1) the defendant was enriched, (2) at the expense of the plaintiff, and (3) it would be inequitable to permit the defendant to retain that which is claimed by the plaintiff.” Koenig v. Boulder Brands, Inc.,
In any event, all of the New York Plaintiffs’ unjust enrichment claims fail for a separate reason: Because they have adequate remedies at law. The Second Circuit has repeatedly reaffirmed that unjust enrichment under New York law “is an equitable claim that is unavailable where an adequate remedy at law exists.” Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int’l N.V.,
6. Pennsylvania
The remaining Pennsylvania Plaintiffs for purposes of this action are Janice Bag-ley, Raymond Berg, Paul' Pollastro, and David Schumacher. Bagley owns a 2007 Chevrolet Cobalt that she purchased used under a thirty-day warranty from a private seller in 2013, which was subject to the Delta Ignition Switch recall. (FACC ¶ 243). Berg owns a 2012 Chevrolet Traverse that he purchased used from a dealership in October 2013 along with an additional warranty; the car was ultimately subject to the Side Airbag recall. (Id. ¶ 244). Pollas-tro owns a 2007-Chevrolet Cobalt that he purchased as a certified pre-owned vehicle under limited warranty from a dealership on November 22, 2010, which was subject to the Delta Ignition Switch récall; (Id. ¶248). And finally, Schumacher owns a 2008 Buick Enclave that he purchased used from a dealership along with an extended warranty on May 30, 2014, which was subject to the Side Airbag defect recall. (Id. ¶ 249). -
Berg does not allege that his car ever manifested any defect; nor did he receive a recall notice for the side airbag defect— although he has had the car serviced and other recall repairs. (7⅛¶ 244). Baglejfs car experienced two stalling events within the first month of ownership — and a third event only a few weeks later. (Id. ¶ 243). In February 2014, she was in an- accident after a deer ran in front of her car, but the airbags did not deploy. (Id.). Bagley had the ignition switch replaced in June or July 2014, presumably pursuant to the recall. (See id.). In Pollastro’s case, the key began to stick in the ignition switch shortly after his purchase of the car in the summer of 2011; he took the vehicle to a dealership, which identified the issue as a problem with the floor shifter. (Id. ¶ 248). He had the ignition switch replaced on July 24, 2014, after the recall was announced, but the first replacement switch failed, requiring a two-day repair period. (Id.). Additionally, Pollastro had to return to the dealership afterward because the new key did not properly match the new ignition switch. (Id.). Finally, the power steering in Schumacher’s car went out within the first day of ownership while he was turning through a major intersection, nearly causing an accident. (Id. ¶ 249). He has also experienced other defects with the car, including issues with the power hatch, but he does -not allege that the side airbag defect has manifested itself and he never had the car repaired. (See id.).
The Pennsylvania Plaintiffs bring claims against New GM under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq, (FACC ¶¶ 5937-5959); for common law fraudulent concealment (id.
a. Economic Loss Doctrine
In Werwinski v. Ford Motor Co.,
Whether the economic loss doctrine bars Plaintiffs’ fraudulent concealment claims is a closer question, however, as the more recent case law has focused predominantly on the UTPCPL. See, e.g., id.; see also DeFebo,
b. Manifestation
Next, the Court turns to the question of whether Pennsylvania law allows a plaintiff to sue for economic loss in the absence of a manifested defect.
It seems to us that the Supreme Court of Pennsylvania would find no relief may be granted on the allegations of the complaint here for two independent reasons, either of which would bar this action. First, ... Angus has not alleged that the valve implanted in her is defective, a prerequisite to liability in a products liability action. ... Second, Angus has not suffered a compensable injury as the direct impact from the manufacture, sale, and implanting of the valve was on her emotional state and the allegations of this case will not support a recovery for emotional injuries.
Id. at 147 (citations omitted). On its face, then, Angus is distinguishable from this case because Plaintiffs here do allege that their vehicles were defective (even if the defect had not yet manifested), and because Plaintiffs allege injuries outside of the emotional realm. Additionally, much of the Angus Court’s reasoning was specific to IIED claims. See id. at 148 (“If the Supreme Court of Pennsylvania recognized a cause of action for intentional infliction of emotional distress on the allegations of Argus’s complaint, it effectively would sanction a large, if not vast, number of lawsuits by consumers who obtained properly functioning valves.”); see also id. at 147 (“[Biased on the cases involving the infliction of emotional distress, we are convinced that the district court correctly found that no basis for relief was stated in
That conclusion is reinforced by recent pronouncements from Pennsylvania courts about the sorts of damages that amount to “ascertainable harm” under the UTPCPL. The statute itself provides that “[a]ny person who purchases or leases goods or services ... and thereby suffers any ascertainable loss of money or property, real or personal ... may bring a private action.” 73 Pa. Stat. Ann. § 201.92 (emphasis added); see also Weinberg v. Sun Co., Inc.,
Moreover, as Plaintiffs qote, several lower Pennsylvania courts hqve found benefit-of-the-bargain damages sufficient under the UTPCPL. For instance, in Zwiercan v. Gen. Motors Corp., No. 3235,
The Court reaches a different conclusion, however, with respect to Berg’s and Schumacher’s common law claims. Notably, all the Pennsylvania cases cited by Plaintiffs discuss only the UTPCPL and implied breach of warranty claims — two contexts in which “harm” (or “injury”) is defined outside the common law. See Zwiercan,
In the absence of Pennsylvania case law to the contrary, the Court is persuaded by the ample precedent holding that injury (and, relatedly, actual damages) for common law purposes requires the' manifestation of a defect. See, e,g., Tietsworth,
Finally, the Court reaches the same conclusion with respect to Berg’s and Schumacher’s claims for breach of the implied warranty of merchantability pursuant to Section 2314 of Title 13 of the Pennsylvania Commercial Statutes Code. (See FACC ¶¶ 5974-5983),
The Court turns, then, to the substance of the Pennsylvania Plaintiffs’ claims under the UTPCPL. (See FACC ¶¶ 5937-5959). That statute “makes it unlawful for individuals or businesses to engage in unfair or deceptive acts or practices.” Baker v. Family Credit Counseling Corp.,
With respect to claims under the UTPCPL’s “catch-all” provision (section (xxi)), however, Pennsylvania courts are split on whether a plaintiff must allege the elements of common law fraud. See Seldon v. Home Loan Servs., Inc.,
d. Fraudulent Concealment
Next, the Court turns to the claims for common law fraudulent concealment, also called “non-disclosure” under Pennsylvania law, for the Pennsylvania Plaintiffs other than Berg and Schumacher. (See FACC. ¶¶ 5960-5973). To make out a fraud claim, a plaintiff must show “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.” Presbyterian Med. Ctr.,
But the Pennsylvania Plain-1 tiffs' have another avenue available to them, as “Pennsylvania law recognizes a difference between active concealment and mere silence in the context of common law fraud.” Gnagey Gas & Oil Co., Inc. v. Pa. Underground Storage Tank Indem. Fund,
, Applying these principles, Pennsylvania courts have upheld active, concealment claims in many cases despite the .lack of any fiduciary or special relationship. See, e.g., Gnagey Gas, 82 A.3d at 503-04 (upholding a claim for “active concealment” where the defendant knew about eight underground storage tanks.on a property that.was sold and “active[ly] concealed their existence”); Nat’l Bldg. Leasing, Inc. v. Byler,
New GM’s arguments to the contrary fall short. For one, the cases New GM cites were all limited to the question of whether a fiduciary or confidential relationship existed, and did not address the active-concealment doctrine. See, e.g., Jeter v. Brown & Williamson Tobacco Corp.,
Here, Pennsylvania Plaintiffs expressly plead that New GM “concealed and suppressed material facts concerning safety defects.” (FACC ¶5962). Together with the other allegations in the FACC, discussed above, that is sufficient to plead a claim for active concealment under Pennsylvania law. Still, to prevail on this claim, each of the Pennsylvania Plaintiffs must also show that New GM “intended for the plaintiff to be induced to act,” “that the plaintiff justifiably relied on the defendant’s misrepresentation,” and “that the plaintiff suffered damages as the proximate result of that reliance.” Boardakan II,
e. Unjust Enrichment
Finally, the Pennsylvania Plaintiffs assert claims of unjust enrichment. (See FACC ¶¶ 6006-6016). To prevail on such a claim under Pennsylvania law, a plaintiff must show that (1) the “plaintiff conferred a benefit on the defendant”; (2) “the defendant appreciated the benefit”; and (3) “acceptance and retention by the defendant of the benefits, under the circumstances, would make it inequitable for the defendant to retain the benefit without paying for the value of the benefit.” Glob. Ground Support, LLC v. Glazer Enters., Inc.,
New GM’s last challenge to the Pennsylvania Plaintiffs’ unjust enrichment claims — namely, that Pennsylvania law requires the conferral of a direct benefit to allow recovery under this theory (see GM Mem. 32) — has more weight, at least with respect to some Plaintiffs. Regrettably, the case law on point is once again somewhat muddled. Compare In re Takata,
In re Ford Motor Co. E-350 Van Prods. Liab. Litig. (No. II), No. 03-CV-4558 (GEB),
Applying those principles here, and giving Plaintiffs the benefit of the doubt, the Court concludes that Pollas-tro — who purchased his vehicle as a certified pre-owned car from a Chevrolet (i.e., GM)' dealer (see FACC ¶ 248) — may proceed with his claim. His purchase' may have “factored into the calculus whereby their dealership and [New GM] made orders for replacement vehicles,” Ford Motor Co. E-350 Van Products Liab. Litig.,
7. Texas
The remaining Texas Plaintiffs for purposes of this motion are Gareebah Al-ghamdi, Dawn Bacon, Michael Graciano, Keisha Hunter, Tajah Liddy, Lisa McClellan, and Cindy Wilson. Al-ghamdi owns a 2004 Chevrolet. Impala that she purchased used and unwarranted at an auto expo on September 7, 2009, which was subject to the Low Torque Ignition Switch recall. (FACC ¶ 266). Bacon owns a 2006 Cadillac CTS that she purchased used and unwarranted from a private seller in September 2012, which was subject to the Low Torque Ignition Switch recall. (Id. ¶ 267). Graciano owns at 2007 Chevrolet Cobalt that he purchased used along with a warranty from a dealership on October 17, 2011, which was subject to the Delta Ignition Switch recall. (Id. ¶ 270). Hunter owned a 2006 Chevrolet Cobalt which she purchased used from a dealership on March
Hunter does not allege that her vehicle ever manifested any defect, but the vehicle was repaired pursuant to the recall in early 2015. (Id. ¶ 272). After experiencing post-repair mechanical problems, Hunter returned the car to the dealership, defaulting on her loan. (See id.). Wilson similarly does not allege any issues with her car; she did not receive a recall notice for the power steering issue, although she did have her car repaired pursuant to a recall notice regarding a defective wave plate in March 2015. (Id. ¶279). By contrast, Al-ghamdi’s car experienced frequent shut downs while she was driving, including on the highway; initial diagnostic testing failed to show why her vehicle was shutting off while in motion. (Id. ¶ 266). She received a recall notice for the Low Torque ignition switch defect in 2015, but as of the filing of the FACC had not yet had her vehicle repaired because the dealership did not have the parts available. (See id.). Similarly, Bacon’s car has stopped without warning while driving on the interstate at least eight times — nearly causing several serious accidents. (Id. ¶ 267). She also experienced trouble with the ignition switch, requiring her to turn the ignition key may times before her car will start. (Id.). She has yet to receive a recall notice for the ignition switch defect, so her car remains unrepaired. (Id.). Although Bacon attempted to trade her car in several times, the dealerships have declined to accept it because they cannot sell her model until .the ignition problem is fixed. (See id.). Graci-ano has also had recurring issues with his vehicle, as it has experienced stalling and corresponding loss of power steering on numerous occasions. (Id. ¶ 270). In March 2014, Graciano received a recall notice, although it took several months before his family received a loaner vehicle while waiting for delivery of the parts necessary to repair his car. (Id.). Liddy’s car experienced issues with the timing change sensor and an oil pan leak (id. ¶ 274); she has also been told that her engine needs to be replaced. (Id.). Although Liddy’s car was subject to the Side Airbag recall (as well as recalls for the hatchback motors and seatbelts), she does not allege that she experienced any issues with the airbags or that her car has been repaired pursuant to the recall. (Id.). McClellan had-significant issues with her car, which shut off while she was driving at least fifty to sixty times in the first year and a half that she owned it. (Id. ¶ 275). Her car was repaired many times, but she does not remember receiving any recall notices. (See id.). She eventually returned the car to the dealership due to its many problems. (Id.).
The Texas Plaintiffs bring claims against New GM under the Texas Deceptive Trade Practices-Act (“Texas DPTA”), Tex. Bus. & Com. Code §§ 17.41 et seq. (FACC ¶¶ 6551-6581); for common law fraudulent concealment (id. ¶¶ 6582-6595); for breach of the implied warranty of merchantability, Tex. Bus. & Com. Code § 2.314 (id. ¶¶ 6596-6605);. and for unjust enrichment (id. 11116628-6638). The Court will address each of these claims in turn.
a. The Texas DPTA
The Texas Plaintiffs first bring claims under the Texas DPTA. (See
In light of that principle, courts applying Texas law have routinely dismissed tort-style claims under the DPTA where the claims amounted to “nothing more than [ ] breach of contract claim[s].” Dickey v. Club Corp. of Am.,
While ... a breach of contract does not itself constitute a DTPA violation, the Texas Supreme Court has never held that underlying conduct that breaches an agreement cannot violate the DTPA merely because it also breaches an existing contractual obligation. Put differently, if a particular duty is defined both in a contract and in a statutory provision, and a party violates the duty enumerated in both sources, the economic loss rule does not apply.
McCaig v. Wells Fargo Bank (Texas), N.A.,
Relatedly, Texas court have permitted DPTA claims to proceed, notwithstanding contracts governing the parties’ transactions, where plaintiffs have alleged “unconscionable actions” on the part of defendants. See, e. g., SCS Builders, Inc. v. Searcy,
In light of the foregoing authorities, the Court concludes that the Texas Plaintiffs’ DPTA claims are not barred by the economic loss doctrine (or its close cousin, the independent injury requirement). It may well be that New GM’s conduct violated contracts with (at least some of) the Texas Plaintiffs. But the gravamen of the Texas Plaintiffs’ DPTA claims is not that New GM violated duties that arose under contracts. Instead, it is that New GM violated duties that arose under the DPTA: not to misrepresent the quality and safety of is cars and not to conceal defects prior to Plaintiffs’ purchases of their allegedly defective cars. (See FACC ¶¶ 6555, 6557). And Texas law provides that “[a] statutory offender will not be shielded from liability simply by showing its violation also violated a contract.” McCaig,
The remaining Texas Plaintiffs do state claims under the DPTA. To prove a violation of the Act, a plaintiff must show that “(1) [he or she] is a consumer, (2) the defendant engaged in false, misleading or deceptive acts, and (3) these
Applying those standards here, the Court concludes that the FACC sufficiently alleges that New GM’s practice of promoting its vehicles as safe and reliable, despite its knowledge of numerous alleged defects, “took advantage of [the plaintiffs’] lack of knowledge” such that “the resulting unfairness was glaringly noticeable, flagrant, complete and unmitigated.” Tex. Bus. & Com Code § 17.45(5); see Washburn,
The Court has already addressed New GM’s general arguments to the contrary with respect to the Delta Ignition Switch Plaintiffs (as to misrepresentations) and the non-Delta Ignition Switch Plaintiffs (as to concealment of a defective process), and will not repeat those discussions here. New GM’s additional arguments focus on the FACC’s allegations concerning the company’s knowledge of other defects alleged by the Texas Plaintiffs — specifically, the Power Steering defect (Wilson and McClellan) and the Side Airbag defect (Liddy) — and the relationship in time between any such knowledge and those Plaintiffs’ vehicle purchases. (See GM Mem. 43-44; FACC ¶¶ 274-275, 279). With respect to the former, however, the FACC plausibly alleges New GM’s knowledge prior to the relevant p'urchase dates (and, notably, New GM does not argue otherwise). For example, New GM knew before McClellan purchased her 2005 Chevy Malibu Maxx in November 2010 that, in response to a preliminary investigation concerning that particular car model, Old GM had extended warranty coverage to replace the steering column assembly. (Id. ¶¶ 275, 754). Additionally, in June 2010, New GM itself initiated a special coverage program for the 2005 Chevy Malibu Maxx. (Id. ¶ 756). Similarly, two years before Wilson purchased her 2008 Saturn Aura XR, New GM had issued a service bulletin regarding “special coverage to replace the power steering motor” for that very ear. (Id. ¶ 756). The case for New GM’s knowledge of the Side Airbag defect prior to Liddy’s vehicle purchase in May 2011 is a much closer call. But she alleges that, from its inception, New GM knew about problems in the wiring harness and other components of the airbag wiring dating back to 2008, in other vehicles and the 2009 model of the Saturn Aura XR, her vehicle. (FACC ¶¶ 734, 736-745). “Although that barely alleges knowledge of a potential defect that was not disclosed” to Liddy herself, it is — as the Court previously found with respect to similar allegations in the TACC — “just enough to cross the Rulé 9(b) line.” In re Gen. Motors,
In the alternative, New GM contends that the DPTA claims of Hunter, Liddy, and Wilson must be dismissed because their vehicles never manifested the defects at issue. (See GM Mem. 10-12 & n.7).
Arguably, then, Everett leaves open the possibility of standing for Plaintiffs here (or, at least, some Plaintiffs depending on how long they have or had used their vehicles absent any defect). See, e.g., Doyle v. Chrysler Grp., LLC, No. 13-CV-0620 (JVS),
Faced with a veritable “wealth of contrary case law,” Plaintiffs’ inability to provide a single Texas precedent reaching a different outcome in the context of cars is beyond telling. In re Air Bag Prod. Liab. Litig.,
b. Fraudulent Concealment
Next, the Texas Plaintiffs bring common law claims of fraudulent concealment. (See FACC ¶¶ 6582-6595). To prevail on an action for fraud under Texas law, a plaintiff must prove that “(1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury.” Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, Ltd.,
(1) when there is a fiduciary relationship; (2) when one voluntarily discloses information, the whole truth must be disclosed; (3) when one makes a representation, new information must be disclosed when that new information makes the earlier representation misleading or untrue; and (4) when one makes a partial disclosure and conveys a false impression.
Vial v. Gas Sol., Ltd.,
That conclusion is bolstered by several cases involving circumstances analogous to those here, in which courts have held that the connection between a plaintiff-purchaser and a defendant-manufacturer is too attenuated to sustain a fraud claim under Texas la;w where the plaintiff-purchaser had acquired her vehicle from a third party. In McCabe v. Daimler AG,
c. Unjust Enrichment
Finally, the Court turns to the Texas Plaintiffs’ unjust enrichment claims. (FACC ¶¶ 6628-6638). As other courts have observed, the precise characterization of unjust enrichment under Texas law — whether it is “an independent cause of action” or a “quasi-contractual theory of recovery” — is “not completely clear.” Perales v. Bank of America, N.A., No. 14-CV-1791,
In- any event, the unjust enrichment claims of all the Texas Plaintiffs fall short because they have an adequate remedy at law. Unjust enrichment is an equitable claim and, “[l]ike other equitable claims, an adequate legal remedy may render equitable claims of unjust enrichment ... unavailable.” BMC Direct Mktg., Inc. v. Peake,
8. Wisconsin
Last but not least, the remaining Wisconsin Plaintiffs for purposes of this motion are Nancy Bellow, Dion Jones, Scott Schultz, and Christy Smith. Bellow owns a 2007 Chevrolet Cobalt that she purchased used and not under warranty .from a. Buick dealership on March 31, 2012, which was subject to the Delta Ignition Switch defect recall. (FACC ¶286). Jones owns a 2007 Chevrolet Impala that he purchased from a private seller in May 2013, which was subject to the Low Torque Ignition Switch recall. (Id. ¶ 287). Schultz owns a 2006 Saturn Ion that he purchased used and not under warranty from a dealership in 2011, which was subject to the Delta Ignition Switch defect and Power Steering recalls. (Id. ¶289). Finally, Smith owns a 2008 Buick Enclave, which she purchased used along with an extended warranty from a car dealership on December 20, 2012, which was subject to the Side Airbag recall. (Id. ¶ 290).
Bellow does not allege that her car ever experienced any issues, although she was fearful of driving it after learning about the ignition switch recall. (Id. ¶ 286). Her car’s ignition switch was repaired, as part of the recall, on September 18, 2014. (Id.). Jones alleges that he experienced “a few problems” with the ignition switch of his car, finding it too unreliable to be used to drive for hire with Uber. (See id. ¶ 287). Smith experienced an issue with the airbag light in her car coming on almost immediately after she purchased it in December 2012; she returned to the dealership, which replaced the airbag. (Id. ¶290).
The Wisconsin Plaintiffs bring claims against New GM under the Wisconsin Deceptive Trade Practices Act (‘WDTPA”), Wis. Stat. § 100.18 (FACC ¶¶ 7277-7300); for common law fraudulent concealment (id. ¶¶ 7301-7314); and for unjust enrichment (id. ¶¶ 7337-7347). The Court will address each of these claims in turn.
a. The WDTPA
The Wisconsin Plaintiffs first bring claims under the WDTPA, which “generally prohibits false, deceptive, or misleading representations or statements of fact in public advertisements or sales announcements.” Tietsworth,
Applying those standards here, the Wisconsin Plaintiffs’ WDTPA claims largely pass muster. New GM does not dispute that the Wisconsin Plaintiffs are members of “the public” within the meaning of the Act. See K & S Tool & Die Corp. v. Perfection Mach. Sales, Inc.,
New GM’s alternative argument — that, to the extent Plaintiffs plead active misrepresentations, those misrepresentations are not sufficient under the WDTPA (see GM Mem. 48) — is a closer call, if only because the line between “puf-fery” and actionable statements of fact can be difficult to draw. See, e.g., United Concrete & Const., Inc. v. Red-D-Mix Concrete, Inc.,
To be sure, if “[v]iewed in isolation,” some of these statements — about making “some of the safest vehicles on earth” and the like — “may indeed constitute ‘puf-fery.’” Murillo,
Thus, the Court concludes that, the Wisconsin Plaintiffs adequately allege at least some misrepresentations that are actionable under the WDTPA, and their claims may not be dismissed on this basis. With respect to specific non-Delta Ignition Switch Plaintiffs: Schultz is a proposed Power Steering (and Delta Ignition Switch) Defect Plaintiff. (FACC ¶ 289). He purchased his 2006 Saturn Ion in 2011; the, prior year, in June 2010, New. QM approved a special coverage plan for that vehicle model, extending warranty coverage to ten years or 100,000 miles and instructing dealers to replace the power steering motors in the cars of customers who complained. (See id. ¶ 756). Moreover, in December 2010, New GM Canada issued a recall of 2006 Saturn Ions (among other vehicles) — but New GM still did not recall those same models in the United States. (See id. ¶ 757). These allegations are sufficient to demonstrate that New GM had knowledge of the defect prior to Schultz’s purchase in 2011. Finally, Smith is a Proposed Side Airbag Defect Plaintiff (id. ¶ 290). She purchased her 2008 Buick on December 20, 2012-(id); since its inception, New GM knew that Old GM had issued a technical service bulletin in November 2008 regarding the 2008 Buick’s issue with increased resistance in its airbag wiring (see id. at ¶ 740). New GM was also aware of a host of similar issues in other models, including later Buick models — prompting New GM to circulate an internal bulletin recommending that dealers replace the wiring connectors in, among other things, 2011 and 2012 Buick Enclaves. (Id. ¶743; see generally id. ¶¶ 731-747). Taken together, these allegations are sufficient at this stage to allege that New GM had knowledge of the Side Airbag defect when'Smith purchased her car in 2012. Accordingly, New GM’s motion to dismiss all the Wisconsin Plaintiffs’ WDTPA claims is denied.
Before moving on, the Court must briefly address two alternative arguments raised..by New GM for dismissing Wisconsin Plaintiff Bellow’s WDTPA claim. First, New GM asserts that Bellow’s claims are barred by. the WDTPA’s three-year statute of repose. See Wis. Stat. § 100.18(ll)(b). (GM Mem. 49). That assertion, however, appears to be premised on an error. New GM alleges that Bellow purchased her vehicle in 2007, more than three years before this action was commence (an assertion that, inexplicably, Plaintiffs adopt). (GM Mem. 49; Pis.’ Opp’n 50). The FACC alleges, however, that Bellow purchased her vehicle in March 2012. (FACC ¶ 286; Recall Chart 8). Second, New GM claims that Bellow cannot allege a cause of action under the WDTPA (or otherwisé) because her car never manifested any defect. (GM Mem. 9-10).
In a section titled “Common-Law Fraud Claim,” the Court observed that, “[i]n the context of deciding when a claim accrues for purposes of the statute of limitations, we have generally held that a tort claim is not capable of present enforcement (and therefore does not accrue) unless the plaintiff has suffered actual damage.” Id. at 239 (emphasis added). Because the injury alleged was “diminution in value only” — that is, “the plaintiffs allege[d] that their motorcycles [were] worth less than they paid for them” — the Court concluded that the plaintiffs’ allegations standing alone were “insufficient to state a legally cognizable injury for purposes of a fraud claim.” Id. at 240 (noting that “[diminished value premised upon a mere possibility of future product failure is too speculative and uncertain to support a fraud claim”). Having resolved the plaintiffs’ common law fraud claims on that basis, the Court then analyzed their WDTPA claims in a separate section titled “DTPA Claim.” Id. at 244. As the Court noted, to prevail on a statutory fraud claim in Wisconsin, a plaintiff need only show that he or she “suffer[ed] a pecuniary loss” to have alleged a legally cognizable injury. Id.-, see also Wis. Stat. § 100.18(ll)(b) (“Any person suffering pecuniary loss because of a violation of this section [may recover].”). The Court thus dismissed the plaintiffs’ WDTPA claims on a wholly separate ground from their common law claims: that they were premised mainly on nondisclosure and “the only affirmative assertions alleged in the [ ] complaint [were] mere puffery,” neither of which are actionable under the WDTPA. See
New GM argues that the Tietsworth Court intended its holding regarding the need for a manifested defect in the common law fraud context to extend to statutory fraud claims. (See GM Mem 9-10; GM Reply 3). But the Court is not convinced. The Wisconsin Supreme Court explicitly distinguished between its two holdings, both structurally (by dividing the discussions into two sections) and legally. See, e.g.,
The Court’s conclusion that Tietsworth does not control here is bolstered by other Wisconsin decisions. First, since Tietsworth, Wisconsin courts have dismissed common law fraud claims absent a manifested defect, while allowing WDTPA claims to proceed. See, e.g., Martin v. LG Elecs. USA Inc., No. 14-CV-83 (JDP),
b. Fraudulent Concealment
Next, New GM challenges the Wisconsin Plaintiffs’ fraudulent concealment claims on the ground that they are barred under Wisconsin law by the economic loss rule. (GM Mem. 55). Plaintiffs concede this point. (See Pls.’ Opp’n 56; GM Reply 28 n.19). Accordingly, New GM’s motion to dismiss the Wisconsin Plaintiffs’ fraudulent concealment claims is granted.
Finally, the Court turns to the Wisconsin Plaintiffs’ claims for unjust enrichment. To state a claim for unjust enrichment under Wisconsin law, “a plaintiff must show that: (1) plaintiff conferred a benefit on the defendant, (2) the defendant appreciated or knew of the benefit, and (3) the defendant accepted or retained the benefit under circumstances making retention of the benefit inequitable without payment.” Martin,
New GM’s second argument — which applies only to Smith — is that, as a matter of Wisconsin law, a plaintiff may bring an unjust enrichment claim only in the absence of an enforceable contract. (GM Mem. 26-27). As in other jurisdictions, there are authorities on both sides of that issue. Compare, e.g., Diamond Ctr., Inc v. Leslie’s Jewelry Mfg. Corp.,
CONCLUSION
In sum, many claims asserted by the named Plaintiffs in this motion survive, but the Court yet again rejects Plaintiffs’ novel theory of damages — the brand devaluation theory — as impermissibly repleading
Turning to the state law claims of the remaining Plaintiffs, the statutory consumer fraud claims of most (and, in many states, all) Plaintiffs survive — although the claims of the New York and Texas Plaintiffs whose vehicles never manifested a defect are dismissed. Further, Illinois Plaintiff Painter and New York Plaintiff Mason are granted leave to amend to their consumer fraud claims to the extent that the 2010 power steering recall was initiated after they purchased their vehicles (which were subject to the 2014 Power Steering recall at issue here). Illinois Plaintiff Redmon is also granted leave to amend his consumer fraud claim to the extent that he can allege that he purchased his car after the May 2010 NHSTA complaints regarding the Knee-to-Key defect. Plaintiffs’ fraudulent concealment claims also survive in most states, although they are barred under the laws of Michigan, Texas, and Wisconsin. Moreover, the fraudulent concealment claims of the New York and Pennsylvania Plaintiffs whose vehicles never manifested a defect are dismissed. Similarly, to the extent Plaintiffs brought implied warranty claims (which the Alabama, Illinois, and Wisconsin Plaintiffs did not), those claims generally survive, except again for those of the New York, Pennsylvania, and Texas Plaintiffs whose cars never manifested any defect. Finally, the bulk of Plaintiffs’ unjust enrichment claims are dismissed — except for the claims of the Illinois Plaintiffs, Pennsylvania Plaintiff Pollastro (who purchased his car from a GM-brand dealership), and the Wisconsin Plaintiffs other than Smith (whose car was purchased under warranty), which all survive.
As the Court indicated in the last round of motion practice, although this ruling addresses only some of the claims in the operative complaint, it should inform the parties with respect to the viability of other claims and, more generally, bear upon the further progress of the MDL. Pursuant to Order No. 114 (Docket No. 3431), no later than three weeks from the date of this Opinion and Order, the parties shall meet and confer and advise the Court of their views with respect to whether and how the Court’s rulings apply to the thirty-five jurisdictions that have not been the subject of full briefing (the Court’s sincere hope being that it will not have to repeat this exercise with respect to each and every one of the remaining jurisdictions). Any submissions should address a briefing schedule and process if either side believes that briefing or motion practice is appropriate. Further, to the extent the parties find it helpful, they should confer and submit a chart (or proposed order) summarizing the rulings in this Opinion and Order with respect to the named Plaintiffs’ claims, to be so ordered by the Court. In those submissions, Plaintiffs should also
The Clerk of Court is directed to terminate Docket No. 3577.
SO ORDERED.
Notes
. The FACC also includes successor liability claims brought on behalf of the Delta Ignition Switch plaintiffs, (FACC ¶¶ 896-957). New GM has moved for summary judgment. on those claims. (See Docket Nos, 3427, 3519). The Court will address that motion in a separate opinion.
. By separate Order entered on June 16, 2017, the Court dismissed the claims of thirteen Plaintiffs for failure to .comply with their discovery obligations. (See Docket No. 4093), Accordingly, the Court need not and does not address the claims of Melissa Cave, Mary Ann Cechini, Carolyn Coleman, Bruce Dunn, Mark Fellter, Karen Gooden, Wynonia Jackson, Pearl Jemison, Shawn Markin, Eric Rhine, William Shimak, and Bryon and Tonya Skinner.
. Additionally, although Plaintiffs also replead their RICO claim in the FACC (see FACC ¶¶ 998-1088), they conceded at the status conference held on October 13, 2016, that they did so only for preservation purposes and agreed that there was no need for New GM to move for dismissal of the claim again. (Oct. 13, 2016 Status Conf. Tr. 9-10; see also FACC 1 n.l). Accordingly, Plaintiffs’ RICO claim is (or remains) dismissed.
. As Plaintiffs note, this argument could be mooted, at least in part, if the Court were to hold that Plaintiffs could pursue successor liability claims against New GM. (Pis.’ Opp'n 23). As noted above, that issue is the subject of a separate motion to be addressed in due
. Specifically, with respect to the named Plaintiffs at issue in this motion, New GM's motion to dismiss is GRANTED with respect to Alabama Plaintiff Gerald Smith and Marion Smoke; Illinois Plaintiff Keith Nathan; Massachusetts Plaintiffs Colin Elliott and Susan Viens; Michigan Plaintiffs Diana Cnos-sen, David Price, Jacqueline Smith, and Bryan Wallace; New York Plaintiffs Sandra Levine, Michael Rooney, and William Ross; Pennsylvania Plaintiffs Shawn Doucette, Shirley Gilbert, and George Mathis; Texas Plaintiffs Shenyesa Henry, Lisa Simmons, and Malinda Stafford; and Wisconsin Plaintiff Les Rouse.
. The other two Plaintiffs who sold, traded in, or returned their cars prior to the announcement of the first recalls in February 2014 are Coleman and Viens. The claims of the former were dismissed by the Court’s Order of June 16, 2016, see supra note 2, and the claims of the latter fail because she purchased her car prior to the Sale Order, see supra note 5. Accordingly, the Court need not address whether they allege any viable damages despite the date on which they disposed of their cars. (See GM Mem. 23).
. The Court notes that it need not and does not decide in the discussion below whether Alabama law requires the manifestation of a defect to plead claims for consumer fraud, common law fraudulent concealment, or unjust enrichment, as the claims of the one and only Alabama Plaintiff who does not allege the manifestation of a defect- — Gerald Smith (see GM Mem. 16; Pis’ Opp’n 15) — were dismissed on other grounds. See supra note 5. Notably, the Court's analyses of the claims in the other seven jurisdictions implicated in New GM's motion are unaffected by the rulings above and the June 16, 2017 Order, as the remaining Plaintiffs in each of those jurisdictions necessitate resolution of every issue raised in New GM's motion to dismiss.
. Underscoring this point, the Alabama Supreme Court has considered without comment (albeit, regarding other issues) cases in which common law and ADPTA claims were pleaded together at the outset. See, e.g., Ex Parte Terminix Int’l Co. Ltd. P’ship, Inc.,
. New GM contends that Plaintiffs abandoned their misrepresentation claims under the law of every jurisdiction at issue here other than Wisconsin by not responding to its arguments for dismissal. (GM Reply 17-18). The Court disagrees, as Plaintiffs state as follows in their brief:
Plaintiffs dispute New GM’s contention that their voluminous misrepresentation allegations fail to satisfy Rule 9(b). See [FACC] ¶¶ 336-422 (detailing broad sampling of false claims of safety and reliability). But, as New GM concedes, omissions and conceal-ments, by themselves, are actionable under the consumer protection laws of each relevant jurisdiction apart from Wisconsin. Accordingly, for the purposes of this Section, Plaintiffs discuss their consumer protection claims based on misrepresentations claims only in the context of their claims under the Wisconsin DTPA.-
(Pis Opp’n 35 n.28 (emphasis omitted)). Thus, this is not a situation where "an inference may be fairly drawn” that Plaintiffs have abandoned a whole host, of claims. Jackson v. Fed. Exp.,
. With respect to certain non-ignition switch defects, New GM contends that the FACC fails to allege that it had knowledge of the defect prior to certain plaintiffs' purchasing their vehicles. (See GM Mem. 50 n.26). That argument does not apply to Glenn, the only remaining Alabama Plaintiff, and thus is not addressed here.
. As was the case for Alabama, the Court need not and does not decide whether the law in Illinois or Massachusetts (the next state) requires the manifestation of a defect for any of the claims at issue. That is because New GM does not argue the issue with respect to those states.
. Even more inexplicably, New GM does not indicate when the recall occurred in its briefing, even though the Valukas Report (general familiarity with which is assumed) indicates that it took place in March 2010, and it is plausible that the Court could have taken judicial notice based on public documents or the like.
. Significantly, the dispositive .question is a substantive one — namely, what it takes, as a matter of state law, to allege a plausible claim of unjust enrichment (or to negate an otherwise valid claim thereof). That is, if allegations in the FACC (or the lack of allegations in the FACC) render a particular claim implausible, the claim is subject to dismissal, even though a plaintiff is entitled under Rule 8(d)(3) of the Federal Rules of Civil Procedure to "state as many separate claims ... as it .has, regardless of consistency.” It is for that reason that Plaintiffs’ unjust enrichment claims must be considered on a state-by-state basis — and that the Court’s conclusions as to those claims varies somewhat by state. See, e.g., Schechner v. Whirlpool Corp.,
. Companion’s 2010 Chevy Cobalt also suffered from the Power Steering defect. . (See FACC ¶ 154). For reasons discussed above in connection with Painter’s consumer fraud claim, there is a strong argument that Companion’s claim on that score fails as a matter • of law. That is because she did not purchase her car until December 2011 (id.), which is after New GM recalled certain car models (including hers) pursuant to a 2010 electric power steering defect recall, thus revealing the allegedly concealed facts. Strangely, though, New GM does not make the argument with respect to Companion's claim. Given the lack of a challenge from New GM, and the possibility that subtle (but material) differences may exist among the different recalls, the Court declines to dismiss Companion’s claim on this ground.
. Plaintiffs point to one Massachusetts case allowing the pleading of alternative theories, see Juergens v. Microgroup, Inc., No. 10-CV-237 (DJC),
. As discussed above in connection with Illinois Plaintiff Painter, New GM recalled some vehicles for electric power steering defects in 2010 — namely, model year 2005-2010 Chevrolet Cobalts and model year 2007-2010 Pontiac G5s. (FACC ¶ 755). Complicating matters, New GM issued another round of recalls for the Power Steering defect in 2014, including some of the models that had been recalled in 2010 (namely, the model year 2010 Chevrolet Cobalt) and additional models as well. (Id. ¶ 749). Unlike Painter, and potentially Companion, Chestnut’s vehicle was not subject to the 2010 recall.
. New GM also contends that Anderson’s car never manifested a defect. (GM Mem. 20 n.ll). But Anderson is a Delta ,Ignition Switch Plaintiff (see FACC ¶ 158), and she alleges that, at least several times, the ignition switch on her vehicle "loclc[ed] up on her and she [was] unable to turn the key.” (Id.). New GM argues that this is not a "manifestation of the defect for which [she] is suing” (GM Reply 11 n,8), because she does not allege that her ignition switch "moved out of the ‘run’ position” (GM Mem. 20 n.ll). That may turn out to be the case, but since Anderson alleges a defect in her ignition switch and that switch acted abnormally on at least several occasions, the Court declines to dismiss her claims on that.basis without discovery.
. That said, the Seventh Circuit and New GM appear to be right that the "majority view is that there is no legally cognizable injury in a product defect case, regardless of whether the claim is for fraud, violation of consumer protection statutes, breach of warranty, or any other theory, unless the alleged defect has manifested itself in the product used by the claimant.” 1 McLaughlin on Class Actions § 5:56 (13th ed.); see also id. § 5:56 n.15 (collecting cases).
. In any event, the Court is skeptical whether the representations made by New GM regarding the safety of its vehicles would be actionable under Michigan law, even if the Michigan Plaintiffs could prove that they made direct inquiries of New GM. See, e.g., Ram Int'l Inc v. ADT Sec. Servs., Inc., No. 11-CV-10259,
. Relying on Prank, New GM argues that Bedford Auto cannot make out any claims— statutory or otherwise — absent a manifested defect. (See GM Mem. 12). The Court need not address the argument with respect to unjust enrichment because (as discussed below), the New York Plaintiffs' claims must be dismissed for other reasons. With respect to Bedford Auto's claims for fraudulent concealment and breach of implied warranty, however, the Court agrees with New GM. See, e.g., Weaver,
. As Plaintiffs note (Pls.’ Opp’n 30), there is some authority for the proposition that a plaintiff may plead contract claims and unjust enrichment claims under New York law in the alternative pursuant to Rule 8. See, e.g., Barth Packaging, Inc. v. Excelsior Packaging Grp., Inc., No. 11-CV-2563 (VB),
. New GM identifies Pennsylvania Plaintiffs Berg, Pollastro, and Schumacher as having failed to allege a manifested defect. (See GM Mem. 17 & n.10). Pollastro, a proposed Delta Ignition Switch Plaintiff, alleges that, on one occasion "[s]hortly after purchase, the key became stuck in the ignition switch” — an incident that prompted him to take his vehicle to a dealership for inspection. (FACC ¶ 248). New GM submits that these allegations are insufficient because he did not allege that his vehicle ever shut off. (GM Mem. 17 n.10). As with Michigan Plaintiff Anderson, the Court concludes that Pollastro’s allegations suffice for present purposes. Schumacher — a proposed Side Airbag defect Plaintiff — alleges several defects with respect to his car, including that his "power steering went out” while he was driving on the interstate. (FACC ¶ 249). New GM argues that these defects are irrelevant because he fails to allege any side-airbag related defect (GM Mem. 17 n.10), and Plaintiffs apparently concede the point. (See Pis.’ Opp’n 17 (arguing that Schumacher has a "viable” claim "notwithstanding the absence of malfunction”)). Neither party disputes that Berg’s vehicle has never manifested a defect.
. New GM does not challenge the implied warranty claims of the other Pennsylvania Plaintiffs.
. The Court found one federal case, not cited by the parties, that reaches a different conclusion from the precedent discussed above: In re Ford Motor Co. E-350 Van Prod. Liab. Litig. (No. II), No. 03-CV-4558,
. The particulars of the Side Airbag Defect are not especially relevant here. Briefly explained, corrosion or loose crimps in the side impact airbag wiring harness could lead to an increase in resistance, which the airbag sensing system interpreted as a fault — causing a "service air bag” message to display. (FACC ¶ 732). That increased resistance could, in turn, result in the side airbags failing to deploy during a crash. (Id. ¶ 733),
. For, reference, Section 550 of the Restatement (Second) of Torts, titled "Liability for Fraudulent Concealment,” states: “One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.” Pennsylvania has also adopted Section-551, which imposes liability for fraudulent nondisclosure in those situations where there is an affirmative duty to disclose, such as in a fiduciary or confidential relationship, See Duquesne Light Co. v. Westinghouse Elec. Corp.,
. Liddy does allege that, "[i]n addition to the airbag recall and sensor issue, [her] vehicle had problems with the timing change sensor and an oil pan leak” and that she "has been told that the engine needs to be replaced;" (FACC ¶ 274). But she is a proposed Side Airbag defect Plaintiff and does not allege that that defect manifested itself. Accordingly, Plaintiffs appear to concede that a manifestation requirement would bar her claim. (See Pls.’ Opp’n 10).
. New GM contends that the lack of a manifest defect also defeats the implied warranty, fraudulent concealment, and unjust enrichment claims of Hunter, Liddy, and Wilson. (GM Mem. 12). As the above cited case law makes clear, under Texas law, implied warranty claims are also foreclosed absent a manifest defect. See, e.g., Everett,
. New GM also contends that the economic loss doctrine bars the Texas Plaintiffs’ fraudulent concealment claims. (See GM Mem. 57-58). In light of the Court's conclusion that the Texás Plaintiffs fail to state fraudulent concealment claims on other grounds, the Court need not address New GM’s contention — or the question of whether the economic loss doctrine applies differently with respect to the DPTA (as discussed above) and common law fraud claims.
. New GM malees the same argument with respect to Wisconsin Plaintiffs Jones ánd Smith, (See GM Mem. 10 n.5; GM Reply 4 n.3).- Jones is a proposed Low Torque Ignition Switch Plaintiff who alleges that he “experienced a few problems with the ignition switch” of his car. (FACC ¶ 287). Although somewhat threadbare, that allegation suffices for now to take Jones out of the no-manifestation category. Smith is a proposed Side
. New GM also challenges Bellow’s unjust enrichment claim on manifestation grounds. (GM Mem. 10). Because, as discussed below, the Wisconsin Plaintiffs cannot maintain their unjust enrichment claims for other reasons, the Court need not resolve that issue.