# In re Gen. Motors LLC

> District Court, S.D. Illinois · September 12, 2018 · 339 F. Supp. 3d 262

URL: https://www.frixlaw.com/law-library/cases/7250458

## Case

- **Full name:** IN RE: GENERAL MOTORS LLC IGNITION SWITCH LITIGATION This Document Relates to All Actions
- **Court:** District Court, S.D. Illinois
- **Decided:** September 12, 2018
- **Citations:** 339 F. Supp. 3d 262
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Furman
- **Judges:** Furman
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7250458

## How later opinions describe it (automated extraction)

- concluding that Virginia was one of only six states that permits recovery for “lost free or personal time” stemming from consumer protection violations
- observing that “a federal court is not [always] bound by the opinions of a state’s lower courts,” even when the state’s highest court has not spoken

## Opinion text

[Regarding Application of the Court's Prior Rulings on Manifestation, Incidental Damages (Lost Time), and Unjust Enrichment to All Remaining Jurisdictions in Dispute (MDL Order No. 131 Issues) ]
JESSE M. FURMAN, United States District Judge
INTRODUCTION... 274
LEGAL STANDARDS... 275
DISCUSSION... 275
A. Manifestation... 276
1. State Consumer Protection Laws... 277
a. Broad Remedial Statutes... 277
i. Alaska... 277
ii. Colorado... 278
iii. Kansas... 279
iv. Mississippi... 280
v. Montana... 281
vi. Nevada... 281
vii. New Jersey... 282
viii. New Mexico... 284
b. "Actual Damages"... 284
i. Arizona... 285
ii. Connecticut... 285
iii. Iowa... 286
iv. Kentucky... 287
v. Maine... 288
vi. Nebraska... 288
vii. Ohio... 288
viii. Oregon... 289
ix. Rhode Island... 290
x. South Dakota... 290
xi. Tennessee... 292
xii. Washington... 292
xiii. West Virginia... 292
2. Fraudulent Concealment... 293
i. Minnesota... 298
ii. Mississippi... 299
iii. New Jersey... 300
iv. Oregon... 301
v. West Virginia... 301
3. Implied Warranty... 301
i. Colorado... 304
ii. Delaware... 305
iii. Ohio... 305
iv. West Virginia... 306
B. Lost Time... 307
1. Lost Time as Lost Earnings... 309
2. Lost-Time Damages for Household Work... 321
3. States Allowing Recovery for Lost Time Beyond Lost Earnings... 327
i. Colorado... 327
ii. New York... 328
iii. Ohio... 330
iv. Oklahoma... 330
v. Utah... 331
vi. Virginia... 332
C. Unjust Enrichment... 332
i. Arizona... 333
ii. Connecticut... 334
iii. Mississippi... 335
iv. New Hampshire... 335
v. New Jersey... 337
vi. New Mexico... 338
vii. Oregon... 339
viii. Rhode Island... 340 *274 ix. South Carolina... 340
x. West Virginia... 341
CONCLUSION... 342
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 lessors 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. Their operative complaint - the Fifth Amended Consolidated Complaint or "5ACC" (Docket No. 4838) - exceeds 1700 pages and 7400 paragraphs, and includes claims relating to the ignition-switch defect and various other alleged defects under state law brought by named Plaintiffs in all fifty states and the District of Columbia.
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 and Order filed on July 15, 2016, with respect to the then-operative Third Amended Consolidated Complaint ("TACC"), the Court ruled on the validity of Plaintiffs' claims in eight jurisdictions. See In re Gen. Motors LLC Ignition Switch Litig. , No. 14-MD-2543 (JMF), 2016 WL 3920353 at *36 (S.D.N.Y. July 15, 2016) (" TACC Op. "). A little less than one year later, the Court issued another Opinion and Order (later modified), with respect to the then-operative Fourth Amended Consolidated Complaint ("FACC"), addressing the validity of Plaintiffs' claims in another eight jurisdictions. See In re Gen. Motors LLC Ignition Switch Litig. , 257 F.Supp.3d 372 , 423 (S.D.N.Y. 2017) (" FACC Op. "), modified on reconsideration , No. 14-MC-2543 (JMF), 2017 WL 3443623 (S.D.N.Y. Aug. 9, 2017) (" FACC Supp. Op. "). Plaintiffs later filed the Fifth Amended Consolidated Complaint.
In MDL Order No. 131, entered on August 30, 2017, the Court directed the parties to "meet and confer regarding the application of the Court's prior motion to dismiss opinions on the issues of (i) unjust enrichment, (ii) incidental damages, and (iii) manifest defect" to the jurisdictions that had not been the subject of prior rulings by the Court - a total of thirty-five jurisdictions for the issues of unjust enrichment and manifest defect and forty-seven jurisdictions for the issue of incidental damages. (Docket No. 4499, ¶ 4). That process yielded agreement, and a stipulation (Docket No. 5099 ("Parties' Stipulation") ), with respect to application of the Court's prior opinions to some issues in some of the remaining jurisdictions - albeit many fewer issues in many fewer jurisdictions than the Court had hoped. Thereafter, the parties submitted lengthy *275 briefs addressing the disputes that remained: (1) whether "manifest defect" is required for Plaintiffs to recover for their economic losses under the laws of twenty-seven jurisdictions ; (2) whether Plaintiffs can recover damages for their "lost time" (for example, time lost in repairing their vehicles) under the laws of forty-seven jurisdictions ; and (3) whether the existence of a contract or an adequate legal remedy bars Plaintiffs' unjust enrichment claims under the laws of ten jurisdictions. (Docket Nos. 5098, 5101, 5191, 5192).
In this Opinion and Order, the Court resolves those disputes - no easy task given the sheer number of issues and jurisdictions in dispute, the fact that the relevant law in many of jurisdictions is unsettled or in conflict, and because "subtle differences in state law can dictate different results for plaintiffs in different jurisdictions." TACC Op. , 2016 WL 3920353 at *18. Nevertheless, for the reasons that follow, the Court concludes that manifestation is not required for any of claims and jurisdictions that remain in dispute; that, in all but a few of the jurisdictions that remain in dispute, Plaintiffs cannot recover for lost "free" or "personal" time, but can recover for lost time in the form of lost earnings or wages; and that Plaintiffs in most of the jurisdictions in dispute cannot bring unjust enrichment claims where the subject matter is covered by a valid and enforceable contract or there is an adequate remedy at law.
LEGAL STANDARDS
In applying the law of a state, the pronouncement of the state's highest court "is to be accepted by federal courts as defining state law." West v. Am. Tel. & Tel. Co. , 311 U.S. 223 , 236, 61 S.Ct. 179 , 85 L.Ed. 139 (1940) ; accord Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. , --- U.S. ----, 138 S.Ct. 1865 , 1874, 201 L.Ed.2d 225 (2018) ("If the relevant state law is established by a decision of the State's highest court, that decision is binding on the federal courts." (internal quotation marks omitted) ). "Where the high court has not spoken, the best indicators of how it would decide are often the decisions of lower state courts." In re Brooklyn Navy Yard Asbestos Litig. , 971 F.2d 831 , 850 (2d Cir. 1992) (citing Comm'r of Internal Revenue v. Estate of Bosch , 387 U.S. 456 , 465, 87 S.Ct. 1776 , 18 L.Ed.2d 886 (1967) ). Nevertheless, a federal court is not bound by the opinions of a state's lower courts. See, e.g., Calvin Klein Ltd. v. Trylon Trucking Corp. , 892 F.2d 191 , 195 (2d Cir. 1989) ; see also Estate of Bosch , 387 U.S. at 465 , 87 S.Ct. 1776 ("[I]n diversity cases[,] while the decrees of lower state courts should be attributed some weight[,] the decision [is] not controlling where the highest court of the State has not spoken on the point." (internal quotation marks and alterations omitted) ). When faced with an unsettled question of state statutory interpretation, a federal court should consider "the statutory language, pertinent legislative history, the statutory scheme set in historical context, how the statute can be woven into the state law with the least distortion of the total fabric, state decisional law, and federal cases which construe the state statute." Bensmiller v. E.I. Dupont de Nemours & Co., State of La. , 47 F.3d 79 , 82 (2d Cir. 1995) (internal quotation marks and alterations omitted).
DISCUSSION
As noted, the parties have briefed application of the Court's prior Opinions on the issues of (1) manifestation; (2) incidental damages (i.e., lost time); and (3) unjust enrichment to the jurisdictions that have not been the subject of prior motion practice and that remain in dispute. The Court will address each of those issues in turn.
*276 A. Manifestation
Putative class actions "alleging neither personal injury nor property damages, but economic loss stemming from purchase of a product" with an unmanifested defect have become increasingly common in the automotive, pharmaceutical, and other industries. 1 McLaughlin on Class Actions § 5:56 (14th ed.). In its previous Opinions, the Court resolved the question of whether Plaintiffs could pursue economic loss claims for defects if those defects never manifested themselves under the laws of sixteen jurisdictions. In its Opinion resolving New GM's motion to dismiss the Fourth Amended Consolidated Complaint, the Court also signaled its agreement with a prominent treatise 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." FACC Op. , 257 F.Supp.3d at 423 (citing 1 McLaughlin on Class Actions § 5:56 ). But neither this Court's nor the treatise's conclusion was based on a comprehensive analysis of the law of the remaining states.
Having now engaged in such an analysis of the law in twenty-seven states, covering three different kinds of claims (statutory consumer protection, common-law fraud, and implied warranty), the Court can no longer say with confidence that, across the states, the "majority view" is that manifestation is required to state claims for fraud, violations of consumer protection statutes, and breaches of warranty. Indeed, for every disputed claim in every disputed state, the Court concludes that manifestation is not a requirement. 1 This is due in part to the Court's determination that, in the absence of state law to the contrary, there is no legal or logical ground to bar Plaintiffs' recovery if they can prove that they suffered economic loss. If Plaintiffs paid x for their cars and can prove that their cars are now worth x minus y as the result of the alleged defects, it is arbitrary to prevent them from recovering the difference between x and y simply because the defect did not manifest itself in property damage or personal injury. See Steven R. Swanson, The Citadel Survives a Naval Bombardment: A Policy Analysis of the Economic Loss Doctrine (" Citadel "), 12 TUL. MAR. L.J. 135, 140 (1987) ("If the product is not worth what it was rep[r]esented to be, the purchaser has been harmed to the extent of the decrease in value.").
In the Court's view, the courts that have adopted a manifestation requirement often do so as a proxy for proof of actual defect. See, e.g., Briehl v. Gen. Motors Corp. , 172 F.3d 623 , 626 (8th Cir. 1999) ("The Plaintiffs do not allege that the [brake system] is incapable of stopping the vehicles or that [the brake system] has violated any national safety standards."). But while manifestation may be helpful in proving the presence of a defect, it does not follow that recovery for economic loss should turn on whether the defect also caused property or personal damage. See Swanson, Citadel , 12 TUL. MAR. L.J. at 141. It has also been suggested that, without manifestation, damages for economic loss are too speculative or that consumers did in fact get the benefit of their bargain. See Moin A. Yahya, Can I Sue Without Being Injured?: Why the Benefit of the Bargain Theory for Product Liability Is Bad Law and Bad Economics , 3 GEO. J.L. & PUB. POL'Y 83, 114 (2005) (casting doubt on the *277 reliability of economic analysis and questioning whether consumers fundamentally alter their view of a product on the knowledge that there is some chance of harm); Sheila B. Scheuerman, Against Liability for Private Risk-Exposure , 35 HARV. J.L. & PUB. POL'Y 681, 706 (2012) ("[C]ourts reason that if the product has so far worked as promised, then consumers have received the benefit of their bargain."). But there is no reason to think that the calculation of economic damages is any more reliable when a defect happens also to have caused personal or property damages. See Swanson, Citadel , 12 TUL. MAR. L.J. at 171. And if a plaintiff can demonstrate that public knowledge of a defect did cause the value of her vehicle to drop, and that her vehicle is consequently worth less than what she had bargained for, she has demonstrated that she lost the benefit of her bargain.
In the final analysis, Plaintiffs may not be able to prove that their vehicles contained defects and that those defects actually caused them economic losses. But Plaintiffs allege the existence of defects and that, through expert analyses, they can demonstrate economic losses. ( See, e.g. , 5ACC ¶¶ 397, 827-67). At this stage of the proceedings, the Court accepts the truth of those allegations and assertions, and - absent state law to the contrary - will not impose a manifestation requirement as a proxy for evidence to support them. With that in mind, the Court proceeds state by state and addresses whether manifestation is required in each substantive area: statutory consumer protection, common-law fraud, and implied warranty.
1. State Consumer Protection Laws
The Court begins with Plaintiffs' claims under state consumer protection laws. For convenience, the Court divides the applicable states into two categories: first, those that have broad remedial statutes and for which neither New GM nor the Court has found case law suggesting that the state would require manifestation; and, second, those that require a showing of "actual damages." The Court will address each category in turn.
a. Broad Remedial Statutes
First, eight states in dispute have consumer protection statutes that courts have held are remedial nature or must be liberally construed and for which neither New GM nor the Court has found case law suggesting that the state would require manifestation. The Court concludes that, where those circumstances are present, Plaintiffs need not prove manifestation to state a claim under the state's consumer protection statute. For each state, the Court will describe the law in general terms and then address the authority on which New GM relies.
i. Alaska
Alaska's Unfair Trade Practices and Consumer Protection Act ("Alaska CPA") provides that "[a] person who suffers an ascertainable loss of money or property as a result of [unfair or deceptive acts or practices in the conduct of trade or commerce] may bring a civil action to recover for each unlawful act or practice." Alaska Stat. § 45.50.531 ; see Alaska Interstate Constr., LLC v. Pac. Diversified Invs., Inc. , 279 P.3d 1156 , 1163 (Alaska 2012). The Alaska Supreme Court has not explicitly decided whether manifestation is required for purposes of an Alaska CPA claim, but it has affirmed an award of damages under the statute where the plaintiff alleged that the model year of his motor home had been misrepresented and sought the difference in value between what was represented and what he received - without demanding allegations of a malfunction due to the vehicle's actual age. See Borgen v. A & M Motors, Inc. , 273 P.3d 575 , 585-92 (Alaska 2012). Moreover, *278 the Alaska Supreme Court has held that, "because the [Alaska CPA] is a remedial statute, its language should be liberally construed." Alaska Tr., LLC v. Bachmeier , 332 P.3d 1 , 10 (Alaska 2014). On these bases, the Court concludes that manifestation is not required for purposes of an Alaska CPA claim.
New GM's argument to the contrary rests almost exclusively on Jones v. Westbrook, 379 P.3d 963 (Alaska 2016). There, the plaintiff claimed that an attorney had violated the Alaska CPA by misrepresenting himself as an attorney with legal expertise in the sales of businesses; failing to inform the plaintiff that he lacked malpractice insurance; and failing to properly advise and document the sale of the plaintiff's business. Id. at 970 . Seven years after the sale of the plaintiff's business, when tax liens were imposed on the corporation's assets, the plaintiff learned that his attorney had failed to provide a recorded security interest in the corporation's stock or buyer's home. In determining when the statute of limitations began to run, the Alaska Supreme Court held that the plaintiff had not suffered an "ascertainable loss of money or property" until the tax lien was imposed because, until that point, the plaintiff might have fixed the mistake and properly secured the buyer's payments. Id. New GM argues that Jones should be read to mean that manifestation is required because "the plaintiff had no [Alaska CPA] claim until the defect in the documents (the absence of a security interest) actually manifested and harmed plaintiff, even though plaintiff had not received the benefit of his bargain (a sale agreement with a security interest) several years earlier." (Docket No. 5191 ("New GM Resp."), at 12-13).
The Court, however, reads Jones differently. This Court previously held that Plaintiffs who sold their vehicles at an allegedly still-inflated value before a defect became public did not have valid claims for economic loss because they had suffered no damages. See FACC Supp. Op. , 2017 WL 3443623 , at *2 ("[A] plaintiff who is injured at one point in time by a defendant's conduct does not necessarily suffer cognizable damages at that same time for purposes of an economic loss claim."). The Court reads Jones to hold something similar - that the plaintiff had no Alaska CPA claim before the tax liens because he had suffered no actual damages until the defect in his sales document became unfixable. See also Cozzetti v. Madrid , No. S-15117, 2017 WL 6395736 , at *8-9 & nn.53, 55 (Alaska Dec. 13, 2017) (finding that Madrid "suffer[ed] an ascertainable loss of money or property" when "Cozzetti's misrepresentation of Madrid as a renter damaged Madrid by leading the district court to improperly grant judgment against him without jurisdiction" but Madrid suffered no "ascertainable loss" where a misrepresentation of ownership had no "impact on Madrid's decision to purchase the mobile home" (alteration in original) (emphasis added) ). The Court does not read Jones to suggest that the Alaska Supreme Court would adopt a manifestation requirement.
ii. Colorado
The Colorado Supreme Court has stated that the Colorado Consumer Protection Act ("Colorado CPA") has a "broad legislative purpose ... to provide prompt, economical, and readily available remedies against consumer fraud." Showpiece Homes Corp. v. Assurance Co. of Am. , 38 P.3d 47 , 50-51 (Colo. 2001), as modified on denial of reh'g (Jan. 11, 2002). Although the "[Colorado CPA] is silent as to specific injuries for which it intends to provide a remedy," Hall v. Walter , 969 P.2d 224 , 234 (Colo. 1998), at least one federal district court has suggested that a plaintiff would have a cognizable claim under the Colorado CPA "to the extent she paid for a *279 product and got something less than what was promised," Boyd v. Johnson & Johnson Consumer Cos. , No. 09-CV-3135 (DMC), 2010 WL 2265317 , at *7 (D.N.J. May 31, 2010), reconsideration granted on other grounds , No. 09-CV-3135 (DMC), 2010 WL 3024845 (D.N.J. Aug. 2, 2010). In light of that decision, and the "broad legislative purpose" of the statute, the Court concludes that manifestation is not required to state a claim under the Colorado CPA.
In arguing otherwise, New GM relies on Edwards v. Zenimax Media Inc. , No. 12-CV-00411 (WYD), 2012 WL 4378219 (D. Colo. Sept. 25, 2012). ( See Docket No. 5098 ("New GM Br."), at 12-13). In that case, involving an allegedly defective videogame, the court declined to certify a class on ascertainability grounds, concluding that the proposed class would inevitably include members who had in fact suffered no benefit-of-the-bargain damages. See id. at *5. But to the extent relevant here, that was true because the proposed class included those who bought a used copy of the video game and then gave it away, and such a purchaser "would neither have experienced the alleged Defect nor suffered from a decreased secondary market value." Id. (emphasis added). If anything, therefore, the court suggested that a purchaser who could prove "a decreased secondary market value" - that is, benefit-of-the-bargain damages - would have a viable Colorado CPA claim even without "experienc[ing]" (that is, manifesting) a defect. 2
iii. Kansas
The Kansas Consumer Protection Act ("Kansas CPA") provides that a "consumer who is aggrieved by a violation of [the Kansas CPA] may recover ... damages or a civil penalty." Kan. Stat. Ann. § 50-634 (b) ; see Lowe v. Surpas Res. Corp. , 253 F.Supp.2d 1209 , 1227 (D. Kan. 2003). According to the Kansas Supreme Court, "[a] party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of some burden or obligation." Finstad v. Washburn Univ. of Topeka , 252 Kan. 465 , 472, 845 P.2d 685 (1993) (internal quotation marks omitted) (citing Fairfax Drainage Dist. v. Kansas City , 190 Kan. 308 , 308, 374 P.2d 35 (1962) ). Moreover, the Kansas Supreme Court has described the Kansas CPA as a statute that "expressly provides that it is to be construed liberally in order to protect consumers from suppliers who commit deceptive and unconscionable practices," and explained that "a consumer need not establish measurable monetary damages to qualify as aggrieved." Via Christi Reg'l Med. Ctr., Inc. v. Reed , 298 Kan. 503 , 519, 314 P.3d 852 (2013).
Although the Kansas Supreme Court has not explicitly ruled on the issue, two federal court decisions have allowed Kansas CPA claims to proceed even without proof of a manifested defect. In Gonzalez v. PepsiCo, Inc. , 489 F.Supp.2d 1233 (D. Kan. 2007), for example, the plaintiffs alleged that beverages manufactured or distributed by the defendants "had a tendency to contain benzene" at elevated levels, but did "not allege that any of the beverage products which they purchased and consumed actually contained benzene or that they [had] suffered any personal injuries." Id. at 1239 . Nevertheless, the court held that the plaintiffs had "alleged a defect in defendants' beverage products *280 which ... reduced their value so as to cause plaintiffs economic loss" and that such a loss sufficed to state a claim under the Kansas CPA. Id. at 1248 ; see id. (noting that "nothing in established case law ... suggests that a claim under the Kansas CPA cannot be maintained on the basis of economic harm"). Along similar lines, the court in Nieberding v. Barrette Outdoor Living, Inc. , 302 F.R.D. 600 (D. Kan. 2014), certified a class alleging "economic damages resulting from the difference between the railing products as warranted and their value in light of ... allegedly defective brackets," id. at 606 - even though the alleged defect "remain[ed] latent for the majority of class members," id. at 611-12 . 3
Finstad , upon which New GM principally relies, does not support a contrary conclusion. In that case, a group of students sought damages from the Washburn University of Topeka for falsely stating in its course catalog that it had an accredited program in court reporting. But while "[t]he students claimed that they were aggrieved because they paid tuition for a program that was not accredited, ... they [did] not claim that they were induced to enroll in the program by the false statement that it was accredited." Id. at 467 , 845 P.2d 685 . In fact, they stipulated "that no Plaintiff relied upon defendant's representation of approval/accreditation." Id. Faced with those facts, the Kansas Supreme Court held that the students had failed to demonstrate a causal connection between the university's misconduct and their injuries and, thus, were not "aggrieved" within the meaning of the Kansas CPA. Id. at 474 , 845 P.2d 685 . Put differently, the Court held that the students could not recover the benefit of a bargain they had never struck; it did not hold that benefit-of-the-bargain damages are unavailable in the absence of a manifested defect. 4
iv. Mississippi
Under Mississippi's Consumer Protection Act ("Mississippi CPA"), a plaintiff who "suffers any ascertainable loss of money or property" due to deceptive or unfair trade practices can "recover such loss of money or damages." Miss. Code Ann. § 75-24-15 (1) ; see In re Mississippi Medicaid Pharm. Average Wholesale Price Litig. , 190 So.3d 829 , 841 (Miss. 2015) (noting that the purpose of the Mississippi CPA is "to protect the citizens of Mississippi from deceptive and unfair trade practices" (internal quotation marks and citations omitted) ). At least one case suggests that the Mississippi Supreme Court would be open to allowing a Mississippi CPA claim even without a manifested defect. In Holman v. Howard Wilson Chrysler Jeep, Inc. , 972 So.2d 564 (Miss. 2008), that Court considered a Mississippi CPA claim against a car dealership that had misrepresented as "new" a vehicle that "had been in a wreck and was repaired prior to their purchase." Id. at 567 . The plaintiffs did not allege that the vehicle had manifested any defect because of the prior accident, and the intermediate appellate court had granted summary judgment to the defendants in part because the plaintiffs had "failed to show any connection with the prior damage to the damages they allegedly suffered." Id. at 567-68 . The Mississippi Supreme Court reversed, and allowed the plaintiffs' Mississippi CPA claims to go forward. It did not *281 explicitly state that a Mississippi CPA claim did not require manifestation, but it did consider - and implicitly reject - the defendants' argument that "the Holmans suffered no damages due to the [dealership's] failure to disclose." Id. at 568 .
The federal district court cases upon which New GM relies are irrelevant because they do not pertain to the Mississippi CPA; nor, for that matter, do they cite any Mississippi law to support their conclusions that manifestation is required under the Mississippi CPA. See Jarman v. United Indus. Corp. , 98 F.Supp.2d 757 (S.D. Miss. 2000) (analyzing negligent misrepresentation, breach of implied and express warranties, fraud, and unjust enrichment claims); Lee v. Gen. Motors Corp. , 950 F.Supp. 170 (S.D. Miss. 1996) (analyzing negligence, strict liability, implied warranty, and intentional infliction of emotional distress claims). New GM also urges the Court not to "ignore" the Seventh Circuit's decision in In re Bridgestone/Firestone, Inc. , 288 F.3d 1012 (7th Cir. 2002). (New GM Resp. 8). But the Bridgestone/Firestone Court did not analyze any Mississippi law. See In re Bridgestone/Firestone , 288 F.3d at 1017 . It did suggest that Briehl , had analyzed Mississippi law, Bridgestone/Firestone , 288 F.3d at 1017 , but Briehl merely cites to Lee v. General Motors Corp. - which does not analyze the Mississippi CPA. See Briehl , 172 F.3d at 627 ; Lee , 950 F.Supp. at 172 . Accordingly, the Seventh Circuit's decision does not support the weight that New GM puts upon it.
v. Montana
Montana's Unfair Trade Practices and Consumer Protection Act ("Montana CPA") provides a remedy for "[a] consumer who suffers any ascertainable loss of money or property" as the result of "unfair or deceptive act or practices in the conduct of any trade or commerce." Mont. Code Ann. §§ 30-14-103 , 133(1). "[A] consumer may sue under the act if he or she has suffered any ascertainable loss of money or property as the result of an unfair practice." Jacobson v. Bayview Loan Servicing, LLC , 383 Mont. 257 , 272, 371 P.3d 397 (2016) (internal quotation marks and citations omitted). "[T]he purpose of the [Montana] CPA is to protect the public from unfair or deceptive practices." Tripp v. Jeld-Wen, Inc. , 327 Mont. 146 , 156, 112 P.3d 1018 (2005) (internal quotation marks omitted). "An award of damages may benefit the plaintiffs in a case, but its remedial nature also serves as notice to all that violations of the [Montana CPA] are consequential and will not be tolerated." Jacobson , 383 Mont. at 278 , 371 P.3d 397 . The Montana courts do not appear to have addressed whether manifestation is required under the Montana CPA. The Montana Supreme Court, however, has defined "ascertainable loss" broadly. See, e.g., Puryer v. HSBC Bank USA, N.A. , 391 Mont. 361 , 375, 419 P.3d 105 (2018) (describing how the Montana Supreme Court has rejected arguments that an "ascertainable loss of money and property" under the Montana CPA requires a showing of "actual damages" and finding that lost opportunities to save a home and negative impact to one's credit were both "sufficient to establish a pecuniary loss" under the Montana CPA). In the absence of any contrary authority, and in light of the statute's broad purpose, the Court predicts that the Montana Supreme Court would not require a manifested defect to state an "ascertainable loss" under the Montana CPA.
vi. Nevada
Under the Nevada Deceptive Trade Practices Act ("Nevada DTPA"), "[a]n action may be brought by any person who is a victim of consumer fraud." Nev. Rev. Stat. § 41.600 (1). If the claimant prevails, the Court shall award that party "[a]ny damages that he has sustained."
*282 Id. §§ 41.600(3), (3)(a). There is a surprising dearth of authority on the Nevada DTPA's breadth and construction. The Court thus relies on the statute alone, applying Nevada's rules of statutory construction. Cf. In re Goldman , 70 F.3d 1028 , 1029 (9th Cir. 1995). Under Nevada's first rule of statutory interpretation, "if a statute is clear and unambiguous," the court must give "effect to the plain and ordinary meaning of the statute's language, and ... not resort to the rules of statutory construction." HSBC Bank, N.A. v. Stratford Homeowners Ass'n , No. 15-CV-01259 (JAD), 2016 WL 1555716 , at *2 (D. Nev. Apr. 14, 2016). The Nevada DTPA awards "[a]ny damages that" a person who is a victim of consumer fraud (as defined by the Nevada DTPA) "has sustained." Nev. Rev. Stat. Ann. § 41.600 (3)(a). The only limitation suggested by the statute's language is that the claimant must have "sustained ... damages" as the result of "consumer fraud." See also Picus v. Wal-Mart Stores, Inc. , 256 F.R.D. 651 , 658 (D. Nev. 2009) (holding that a private Nevada DTPA claim requires "damage to the plaintiff"). There is nothing in the language of the statute to suggest that a manifested defect should be required.
vii. New Jersey
To state a claim under the New Jersey Consumer Fraud Act ("New Jersey CFA"), a plaintiff must demonstrate an " 'ascertainable loss of moneys or property, real or personal' as a result of a practice in violation of the [New Jersey CFA]." Thiedemann v. Mercedes-Benz USA, LLC , 183 N.J. 234 , 238, 872 A.2d 783 , 786 (2005) (quoting N.J. Stat. Ann. § 56:8-19 ). To qualify as ascertainable, loss must be "quantifiable or measurable." Id. at 248 , 872 A.2d 783 . "In cases involving ... misrepresentation," however, "either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle." Id. That definition aligns with the statute's "broad ... protection ... envisioned by the [New Jersey] legislature and ... recognized by the Supreme Court of New Jersey." Maniscalco v. Brother Int'l Corp. (USA) , 627 F.Supp.2d 494 , 502 (D.N.J. 2009) (citing Gennari v. Weichert Co. Realtors , 148 N.J. 582 , 604, 691 A.2d 350 (1997) ("The history of the [New Jersey CFA] is one of constant expansion of consumer protection."); Lemelledo v. Beneficial Mgmt. Corp. of Am. , 150 N.J. 255 , 264, 696 A.2d 546 (1997) ("The language of the [New Jersey CFA] evinces a clear legislative intent that its provisions be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud.") ).
The New Jersey Supreme Court has not spoken directly to the issue of manifestation, but its decision in Thiedemann provides some reason to conclude that it would not impose a manifestation requirement. In that case, the plaintiffs brought claims against Mercedes-Benz for the cost of repair for fuel gauges that had manifested a defect, as well as for the possible future diminution in the value of vehicles whose fuel gauges had since been repaired and had exhibited no defects since. See 183 N.J. at 244 , 252 , 872 A.2d 783 . The New Jersey Supreme Court held that the plaintiffs had failed to plead a [New Jersey CFA] claim for two reasons. First, the plaintiffs' defective fuel gauges had already been repaired "at no cost to the [plaintiffs]" through their warranty. Id. at 251, 872 A.2d 783 . Second, the plaintiffs presented no evidence of a present diminution in value; a "future hypothetical diminution in [the] value" of the plaintiffs' cars "due to a fuel gauge that at one time did not read properly a full tank of gasoline" was "too speculative" to satisfy the New Jersey CFA's requirement of "a quantifiable or otherwise measureable loss." Id. at 252, 872 A.2d 783 (first emphasis added). Notably, however, the problem with the *283 plaintiffs' "loss in value" claim was not the absence of manifestation, but rather the absence of any present diminution in value. Id. at 244, 872 A.2d 783 . Indeed, the New Jersey Supreme Court noted that if the plaintiffs had presented sufficiently reliable "expert evidence to support an inference of loss in value ..., i.e. , that the resale market for the specific vehicle had been skewed by the 'defect,' " the claim may have gone forward. Id. at 252, 872 A.2d 783 .
Following Thiedemann , courts have generally allowed New Jersey CFA claims to go forward even without a manifested defect. See In re Ford Motor Co., Spark Plug & 3-Valve Engine Prod. Liab. Litig. , No. 1:12-MD-2316, 2014 WL 3778592 , at *28, *44 (N.D. Ohio July 30, 2014) (discussing Thiedemann and permitting a New Jersey CFA claim to go forward where the plaintiffs alleged a defect causing some, but not all, spark plugs in certain Ford models to break); Strzakowlski v. Gen. Motors Corp. , No. CIV.A. 04-4740, 2005 WL 2001912 , at *2, *7 (D.N.J. Aug. 16, 2005) (discussing Thiedemann and denying a motion to dismiss class allegations where all members of the class alleged that their cars contained a defect in the form of "a poorly designed plastic manifold-plenum" but not all class members had "experienced a coolant leak" as a result of that defect). That conclusion is reinforced by the fact that Thiedemann itself favorably cited a New Jersey trial court opinion in which the court had explicitly stated that plaintiffs need not plead manifestation under the New Jersey CFA. See Thiedemann , 183 N.J. at 252 n.8, 872 A.2d 783 (citing Talalai v. Cooper Tire & Rubber Co. , 360 N.J. Super. 547 , 823 A.2d 888 (Law. Div. 2001), as an example of a case in which "[s]ufficient proof of an ascertainable loss in respect of the 'lost bargain' was present"); see also Talalai , 360 N.J. Super. at 564 , 823 A.2d 888 (rejecting the defendants' contention that "a product defect that has not manifested itself is not a claim for which a court can provide relief" under the New Jersey CFA).
In arguing that the New Jersey CFA requires manifestation, New GM relies primarily on Perkins v. DaimlerChrysler Corp. , 383 N.J. Super. 99 , 890 A.2d 997 (App. Div. 2006), and several federal court opinions that have adopted or expanded its reasoning. (GM Br. 9-10). But Perkins is not binding here and, even if it were, the Court concludes that it is inapposite for several reasons. First, Perkins 's holding - that a defect that does not manifest itself until after the expiration of warranty cannot support a claim under the New Jersey CFA - does not follow from Thiedemann , which held only that defects already "addressed by warranty" do not provide a predicate "loss" under the New Jersey CFA. See Thiedemann , 183 N.J. at 251 , 872 A.2d 783 ; cf. Asp v. Toshiba Am. Consumer Prods., LLC , 616 F.Supp.2d 721 , 737 (S.D. Ohio 2008) (" Thiedemann does not stand for the proposition ... that a plaintiff must avail himself of remedies under a limited warranty to have an ascertainable loss under the [New Jersey CFA]."). Second, Perkins specifically declined to address cases, such as this one, "in which safety concerns might be implicated." Perkins , 383 N.J. Super. at 111 -12 , 890 A.2d 997 . And finally, Perkins and its progeny rest on the proposition that recognizing New Jersey CFA claims for defects that do not appear before the end of a warranty would "extend the warranty period beyond that to which the parties agreed." Noble v. Porsche Cars N. Am., Inc. , 694 F.Supp.2d 333 , 338 (D.N.J. 2010) (internal quotation marks omitted); see also Perkins , 383 N.J. Super. at 113 , 890 A.2d 997 . In other words, the courts assumed that consumers receive the benefit of their bargain where no defects arise before the end of the warranty. But when a manufacturer or seller has acted fraudulently, *284 consumers cannot be said to have gotten the benefit of their bargain "because parties to a contract do not usually treat the chance that they are lying to each other as a subject for their contract to allocate." Restatement (Third) of Torts: Liability for Economic Harm § 9 (Tentative Draft No. 2, 2014); see also Maniscalco , 627 F.Supp.2d at 501-02 (noting that the plaintiff in Perkins did not allege that the defendant knew of the alleged product defect and predicting that the New Jersey Supreme Court would not find the New Jersey CFA "categorically inapplicable" were it was "faced with a situation where a manufacturer or seller ... intentionally concealed [a product defect] from a purchaser, with the purpose of maximizing profit"); Mickens v. Ford Motor Co. , 900 F.Supp.2d 427 442-43 (D.N.J. 2012) (holding that the warranty coverage of a potential defect does not, as a matter of law, negate a knowing omission claim under the New Jersey CFA); see also Coba v. Ford Motor Co. , No. 12-1622 (DRD), 2013 WL 244687 , at *9 (D.N.J. Jan. 22, 2013) ("The notion that a manufacturer would be absolved from liability for knowingly omitting a defect because it acknowledges the possibility of defects in its warranty is both illogical and contrary to the spirit of the [New Jersey CFA].").
viii. New Mexico
New Mexico's Unfair Trade Practices Act ("New Mexico UTPA") provides that "[a]ny person who suffers any loss of money or property," as a result of a statutory violation, may "recover actual damages or the sum of one hundred dollars ($100), whichever is greater." N.M. Stat. Ann. § 57-12-10 (B). Because "the [New Mexico UTPA] constitutes remedial legislation," the New Mexico Supreme Court "interpret[s] the provisions of this Act liberally to facilitate and accomplish its purposes and intent." Truong v. Allstate Ins. Co. , 147 N.M. 583 , 591, 227 P.3d 73 (2010) (internal quotation marks omitted). Consistent with that, the New Mexico Supreme Court has held that a party may recover the "diminution of value to [a] vehicle" caused by a violation of the New Mexico UTPA. Hale v. Basin Motor Co. , 110 N.M. 314 , 319, 795 P.2d 1006 (1990) ; see also Lohman v. Daimler-Chrysler Corp. , 142 N.M. 437 , 446, 166 P.3d 1091 (2007) ("An award of monetary damages may be premised upon [a diminution in value]."). It is true that in Lohman , the plaintiffs alleged manifestation, see Lohman , 142 N.M. at 446 , 166 P.3d 1091 , but nothing in the Court's decision - or any other decision applying New Mexico law - suggests that manifestation is required to recover under the New Mexico UTPA.
b. "Actual Damages"
Next, the Court turns to thirteen states in which the consumer protection statute limits recovery to "actual damages." Invoking this Court's prior conclusion that the Oklahoma Consumer Protection Act ("Oklahoma CPA") requires proof of manifestation, see TACC Op. , 2016 WL 3920353 at *36, New GM contends that manifestation should be required if a state's consumer protection statute allows recovery only for "actual damages." ( See New GM Br. 19-20). But New GM puts too much weight on the term "actual damages," which "has often been defined broadly in common-law cases, and in [United States Supreme Court cases], to include all compensatory damages." FAA v. Cooper , 566 U.S. 284 , 299, 132 S.Ct. 1441 , 182 L.Ed.2d 497 (2012). More to the point, New GM distorts this Court's prior decision. The Court's conclusion about the Oklahoma CPA was not based solely on the "actual damages" element of the statute. It was based also on case law holding that the Oklahoma CPA "require[d] either a manifested defect or damages beyond a failure to receive the benefit of a bargain." TACC Op. , 2016 WL 3920353 at *36. In the *285 absence of authority suggesting either that the phrase "actual damages" should be read to have a narrower meaning than "compensatory damages" or that manifestation is required, the Court will not impose a manifestation requirement based solely on the term "actual damages."
i. Arizona
A private plaintiff's relief under the Arizona Consumer Fraud Act ("Arizona CFA") "is limited to the recovery of actual damages suffered as a result of such unlawful act or practice." Peery v. Hansen , 120 Ariz. 266 , 270, 585 P.2d 574 (Ct. App. 1978). The Arizona CFA is nonetheless "a broadly drafted remedial provision," In re Arizona Theranos, Inc., Litig. , 256 F.Supp.3d 1009 , 1022 (D. Ariz. 2017) (quoting State ex rel. Woods v. Hameroff , 180 Ariz. 380 , 884 P.2d 266 (1994) (internal quotation marks omitted) ), which "prohibits fraudulent, deceptive, or misleading conduct in connection with the sale or advertisement of consumer goods and services," Schellenbach v. GoDaddy.com, LLC , 321 F.R.D. 613 , 619 (D. Ariz. 2017).
The Arizona Supreme Court has not directly addressed manifestation under the Arizona CFA, but at least two recent district court decisions support Plaintiffs' argument that the statute does not require manifestation. See Cheatham v. ADT Corp. , 161 F.Supp.3d 815 , 820-22, 831 (D. Ariz. 2016) (holding that the plaintiff's allegation that she would not have purchased an allegedly defective wireless security system but for the defendant's misrepresentations was "sufficient to establish the damages element" of an Arizona CFA claim where the plaintiff had not alleged that the defect - lack of encryption or authentication - had manifested in any harm to herself or her home) (citing Parks v. Macro-Dynamics, Inc. , 121 Ariz. 517 , 521, 591 P.2d 1005 (Ct. App. 1979) ); In re Arizona Theranos, Inc., Litig. , 256 F.Supp.3d 1009 , 1028 (D. Ariz. 2017), (analyzing Arizona cases to uphold an Arizona CFA claim where the plaintiffs alleged no injury other than that they "would not have purchased Theranos blood tests if they had known that defendants were using their blood samples for research and product development") reconsideration granted in part on other grounds , No. 2:16-CV-2138 (HRH), 2017 WL 4337340 (D. Ariz. Sept. 29, 2017).
New GM's sole argument to the contrary rests on Arizona CFA's "actual damages" requirement. ( See New GM Br. 19 & n.14 (citing Peery , 120 Ariz. 266 at 270, 585 P.2d 574 ; Rich v. Bank of Am., N.A. , 666 F. App'x 635 , 638-39 (9th Cir. 2016) ) ). As discussed, however, that is not enough to imply a requirement of manifestation. (Indeed, the court in Peery used the phrase "actual damages" in order to differentiate the damages owed a private plaintiff from civil penalties that could be sought in an action by the state, not to suggest that manifestation was required. Peery , 120 Ariz. at 270 , 585 P.2d 574 .)
ii. Connecticut
Under the Connecticut Unfair Trade Practices Act ("Connecticut UTPA"), "[a]ny person who suffers any ascertainable loss of money or property" as a result of a violation may "recover actual damages." Conn. Gen. Stat. Ann. § 42 -110g. The Connecticut Supreme Case has defined an "ascertainable loss" under the Connecticut UTPA broadly, as "a loss that is capable of being discovered, observed or established .... The term 'loss' necessarily encompasses a broader meaning than the term 'damage,' and has been held synonymous with deprivation, detriment and injury." Artie's Auto Body, Inc. v. Hartford Fire Ins. Co. , 287 Conn. 208 , 217-18, 947 A.2d 320 (2008) (internal quotation marks and brackets omitted) (citing Hinchliffe v. Am. Motors Corp. , 184 Conn. 607 , 613-14, 440 A.2d 810 (1981) ). The *286 Connecticut Supreme Court has thus held that "the words 'any ascertainable loss' ... do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." Hinchliffe , 184 Conn. at 612 -13 , 440 A.2d 810 .
Hinchliffe itself strongly suggests that the Connecticut Supreme Court does not require manifestation to satisfy the Connecticut UTPA. See In re Bridgestone\Firestone, Inc. Tires Prods. Liab. Litig. 155 F.Supp.2d 1069 , 1097 (S.D. Ind. 2001), rev'd on other grounds , 288 F.3d 1012 (7th Cir. 2002) (citing Hinchliffe as an example of a case holding that a state consumer protection statute does not require manifestation). In Hinchliffe , the plaintiffs alleged that the defendant had advertised a vehicle as a "four-wheel drive," when the vehicle actually had "a system for transmitting power to the wheels using a limited slip differential mechanism" that could "under certain circumstances" result in a loss of traction. Hinchliffe , 184 Conn. at 611 , 440 A.2d 810 . It is unclear whether the plaintiffs ever experienced the defect. What is clear is that manifestation played no role in the court's holding that the consumer suffered an "ascertainable loss" under the Connecticut UTPA where he "received something other than what he bargained for .... To the consumer who wishes to purchase an energy saving subcompact, for example, it is no answer to say that he should be satisfied with a ... gas guzzler." Id. at 614 , 440 A.2d 810 . Meanwhile, Neighborhood Builders, Inc. v. Town of Madison , 294 Conn. 651 , 656-58, 986 A.2d 278 (2010), the one case cited by New GM ( see New GM Br. 19 n.14), does not suggest that the Connecticut UTPA has a manifestation requirement.
iii. Iowa
There is relatively little case law addressing Iowa Private Right of Action for Consumer Frauds Act ("Iowa CFA"), if only because it was enacted relatively recently. See 2009 Iowa Acts 671 . Under the Iowa CFA, "[a] consumer who suffers an ascertainable loss of money or property as the result of" a statutory violation may "recover actual damages." Iowa Code Ann. § 714H.5. The Act itself defines "actual damages" as "all compensatory damages proximately caused by the prohibited practice or act that are reasonably ascertainable in amount." Iowa Code Ann. § 714H.2. New GM urges the Court to read "actual damages" to require manifestation based on the Court's decision with respect to Oklahoma. But New GM cites no Iowa case law suggesting such a requirement. New GM points to McKee v. Isle of Capri Casinos, Inc. 864 N.W.2d 518 , 532-33 (Iowa 2015), in which the Iowa Supreme Court held that the plaintiff - who won $1.85 using a penny slot machine, but also received an erroneous message from the machine that she was entitled to a "bonus award" of approximately $41 million - had suffered no "ascertainable loss" under the Iowa CFA where she experienced no "out-of-pocket loss." ( See New GM Br. 19 n.14). But the reason the plaintiff suffered no "ascertainable loss" due to the casino's refusal to pay her the $41 million bonus was because, under the rules of the game, she had no right to a bonus in the first place. See McKee , 864 N.W.2d at 532 -33 . The Court's holding therefore provides little guidance for this Court's purposes.
More guidance, however, may be found in the McKee Court's discussion of a Missouri case upholding casino patrons' claims for fraud under a statute that, "much like Iowa's, required the plaintiffs to have suffered an 'ascertainable loss.' " Id. at 533 . The Missouri court found that casino patrons had suffered "ascertainable loss" where the casino had in fact misrepresented the rules of the game, thus reducing the value of the merchandise the plaintiffs *287 purchased when they dropped a token into a gambling machine. Raster v. Ameristar Casinos, Inc. , 280 S.W.3d 120 , 130-31 (Mo. Ct. App. 2009). Notably, the Iowa Supreme Court did not reject Raster 's reasoning that purchasing a product whose actual value fell short of what was represented would constitute an ascertainable loss under a consumer fraud statute like Iowa's. Instead, the Court held that Raster did not apply because, in McKee , the casino had not misrepresented the rules of the game. See McKee , 864 N.W.2d at 533 ("This is not a situation as in Raster where the casino changed the rules of the game after the plaintiffs had spent money and accumulated points, which were now devalued by the casino's rule changes .... Rather, in this case, the rules of the game did not provide for the bonus in question and McKee therefore did not suffer an 'ascertainable loss' when the casino refused to pay it. See Iowa Code § 714H.5(1)."). The Court's consideration of Raster suggests that the Iowa Supreme Court is open to the argument that a loss of the benefit of one's bargain constitutes an "ascertainable loss" under the Iowa CFA. Also significant is this Court's determination, discussed below, that Iowa courts do not require manifestation for purposes of common-law fraud, as the Iowa Supreme Court has stated that Iowa's Consumer Fraud Act, Iowa Code Ann. § 714.16 - for which the Iowa CFA provides a private right of action - "provides broader protection to the citizens of Iowa" than common-law fraud. State ex rel. Miller v. Hydro Mag, Ltd. , 436 N.W.2d 617 , 622 (Iowa 1989) (emphasis added).
iv. Kentucky
The Kentucky Consumer Protection Act ("Kentucky CPA") provides that a court may "award actual damages" to an individual who suffers "any ascertainable loss of money or property," as a result of a statutory violation. Ky. Rev. Stat. Ann. § 367.220 . While the Kentucky courts have not directly addressed what constitutes "ascertainable loss" under the Kentucky CPA, case law suggests that manifestation is not a requirement. In Smith v. Gen. Motors Corp. , 979 S.W.2d 127 , 131 (Ky. Ct. App. 1998), for example, the Kentucky Court of Appeals held that a jury could find that it was a violation of the Kentucky CPA to sell a vehicle as "new" and fail to disclose its pre-sale repair history - even though there were no allegations of a manifested defect. See also Craig & Bishop, Inc. v. Piles , 247 S.W.3d 897 , 905 n.13 (Ky. 2008) (citing Smith with approval). The Sixth Circuit later followed Smith 's reasoning in a case involving a plaintiff who purchased a 2004 Ford truck that, unbeknownst to him, contained a 2003 engine with "widely-known problems." Corder v. Ford Motor Co. , 285 F. App'x 226 , 229 (6th Cir. 2008). Although the plaintiff did not allege a manifested defect, the Sixth Circuit held that he may have suffered an " 'ascertainable loss of money or property' within the meaning of the [Kentucky CPA]" because the value of the truck with the 2003 engine was less than represented. Id. at 229-30 ("[I]n Smith , the Kentucky Court of Appeals reversed a summary judgment for General Motors, holding that 'a fact finder might reasonably conclude that the sale of the van as "new" without disclosure of its pre-sale history constituted a false, misleading or deceptive act.' ").
On top of that, "Kentucky courts construe the [Kentucky CPA] 'broadly to effectuate its purpose of curtail[ing] unfair, false, misleading or deceptive practices in the conduct of commerce.' " Id. at 228 (quoting Commonwealth ex rel. Chandler v. Anthem Ins. Cos. , 8 S.W.3d 48 , 54 (Ky. Ct. App. 1999) ) (some internal quotation marks omitted); Stevens v. Motorists Mut. Ins. Co. , 759 S.W.2d 819 , 821 (Ky. 1988) ("[T]he Kentucky legislature created [the Kentucky CPA] which has the broadest *288 application in order to give Kentucky consumers the broadest possible protection for allegedly illegal acts."). New GM does not cite any authority to the contrary. Indeed, all of its cited cases concern common-law tort claims, not the [Kentucky CPA]. ( See New GM Br. 11 (citing Line v. Astro Mfg. Co. , 993 F.Supp. 1033 , 1038 (E.D. Ky. 1998) ; Wood v. Wyeth-Ayerst Labs. , 82 S.W.3d 849 , 851, 854 (Ky. 2002) ; Bridgestone/Firestone, 288 F.3d at 1017 ; Capital Holding Corp. v. Bailey , 873 S.W.2d 187 , 192 (Ky. 1994) ) ).
v. Maine
Under the Maine Unfair Trade Practices Act ("Maine UTPA"), a plaintiff who "suffers any loss of money or property" due to a violation of the statute may bring an action for "actual damages." Me. Rev. Stat. tit. 5, § 213. The Maine Supreme Court has provided a broad rationale for why the Maine legislature required that a plaintiff "suffer[ ] a loss," explaining that the legislature wanted to ensure that the plaintiff was "personally [ ]affected" by the "misrepresentation of a product or service." Bartner v. Carter , 405 A.2d 194 , 201-02 (Me. 1979). The Maine courts have made clear that a plaintiff must demonstrate "pecuniary loss," Bowen v. Ditech Fin. LLC , No. 2:16-CV-00195 (JAW), 2017 WL 4183081 , at *17 (D. Me. Sept. 20, 2017), but New GM does not cite, and the Court has not found, any case law suggesting that the Maine UTPA requires a manifested defect. Accordingly, the Court will not impose one.
vi. Nebraska
Nebraska's Consumer Protection Act ("Nebraska CPA") provides that a plaintiff who has been "injured" by a violation of the statute may recover "actual damages ... and the court may in its discretion, increase the award of damages to an amount which bears a reasonable relation to the actual damages which have been sustained and which damages are not susceptible of measurement by ordinary pecuniary standards." Neb. Rev. Stat. Ann. § 59-1609 . The Nebraska Supreme Court has stated that "the [Nebraska CPA] should be liberally construed to effect its purpose." Kuntzelman v. Avco Fin. Servs. of Nebraska, Inc. , 206 Neb. 130 , 134, 291 N.W.2d 705 (1980) (quoting Dick v. Att'y Gen. , 83 Wash. 2d 684 , 688, 521 P.2d 702 (1974) ); see also Powers v. Credit Mgmt. Servs., Inc. , No. 8:11-CV-436, 2012 WL 7798959 , at *4 (D. Neb. Aug. 31, 2012) ("The [Nebraska CPA] ... is remedial consumer legislation which is to be liberally construed."). The Supreme Court of Nebraska has also noted that "[t]he goal [of the Nebraska CPA] is to establish a uniform standard of conduct so that businesses will know what conduct is permitted and to protect the consumer from illegal conduct." Arthur v. Microsoft Corp. , 267 Neb. 586 , 598, 676 N.W.2d 29 (2004) ; see also Bassett v. Credit Bureau Servs., Inc. , 309 F.Supp.3d 733 , 738 (D. Neb. 2017). In the absence of any authority suggesting a manifestation requirement, and in light of the Nebraska CPA's broad remedial and deterrent purpose, the Court finds that the Nebraska CPA does not require manifestation.
vii. Ohio
The Ohio Supreme Court has held that plaintiffs bringing class-action suits under Ohio's Consumer Sales Practices Act ("Ohio CSPA") "must allege and prove that actual damages were proximately caused by the defendant's conduct." Felix v. Ganley Chevrolet, Inc. , 145 Ohio St. 3d 329 , 335, 49 N.E.3d 1224 (2015). The Court has defined "actual damages" as "equivalent" to "compensatory damages," which can "consist of both economic and noneconomic damages." Whitaker v. M.T. Auto., Inc. , 111 Ohio St. 3d 177 , 183, 855 N.E.2d 825 (2006). That definition is in line *289 with the language of the statute, which states that a consumer may recover "actual economic damages" under the Ohio CSPA. Ohio Rev. Code Ann. § 1345.09 . Given the Ohio CSPA's overt endorsement of "economic damages," it is perhaps unsurprising that courts interpreting the Ohio CSPA have not required a manifested defect. See Blankenship v. CFMOTO Powersports, Inc. , 161 Ohio Misc. 2d 5 , 11, 944 N.E.2d 769 (Ohio Ct. Com. Pl. 2011) (finding, in a case involving allegations of an unsafe braking system but not of manifestation, that "the plaintiff and proposed class members need not allege an actual physical injury, but are instead required under the [Ohio CSPA] to allege some type of injury, whether economic or noneconomic"); Delahunt v. Cytodyne Techs. , 241 F.Supp.2d 827 , 832-33, 835 (S.D. Ohio 2003) (allowing Ohio CSPA claims where class members "placed themselves at 'risk' of harm by purchasing the product," and "suffered harm because they paid for a product that differed from what it was represented to be, and thereby incurred a financial injury," and noting that "[t]he plain language of section 1345.09... indicates that it is the financial harm resulting from the unfair or deceptive transaction that the statute was intended to redress").
New GM argues that, in Felix , the Ohio Supreme Court incorporated a manifestation requirement into the Ohio CSPA's requirement of "actual damages." (New GM Br. 11). The Court is unconvinced. It is true that in listing other state consumer protection statutes that required "actual damages," the Felix Court cited a number of cases that had incorporated a manifestation requirement into their definition of "actual damages." See Felix , 145 Ohio St. 3d at 336 , 49 N.E.3d 1224 (citing Meyer v. Sprint Spectrum L.P. , 45 Cal. 4th 634 , 642-43, 88 Cal.Rptr.3d 859 , 200 P.3d 295 (2009) ; Wallis v. Ford Motor Co. , 362 Ark. 317 , 327-28, 208 S.W.3d 153 (2005) ; Tietsworth v. Harley-Davidson, Inc. , 270 Wis.2d 146 , 169, 677 N.W.2d 233 (2004) ; Frank v. DaimlerChrysler Corp. , 292 A.D.2d 118 , 741 N.Y.S.2d 9 , 12-13 (2002) ; Yu v. Internat'l Bus. Machs. Corp. , 314 Ill. App. 3d 892 , 247 Ill.Dec. 841 , 732 N.E.2d 1173 (2000) ; Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co. , 105 Wash. 2d 778 , 783-84, 792, 719 P.2d 531 (1986) ). But the Ohio Supreme Court also cited Rule v. Fort Dodge Animal Health, Inc. , 607 F.3d 250 , 255 (1st Cir. 2010), in which the First Circuit stated that the owner of a car "whose value was now reduced because of the risk that the doors might malfunction" had a valid "economic injury" claim. Id. at 255 (emphasis added). Furthermore, Felix did not involve a product defect and did not once mention manifestation; the court discussed "actual damages" only to distinguish them from "[t]reble and statutory damages." Felix , 145 Ohio St. 3d at 334 -35 , 49 N.E.3d 1224 . The Court declines to conclude that the Ohio Supreme Court would, without discussion, incorporate a never-before-discussed requirement into a state statute while deciding a case to which such a requirement would not even be applicable.
viii. Oregon
Under Oregon's Unfair Trade Practices Act ("Oregon UTPA"), "a person that suffers an ascertainable loss of money or property, real or personal" as a result of a violation may "recover actual damages or statutory damages of $200, whichever is greater." Or. Rev. Stat. Ann. § 646.638 . The Oregon Supreme Court has not addressed whether the Oregon UTPA requires a manifested defect, but it has suggested that, upon proper proof, a plaintiff may recover for diminished value. In Pearson v. Philip Morris, Inc. , 358 Or. 88 , 361 P.3d 3 (2015), a group of plaintiffs brought an action alleging that, "contrary to defendant's 'lowered tar and nicotine' representation, Marlboro Lights did not deliver *290 lowered tar and nicotine to smokers, but instead delivered the same levels as regular cigarettes," and sought damages for economic loss alone. Id. at 95-96 , 361 P.3d 3 . In evaluating the viability of their diminished value claim, the Oregon Supreme Court explained that an "ascertainable loss" under the Oregon UTPA connotes a loss that is "objectively verifiable, much as economic damages in civil actions must be." Id. at 117 , 361 P.3d 3 . "As required for their private [Oregon UTPA] action," the plaintiffs had asserted that they " 'suffered ascertainable losses ... because they paid for cigarettes they believed were inherently lower in tar and nicotine than defendants' regular cigarettes but received cigarettes that would deliver lowered tar and nicotine only if smoked in particular ways.' " Id. at 118 , 361 P.3d 3 (internal quotation marks omitted). The Supreme Court held, however, that because there was no evidence that Marlboro Lights were priced differently from Marlboro's regular cigarettes, the plaintiffs had not proved diminished value. Id. at 119-20 , 361 P.3d 3 . In so holding, the Supreme Court nonetheless implied that such damages would be available to plaintiffs upon proper proof. See also id. at 144 , 361 P.3d 3 (Walters, J., concurring) ("When a plaintiff establishes that he or she purchased a product that was not as represented and that he or she suffered diminished value as a result, the purchaser demonstrates ascertainable loss sufficient to permit a claim under the [Oregon UTPA]."). The only cases cited by New GM involved common-law claims and are therefore irrelevant. ( See New GM Br. 20 (citing Staley v. Taylor , 165 Or.App. 256 , 994 P.2d 1220 , 1225 (2000) (discussing common-law fraud); Lowe v. Philip Morris USA, Inc. , 344 Or. 403 , 183 P.3d 181 , 184 (2008) (discussing common-law negligence) ) ). New GM has not cited, and this Court has not found, any case law suggesting the Oregon UTPA requires a manifested defect.
ix. Rhode Island
Under Rhode Island's Unfair Trade Practices and Consumer Protection Act ("Rhode Island CPA"), a person who "suffers any ascertainable loss of money or property, real or personal" as the result of a violation may "recover actual damages or two hundred dollars ($200), whichever is greater." R.I. Gen. Laws § 6-13.1-5.2. The Supreme Court of Rhode Island has explained that, in enacting the Rhode Island CPA, "the Legislature intended to declare unlawful a broad variety of activities that are unfair or deceptive, as well as to provide a remedy to consumers who have sustained financial losses as a result of such activities." Long v. Dell, Inc. , 93 A.3d 988 , 1000 (R.I. 2014) (emphasis added) (citing Park v. Ford Motor Co. , 844 A.2d 687 , 692 (R.I. 2004) ). Hence, "the [Rhode Island CPA] is a remedial act and it should be liberally construed." Id. (internal quotation marks and citations omitted). Neither the parties nor this Court have found any case law bearing on manifestation under the Rhode Island CPA. Given the absence of any such authority, and the breadth of the statute, the Court will not impose a manifestation requirement on the Rhode Island CPA.
x. South Dakota
Under South Dakota's Deceptive Trade Practices and Consumer Protection Law ("South Dakota CPL"), "[a]ny person who claims to have been adversely affected" by a violation may "bring a civil action for the recovery of actual damages suffered as a result of such act or practice." S.D. Codified Laws § 37-24-31 . No South Dakota Supreme Court or intermediate appellate case points to the parameters of "adversely affected" or "actual damages." Indeed, no case describes whether the provisions of the South Dakota CPL should be interpreted broadly or narrowly. New GM
*291 nevertheless insists that the Court should find that South Dakota requires manifestation for South Dakota CPL claims based on BP Painting, Inc. v. DaimlerChrysler Corp. , No. 01-350, 2003 WL 26134396 (S.D. Cir. Ct. Mar. 27, 2003), in which the plaintiffs claimed their vehicles were defective because the defendants had not installed "brake shift interlock" ("BSI") devices and the trial court held that the plaintiffs did not have a "legally cognizable tort injury." The Court is not bound by BP Painting , however, and there is good reason not to attribute too much weight to the decision, as the court did not specifically analyze the language of the South Dakota CPL or any South Dakota case law involving the statute. Indeed, the only substantive South Dakota authority the court relied on was a case in which the South Dakota Supreme Court had held that "Class Members must present at least one viable method for computing damages on a class-wide basis." Id. (quoting In re S. Dakota Microsoft Antitrust Litig. , 657 N.W.2d 668 , 677 (S.D. 2003) ).
In any event, the Court does not read BP Painting as broadly as does New GM. ( See New GM Br. 13-14). It is true that the court relied on Ziegelmann v. DaimlerChrysler Corp. , 649 N.W.2d 556 (N.D. 2002), which Plaintiffs concede required a manifested defect, but the trial court did not expressly hold that a manifested defect was required to bring a claim. The court instead adopted Ziegelmann for the proposition that a plaintiff has no injury where his or her only claim was that a "vehicle might malfunction and cause injury in the future." BP Painting , 2003 WL 26134396 . In so finding, the trial court pointed to ways in which the plaintiffs might have satisfied an injury requirement: One was a manifested defect, but another was a diminution in the value of the vehicle. Significantly, the plaintiffs there had provided no evidence of diminution in value; in fact, the court pointed out that class representatives who had sold their cars "admit[ted] that there was no diminution in value due to the [alleged defect]." Id. Nonetheless, dismissing plaintiffs' diminution in value claim because of a lack of proof, the court implied that the plaintiffs would have a cognizable injury if they provided evidence of diminished value. 5
BP Painting is thus aligned with, rather than opposed to, a District of South Dakota case in which the court held that the plaintiffs could seek the cost of replacing pipe that allegedly contained defects making it "subject to premature failure," even though they did not allege that the pipe had in fact failed. Nw. Pub. Serv. v. Union Carbide Corp. , 236 F.Supp.2d 966 , 968 (D.S.D. 2002). In light of the South Dakota *292 CPL's relatively expansive language, and the absence of any contrary authority, the Court finds that South Dakota's South Dakota CPL does not require manifestation.
xi. Tennessee
Under the Tennessee Consumer Protection Act ("Tennessee CPA"), "[a]ny person who suffers an ascertainable loss of money or property," as the result of a violation may "recover actual damages." Tenn. Code Ann. § 47-18-109 . The Tennessee Supreme Court has placed certain limits on the type of loss an individual must suffer under the Tennessee CPA: The loss must be "measurable," Discover Bank v. Morgan , 363 S.W.3d 479 , 496 (Tenn. 2012), and it must "have tangible economic value." Akers v. Prime Succession of Tenn., Inc. , 387 S.W.3d 495 , 509-10 (Tenn. 2012). The Tennessee Supreme Court has thus excluded claims for emotional loss. See id. But the Tennessee Supreme Court has allowed claims where the only loss alleged was a diminution in value. See Morris v. Mack's Used Cars , 824 S.W.2d 538 , 538-39, 541 (Tenn. 1992) (allowing a Tennessee CPA claim to go forward where the seller did not disclose to the purchaser that the truck had been reconstructed and where the purchaser's only claim for damages was a diminution in the vehicle's fair market value); see also Jones v. Buddy Gregg Motor Homes , Inc. , No. 3:08-CV-245, 2011 WL 111242 , at *2 (E.D. Tenn. Jan. 13, 2011) (noting that Tennessee courts "measure the amount of damages [under the Tennessee CPA] by the diminution in value (to the item) caused by the defects"). New GM suggests that Tennessee's requirements of "actual harm" and "tangible economic value" exclude Plaintiffs' claims, but Plaintiffs' overpayment claims easily fit within the scope of damages cognizable under the Tennessee CPA. ( See e.g. , 5ACC ¶ 1202). Moreover, the Tennessee Supreme Court has stated that "[t]he [Tennessee CPA] is to be liberally construed to protect consumers and others from those who engage in deceptive acts or practices." Morris , 824 S.W.2d at 540 .
xii. Washington
Under the Washington Consumer Protection Act ("Washington CPA"), "[a]ny person who is injured in his or her business or property by a violation of [the Washington CPA] .... [may] recover the actual damages sustained by him or her." Wash. Rev. Code Ann. § 19.86.090 . The Washington Supreme Court has stated that the "property injuries compensable under the [Washington CPA] are relatively expansive," Frias v. Asset Foreclosure Servs., Inc. , 181 Wash. 2d 412 , 431, 334 P.3d 529 (2014), and that "the injury requirement is met upon proof the plaintiff's property interest or money is diminished because of the unlawful conduct even if the expenses caused by the statutory violation are minimal," Panag v. Farmers Ins. Co. of Wash. , 166 Wash. 2d 27 , 57, 204 P.3d 885 (2009) (internal quotation marks and citations omitted). New GM has cited and the Court has found no cases suggesting that the Washington CPA requires a manifested defect. Hangman Ridge Training Stables, 719 P.2d at 539 , merely states that the Washington CPA requires a "specific showing of injury." Moreover, the Western District of Washington recently reviewed Washington law to determine whether a manufacturer could be held liable under the Washington CPA for a defect that did not manifest itself until after the expiration of the warranty period and found no such case law. See Carideo v. Dell, Inc. , 706 F.Supp.2d 1122 , 1135 (W.D. Wash. 2010). "[A]bsent a signal from Washington courts," the district court refused to impose such a requirement. This Court follows that court's lead.
xiii. West Virginia
The West Virginia Consumer Credit and Protection Act ("West Virginia *293 CCPA") provides that "any person who purchases or leases goods or services and thereby suffers an ascertainable loss of money or property" may "recover actual damages." W. Va. Code Ann. § 46A-6-106. The West Virginia Supreme Court has held that, "[i]f the consumer proves that he or she has purchased an item that is different from or inferior to that for which he bargained, the 'ascertainable loss' requirement is satisfied." In re W. Va. Rezulin Litig. , 214 W. Va. 52 , 75, 585 S.E.2d 52 (2003) ("Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known." (citing Hinchliffe , 184 Conn. at 613 , 440 A.2d 810 ) ). At least one district court has held that a plaintiff "suffered a loss" under the West Virginia CCPA "when it purchased Revolution Helmets at an inflated price - relying on Riddell's safety claims - instead of purchasing the lower-priced traditional helmets." Midwestern Midget Football Club Inc. v. Riddell, Inc. , No. 2:15-CV-00244, 2016 WL 3406129 , at *6 (S.D.W. Va. June 17, 2016). Although the court did not analyze West Virginia law in so holding, its conclusion is consistent with In re W. Virginia Rezulin Litig. and not inconsistent with any case law cited by New GM or found by this Court. 6 Moreover, the West Virginia Supreme Court has stated that the West Virginia CCPA should be "liberally construed" because it is "a remedial statute intended to protect consumers from unfair, illegal and deceptive business practices." Fleet v. Webber Springs Owners Ass'n, Inc. , 235 W. Va. 184 , 192, 772 S.E.2d 369 (2015) (internal quotation marks omitted).
2. Fraudulent Concealment
Next, the Court turns to whether manifestation is required for Plaintiffs' common-law fraud claims. In its prior Opinions, the Court concluded that a plaintiff need not plead manifestation to state a fraudulent concealment claim in a state where "benefit-of-the-bargain damages are available" for fraud and there is no case law imposing "a manifest defect requirement." See TACC Op. , 2016 WL 3920353 , at *40 (discussing Virginia law); cf. FACC Op. , 257 F.Supp.3d at 438 (noting that Pennsylvania case law "suggest[ed] that a plaintiff may not even have standing to bring those claims in the absence of a manifested defect" and that Plaintiffs had cited no Pennsylvania common-law fraud cases where "the loss of one's benefit of the bargain suffice[d] as an injury"). Applying that logic here, the Court concludes that manifestation is not required for fraud claims in the twenty-three disputed states.
For the following eighteen of those states, the Court need do little more than cite authority providing that benefit-of-the-bargain damages are available for common-law fraud claims (addressing any potentially contrary authority or authority on which New GM relies in the margin):
• Alaska: In re May , 1993 WL 337469 , at *1 (9th Cir. 1993) (noting that the Alaska Supreme Court has found that in fraud cases a plaintiff is entitled to the benefit of the bargain or *294 "the difference between the value of what he has parted with and the value of what he has received in the transaction"); Turnbull v. LaRose, 702 P.2d 1331 , 1335-36 (Alaska 1985) (finding that where a seller misrepresented the rental prospects of a building, the buyer was entitled to "the benefit of the bargain"). 7
• Arizona: Ulan v. Richtars , 8 Ariz. App. 351 , 358, 446 P.2d 255 (1968) (citing Carrel v. Lux , 101 Ariz. 430 , 441, 420 P.2d 564 (1966) ; Steele v. Vanderslice , 90 Ariz. 277 , 286, 367 P.2d 636 (1961) ; and Lutfy v. R. D. Roper & Sons Motor Co. , 57 Ariz. 495 , 503, 115 P.2d 161 (1941) ); see also Smith v. Don Sanderson Ford, Inc. , 7 Ariz. App. 390 , 392, 439 P.2d 837 (1968) ("The benefit of the bargain rule is the yardstick adopted by the Arizona courts in fraud cases."). 8
• Colorado: Ballow v. PHICO Ins. Co. , 878 P.2d 672 , 677 (Colo. 1994) (en banc) (allowing "recovery in fraud ... to the extent that the value of the contractual benefits conferred falls short of the value as represented" (footnote omitted) ); see also Niemi v. Lasshofer , 770 F.3d 1331 , 1355 (10th Cir. 2014) (noting that "the benefit of the bargain rule" provides "[t]he measure of damages" for fraud under Colorado law). 9
• Connecticut: Miller v. Appleby , 183 Conn. 51 , 57, 438 A.2d 811 (1981) ("The general rule in Connecticut in awarding damages [for fraud] is that the plaintiff purchaser is entitled to recover the difference in value between the property actually conveyed and the value of the property as it would have been if there had been no false representation, i.e., 'the benefit of the bargain' damages, together with any consequential damages resulting directly from the fraud."); accord Bailey Emp't Sys., Inc. v. Hahn , 545 F.Supp. 62 , 73 (D. Conn. 1982), aff'd , 723 F.2d 895 (2d Cir. 1983). 10
• Georgia: Mitchell v. Backus Cadillac-Pontiac, Inc. , 274 Ga. App. 330 , 333, 618 S.E.2d 87 (2005) (holding that the measure of "actual damages" in a fraud claim "is the difference between the actual value of the property at the time of purchase and what the value would have been if the property had been as represented"); accord Millirons v. Dillon , 100 Ga. 656 , 28 S.E. 385 , 385-86 (1897) ; see also, e.g., *295 Bennett v. D. L. Claborn Buick, Inc. , 202 Ga. App. 308 , 309-10, 414 S.E.2d 12 (1991) (rejecting an argument that the appellant had suffered no damages where he alleged that a car had been misrepresented to him as new when it in fact had 5,268 miles). 11
• Idaho: April Beguesse, Inc. v. Rammell , 156 Idaho 500 , 511, 328 P.3d 480 (2014) (collecting cases). 12
• Indiana: Sanchez v. Benkie , 799 N.E.2d 1099 , 1102 (Ind. Ct. App. 2003) ("Generally, the rule for the measure of damages for fraud in the sale or exchange of property is the difference between the market value of the property received by the party allegedly defrauded and the value of such property at the time, had it been as represented to be by the vender."); Lightning Litho, Inc. v. Danka Indus., Inc. , 776 N.E.2d 1238 , 1242-43 (Ind. Ct. App. 2002) ("[W]e join those jurisdictions that measure damages in fraudulent inducement and fraudulent misrepresentation cases by the benefit of the bargain rule."); see also, e.g., See Bud Wolf Chevrolet, Inc. v. Robertson , 519 N.E.2d 135 , 137 (Ind. 1988) (affirming an award of damages in a case involving a claim of fraud based on the misrepresentation as "new" of an automobile that had in fact been previously damaged where the plaintiffs did not allege that the previous damage manifested in any way and where the plaintiffs sought damages solely on the grounds that they purchased the truck under the belief it was a "new" truck and paid the "price of a new vehicle"). 13
• Iowa: B & B Asphalt Co. v. T. S. McShane Co. , 242 N.W.2d 279 , 285 (Iowa 1976) (citing LaMasters v. Springer , 251 Iowa 69 , 76-77, 99 N.W.2d 300 (1959) ); see also Midwest Home Distrib., Inc. v. Domco Indus. Ltd. , 585 N.W.2d 735 , 739 (Iowa 1998). 14
• Kansas: Walker v. Fleming Motor Co. , 195 Kan. 328 , 332, 404 P.2d 929 (1965) ; see also K-B Trucking Co. v. Riss Int'l Corp. , 763 F.2d 1148 , 1159 (10th Cir. 1985) ("Kansas follows the *296 'benefit of the bargain' rule in awarding damages for fraud."); Hoffman v. Haug , 242 Kan. 867 , 872, 752 P.2d 124 (1988) (same). 15
• Montana: Denny v. Brissonneaud , 161 Mont. 468 , 473, 506 P.2d 77 (1973) ; see also Poulsen v. Treasure State Indus., Inc. , 192 Mont. 69 , 83, 626 P.2d 822 (1981) (holding that the fraud plaintiffs were entitled to the "benefit of their bargain that is, the benefit which defendants promised to deliver") (citing Moore v. Swanson , 171 Mont. 160 , 556 P.2d 1249 (1976) ); accord Bertram v. McCrea , 299 Mont. 546 , 4 P.3d 1219 (2000) (unpublished opinion). 16
• Nebraska: Camfield v. Olsen , 183 Neb. 739 , 742-43, 164 N.W.2d 431 (1969) ; see also Little v. Gillette , 218 Neb. 271 , 279, 354 N.W.2d 147 , 153 (1984) (holding, in a fraudulent inducement case, that "the party's recovery is based on the difference in value of the property as fraudulently represented and its value in actuality"). 17
• Nevada: Davis v. Beling , 128 Nev. 301 , 317, 278 P.3d 501 (2012) ; Pro-Brokers, Inc. v. Muhlenberg , 124 Nev. 1501 , 238 P.3d 847 (2008) (unpublished opinion); Goodrich & Pennington Mortg. Fund, Inc. v. J.R. Woolard, Inc. , 120 Nev. 777 , 782-83, 101 P.3d 792 (2004). 18
• New Mexico: Register v. Roberson Const. Co. , 106 N.M. 243 , 245-46, 741 P.2d 1364 (1987) ; see also Advanced Optics Elecs., Inc. v. Robins , 769 F.Supp.2d 1285 , 1304 (D.N.M. 2010) (holding, under New Mexico law, that " '[a] benefit of the bargain' award ... properly compensates the defrauded party.").
• Rhode Island: Kooloian v. Suburban Land Co. , 873 A.2d 95 , 100 (R.I. 2005) (approving a trial court's award of "the difference between the contract price and the market value of the property as of date of the breach, plus interest and reasonable expenses" in a fraud case (internal quotation marks omitted) ); Caseau v. Belisle , No. PC 01-4441, 2005 WL 2354135 , at *9 (R.I. Super. Sept. 26, 2005) ("It is axiomatic that the 'benefit of the bargain' rule is the proper measure of damages in a claim for fraud or misrepresentation." (citing Bogosian v. Bederman , 823 A.2d 1117 , 1119 (R.I. 2003) ) ); Fleet Nat. Bank v. Anchor Media Television, Inc. , 45 F.3d 546 , 550 n.3 (1st Cir. 1995) ("Rhode Island law ... applies the 'benefit of the bargain' rule in assessing damages for fraudulent misrepresentations inducing a party to contract for the purchase of property.") (citing Barnes v. Whipple , 68 A. 430 (R.I. 1907) ). 19
*297 • South Dakota: Schmidt v. Wildcat Cave, Inc. , 261 N.W.2d 114 , 119 (S.D. 1977) ; see also In re Adelman , 90 B.R. 1012 , 1023 (Bankr. D.S.D. 1988) (noting that "the benefit-of-the-bargain rule" is "the proper measure of damages for deceit, fraud, and misrepresentation in South Dakota") (citing Schmidt , 261 N.W.2d at 119 ; Ward v. Dakota Tele. and Elec. Co. , 49 S.D. 135 , 148-49, 206 N.W. 695 (1925) ; and Hallen v. Martin , 40 S.D. 343 , 352-53, 167 N.W. 314 (1918) ). 20
• Tennessee: Haynes v. Cumberland Builders, Inc. , 546 S.W.2d 228 , 233 (Tenn. Ct. App. 1976) ; see also Haney v. Copeland , No. E2002-845-COA-R3-CV, 2003 WL 553548 , at *3 (Tenn. Ct. App. Feb. 27, 2003) ("[T]he proper measure of the plaintiffs' general damages [in a fraudulent misrepresentation case] is the benefit of the bargain rule.") (quoting Haynes , 546 S.W.2d at 233 ); Ford Motor Co. v. Lonon , 217 Tenn. 400 , 425, 398 S.W.2d 240 (1966) (holding that damages in a fraudulent misrepresentation case should include "the difference between the actual value of the product, and what it could have been worth as represented"), abrogated on other grounds by First Nat. Bank of Louisville v. Brooks Farms , 821 S.W.2d 925 (Tenn. 1991) ; Shwab v. Walters , 147 Tenn. 638 , 251 S.W. 42 , 44 (1923) (holding, in a misrepresentation case, that "the measure of damages is the difference between the actual value of the thing sold and its value had the facts been as represented"). 21
• Vermont: Conover v. Baker , 134 Vt. 466 , 471, 365 A.2d 264 (1976) ; see also Cushman v. Kirby , 148 Vt. 571 , 578, 536 A.2d 550 (1987) (noting that "a party seeking damages for fraud is entitled to recover such damages as will compensate him for the loss or injury actually sustained and place him in the same position that he would have occupied had he not been defrauded," that is, "the benefit of [the] bargain" (internal quotation marks and ellipses omitted) (citing Larochelle v. Komery , 128 Vt. 262 , 268, 261 A.2d 29 (1969) ) ). 22
• Washington: McInnis & Co. v. W. Tractor & Equip. Co. , 63 Wash. 2d 652 , 658, 388 P.2d 562 (1964) (citing Salter v. Heiser , 39 Wash. 2d 826 , 239 P.2d 327 (1951), and Scroggin v. Worthy , 51 Wash. 2d 119 , 316 P.2d 480 (1957) ); see also Enger v. Richards , 134 Wash. App. 1068 , 2006 WL 2742513 , at *4 (Wash. Ct. App. 2006) (unpublished opinion) ("[Washington] Courts generally apply the benefit of the bargain rule when plaintiffs seek recovery for general damages caused by misrepresentation or fraud."). 23
*298 The remaining five states require some additional discussion, to which the Court now turns.
i. Minnesota
"Minnesota subscribes to the rule that in transactions giving rise to a misrepresentation action, the damages are ... the difference between the actual value of the property received and the price paid for the property." B.F. Goodrich Co. v. Mesabi Tire Co. , 430 N.W.2d 180 , 182 (Minn. 1988) ; accord Strouth v. Wilkison , 302 Minn. 297 , 300, 224 N.W.2d 511 (1974). The rule - known as the "out-of-pocket" rule - "works well where the plaintiff has received property in reliance on the misrepresentation, as in sales of goods ... and the property received serves as the reference point for measuring the damages." B.F. Goodrich Co. , 430 N.W.2d at 183 . The out-of-pocket rule differs slightly from the benefit-of-the-bargain rule: Under the latter, a plaintiff may "recover the difference between the value of the property received and the value to plaintiff that the property would have had if the representation had been true," while under the former, a plaintiff may recover "the difference between the actual value of the property received and the price paid for the property." Id. at 182 (emphases added). But that difference is irrelevant to the manifestation inquiry because, either way, the plaintiff may recover for a difference in value between what was purchased and what was received.
New GM relies on O'Neil v. Simplicity, Inc. , 574 F.3d 501 , 504 (8th Cir. 2009), in which the Eighth Circuit rejected the plaintiffs' argument that they had not received the benefit of the bargain where they had paid for a drop-side crib but the drop-side crib had been found to be unsafe. The court held that "because the O'Neils' crib ha[d] not exhibited the alleged defect, [the plaintiffs] ha[d] necessarily received the benefit of their bargain." Id. The case, however, did not involve any claims for common-law fraud. See id. at 503 . Nor did it rely on any Minnesota case law; instead it cited to a number of federal cases, including Briehl , 172 F.3d at 630 , that did not themselves analyze Minnesota case law. Id. Finally, this Court previously noted that some jurisdictions have recently "walked back their stance on the [manifestation] issue," FACC Op. , 257 F.Supp.3d at 423 , citing to a 2011 Eighth Circuit opinion, In re Zurn Pex Plumbing Prod. Liab. Litig. , 644 F.3d 604 , 608 (8th Cir. 2011). The Zurn Court rejected the defendants' argument that "the plaintiffs could not show a 'current harm' based on brass piping that 'contained a defect upon installation' because that defect had not yet 'caused external damage.' " FACC Op. , 257 F.Supp.3d at 423 (quoting Zurn , 644 F.3d at 608 ). At issue in Zurn were brass fittings used in plumbing systems that the plaintiffs argued were "doomed to leak ... because of their susceptibility to stress corrosion cracking (SCC) which results from a combination of pressure and corrosion." Zurn , 644 F.3d at 608 -09 . The defendants argued that a group of plaintiffs known as the "dry plaintiffs" had suffered no cognizable injury because their fittings had not yet leaked. Id. at 616 . The Eighth Circuit held, however, that "[t]he dry plaintiff claims are distinct from any brought by hypothetical 'no injury plaintiffs,' because the dry plaintiffs had alleged that their brass fittings exhibited a defect." Id. at 617 . Indeed, "[t]he homeowners argue[d] that SCC inevitably beg[an] to affect Zurn's brass fittings upon their installation and exposure to water." Id. at 609 . The Eighth Circuit sought to reconcile Zurn with O'Neil by reasoning that the plaintiffs in Zurn alleged an exhibited defect while the plaintiffs in O'Neil had not. See id. at 616 . New GM relies on that reasoning, arguing that "all the products [in *299 Zurn ] had manifested a defect because the pipe fittings began corroding upon contact with water." (New GM Br. 7-8).
But even if New GM is right that the pipe fittings' immediate corrosion distinguishes Zurn from the present case, it is a distinction without a difference. States that require manifestation have equated the manifestation of a defect with the malfunctioning or failure to perform of the product. See, e.g., Angus v. Shiley Inc. , 989 F.2d 142 , 147 (3d Cir. 1993) ("[A] purchaser of a properly functioning product can[not] recover damages."); Lee , 950 F.Supp. at 171-74 (dismissing plaintiffs' claims of inherently defective detachable fiberglass roofs for failure to plead any damages beyond those that were economic in nature); Feinstein v. Firestone Tire & Rubber Co. , 535 F.Supp. 595 , 603 (S.D.N.Y. 1982) (finding no cause of action for a defect when tires performed to the plaintiffs' satisfaction); Pfizer v. Farsian , 682 So.2d 405 , 407 (Ala. 1996) (holding that a plaintiff's belief that a product that is "presently functioning normally" could fail in the future is not, without more, a legal injury sufficient to support plaintiff's claim). In Zurn , the dry plaintiffs did not allege that their pipe fittings had malfunctioned, even though they claimed they were inherently defective. So too, the plaintiffs in O'Neil did not claim that their crib had malfunctioned, even though they claimed that the crib contained inherently defective hardware, and Plaintiffs in this case allege that all vehicles contained an inherent defect, even though not all had manifested it. Compare Zurn , 644 F.3d at 622 -23 , with O'Neil , 574 F.3d at 502 -03 . The Court thus agrees with Judge Gruender's dissent in Zurn that Zurn represented a departure from O'Neil . See 644 F.3d at 622-23 (Gruender, J., dissenting) (noting that the O'Neils had in fact "expressly alleged" that their product was "defective" and finding that the claims of the O'Neils and "dry plaintiffs" were alike because their products "functioned as intended from the date of purchase to the date they filed this litigation"). 24
ii. Mississippi
The Mississippi Supreme Court has held that "the measure of damages in fraud and deceit cases" is the " 'benefit-of-the-bargain' rule." Davidson v. Rogers , 431 So.2d 483 , 485 (Miss. 1983) ; see also Wall v. Swilley , 562 So.2d 1252 , 1256 (Miss. 1990) ("In cases [involving material misrepresentation] ..., the law seeks to place the victim in the economic position he would have enjoyed had he received what he bargained for."). Moreover, Holman , discussed above, provides additional data suggesting that the state's highest court would not require manifestation for a common-law fraud claim. See 972 So.2d at 568 .
In arguing otherwise, New GM cites Jarman , 98 F.Supp.2d at 758 (New GM Br. 8-9), but the Court declines to follow Jarman . Like the Seventh Circuit's decision in Bridgestone/Firestone, Jarman neither cited nor discussed any Mississippi state case law, relying instead on the Eighth Circuit's opinion in Briehl , which itself cited to just one federal case involving Mississippi law, Lee , 950 F.Supp. at 172 . Lee , in turn, did not consider common-law fraud. 25 Furthermore, the courts in *300 both Jarman and Briehl appear to have been driven by some skepticism that the products at issue were defective at all. See Jarman , 98 F.Supp.2d at 767 (noting that the plaintiff had brought suit just eight days after purchasing the product although the product's label advised that results could take "1-4 months or longer" and that "nowhere in his complaint does plaintiff allege, other than conclusorily, either that the product actually failed to perform in the manner represented or that he suffered any damage as a consequence of his use of [the product]"); Briehl , 172 F.3d at 626 (noting that "[t]he Plaintiffs do not allege that the [brake system] is incapable of stopping the vehicles or that [the brake system] has violated any national safety standards" and finding that the plaintiffs had failed to calculate any damages due to lost resale value); see also TACC Op. , 2016 WL 3920353 , at *34 (discussing and partially discounting the persuasiveness of cases where the court was driven by skepticism that a defect existed at all). Finally, the single Mississippi Supreme Court case cited by New GM is not contrary to Holman . See Spragins v. Sunburst Bank , 605 So.2d 777 , 780 (Miss. 1992) (noting that "consequent and proximate injury" is an element of fraudulent concealment).
iii. New Jersey
New Jersey courts measure damages in fraud cases by applying one of two methods: either the benefit-of-the-bargain rule or the out-of-pocket rule. See, e.g., Zeliff v. Sabatino , 15 N.J. 70 , 74, 104 A.2d 54 (1954). Both approaches "seek to make an injured party whole and ... are designed to fairly and reasonably compensate that injured party for the damages or losses proximately caused by the alleged consumer fraud." Romano v. Galaxy Toyota , 399 N.J. Super. 470 , 483, 945 A.2d 49 (App. Div. 2008) (internal quotation marks omitted). For the reasons discussed above, in connection with Minnesota law, the difference between the two does not matter to the manifestation inquiry.
The cases cited by New GM are inapplicable. Two of those cases - In re Ford Motor Co. Ignition Switch Products Liability Litigation , 2001 WL 1266317 , at *22 (D.N.J. Sept. 30, 1997), and Chin v. Chrysler Corp. , 182 F.R.D. 448 , 460 (D.N.J. 1998) - lack any explicit discussion of New Jersey law. And the claims in Walus v. Pfizer, Inc. , 812 F.Supp. 41 (D.N.J. 1993), were brought under the New Jersey Products Liability Act, a statute that does not recognize claims that include pure economic loss. See Crouch v. Johnson & Johnson Consumer Co. , No. CIVA09-CV-2905 (DMC), 2010 WL 1530152 , at *7 (D.N.J. Apr. 15, 2010). Finally, in Yost v. General Motors Corp. , 651 F.Supp. 656 , 657 (D.N.J. 1986), the court noted that the "basic problem in this case is that plaintiff Yost has not alleged that he has suffered any damages" and held that Yost could not plead a fraud claim alleging a loss in value. But in so finding, the court relied on no New Jersey decisional law and did not attempt *301 to predict how the New Jersey Supreme Court might rule.
iv. Oregon
The Oregon Supreme Court has held that "plaintiff's recovery is limited to that measured by the 'out-of-pocket' rule unless the actionable misrepresentation was a warranty of value, in which case plaintiff could recover under the 'benefit-of-the-bargain' rule." Galego v. Knudsen , 281 Or. 43 , 51, 573 P.2d 313 (1978) ; see also McCormick v. New England Life Ins. Co. , No. 3:10-CV-00553-PK, 2012 WL 13054259 , at *3 (D. Or. Oct. 12, 2012) ("There is no dispute that Oregon courts favor a flexible approach to fraud remedies, as necessary to compensate the plaintiff for whatever loss he has suffered."). As discussed with respect to Minnesota's requirements for fraud claims, however, the difference between the benefit-of-the-bargain and out-of-pocket rules does not matter to the manifestation inquiry. The single case cited by New GM does not suggest a manifestation requirement. See U.S. Nat'l Bank of Or. v. Fought , 291 Or. 201 , 630 P.2d 337 , 348 (1981) (holding that common-law fraud requires plaintiff's "consequent and proximate injury").
v. West Virginia
The West Virginia Supreme Court has held that, "[i]n an action for fraud ... the true measure of damages is the difference between the value of the property actually received and its value had it been as represented." Stout v. Martin , 87 W. Va. 1 , 1, 104 S.E. 157 (1920). Thus, in a case involving an automobile sold as "new" even though it had been in a collision, the West Virginia Supreme Court affirmed a jury verdict for fraud where "the jury was presented with expert testimony on the difference in value of the automobile if it had been in a collision versus if it had not been damaged." Horan v. Tpk. Ford, Inc. , 189 W. Va. 621 , 627, 433 S.E.2d 559 (1993). In arguing that manifestation is required, New GM cites Belville I and Belville II , in which the Southern District of West Virginia dismissed diminished value claims due to a vehicle's acceleration defect because "only two of the twenty Plaintiffs named in the Complaint allege they actually experienced a sudden unintended acceleration, and neither of those Plaintiffs alleges they suffered any personal injuries or property damage as a result of those events." Belville I , 13 F.Supp.3d at 535 ; see also Belville II , 60 F.Supp.3d at 699-700. The Belville Court, however, did not actually address how West Virginia courts would treat common-law fraud: The plaintiffs brought common-law fraud claims under the laws of Florida, Illinois, Missouri, New York, North Carolina, Oklahoma, and Virginia - but not under the law of West Virginia. See Belville I , 13 F.Supp.3d at 531 n.2. Moreover, the Belville Court did not analyze any state decisional law in dismissing the plaintiffs' fraud claims. Belville II , 60 F.Supp.3d at 699-700.
3. Implied Warranty
Finally, the Court turns to Plaintiffs' implied warranty claims. This Court previously rejected New GM's argument that manifestation was required for an implied warranty claim under Michigan law. See FACC Op. , 257 F.Supp.3d at 426 . The Court based that decision on the fact 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 [p]laintiffs demonstrate any injury to their person or property as a result of the breach, but only that they purchased an unmerchantable product.' " Id. (quoting *302 In re Bridgestone\Firestone, Inc. Tires Prods. Liab. Litig. 155 F.Supp.2d 1069 , 1099 (S.D. Ind. 2001), rev'd on other grounds , 288 F.3d 1012 (7th Cir. 2002) ). In the absence of contrary authority, that decision compels the Court to reject New GM's manifestation argument in any state that has adopted the UCC provision that "[a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made." E.g. , Alaska Stat. § 45.02.725 . Moreover, the UCC provides for benefit-of-the-bargain damages, which, in the case of implied warranty as for fraud, is compelling evidence that manifestation is not required absent contrary authority.
New GM points instead to the Court's prior conclusion that manifestation is required for an implied warranty claim under Pennsylvania law. (New GM Br. 24-25). That conclusion was based in part on the fact that a plaintiff must prove that the product was "defective" to make out the last two elements of an implied warranty claim in Pennsylvania: "a causal connection between the defendant's breach and the plaintiff's injury," and "the extent of loss proximately caused by the defendant's breach." FACC Op. , 257 F.Supp.3d at 439 . Significantly, however, Pennsylvania's implied warranty statute does not follow the relevant UCC provisions discussed above. Moreover, the Court found Pennsylvania case law that clearly suggested a manifestation requirement for implied warranty claims. See id. (citing Zwiercan v. Gen. Motors Corp. , 58 D. & C. 4th 251, 2002 WL 31053838 , at *3 (C. P. Phila. Sept. 11, 2002) ; Solarz v. DaimlerChrysler Corp. , No. 2033, 2002 WL 452218 , at *5 (Pa. Com. Pl. Mar. 13, 2002) ; and Grant v. Bridgestone Firestone Inc. , 57 Pa. D. & C 4th 72 , 2002 WL 372941 , at *5 (Com. Pl. Jan. 10, 2002) ). For any state in which the UCC provisions apply, and neither New GM nor the Court has found any authority to suggest that the state would require manifestation, this Court will not impose such a requirement.
In light of the foregoing, the Court concludes that manifestation is not required for purposes of an implied warranty claim in the sixteen states in dispute. Once again, for most of those states, the Court need do little more than cite the relevant authority (and address any potentially contrary authority or authority on which New GM relies in the margin):
• Alaska: Alaska Stat. § 45.02.725 ; see also Bendix Home Sys., Inc. v. Jessop , 644 P.2d 843 , 845 (Alaska 1982) (noting that "Article 2 of the Uniform Commercial Code ... has been adopted in Alaska"). 26
• Indiana: Ind. Code Ann. § 26-1-2-725 ; see also Hyundai Motor Am., Inc. v. Goodin , 822 N.E.2d 947 , 952 (Ind. 2005) ("Indiana has adopted the Uniform Commercial Code....").
• Kansas: Kan. Stat. Ann. § 84-2-725 ; see Hodges v. Johnson , 288 Kan. 56 , 69, 199 P.3d 1251 (2009) (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (citing Kan. Stat. Ann. § 84-2-714 ) ); Nieberding , 302 F.R.D. at 612 (predicting that Kansas would not require manifestation for an implied warranty claim). 27
*303 • Maine: Me. Rev. Stat. tit. 11 § 2-725 ; see Faulkingham v. Seacoast Subaru, Inc. , 577 A.2d 772 , 774 (Me. 1990) (citing of Me. Rev. Stat. tit. 11, § 2-714 and noting that Maine applies a "version of Article 2 of the Uniform Commercial Code"); see also Nelson v. Leo's Auto Sales, Inc. , 158 Me. 368 , 373, 185 A.2d 121 (1962) (holding that a "defrauded party is entitled to the benefit of the bargain" and noting that this rule renders the "measure of damages in a tort action for fraud in the sale of personal property ... the same as in actions for breach of warranty"). 28
• Mississippi: Miss. Code § 75-2-725 ; see also Gast v. Rogers-Dingus Chevrolet , 585 So.2d 725 , 730 (Miss. 1991) (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (citing Miss. Code. Ann. § 75-2-714 ) ). 29
• Montana: Mont. Code § 30-2-725 ; see also Klinkenborg Aerial Spraying & Seeding Inc. v. Rotorcraft Dev. Corp. , No. CV 12-202-M-DLC-JCL, 2014 WL 12725980 , at *7 (D. Mont. Aug. 18, 2014) (citing Mont. Code Ann. § 30-2-714 (2) and noting that "[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted"), report and recommendation adopted , No. CV 12-202-M-DLC, 2014 WL 12726047 (D. Mont. Dec. 8, 2014), aff'd, 690 F. App'x 540 (9th Cir. 2017) ; Fire Supply & Serv., Inc. v. Chico Hot Springs , 196 Mont. 435 , 443, 639 P.2d 1160 (1982) (citing Mont. Code Ann. § 30-2-714 and noting that the party was "entitled to recover any loss in value of the goods").
• Nebraska: Neb. Rev. Stat. Ann. § UCC § 2-725 ; see also McCoolidge v. Oyvetsky , 292 Neb. 955 , 967, 874 N.W.2d 892 (2016) (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (citing Neb. Rev. Stat. Ann. § UCC § 2-714 ) ).
• Nevada: Nev. Rev. Stat. Ann. § 104.2725 ; see also *304 Goodrich & Pennington Mortg. Fund , 120 Nev. at 783 , 101 P.3d 792 (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (citing Nev. Rev. Stat. Ann. § 104.2714 ) ).
• New Mexico: N.M. Stat. Ann. § 55-2-725 ; see also Badilla v. Wal-Mart Stores E. Inc. , 357 P.3d 936 , 941 (2015) (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (citing N.M. Stat. Ann. § 55-2-714 ) ).
• Rhode Island: R.I. Gen. Laws § 6A-2-725 ; see also Bergenstock v. Lemay's G. M. C., Inc. , 118 R.I. 75 , 87, 372 A.2d 69 (1977) (noting that R.I. Gen. Laws § 6A-2-714 measures damages for breach of warranty as "the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted"). 30
• South Dakota: S.D. Codified Laws § 57A-2-725 ; see also Durham v. Ciba-Geigy Corp. , 315 N.W.2d 696 , 700 (S.D. 1982) (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (internal quotation marks omitted) (citing S.D. Codified Laws § 57A-2-714 ) ). 31
• Wyoming: Wyo. Stat. Ann. § 34.1-2-725 ; see also Albin Elevator Co. v. Pavlica , 649 P.2d 187 , 190 (Wyo. 1982) (noting that the "measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted" (citing Wyo. Stat. Ann. § 34.1-2-714 ) ). 32
Once again, a few other states call for additional discussion, to which the Court now turns.
i. Colorado
Colorado has not adopted the relevant UCC warranty provisions, but the Colorado Supreme Court has nevertheless held that "the measure of damages recoverable for a breach of warranty is the difference between the actual value of the property at the time of sale and what its value would have been if it had been as warranted." Glisan v. Smolenske , 153 Colo. 274 , 281, 387 P.2d 260 (1963) ; see also Slack v. Sodal , 190 Colo. 411 , 414, 547 P.2d 923 (1976) (holding, in an implied warranty *305 case, that "reasonable expenditures of a buyer to bring property into conformity with the implied warranty may be an accurate measure of the buyer's damages"). Additionally, New GM cites, and the Court has found, no cases suggesting that Colorado requires a manifested defect for purposes of an implied warranty claim. The Court thus finds that Plaintiffs need not plead manifestation to proceed with their implied warranty claims under Colorado law.
ii. Delaware
Delaware has adopted the UCC provision that "[a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made." Del. Code Ann. tit. 6, § 2-725 . Moreover, under Delaware law, "[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount." Del. Code Ann. tit. 6, § 2-714 ; see also Neilson Bus. Equip. Ctr., Inc. v. Italo V. Monteleone, M.D., P.A. , 524 A.2d 1172 , 1176 (Del. 1987).
New GM argues that Dalton v. Ford Motor Co. , No. Civ.A. 00C-09-155 (WCC), 2002 WL 338081 (Del. Super. Ct. Feb. 28, 2002), "expressly held that a manifest defect is required for [an implied warranty claim]" under Delaware law. (New GM Br. 8). But the Court finds nothing express about it. The Dalton court dismissed the plaintiffs' implied warranty claim on the ground that it was barred by the statute of limitations. The court did hold that the plaintiffs' negligence claims required manifestation, but it never directly addressed whether the same was the case for their implied warranty claims. Id. at *5. It does not follow from the court's decision with respect to negligence, a claim grounded in tort, that manifestation would also be required for implied warranty, which the Delaware Supreme Court has characterized as part of "a hybridization of tort and contract concepts [that] has occurred by virtue of the provisions of the U.C.C." Cline v. Prowler Indus. of Md., Inc. , 418 A.2d 968 , 976 (Del. 1980). 33
iii. Ohio
As clarified in additional submissions to the Court, ( see Docket Nos. 5924 ("GM Ohio Ltr."), 5925), Plaintiffs bring claims for implied warranty in tort - which, naturally, "sound in tort rather than contract." Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co. , 42 Ohio St. 3d 40 , 46, 537 N.E.2d 624 (1989) (internal quotation marks omitted). "To prevail on a claim for tortious breach of warranty (also known in Ohio as strict liability or breach of implied warranty), the plaintiffs must prove" three elements: "(1) a defect existed in the product manufactured and sold by the defendant; (2) the defect existed at the time the product left the defendant's *306 hands; and (3) the defect directly and proximately caused the plaintiff's injury or loss." In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig. , 722 F.3d 838 , 853 (6th Cir. 2013). A defect is considered to exist in a product that is not "of good and merchantable quality, fit and safe for its ordinary intended use." White v. DePuy, Inc. , 129 Ohio App. 3d 472 , 480, 718 N.E.2d 450 (1998) (internal quotation marks omitted). The Ohio Supreme Court has suggested that "an action in tort for breach of express or implied warranty, or an action in strict liability, may be maintained for purely economic loss" without requiring manifestation. Chemtrol , 42 Ohio St. 3d at 49 , 537 N.E.2d 624 (noting that damages that were described by a previous Ohio Supreme Court case as "property" damage, and allowed to go forward, were in fact "merely defects in the product itself which reduced the product's value, i.e. , economic damages") (discussing Iacono v. Anderson Concrete Corp. , 42 Ohio St. 2d 88 , 92, 326 N.E.2d 267 (1975) ).
The Court is unconvinced by the cases cited by New GM. Most of New GM's authority does not address tortious implied warranty at all, see Felix v. Ganley Chevrolet, Inc. , 145 Ohio St. 3d 329 , 49 N.E.3d 1224 (2015) (analyzing the Ohio Consumer Sales Practices Act); GM Ohio Ltr. 4 (listing cases with implied warranty in contract (not tort) claims), or does not analyze Ohio case law in imposing a manifestation requirement, see Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. , No. 1:02-CV-13 (JRA), 2005 WL 6778678 , at *11 (N.D. Ohio Feb. 22, 2005). New GM cites only one case that both addresses requirements for implied warranty in tort and applies Ohio state law: a federal district court opinion that New GM claims expressly held that a "product must malfunction before a cause of action lies." (GM Ohio Ltr. 3 (citing Hoffer v. Cooper Wiring Devices, Inc. , No. 1:06-CV-763 (CAB), 2007 WL 1725317 , at *7 (N.D. Ohio June 13, 2007) ) ). This Court finds the court's statement less express than does New GM. While the Hoffer court noted that requiring a product malfunction was "persuasive," it also stated that "the economic loss alleged by Plaintiff must be connected to alleged damage to or decreased value of a defective product." Hoffer , 2007 WL 1725317 , at *8 (emphasis added).
iv. West Virginia
West Virginia has also adopted the UCC provision that "[a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made." W. Va. Code Ann. § 46-2-725 . Moreover, the West Virginia Supreme Court has held that, in a warranty case, "[t]he measure of damages is the difference between the value of the vehicle as warranted or represented and the value of the vehicle in its actual condition at the time of the transaction." Horan , 189 W. Va. at 628 , 433 S.E.2d 559 (citing W. Va. Code Ann. § 46-2-714 ). In arguing for a manifestation requirement, New GM once again cites the Belville cases. See Belville I , 13 F.Supp.3d at 542 ; Belville II , 60 F.Supp.3d at 700. As with common-law fraud, however, the Belville court did not specifically analyze West Virginia law in concluding that the state required manifestation for an implied warranty claim. See Belville I , 13 F.Supp.3d at 535 (citing a number of federal court opinions, including Briehl , and a few state court opinions - but only from Maryland, New York, California, and Alabama - to hold that warranty claims under the laws of West Virginia, Florida, Illinois, Maryland, Massachusetts, Missouri, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Virginia, and Wisconsin would all require manifestation).
*307 B. Lost Time
The Court turns next to the issue of whether, under the laws of forty-seven different states, Plaintiffs can recover "loss of time" damages for their consumer protection, common-law fraud, and breach of implied warranty claims. Traditionally, damages for "loss of time" have been synonymous with "some loss of advantages, benefits, or revenues that might have been produced by the profitable use and employment of such time." 25 C.J.S. Damages § 52. In other words, recovery for lost time has been connected to loss of earnings, wages, or other income, turning on whether one has lost time that one might otherwise have used to one's profit. New GM concedes that in nearly every state, Plaintiffs may recover for "lost time" understood as lost earnings or income. ( See New GM Br. 35 ("[D]ozens of state court decisions are buttressed by federal court opinions holding that lost time is not recoverable unless, at a minimum, the plaintiff proves a direct loss of income.") ). But Plaintiffs define lost time more broadly and seek recovery not only for lost earnings or income, but also for lost free or personal time. ( See e.g. , 5ACC, ¶ 1219 (alleging that Plaintiffs "had to spend their time and money to bring their Defective Vehicles in for repair"); New GM Br. 30 (noting that Plaintiffs' expert alleges damages based on "loss of income (or loss of free time)" and that "obtaining the repair" prevented plaintiffs "from another desired activity" (quoting E. Manuel Report ¶¶ 27, 63) ) ). New GM insists that recovery for lost free or personal time is not recognized in any of the forty-seven states at issue. ( See New GM Br. 30-31). Plaintiffs contend that, drawing all inferences in their favor, their requests for lost-time damages "cannot now be dismissed as a matter of law." (Docket No. 5192 ("Pls.' Resp."), at 1).
On the whole, New GM has the better of the argument. The Court finds that, as a matter of law, the overwhelming majority of states adhere to the view that lost-time damages are the equivalent of lost earnings or income. Indeed, "loss of time" appears to be something of a term of art: Courts often use the term without defining it, suggesting a broadly recognized and well-established meaning. Put another way, most states do not treat lost personal time as a compensable form of injury. See Leonard E. Gross, Time and Tide Wait for No Man: Should Lost Personal Time Be Compensable? , 33 RUTGERS L.J. 683, 684-85 (2002) (noting that historically courts have been "loath to award damages for lost personal time in breach of contract cases and in cases involving tortious interference with personal property"). The unwillingness to award damages for lost personal time may in part be a legacy of an era when personal time was not valued as highly as it is today, see id. at 684, but the role of a federal court sitting in diversity is to determine what state law is, not to change it.
Moreover, public policy counsels against compensating for lost personal time. Some courts have suggested, for example, that awarding compensation for lost time on the theory that "time is money" invites litigation and prioritizes less-worthy claims over the more worthy. See, e.g., Kleef v. Goodman Mfg. Co., L.P. , No. 4:15-CV-00176 (BSM), 2015 WL 4512200 , at *3 (E.D. Ark. July 24, 2015) (rejecting the plaintiff's "contention that he should be compensated for the time lost in coordinating and waiting for repairs" and noting that, if the court held otherwise, "consumers could bring a lawsuit every time they were on hold with a company's customer service line while they waited to resolve a problem. Thus, to say that damages for lost time are recoverable in a products liability action makes no sense, and it is not commercially practicable."); see also, *308 e.g., Cargill, Inc. v. City of Buffalo , 388 F.2d 821 , 825 n.8 (2d Cir. 1968) ("A driver who negligently caused such an accident would certainly be held accountable to those physically injured in the crash. But we doubt that damages would be recoverable against the negligent driver in favor of truckers or contract carriers who suffered provable losses because of the delay or to the wage earner who was forced to 'clock in' an hour late.").
In many instances, Plaintiffs argue that a state would award damages for lost free time based on authority from the state holding that plaintiffs may recover incidental, actual, or consequential damages. ( See, e.g. , Docket No. 5101 ("Pls.' Br."), at 52 (citing Gyldenvand v. Schroeder , 90 Wis.2d 690 , 698, 280 N.W.2d 235 (1979), for the proposition that plaintiffs "may recover such consequential or special damages" as they are "able to prove with reasonable certainty") ). But that argument begs the question whether a state has recognized lost personal time as a compensable form of damages. Put another way, the authorities upon which Plaintiffs rely do not discuss, let alone answer, the question of whether lost free time falls within the scope of legally cognizable incidental, actual, or consequential damages that may be recovered. In fact, in at least some of the jurisdictions at issue, the law allows for the recovery of incidental or consequential damages, such as loss of earnings, yet courts have nevertheless held that that lost personal time is not compensable. See, e.g., In re Hannaford Bros. Co. Customer Data Sec. Breach Litig , 2010 ME 93 , ¶¶ 10, 16, 4 A.3d 492 (holding that plaintiffs could recover for loss of earnings but not for "the expenditure of time and effort alone"); Newbury v. Virgin , 2002 ME 119 , ¶ 16, 802 A.2d 413 (describing lost earnings as consequential damages); State v. Anderson , 72 Wash. App. 253 , 261-62 & n.17, 863 P.2d 1370 (1993) (holding that the plaintiffs could recover for "loss of time" understood as loss of earnings, but not for loss of "the opportunity to be free to enjoy life"); Sprague v. Sumitomo Forestry Co. , 104 Wash. 2d 751 , 761, 709 P.2d 1200 (1985) (characterizing lost time understood as lost profits as consequential damages). It follows, as a matter of both logic and law, that a state's recognition of incidental, actual, or consequential damages, by itself, does not support a holding that the state recognizes lost free time as compensable. 34
The Court begins with those states that have limited recovery for lost-time damages to lost earnings or their equivalent. Then, the Court turns to whether a person may recover for time lost from performing unpaid household work. 35 Finally, the Court considers the few states where, often as a result of consumer protection statutes that provide for statutory damages and do not limit recovery to "loss of money or property," Plaintiffs may recover under a more expansive definition of lost time for at least some of their claims.
*309 1. Lost Time as Lost Earnings
As noted, the Court begins with states that have limited recovery for lost-time damages to lost earnings or income. Where a state has never considered lost personal time to be compensable, and the Court finds no reason to do otherwise, the Court concludes that the narrow construction of lost time applies across all substantive areas of law. 36 As a result, the Court need not and does not generally differentiate between lost-time damages in the context of statutory consumer protection, common-law fraud, or implied warranty.
Based on the Court's research, forty-one of the contested states limit lost time damages to lost income or earnings. The following is a list of those states along with relevant authority demonstrating that the state's courts have traditionally treated lost time as lost income. Where the Court does not cite or discuss case law suggesting that a plaintiff may recover for lost personal time (as opposed to lost time from work or the pecuniary equivalent), the Court has found no such case law. The Court provides additional explanation as warranted.
• Alabama: Birmingham Ry., Light & Power Co. v. Nalls , 188 Ala. 352 , 354, 66 So. 5 (1914) ("[T]here was no error in refusing to instruct the jury that the plaintiff could not 'recover for any time, if any, he lost from work.' That was an element of damages claimed in the complaint; and there was evidence tending to show the factum of the loss of time by reason of his injuries and to show the monetary equivalent or measure thereof."); accord Mackintosh Co. v. Wells , 218 Ala. 260 , 265, 118 So. 276 , (1928) ; see also Walker Cty. v. Davis , 221 Ala. 195 , 199, 128 So. 144 (1930) (refusing to allow recovery for loss of time from work where the plaintiff failed to demonstrate a consequent "financial loss").
• Alaska: Alaska Airlines, Inc. v. Sweat , 584 P.2d 544 , 549 n.20 (Alaska 1978) ("In order to recover for lost time and decreased earning capacity, the plaintiff must carry the burden of establishing that his injury did bring about a loss of time and impairment of earning capacity, and he must prove the extent and pr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7250458. Public record. Not legal advice.