Petition for Writ of Certiorari — Marshall B. Lloyd, et al., Petitioners v. Ford Motor Company

APPENDIX

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APPENDIX TABLE OF CONTENTS

Page

---Appendix A

Opinion, United States Court of

Appeals for the Sixth Circuit (Apr.

21, 2023) ............................................................ 1a

Appendix B

Order re Petition for Rehearing En

Banc, United States Court of

Appeals for the Sixth Circuit (June

21, 2023) .......................................................... 35a

Appendix C

Judgment, United States Court of

Appeals for the Sixth Circuit (Apr.

21, 2023) .......................................................... 37a

Appendix D

Hearing Transcript, United States

Court of Appeals for the Sixth

Circuit (March 8, 2023) ................................... 39a

Appendix E

Opinion & Order Granting

Defendant’s Motion to Dismiss,

United States District Court for

the Eastern District of Michigan

(Feb. 23, 2022) ................................................. 44a

Appendix F

EPA Coastdown Testing and Road

Load Measurement Regulations .................. 111a

Appendix G

State Consumer Protection Statutes............ 124a

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Appendix H

Counts v. Gen. Motors, No. 1:16-cv12541 (E.D. Mich. July 12, 2023),

Order Dismissing Case ................................. 144a

Appendix I

In re Duramax Diesel Litig., No.

1:17-cv-11661 (E.D. Mich. July 12,

2023), Order Dismissing Case ...................... 167a

1a

Appendix A

No. 22-1245

United States Court Of Appeals

For The Sixth Circuit

_________♦_________

IN RE: FORD MOTOR COMPANY F-150 AND

RANGER TRUCK FUEL ECONOMY MARKETING

AND SALES PRACTICES LITIGATION.

MARSHALL B. LLOYD; ET AL.,

Petitioners,

V.

FORD MOTOR COMPANY,

_________♦_________

Appeal from the United

States District Court for the

Eastern District of

Michigan at Detroit.

_________♦_________

Nos: 19-md-02901, 19-cv11319, 19-cv-11639, 19-cv11728, 19-cv-11728, 19-cv-

Respondent.

2a

11993, 19-cv-12015, 19-cv12035, 19-cv-12080, 19-cv12135, 19-cv-12309–12310,

19-cv-12373, 19-cv-12375,

19-cv-12377, 19-cv-12427,

19-cv-12436–12438, 19-cv12554, 19-cv-12895, 19-cv13197, and 20-cv-12272—

Sean F. Cox, District Judge.

_________♦_________

Argued: March 8, 2023

Decided and Filed: April

21, 2023

_________♦_________

Before: GRIFFIN, BUSH, and MURPHY, Circuit

Judges.No. 22-1245

In re Ford Motor Co. F-150

& Ranger Truck Fuel Econ. Marketing and Sales

Practices Litig.

COUNSEL

_________♦_________

ARGUED: Steve W. Berman, HAGENS BERMAN

SOBOL SHAPIRO LLP, Seattle, Washington, for

Appellants.

Stephanie

A.

Douglas,

BUSH

SEYFERTH PLLC, Troy, Michigan, for Appellee.

ON BRIEF: Steve W. Berman, HAGENS BERMAN

3a

SOBOL SHAPIRO LLP, Seattle, Washington, E.

Powell Miller, Sharon S. Almonrode, Emily E.

Hughes, THE MILLER LAW FIRM, Rochester,

Michigan, Adam J. Levitt, John E. Tangren,

DICELLO LEVITT GUTZLER LLC, Chicago, Illinois,

for Appellants. Stephanie A. Douglas, BUSH

SEYFERTH PLLC, Troy, Michigan, Jill M. Wheaton,

Kyle M. Asher, DYKEMA GOSSETT PLLC, Ann

Arbor, Michigan, for Appellee.

OPINION

GRIFFIN, Circuit Judge.

Plaintiffs are a group of consumers alleging

that defendant Ford Motor Company intentionally

submitted false fuel economy testing figures for

certain vehicles to the U.S. Environmental Protection

Agency (EPA). Plaintiffs claim that this, in turn, led

the agency to provide an inaccurate fuel economy

estimate to consumers, which induced consumers

(including plaintiffs) to buy those vehicles. The

district court ruled that federal law preempted

plaintiffs’ state-law claims. We agree and affirm.

I.

This case centers on allegations that Ford

cheated on its fuel economy and emissions testing for

certain truck models, including the F-150 and Ranger.

4a

The Energy Policy and Conservation Act (EPCA), 42

U.S.C. § 6201 et seq., and its corresponding

regulations specifically control such testing, so an

initial overview of this testing regime is in order.

Congress enacted the EPCA in 1975 to develop

a comprehensive regulatory scheme for fuel economy

testing; the stated purposes of the act include

“improv[ing] energy efficiency of motor vehicles” and

“provid[ing] a means for verification of energy data to

assure the reliability of energy data.” 42 U.S.C. §

6201(5), (7). This act introduced corporate average

fuel economy (CAFE) standards that automobile

manufacturers

must

follow

in

designing,

manufacturing, and marketing their vehicles. See,

e.g., 15 U.S.C. §§ 2001–13 (1975). In 1994, Congress

updated those standards. See Pub. L. 103-272, 108

Stat. 745 (1994); 49 U.S.C. §§ 32901–19. Those

standards, applicable today, require automobile

manufacturers to follow the EPA’s fuel economy

standards, see § 32902, describe how the EPA and

manufacturers calculate average fuel economy, see §

32904, dictate how manufacturers report the

resulting figures, see § 32908, and set requirements

for how the EPA ensures compliance with the CAFE

standards, see § 32911. The EPA has the authority to

implement these statutes by regulation. See, e.g., 49

U.S.C. §§ 32902(k)(2); 32908(g)(1).

These statutes and corresponding regulations

mandate that manufacturers follow a complex testing

methodology set by the EPA. To produce testing data

5a

that the EPA uses in its own fuel economy calculation,

manufacturers test the fuel economy of their vehicles

with a dynamometer. 40 C.F.R. § 1066.401 et seq.; U.S.

EPA, How Vehicles are Tested. 1 A dynamometer is

essentially a “treadmill for vehicles” (as plaintiffs

describe), and, as such, it does not naturally simulate

other environmental and physical forces acting on a

vehicle during normal operation like “aerodynamic

drag, tire rolling resistance, driveline losses, and

other effects of friction.” 40 C.F.R. § 1066.301. The

dynamometer thus must be calibrated to recreate

those forces through incorporation of “road load”

figures, 40 C.F.R.§ 1066.210(a), which is “the force

imparted on a vehicle while driving at constant speed

over a smooth level surface from sources such as tire

rolling resistance, driveline losses, and aerodynamic

drag,” U.S. EPA, 201504: Determination and Use of

Vehicle Road-Load Force and Dynamometer Settings

2 (Feb. 23, 2015). “The general procedure for

determining road-load force is performing coastdown

tests and calculating road-load coefficients.” 40 C.F.R.

§ 1066.301(b). “This procedure is described in SAE

J1263 and SAE J2263” and “incorporated by reference

in § 1066.1010,” though the regulations allow “certain

1 Available at:

https://www.fueleconomy.gov/feg/how_tested.shtml (last visited

April 19, 2023).

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deviations from those

applications.” Id. 2

procedures

for

certain

Coastdown testing tells manufacturers “how

much rolling resistance and drag a vehicle has[,] so

that when a vehicle is testing on a dynamometer, the

manufacturer knows how much drag and rolling

resistance to apply to the vehicle to simulate the

road.” First Amended Complaint (Complaint), R.78,

PageID 2056; see also U.S. EPA, 2015-04:

Determination and Use of Vehicle Road-Load Force

and Dynamometer Settings 4. “In a coastdown test, a

vehicle is brought to a high speed on a flat, straight

road,” at about eighty mph, “and then set coasting in

neutral until it slows to a low speed,” at about nine

mph. Complaint, R.78, PageID 2151, 2168. The test is

performed at least five times, and, each time, devices

on the vehicle measure environmental conditions,

performance data, speed, and distance traveled. Id. A

manufacturer records the time it takes for a vehicle to

slow as “[t]he test produces data that identifies or

maps the drag and other forces acting on the vehicle

“SAE” refers to the Society of Automotive Engineers, a

“global association of more than 128,000 engineers and related

technical experts in the aerospace, automotive, and commercialvehicle industries.” About SAE International, available at

https://www.sae.org/about (last visited April 19, 2023). The SAE

develops engineering mobility standards, including those

referenced here, to further “[t]he design of safety, productivity,

dependability, efficiency, and certification.” See SAE Standards,

available at https://www.sae.org/standards (last visited April 19,

2023).

2

7a

in the real world.” Id. at 2168–69. The coastdown

testing ultimately produces the figures used for

dynamometer testing (known as “target coefficients”),

thus allowing the dynamometer to simulate the

“actual load on the [vehicle’s] engine during on-road

driving.” Id. at 2170–71, 2173.

Once a manufacturer determines a vehicle’s

road-load “target coefficients,” 40 C.F.R. §

1066.301(a), it uses those coefficients in its simulated

dynamometer testing, see id. § 1066.210. The EPA

also heavily regulates this testing, see 49 U.S.C. §

32904(c), and its regulations again prescribe the exact

process (and formulas) a manufacturer must use. See

40 C.F.R. § 600.21012(a), (b); U.S. EPA, Testing at the

National Vehicle and Fuel Emissions Laboratory. 3

Throughout this entire process, manufacturers

must “establish, maintain, and retain” records

relating to their testing, 40 C.F.R. § 600.005(a), and

allow the EPA to access or inspect testing facilities, id.

§ 600.005(b). Once a manufacturer has finished

testing a vehicle, it must submit the results and

supporting documentation to the EPA. Id. § 600.006;

see also 49 U.S.C. § 32907(b). The EPA may require

the manufacturer to submit the disputed vehicle for

testing or to conduct additional testing itself if, “based

on the results of an inspection . . . or any other

information,” the agency “has reason to believe that

Available at: https://www.epa.gov/greenvehicles/testingnational-vehicle-and-fuel-emissions-laboratory (last visited

April 19, 2023).

3

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the manufacturer has not followed proper testing

procedures,” the “testing equipment is faulty or

improperly calibrated,” or the records provided to the

EPA cannot confirm the manufacturer’s figures. 40

C.F.R. § 600.008(e)(1).

Once a manufacturer submits data for review,

that data “must be judged reasonable and

representative” by the EPA. Id. § 600.008(c)(1). In

reviewing the data, the EPA may accept it, require

additional manufacturer testing, or perform its own

confirmatory testing. Id. § 600.008(c). The EPA

confirms about “15-20%” of manufacturer-provided

test results through its own testing. U.S. EPA, How

Vehicles are Tested. If it does perform such testing, it

compares its own data with that provided by the

manufacturer; if an “unacceptable” discrepancy

exists, the EPA may reject “all fuel economy data

submitted by the manufacturer until the cause of the

discrepancy is determined and the validity of the data

is established by the manufacturer.” 40 C.F.R. §

600.008(a), (d). If the agency does not perform its own

confirmatory testing, a manufacturer “must” instead

perform said testing if certain “conditions” exist,

including a prior failure of an emissions standard or

that the reported fuel economy is “higher than

expected based on procedures approved by the” EPA.

Id. § 600.008(b)(1). The EPA evaluates confirmatory

results submitted by the manufacturer for

“reasonableness and representativeness.” Id. §

600.008(c)(3).

9a

Once the EPA is satisfied with the fuel economy

figure, it adopts that figure as its own. See 49 U.S.C.

§ 32904(c) (dictating that “[t]he [EPA] Administrator

shall measure fuel economy for each model and

calculate average fuel economy for a manufacturer

under testing and calculation procedures prescribed

by the Administrator”) (emphasis added). The EPCA

establishes that the “fuel economy” of a vehicle

produced by these procedures is “the average number

of miles traveled by an automobile for each gallon of

gasoline (or equivalent amount of other fuel) used, as

determined by the [EPA] Administrator under [49

U.S.C. §] 32904(c).” Id. § 32901(a)(11) (emphasis

added). And the regulations provide that, so long as

the estimates satisfy the EPA’s prescribed testing

procedures, “[t]he label values that the manufacturer

calculates and submits . . . shall constitute the EPA

fuel economy estimates.” 40 C.F.R. § 600.312-08(a)(3).

See also Fuel Economy Labeling of Motor Vehicles:

Revisions To Improve Calculation of Fuel Economy

Estimates, 71 Fed. Reg. 77872, 77872–76 (Dec. 27,

2006) (to be codified at 40 C.F.R. pts. 86 and 600)

(describing the estimates as “the EPA fuel economy

estimates”). This figure is included by law on the

label, colloquially called a “Monroney” sticker, that is

attached to each new vehicle sold. 49 U.S.C. §

32908(b)(1)(A); 40 C.F.R. § 600.302-12; see also Fuel

Economy Labeling of Motor Vehicles, 71 Fed. Reg. at

77916 n.80.

The purpose of the standardized EPA estimate

is two-fold. It not only “provide[s] consumers with a

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basis on which to compare the fuel economy of

different vehicles,” but it also “provide[s] consumers

with a reasonable estimate of the fuel economy they

can expect to achieve.” Fuel Economy Labeling of

Motor Vehicles, 71 Fed. Reg. at 77873. But the EPA

also warns consumers that the estimates are, indeed,

estimates. “[F]uel economy varies from driver to

driver for a wide variety of reasons, such as different

driving styles, climates, traffic patterns, use of

accessories,

loads,

weather,

and

vehicle

maintenance.” Id. at 77874; see also 40 C.F.R. §

600.302-12(b)(4) (providing that the Monroney sticker

must include the disclaimer: “Actual results will vary

for many reasons, including driving conditions and

how you drive and maintain your vehicle.”).

The EPA monitors compliance with these

requirements. See 49 U.S.C. §§ 32910–12. If the EPA

suspects that a manufacturer has “fail[ed] to comply

with an applicable average fuel economy standard”

under § 32902, it “shall conduct a proceeding, with an

opportunity for a hearing on the record, to decide

whether a violation has been committed.” Id. §

32911(b). If, at any point during the model year, the

EPA determines that the label values have been

calculated incorrectly, it may correct those figures or

require the manufacturer to do so. 40 C.F.R. §

600.312-08(a)(5). Among the possible violations a

manufacturer could commit would be in its “obligation

to report truthful and complete information” following

testing. 40 C.F.R. § 1066.2(b); see also 49 U.S.C. §

32911. The EPA may “void any certificates or

11a

approvals associated with a submission of

information,” including “for all engine families

certified based on emission data collected,” if it

determines that the manufacturer “intentionally

submitted

false,

incomplete,

or

misleading

information.” 40 C.F.R. § 1066.2(c). Civil and criminal

penalties may also apply. Id. § 1066.2(b) (citing 18

U.S.C. § 1001 and 42 U.S.C. § 7413(c)(2)).

While the EPA regulates the fuel economy

estimate provided to consumers on the Monroney

sticker, the Federal Trade Commission (FTC)

regulates advertising to consumers. Fuel Economy

Labeling of Motor Vehicles, 71 Fed. Reg. at 77917. Its

“Guide Concerning Fuel Economy Advertising for

New Vehicles . . . advises vehicle manufacturers and

dealers how to disclose the established fuel economy

of a vehicle, as determined by the [EPA’s] rules.” Id.

The FTC also discourages manufacturers from

advertising other fuel economy figures beyond that

determined by the EPA: “Given consumers’ exposure

to EPA estimated fuel economy values over the last

several decades, fuel economy and driving range

estimates derived from non–EPA tests can lead to

deception if consumers understand such estimates to

be fuel economy ratings derived from EPA–required

tests.” 16 C.F.R. § 259.4(l)(1). “Accordingly,

advertisers should avoid such claims and disclose the

EPA fuel economy or driving range estimates.” Id.

12a

II.

Pursuant to this testing regime, Ford

conducted testing and provided the resulting figures

to the EPA for the 2018, 2019, and 2020 F-150 and

2019 and 2020 Ranger trucks. The EPA then

published its fuel-economy estimates for those

vehicles. The F-150 had an EPA-estimated mpg of 20

city, 26 highway, and 22 combined, while the Ranger

had an EPA-estimated 20 city, 25, highway, and 22

combined mpg. Ford used these figures in its

advertisements, promoting the 2019 Ranger as the

“most fuel-efficient gas-powered midsize pickup in

America” and the F-150 as “best in class for fuel

economy.”

Plaintiffs claim, however, that Ford committed

fraud in its testing. In September 2018, several Ford

employees questioned the testing process, which led

to Ford announcing that it would investigate its

testing of the 2019 Ranger and other vehicles. It then

disclosed that it was under criminal investigation by

the Department of Justice (DOJ) for its emissions and

fuel-efficiency testing. Several other agencies opened

investigations, including the EPA. After these

allegations arose, independent car reviewers

performed “real-world mileage” tests and determined

that the actual performance of the Ranger and other

vehicles was “nowhere close” to the EPA estimates.

Complaint, R.78, PageID 2157–58.

Plaintiffs tested the 2018 Ford F-150 and 2019

Ford Ranger to verify the fuel economy of those

13a

vehicles. Their testing (which they contend conformed

to the EPA’s standards) showed that Ford

fraudulently reduced the road-load resistance level

used in the dynamometer testing. The road-load

figures obtained from the “coastdown [tests] for each

vehicle [were] found to have more resistance (which

would result in more fuel consumption) than the roadload models reported to the EPA.” Complaint, R.78,

PageID 2172. They determined that the mpg

estimates of the F-150 should be 17.7 city, 22.7

highway, and 20.0 combined, with the Ranger being

18.3, 23.4, and 20.6, respectively. In short, plaintiffs’

testing allegedly proves that the EPA estimates for

both those truck models are several mpg better than

what they should be. This means that both trucks

consume much more fuel than previously estimated,

costing consumers thousands of dollars in added fuel

cost.

Plaintiffs then filed a host of putative classaction suits alleging that Ford cheated during its

coastdown testing procedure to ensure that it received

a more favorable fuel economy estimate from the EPA.

The Judicial Panel on Multidistrict Litigation

consolidated those cases in the Eastern District of

Michigan. The district court directed plaintiffs to file

a consolidated master complaint, and the ensuing

complaint, at nearly 1,000 pages long, included claims

of breach of contract, negligent misrepresentation,

breach of express warranty, fraud, and unjust

enrichment under the laws of every state. Plaintiffs

requested several forms of relief, including: 1)

14a

certification of the proposed class; 2) “Declaring,

adjudging, and decreeing the conduct of the

Defendant as alleged herein to be unlawful, unfair,

and deceptive”; 3) “Requiring that all Class members

be notified about the lower fuel economy ratings and

higher emissions at Ford’s expense and providing

correct fuel economy and emissions ratings”; and 4)

awarding plaintiffs restitution and damages. Id. at

3014–15.

Ford moved to dismiss the complaint, raising a

host of reasons. Pertinent for our purposes, Ford

contended that 1) federal law both expressly and

impliedly preempted plaintiffs’ claims, 2) the EPA had

primary jurisdiction over the case, such that the

district court should dismiss the case, and 3)

plaintiffs’ misrepresentation and omission claims

failed to state a claim upon which relief can be

granted. The district court agreed with Ford on all

counts and dismissed plaintiffs’ complaint. 4 In re Ford

Motor Co. F-150 & Ranger Truck Fuel Econ. Mktg. &

Sales Pracs. Litig., No. 2:19-md-02901, 2022 WL

551221 (E.D. Mich., Feb. 23, 2022). Plaintiffs timely

appealed.

4 While the case progressed, the federal investigations into

Ford’s alleged fraud did too. By the time Ford moved to dismiss

the complaint, the DOJ had closed its investigation and did not

intend to take further action. The EPA similarly closed its own

investigation shortly before the district court issued its decision.

On appeal, plaintiffs have acknowledged that these

investigations closed without further agency action.

15a

III.

To survive a motion to dismiss under Fed. R.

Civ. P. 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (internal quotation marks

omitted). We review de novo a district court’s decision

to dismiss a case under Rule 12(b)(6), Taylor v. City of

Saginaw, 922 F.3d 328, 331 (6th Cir. 2019), including

whether the district court properly did so on federal

preemption grounds, McDaniel v. Upsher-Smith

Labs., Inc., 893 F.3d 941, 944 (6th Cir. 2018). In doing

so, we must “construe the complaint in the light most

favorable to the plaintiff and accept all allegations as

true.” Taylor, 922 F.3d at 331 (citation omitted). The

defendant has the burden of showing that a plaintiff

has failed to state a plausible claim for relief. Id. at

331–32.

IV.

The Supremacy Clause of the U.S. Constitution

provides that “the Laws of the United States . . . shall

be the supreme Law of the Land . . . , any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. “The

phrase ‘Laws of the United States’ encompasses both

federal statutes themselves and federal regulations

that are properly adopted in accordance with

statutory authorization.” City of New York v. F.C.C.,

486 U.S. 57, 63 (1988). Thus, “state laws that

‘interfere with, or are contrary to the laws of congress,

16a

made in pursuance of the constitution’ are invalid.”

Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604

(1991) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211

(1824)). This inquiry is largely one of congressional

intent, i.e., whether the statute demonstrates an

“intent to supplant state authority in a particular

field.” Id. at 604–05. In line with the standards

governing motions for dismissal, a defendant bears

the burden of proof in establishing preemption as

grounds for dismissal. Brown v. Earthboard Sports

USA, Inc., 481 F.3d 901, 912 (6th Cir. 2007).

Ordinary preemption provides an affirmative

defense to support dismissal of a claim (as Ford did

here). Hudak v. Elmcroft of Sagamore Hills, 58 F.4th

845, 852 (6th Cir. 2023). 5 “State-law claims can be

preempted expressly in a federal statute or

regulation, or impliedly, where congressional intent to

preempt state law is inferred.” McDaniel, 893 F.3d at

944 (citation omitted). Through an express

preemption clause, Congress may make clear “that it

Ordinary preemption is distinguished from the

“misleadingly named doctrine” of complete preemption, a

“jurisdictional” doctrine under which a court could conclude “that

the pre-emptive force of a statute is so extraordinary that it

converts an ordinary state common-law complaint into one

stating a federal claim for purposes of the well-pleaded complaint

rule.” Hogan v. Jacobson, 823 F.3d 872, 879 (6th Cir. 2016)

(quotation marks omitted). This “complete preemption” doctrine

is a narrow one that the Supreme Court has applied in only three

statutory settings. See Beneficial Nat’l Bank v. Anderson, 539

U.S. 1, 6–11 (2003).

5

17a

is displacing or prohibiting the enactment of state

legislation in a particular area.” Matthews v. Centrus

Energy Corp., 15 F.4th 714, 720 (6th Cir. 2021). By

contrast, implied preemption applies in one of two

forms: field or conflict. Id. “Field preemption occurs

‘where the scheme of federal regulation is so pervasive

as to make reasonable the inference that Congress left

no room for the States to supplement it.’” Id. (quoting

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88,

98 (1992)). Conflict preemption may instead be

present when “Congress has not entirely displaced

state regulation over the matter in question.”

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248

(1984). In that circumstance, state law may be

preempted “to the extent it actually conflicts with

federal law, that is, when it is impossible to comply

with both state and federal law, or where the state law

stands as an obstacle to the accomplishment of the full

purposes and objectives of Congress.” Id. (internal

citations omitted).

A.

We begin and end with implied preemption.

Ford asserts that plaintiffs’ fraud-on-the-agency

claims are impliedly preempted because those claims

conflict with the EPA’s testing and fraud-policing

authority set forth in the EPCA and with the fact that

the EPA is responsible for the fuel economy figures.

Plaintiffs say otherwise, arguing their claims are

based on state-law duties that are identical to those

that federal law imposes on auto manufacturers. We

18a

agree with Ford and conclude that plaintiffs’ claims

inevitably conflict with the EPCA and its regulatory

scheme. 6

In this, as in any preemption inquiry, the

Supreme Court instructs that the “purpose of

Congress is the ultimate touchstone,” as “explicitly

stated in the statute’s language or implicitly

contained in its structure and purpose.” Cipollone v.

Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (citations

omitted). We normally “apply a strong presumption

against implied preemption in fields that States

traditionally regulate” because “preemption can

trammel upon state sovereignty.” Torres v. Precision

Indus., 995 F.3d 485, 491 (6th Cir. 2021) (per curiam)

(citation and internal quotation marks omitted); cf.

Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S.

115, 125 (2016). Further, the presence of an express

preemption provision “does not bar the ordinary

working of conflict pre-emption principles.” Geier v.

Am. Honda Motor Co., Inc., 529 U.S. 861, 869 (2000).

Although no court has addressed implied

preemption in this specific context, we do not write on

a blank slate—a host of caselaw exists addressing

similar fraud-on-the-agency claims in the context of

implied preemption. Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341 (2001), is the seminal case.

6 Given that our conclusion on implied preemption disposes of

the case entirely, we need not address the alternative arguments

the parties raise, including express preemption. See Buckman

Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 n.2 (2001).

19a

There, the plaintiffs claimed injuries resulting from

bone screws that had been reviewed and approved by

the Food and Drug Administration (FDA). Id. at 343–

46. The Court began its analysis by noting that no

presumption against preemption existed in this

context: “Policing fraud against federal agencies is

hardly ‘a field which the States have traditionally

occupied,’ such as to warrant a presumption against

finding federal pre-emption of a state-law cause of

action.” Id. at 347 (internal citation omitted). Instead,

“the relationship between a federal agency and the

entity it regulates is inherently federal in character

because the relationship originates from, is governed

by, and terminates according to federal law.” Id.

Given that lack of presumption, the Court held

that “the plaintiffs’ state-law fraud-on-the-FDA

claims conflict with, and are therefore impliedly preempted by, federal law.” Id. at 348. Its reasoning was

straightforward—the federal scheme empowered the

FDA to punish and deter fraud, and the agency used

that authority to balance several statutory objectives,

which state-law fraud-on-the-agency claims would

skew. Id. For example, the FDA has “a variety of

enforcement options that allow it to make a measured

response to suspected fraud upon the [agency].” Id. at

349. And the FDA had “flexibility” in pursuing its

objectives, including “the difficult task of regulating

the marketing and distribution of medical devices

without intruding upon decisions statutorily

committed to the discretion of health care

professionals.” Id. at 349– 50. Thus, state-law fraud-

20a

on-the-agency claims would “inevitably conflict with

the FDA’s responsibility to police fraud consistently

with the Administration’s judgment and objectives.”

Id. at 350. “In sum, were plaintiffs to maintain their

fraud-on-the-agency claims here, they would not be

relying on traditional state tort law” predating the

federal law at issue. Id. at 353. “On the contrary, the

existence of these federal enactments is a critical

element in their case;” the claims existed solely

because of the FDA’s regulatory and disclosure

scheme. Id. Therefore, “this sort of litigation would

exert an extraneous pull on the scheme established by

Congress, and it is therefore pre-empted by that

scheme.” Id.

Courts have applied Buckman to other

regulatory schemes. Consider Garcia v. Wyeth-Ayerst

Laboratories, 385 F.3d 961 (6th Cir. 2004). There, we

held that a Michigan statute immunizing drug

manufacturers from product-liability claims was not

facially unconstitutional; as part of our analysis, we

concluded that a state-law fraud-on-the-FDA tort

claim was impliedly preempted under Buckman. Id.

at 965–66. In so doing, we reasoned that “Buckman

teaches that state tort remedies requiring proof of

fraud committed against the FDA are foreclosed since

federal law preempts such claims.” Id. at 966 (citation

omitted).

The Ninth Circuit similarly applied Buckman

to hold that state-law claims of improper disclosures

related to the harmful effects of a pesticide were

21a

preempted under the Federal Insecticide, Fungicide,

and Rodenticide Act. Nathan Kimmel, Inc. v.

DowElanco, 275 F.3d 1199, 1205–06 (9th Cir. 2002).

That act, like the FDA scheme in Buckman, “is a

comprehensive regulatory scheme aimed at

controlling the use, sale, and labeling of pesticides,”

and it both required EPA approval of a pesticide’s

label and prohibits submitting false information. Id.

at 1204. The Ninth Circuit concluded that Buckman’s

analysis similarly applied—the scheme empowered

the EPA to punish fraud, the balancing of statutory

objectives can be skewed by allowing fraud-on-theagency claims to proceed, and “the existence of the

[act’s] requirements are similarly a critical element of

[the plaintiff’s] state-law case.” Id. at 1204–06.

And in Farina v. Nokia, Inc., the Third Circuit

held that state-law claims alleging the fraudulent

marketing of cell phones as safe despite their

dangerous radio frequencies were preempted by

federal law governing the Federal Communications

Commission (FCC). 625 F.3d 97, 104 (3d Cir. 2010).

“The Supreme Court’s preemption case law indicates

that regulatory situations in which an agency is

required to strike a balance between competing

statutory objectives lend themselves to a finding of

conflict preemption.” Id. at 123 (citing Buckman, 531

U.S. at 348). The purpose of the FCC’s regulations was

to balance protecting the public from emissions with

enabling companies to supply quality services in a

cost-effective way, and the FCC’s balancing of these

objectives “is a policy question, not a legal one.” Id. at

22a

124–25 (citation omitted). “A jury determination that

cell phones in compliance with the FCC’s [radio

frequency] guidelines were still unreasonably

dangerous would, in essence, permit a jury to second

guess the FCC’s conclusion” and, given that state-law

standards vary, “eradicat[e] the uniformity necessary

to regulating the wireless network.” Id. at 125–26.

Buckman and its progeny apply with equal

force here—the regulatory scheme governing the

EPA’s approval of fuel economy estimates preempts

plaintiffs’ state-law claims. Both the EPCA and its

corresponding regulations set the standards for

testing that a manufacturer must follow. The

regulations dictate how a manufacturer must test on

a dynamometer, see, e.g., 40 C.F.R. § 1066.401, et seq.,

and how to input correct road-load figures to simulate

normal drag and friction, id. §§ 1066.301, 1066.1010.

They set specific standards for testing, id.

§ 1066.301(b), and provide formulas to calculate city

and highway fuel mileage, id. § 600.21012.

Throughout this process, the EPA is empowered to

investigate suspected fraud. See 49 U.S.C. §§ 32910–

12. If it suspects a manufacturer is not following

proper testing procedures, the agency may require the

manufacturer to submit the vehicle for inspection or

to conduct additional testing. 40 C.F.R. § 600.008.

When a manufacturer later submits proposed figures,

the EPA must review them for reasonableness before

adopting those figures; if those figures are not

reasonable, the EPA may again require additional

testing. Id. Manufacturers have an obligation to

23a

submit truthful information, and the EPA may take

corrective or punitive action if information is

incomplete or false. 40 C.F.R. § 1066.2. The EPA thus

“has at its disposal a variety of enforcement options

that allow it to make a measured response to

suspected fraud upon the Administration.” Buckman,

531 U.S. at 349. And, ultimately, the fuel economy

figure is the EPA’s own; it is not adopted or published

unilaterally by Ford (or by any other manufacturer).

See 49 U.S.C. §§ 32904(c), 32901(a)(11).

The EPA uses this regulatory scheme to

“achieve a somewhat delicate balance of statutory

objectives” in providing fuel economy estimates. See

Buckman, 531 U.S. at 348. The testing regime—

whereby manufacturers test the vehicles and submit

the figures before the EPA may confirm those figures

in several ways—is “designed to represent a

reasonable balance between the need for accurate fuel

economy data and the need to contain the cost of

testing for both industry and EPA.” Fuel Economy

Labeling of Motor Vehicles, 71 Fed. Reg. at 77881. The

“criteria for use of the mpg-based approach . . . are

based on the balance of three factors.” Id. at 77897.

“First, [the EPA] designed them to be sufficiently

large so that typical test-to-test variability would not

cause a test group to fail the criteria.” Id. “Second, [the

EPA] want[ed] to minimize the potential error in the

fuel economy label.” Id. “Third, [the EPA] want[ed] to

avoid requiring additional fuel economy testing that

will have little to no impact on the label values.” Id.

This balance is reflected in what the EPA requires for

24a

approval of fuel economy figures: that they be

“reasonable and representative.” 40 C.F.R. §

600.008(c)(1). The EPA does not require the figures to

be strictly accurate; rather, they must be reasonably

related to the testing performed and the EPA’s

expected fuel economy ratings. This demonstrates

that the EPA has significant discretion throughout

this process.

Plaintiffs’ claims inevitably conflict with this

regime. 7 First, because the EPA accepted Ford’s

testing information and published its estimate based

on that information, plaintiffs’ claims essentially

challenge the EPA’s figures. Cf. Farina, 625 F.3d at

122 (“Whether or not Farina intends to expressly

challenge the FCC standards at trial, the inescapable

effect of his complaint is to do so.”). To evaluate their

claims, a jury would have to decide whether Ford’s

testing figures are correct or fraudulent. This

inescapably and impermissibly puts a jury into the

EPA’s regulatory shoes. See id. at 125 (“Allowing

juries to impose liability on cell phone companies for

claims like Farina’s would conflict with the FCC’s

regulations.”). So even though the EPA exercised its

7 As a threshold matter, Buckman made clear that state law

has not traditionally regulated fraud against a federal agency;

that relationship is “inherently” federal because it owes its very

existence to federal law. 531 U.S. at 347–48. Thus, unlike in

other circumstances where states have traditionally regulated

conduct, cf. Torres, 995 F.3d at 491, no presumption against

preemption exists here (and plaintiffs do not argue to the

contrary).

25a

statutory duty and found Ford’s testing to be

acceptable, a jury would still make its own

determination, thus conflicting with the EPA’s

authority to set its own fuel-economy figures.

Second, allowing juries to second-guess the

EPA’s fuel economy figures would permit them to

rebalance the EPA’s objectives. As explained, the

EPA’s process accounts for several factors, including

cost, accuracy of data, and redundancy of testing. See

Fuel Economy Labeling of Motor Vehicles, 71 Fed.

Reg. at 77881, 77897. The EPA does not require

manufacturers’ fuel economy figures to be stringently

accurate, and it warns consumers that estimates may

vary. See 40 C.F.R. § 600.302-12(b)(4). It is for the

EPA, not a jury, to balance its own objectives in

determining whether fuel economy data is reasonable:

“Allowing juries to perform their own risk-utility

analysis and second-guess the [EPA’s] conclusion

would disrupt the expert balancing underlying the

federal scheme.” Farina, 625 F.3d at 126. Because the

EPA’s authority must balance certain statutory

objectives, it “can be skewed by allowing fraud-on-the[EPA] claims under state tort law.” Buckman, 531

U.S. at 348; see also Geier, 529 U.S. at 875–81 (holding

that federal law preempted state-law claims based on

the lack of airbags because the Department of

Transportation’s regulation depended on a balancing

of multiple factors, such as safety, cost, technological

development, and consumer preferences).

26a

Third, as the EPA has the authority to approve

or reject fuel economy figures, its “federal statutory

scheme amply empowers the [agency] to punish and

deter fraud.” Buckman, 531 U.S. at 348. The EPA has

several statutory and regulatory ways to police

suspected fraud and monitor compliance with its

testing procedures. See, e.g., 49 U.S.C. § 32910; 40

C.F.R. § 600.312-08; 40 C.F.R. § 600.008; 40 C.F.R. §

1066.2. Thus, “Congress has afforded the EPA

substantial enforcement powers under [the EPCA]

that enable the EPA to make a measured response to

suspected fraud against it,” including conducting

hearings, requiring additional testing, and rejecting a

manufacturer’s data. Kimmel, 275 F.3d at 1205–06.

Both determining whether a manufacturer has

committed fraud against the agency and policing said

fraud is, consequently, the responsibility of the EPA.

Such explicit authority was a foundational reason

Buckman determined the claims at issue were

preempted. See 531 U.S. at 350 (“State-law fraud-onthe-FDA claims inevitably conflict with the FDA’s

responsibility to police fraud consistently with the

Administration’s judgment and objectives.”). In

adjudicating a state-law claim, a jury would be

empowered to usurp the EPA’s fraud-policing powers.

Finally, state-law claims would skew the

disclosures that manufacturers need to make to the

EPA. Manufacturers like Ford have documentation

that they must submit to the EPA, and the EPA has

the responsibility to determine whether this

documentation is sufficient. See 40 C.F.R. §

27a

600.008(e)(1). But if a state-law claim were to proceed,

a jury may find this documentation inadequate even

if the EPA had previously determined otherwise.

Thus, as was noted in Buckman, “[a]pplicants would

then have an incentive to submit a deluge of

information that the Administration neither wants

nor needs, resulting in additional burdens on the

[EPA’s] evaluation” of the manufacturer’s fuel

economy data. 531 U.S. at 351. This would burden the

agency’s approval process and obstruct its goal of

“provid[ing] consumers with a basis on which to

compare the fuel economy of different vehicles.” Fuel

Economy Labeling of Motor Vehicles, 71 Fed. Reg. at

77873.

In sum, federal law provides how the EPA

regulates fuel economy standards and what the EPA

must balance in arriving at its own estimates. It

similarly gives the EPA significant authority to

investigate and deter fraud. State-law tort claims, like

plaintiffs’, would skew this balance and permit juries

to take the EPA’s place in determining whether fuel

economy estimates are reasonable. Therefore, as with

the claims and regulatory scheme in Buckman,

plaintiffs’ claims are preempted as conflicting with

federal law. See 531 U.S. at 348.

B.

Plaintiffs contend that several Supreme Court

cases dictate the opposite conclusion. First, they cite

Wyeth v. Levine, where the Supreme Court addressed

preemption of state-law claims based on a

28a

manufacturer’s failure to warn consumers of a drug’s

possible side effects. 555 U.S. 555, 559–60 (2009). The

Court held that the FDA’s approval of the drug label

did not preempt these claims—under the federal

regulatory scheme at issue, the manufacturer bore the

responsibility for the label’s contents, and the

regulations permitted unilateral alteration of the

label. Id. at 568–73. Therefore, the state-law claims

complemented federal law, and the manufacturer

“failed to demonstrate that it was impossible for it to

comply with both federal and state requirements.” Id.

at 573. Then, they point to Silkwood v. Kerr-McGee

Corp., where the Court determined that federal law

did not preempt a state damages award arising from

an escape of plutonium from a nuclear facility. 464

U.S. at 241, 258. Congress had provided strict safety

regulations for such facilities, but it never provided

any remedy for a violation of those standards that

would preempt a state law. Id. at 253–56. Thus,

“Congress assumed that state-law remedies, in

whatever form they might take, were available to

those injured by nuclear incidents.” Id. at 256. And,

finally, they raise Medtronic v. Lohr, where the Court

held that state-law claims were not preempted by a

statute prohibiting requirements that were “different

from, or in addition to,” federal requirements. 518

U.S. 470, 492–502 (1996). Nothing in the preemption

statute at issue denied a state “the right to provide a

traditional damages remedy for violations of commonlaw duties when those duties parallel federal

requirements.” Id. at 495; see also Bates v. Dow

29a

Agrosciences LLC, 544 U.S. 431, 447–48 (2005)

(concluding that, so long as a state law imposed only

a “parallel requirement[],” no express preemption

applied—the statute did “not preclude States from

imposing different or additional remedies, but only

different or additional requirements”); Fulgenzi v.

PLIVA, Inc., 711 F.3d 578, 586–87 (6th Cir. 2013)

(“[The plaintiff’s] suit is not even premised on

violation of federal law, but rather on an independent

state duty. The alleged breach arises from the same

act, but the legal basis is different. This is simply not

grounds for preemption.”). Plaintiffs claim that these

cases illustrate how Ford’s state-law duties are

identical to the EPCA’s and that, given Ford’s fraud,

Ford can comply with both to rectify their actions. We

cannot agree.

First, plaintiffs’ fraud-on-the-agency claims

here arose out of the EPCA’s requirements— i.e., that

Ford failed to follow the EPCA by not providing

truthful information as required by the EPCA—not

solely out of state-law tort principles. “[T]he existence

of these federal enactments is a critical element in

their case.” Buckman, 531 U.S. at 353. Both Buckman

and Kimmel distinguished Medtronic and similar

caselaw on this basis. See id. at 352 (“[I]t is clear that

the Medtronic claims arose from the manufacturer’s

alleged failure to use reasonable care in the

production of the product, not solely from the violation

of FDCA requirements.”); Kimmel, 275 F.3d at 1206

(“[W]e believe that the existence of the FIFRA

requirements are similarly a critical element of

30a

Kimmel’s state-law case . . . .”). While plaintiffs’ claims

may be founded in part on state-law fraud principles,

they are also necessarily premised on violations of

federal law, namely a failure to follow the testing

procedures set by the EPA. To demonstrate that Ford

committed fraud, plaintiffs would need to show that

Ford failed to follow the EPA-proscribed testing

procedures or its obligation to report truthful

information to the EPA. 40 C.F.R. § 1066.2(b). Their

claims would not exist without specific standards

regulating the dynamometer, “road load,” and

coastdown testing process. Therefore, plaintiffs’

claims could not exist apart from federal law. See

Buckman, 531 U.S. at 353 (“[A]lthough Medtronic can

be read to allow certain state-law causes of actions

that parallel federal safety requirements, it does not

and cannot stand for the proposition that any

violation of the FDCA will support a state-law

claim.”).

Second, unlike in Silkwood, Congress has not

disclaimed providing any remedy for violating the

EPA testing process. To the contrary, the regulatory

scheme gives the EPA significant authority to

investigate and correct alleged fraud. See 49 U.S.C. §§

32910–12. The EPA may impose any number of civil

or criminal penalties, including voiding fuel economy

data for all related engine families. 40 C.F.R. §

1066.2(c). These enforcement authorities, combined

with the balancing of EPA’s interests and the fact that

these numbers belong to the EPA, strongly suggest

that Congress intended that the EPCA be enforced by

31a

the federal government. See Buckman, 531 U.S. at

352.

Third, and crucially, the regulatory scheme

governing fuel economy standards requires the EPA to

approve those figures and publish them as its own.

While Ford must provide the requisite testing data to

the EPA, it is the EPA’s responsibility to determine

whether that data is “reasonable”; after doing so, the

EPA adopts those figures. See, e.g., 49 U.S.C. §

32901(a)(11); 40 C.F.R. § 600.312-08(a)(3). The EPA

must give its own approval, all the while balancing its

statutory and regulatory objectives. This renders

Levine distinguishable, where the manufacturer was

responsible for the contents of the drug’s label and

could alter it unilaterally without agency approval.

555 U.S. at 568–73.

PLIVA, Inc. v. Mensing, which held that federal

law preempted the state-law failure-to-warn claims at

issue, confirms this distinction. 564 U.S. 604, 609

(2011). The manufacturers in Mensing—unlike in

Levine—did not have the unilateral authority to

modify the drug labels: “Before the Manufacturers

could satisfy state law, the FDA—a federal agency—

had to undertake special effort permitting them to do

so.” Id. at 623. “[W]hen a party cannot satisfy its state

duties without the Federal Government’s special

permission and assistance, which is dependent on the

exercise of judgment by a federal agency, that party

cannot independently satisfy those state duties for

pre-emption purposes.” Id. at 623–24. The scheme at

32a

issue here is like that in Mensing—Ford has no

authority to modify or update the fuel economy figures

for its vehicles once the EPA has accepted those

figures. It must go through the EPA, which has

already balanced several objectives in reaching its

figures. Levine did not involve such a balancing of

factors—another reason that it is distinguishable.

See, e.g., Farina, 625 F.3d at 130 (“[Levine] was not a

balancing case.”).

Finally, plaintiffs attempt to rescue their case

by arguing that Ford committed fraud on consumers,

not just the agency. But that distinction is immaterial

for reasons previously noted— any fraud committed

by Ford on consumers is a byproduct of alleged fraud

committed on the EPA. One does not exist apart from

the other. Consequently, plaintiffs’ claims for fraud on

consumers exist solely because of the EPCA’s

requirements. Cf. Buckman, 531 U.S. at 353. In any

event, Ford’s advertisements relied solely on the EPA

estimates to proclaim that the Ranger was the “most

fuel-efficient gas-powered midsize pickup in America”

and that the F-150 had a “best-in-class EPAestimated highway fuel efficiency rating of 30 mpg.”

Mere reliance on the EPA estimates, without making

any further disclosures about a vehicle’s supposed

real-world fuel economy, is not enough. See, e.g., Gray

v. Toyota Motor Sales, U.S.A., Inc., 554 F. App’x 608,

609 (9th Cir. 2014) (“[A]s a matter of law, there is

nothing false or misleading about a car

manufacturer’s advertising that identifies the EPA

fuel economy estimates for the car.” (citation

33a

omitted)); In re Ford Fusion and C-MAX Fuel Econ.

Litig., No. 13-MD-2450 (KMK), 2015 WL 7018369, at

*27 (S.D.N.Y. Nov. 12, 2015) (“To the extent that

Plaintiffs’ claims rest on Defendant’s mere use of EPA

estimates . . . such claims are [expressly] preempted.”

(citation and original brackets omitted)). Indeed,

complaining about how Ford uses those estimates is

“tantamount to permitting Plaintiffs to challenge the

EPA estimates themselves,” which plaintiffs cannot

do. See In re Ford Fusion and C-MAX Fuel Econ.

Litig., No 13-MD-2450 (KMK), 2017 WL 3142078, at

*10 (S.D.N.Y. July 24, 2017).

C.

In conclusion, we hold that plaintiffs’ fraud-onthe-agency claims against Ford are impliedly

preempted as conflicting with federal law. 8 The EPCA

8 We

do not pass any opinion on the applicability of this

analysis in the event that the EPA itself determines that a

manufacturer committed fraud in its fuel-economy testing. Cf.

Buckman, 531 U.S. at 353–54 (Stevens, J., concurring) (noting

that, if the agency had found fraud, “a plaintiff would be able to

establish causation without second-guessing the FDA’s

decisionmaking or overburdening its personnel, thereby

alleviating the Government’s central concerns regarding fraudon-the-agency claims”); Garcia, 385 F.3d at 966 (explaining that

Buckman applied to a plaintiff’s claim “on the basis of state court

findings of fraud on the FDA,” but that similar concerns would

not arise “when the FDA itself determines that a fraud has been

committed on the agency during the regulatory-approval

process”). Such a situation is not before us as the EPA closed its

own investigation into Ford’s alleged fraud without further

action.

34a

provides ample authority for the EPA to regulate

testing, deter fraud, and publish its own fuel economy

estimates. The EPA must balance several objectives

in doing so, and state-law tort claims would skew this

balance. “For the reasons stated above, we think this

sort of litigation would exert an extraneous pull on the

scheme established by Congress, and it is therefore

pre-empted by that scheme.” Buckman, 531 U.S. at

353.

IV.

For the foregoing reasons, we affirm the

judgment of the district court.

35a

Appendix B

No. 22-1245

United States Court Of Appeals

For The Sixth Circuit

_________♦_________

IN RE: FORD MOTOR COMPANY F-150 AND

RANGER TRUCK FUEL ECONOMY MARKETING

AND SALES PRACTICES LITIGATION.

MARSHALL B. LLOYD; ET AL.,

Petitioners,

V.

FORD MOTOR COMPANY,

_________♦_________

Respondent.

Filed June 21, 2023

_________♦_________

BEFORE: GRIFFIN, BUSH, and MURPHY,

Circuit Judges.

The court received a petition for rehearing en

banc. The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

36a

petition were fully considered upon the original

submission and decision of the case. The petition then

was circulated to the full court. ∗ No judge has

requested a vote on the suggestion for rehearing en

banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

J<"prT!'

Deborah S. Hunt, Clerk

∗

Judges Kethledge and Davis recused themselves from

participation in this ruling.

37a

Appendix C

No. 22-1245

United States Court Of Appeals

For The Sixth Circuit

_________♦_________

IN RE: FORD MOTOR COMPANY F-150 AND

RANGER TRUCK FUEL ECONOMY MARKETING

AND SALES PRACTICES LITIGATION.

MARSHALL B. LLOYD; ET AL.,

Petitioners,

V.

FORD MOTOR COMPANY,

_________♦_________

Respondent.

BEFORE: GRIFFIN, BUSH, and MURPHY,

Circuit Judges.

_________♦_________

JUDGMENT

_________♦_________

Filed April 21, 2023

38a

_________♦_________

On Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is

ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

~rTI'

Deborah S. Hunt, Clerk

39a

Appendix D

No. 22-1245

United States Court Of Appeals

For The Sixth Circuit

_________♦_________

IN RE: FORD MOTOR COMPANY F-150 AND

RANGER TRUCK FUEL ECONOMY MARKETING

AND SALES PRACTICES LITIGATION.

MARSHALL B. LLOYD; ET AL.,

Petitioners,

V.

FORD MOTOR COMPANY,

_________♦_________

Respondent.

TRANSCRIPT

_________♦_________

Heard March 8, 2023

_________♦_________

[3:2-7] CLERK: Case Number 22-1245, Marshall

Lloyd et al. v. Ford Motor Company. Oral argument

40a

not to exceed 15 minutes per side. Mr. Berman, you

may proceed for the Appellant.

HON. RICHARD A. GRIFFIN: Good morning.

MR. BERMAN: Good morning, Your Honors. Steve

Berman on behalf of the Appellants.

*****

[5:4-13] HON. RICHARD A. GRIFFIN: The fact that

it’s over with, that the -- your brief says that it’s over

with regard to criminal prosecution. Do you concede

it’s over with for -- that the EPA has made a

determination that what was submitted complies

with their rules and regulations?

MR. BERMAN: I have no idea, Your Honor. There’s

nothing in the record to suggest or in the EPA’s

pronouncements as to whether they’re still looking at

this on a civil basis.

HON. RICHARD A. GRIFFIN: Okay.

*****

[11:5-12:11] HON. JOHN K. BUSH: So, at this point

you’re only seeking damages.

MR. BERMAN: That’s correct. And, Your Honor,

most of these cars are new cars. So, this case is a

41a

couple years old. So, the primary class members

here, if there were a class, are new car buyers, people

who would have gone in and seen -HON. JOHN K. BUSH: I guess when you say new

car buyers, the purchases have already taken place

though, right?

MR. BERMAN: That’s correct.

HON. JOHN K. BUSH: They were new car buyers at

that time the purchase took place.

MR. BERMAN: That’s correct.

HON. JOHN K. BUSH: but these are all used cars at

this point, correct?

MR. BERMAN: That’s correct.

HON. JOHN K. BUSH: Okay. What I’m getting at is,

is there really any interference with what the EPA

does. Because it seems like to me you’re seeking

damages which doesn’t really interfere with what the

EPA does going forward. I mean, there’s not any

current Monroney sticker that’s being affected by the

relief you’re seeking in this case, is there?

MR. BERMAN: No, there is not.

HON. JOHN K. BUSH: You’re just saying this past

42a

testing was done incorrectly, resulting in an

incorrect Monroney number.

MR. BERMAN: Right.

HON. JOHN K. BUSH: And you’re seeking damages

for that.

MR. BERMAN: That’s correct.

*****

[26:25-27:8] HON. JOHN K. BUSH: Let me ask you

a quick question about the representations that Ford

made. Do you agree that the representations were all

related to -- when it says best in class and most fuel

efficient gas-powered midsize pickup in America they

were -- do you understand that Ford was referring to

what the tests were under the EPA procedure?

MR. BERMAN: I agree with that, Your Honor.

HON. JOHN K. BUSH: Okay. They’re not referring

to, like, any other kind of test.

MR. BERMAN: No.

HON. JOHN K. BUSH: Okay.

*****

43a

[27:20-28:8] HON. RICHARD A. GRIFFIN: Thank

you. Case will be submitted. You may call the next

case.

(Whereupon these proceedings were concluded.)

CERTIFICATION

I, Sonya Ledanski Hyde, certified that the foregoing

transcript is a true and accurate record of the

proceedings.

Sonya Ledanski Hyde

44a

Appendix E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

IN RE: FORD MOTOR

CO. F-150 AND RANGER

TRUCK FUEL

ECONOMY MARKETING

AND SALES PRACTICES

LITIGATION

/

Case No. 2:19-md02901

Sean F. Cox

United States District

Court Judge

OPINION & ORDER GRANTING

DEFENDANT’S MOTION TO DISMISS

_________♦_________

Filed February 23, 2022

_________♦_________

The Judicial Panel on Multidistrict Litigation

transferred several putative class actions to this

Court for coordinated pretrial proceedings. At this

juncture, the operative complaint is Plaintiffs’ First

Amended Consolidated Master Class Action

Complaint, wherein Plaintiffs assert a variety of

state-law claims under the laws of fifty states, and a

related federal claim, against Defendant Ford Motor

Company (“Ford”). The First Amended Consolidated

45a

Master Class Action Complaint spans nearly a

thousand pages and includes three hundred and

eleven counts. The matter is currently before the

Court on Ford’s Motion to Dismiss it. The parties have

extensively briefed the issues and the Court heard

oral argument on June 17, 2021.

The central argument presented in Ford’s

motion is that Plaintiffs’ claims are preempted under

federal law. As explained below, this Court concludes

that Plaintiffs’ claims are preempted under federal

law, both express preemption and implied conflict

preemption. In addition, the Court finds several of

Ford’s additional or alternative arguments to have

merit and rules that: 1) Plaintiffs lack standing to

assert claims arising under the laws of the twenty-two

states where no named Plaintiff claims to reside or

have been injured; 2) Plaintiffs claims are barred

under the doctrine of primary jurisdiction; 3)

Plaintiffs’ misrepresentation-based consumer fraud

and consumer protection claims fail for additional

reasons; 4) Plaintiffs’ representative claims brought

under the consumer protection statutes of several

states are subject to dismissal based on statutory

class-action bars; 5) Plaintiffs’ breach of contract

claims are subject to dismissal because Plaintiffs do

not allege the existence of an enforceable contract

with Ford; 6) Plaintiffs’ express warranty claims are

also barred by federal and state laws; 7) Plaintiffs’

Magnuson-Moss Warranty Act claims must also be

dismissed for failure to allege sufficient pre-suit

46a

notice; and 8) Plaintiffs’ transactions are exempt from

the Michigan Consumer Protection Act.

BACKGROUND

The Judicial Panel on Multidistrict Litigation,

with the consent of this Court, transferred and

assigned various putative class action cases pending

in the Eastern District of Michigan and other districts

to the undersigned. Thereafter, this Court appointed

interim lead counsel for Plaintiffs.

On December 16, 2019, this Court issued a

“Joint Case Management Order” that, among other

things, ordered Plaintiffs to file a consolidated master

amended complaint no later than January 27, 2020,

and Ford to respond to it by March 27, 2020.

On January 27, 2020, Plaintiffs filed a

“Consolidated Amended Master Class Action

Complaint.” (ECF No. 64). After Ford filed a Motion to

Dismiss to that complaint, however, Plaintiffs advised

that they intended to file another amended complaint

that would render that Motion to Dismiss moot. The

parties agreed that Plaintiffs would file their

amended complaint on or before August 21, 2020.

Plaintiffs’ First Amended Consolidated Master

Class Action Complaint (“FAC”) 1, filed on August 21,

2020 (ECF No. 78), which now spans nearly a

1 In their briefs, Plaintiffs refer to this pleading as the “FACC”

and Ford refers to it as the “ACAC.” For simplicity, this Court

will refer to it as the FAC.

47a

thousand pages and includes three hundred and

eleven counts, is the operative complaint.

The FAC includes an “Introduction” section

that provides an overview of Plaintiffs’ claims. “Car

makers know that one of the most important factors

for a consumer purchasing a vehicle is fuel economy.

With vehicle purchases and leases being among the

largest transactions most consumers will carry out in

their lifetime, consumers trust the fuel economy

rating displayed in a vehicle’s window sticker to help

them make important financial decisions.” (FAC at ¶

1). In this case, Plaintiffs allege that Ford “cheated on

its fuel economy testing on some of its best-selling and

most popular trucks. Ford then used its inaccurate

fuel economy ratings on the window stickers to sell

and lease these trucks to consumers. Over a million

Ford truck owners are now driving vehicles that will

cost them thousands of dollars more to own or lease

than they anticipated. Because of Ford’s deception, all

purchasers and lessees of these vehicles paid more for

these vehicles than they are actually worth.” (Id. at ¶

2). Plaintiffs bring this putative class action, asking

this Court to certify a class defined as:

All persons who purchased or leased a Ford

vehicle whose published EPA fuel economy

ratings, as printed on the vehicles’ window

sticker, were more than the fuel economy

rating produced by a properly conducted

applicable federal mileage test. The vehicles

in the Class include but are not limited to

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the model year 2019 and 2020 Ford Ranger

and the 2018, 2019, and 2020 Ford F-150.

(Id. at ¶ 3). “These vehicles are hereinafter referred to

as the ‘Coastdown Cheating Vehicles’ and include the

2019 and 2020 Ford Ranger and the 2018, 2019, and

2020 F-150 series trucks, and likely also include other

Ford vehicles.” (Id. at ¶ 4).

“A Coastdown test is a procedure that

determines metrics used to calculate a vehicles’s fuel

economy values of ‘MPG Rating’ (miles per gallon).

Coastdown testing tells a manufacturer how much

rolling resistance and drag a vehicle has so that when

a vehicle is testing on a dynamometer, the

manufacturer knows how much drag and rolling

resistance to apply to the vehicle to simulate the

road.” (Id. at ¶ 5). Plaintiffs allege that “Ford fudged

its coastdown testing and used inaccurate drag and

resistance figures to boost the vehicles’ EPA

(Environmental Protection Agency) mileage ratings.”

(Id. at ¶ 6).

“On the window sticker of every Ford F-150 and

Ford Ranger are EPA-required indications of fuel

economy including city and highway mileage, miles

per gallon, and a combined city and highway miles per

gallon statement.” (Id. at ¶ 7). “Ford knows that fuel

economy is material to consumers. Testing of the 2018

F-150 using the mandated coastdown procedure

reveals that Ford did not follow appropriate

coastdown testing procedures.” (Id. at ¶ 8). “The

window sticker or ‘Monroney sticker’ for a 2018 F-150

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V6 indicates mileage of 20 city, 26 highway, and 22

combined. Accurate coastdown testing of a 2018 Ford

F-150 V6 reveals the following: The real highway fuel

number is 22.7 MGP compared to 26.6 reported by

Ford to the EPA. Thus, the highway fuel difference is

15% and the city difference 10%. Assuming the

lifetime of a truck is 150,000 miles, at the real city

miles per gallon rates, city driving would consume an

extra 821 gallons over the lifetime of the truck. The

highway extra fuel (extra means real MPG versus

Ford’s reported MPG) is 968 gallons.” (Id. at ¶ 9).

“These are material differences as manufacturers

fight for every 1/10th of a difference in miles per gallon

both to attract customers and to earn credits under

the applicable environmental emissions regulations.”

(Id. at ¶ 10).

“Ford’s motives in overstating vehicle miles per

gallon were: (1) to advertise the vehicles as ‘Best in

Class’ for fuel economy or to advertise a fuel economy

that would beat the competition and/or be attractive

to consumers, (2) to attract customers based on fuel

economy ratings, and (3) to earn more credits for Ford

under the U.S. CAFÉ environmental regulations since

less fuel burned means less emission.” (Id. at ¶ 11).

“Ford has admitted that the 2019 Ranger is just the

first model that is being investigated by the

government for improper coastdown testing. As

explained herein, Plaintiffs’ testing of the 2018 F-150

reveals similar coastdown cheating.” (Id. at ¶ 12).

“Ford sold approximately 1 million 2018 and 2019 F150s. The extra fuel costs, with the same assumptions

50a

above, for all 2018 and 2019 F-150s would be

approximately $2.32 billion for city driving, $2.09

billion highway, and $1.9 billion combined.” (Id. at ¶

13).

“The 2018, 2019, and 2020 F-150 are virtually

identical in engine and body configuration. In fact, on

its applications to certify fuel economy ratings and

emissions certifications for the 2019 and 2020 F-150,

Ford used the same vehicle serial numbers and

presented the same emissions test numbers to the

EPA as it did for the 2018 F-150 applications.

Likewise, the 2020 Ranger is virtually identical in

engine and body configuration to the 2019 Ranger and

Ford has used the same vehicle serial number and

presented the same emissions test numbers to the

EPA as it did for the 2019 Ranger application.” (Id. at

¶ 14).

“Ford

deliberately

misrepresented

or

miscalculated certain road testing factors during

internal vehicle testing processes in order to report

that its vehicles were more fuel efficient than they

actually were. In particular, Ford miscalculated

something called ‘Road Load,’ which is the force that

is imparted on a vehicle while driving at a constant

speed over a smooth, level surface from sources such

as tire rolling resistance, driveline losses, and

aerodynamic drag. Ford’s internal lab tests did not

account for these forces, which lead to better – and

entirely inaccurate – fuel economy projections.” (Id. at

¶ 15).

51a

“Despite Ford’s own employees questioning its

testing practices and the calculations that Ford was

utilizing for fuel economy ratings, at least by

September 2018, Ford took no action to correct the

problems nor to alert customers that their test

methods were flawed and that consumers would not

get the promised fuel economy.” (Id. at ¶ 16). “With

respect to its 2019 Ford Ranger, Ford promised that

its midsize truck ‘will deliver with durability,

capability and fuel efficiency, while also providing incity maneuverability and the freedom desired by

many midsize pickup truck buyers to go off the grid.’

Ford also claimed that its ‘All-New Ford Ranger [was]

Rated Most Fuel Efficient Gas-Powered Midsize

Pickup in America.’ ‘With EPA-estimated fuel

economy ratings of 21 mpg city, 26 mpg highway and

23 mpg combined, 2019 Ford Ranger is the most fuel

efficient gas-powered midsize pickup in America.’

Ford claimed the 2019 Ranger ‘is the no-compromise

choice for power, technology, capability, and efficiency

whether the path is on road or off.’” (Id. at ¶ 17).

“Ford knew that to sell the Ranger, it had to

tout it had fuel efficiency, and this promise was

material to consumers.” (Id. at ¶ 18). “There is no

question that Ford used the fuel efficiency ratings as

a selling tool to entice consumers into purchasing the

2019 Ford Ranger. Indeed, Ford promised that ‘[t]he

adventure-ready 2019 Ford Ranger is the most fuelefficient gas-powered midsize pickup in America –

providing a superior EPA-estimated city fuel economy

rating and an unsurpassed EPA-estimated combined

52a

fuel economy rating versus the competition. The allnew Ranger has earned EPA-estimated fuel economy

ratings of 21 mpg city, 26 mpg highway, and 23 mpg

combined for 4x2 trucks.’ Ford claimed that ‘[t]his is

the best-in-class EPA-estimated city fuel economy

rating of any gasoline-powered four-wheel-drive

midsize pickup and it is an unsurpassed EPAestimated combined fuel economy rating.’” (Id. at ¶

19),

“Fuel economy was also used as a tool to entice

customers to buy the Ford F-150. Ford promised that

certain of the 2018 F-150s were ‘best in class’ for fuel

economy, or promised certain city, highway and

combined fuel miles per gallon for other F-150 models

that were robust enough that Ford believed would

make them attractive to consumers.” (Id. at ¶ 20). “In

contrast to Ford’s promises, as noted above,

scientifically valid testing has revealed that the

vehicles (i) are not as fuel efficient as promised; (ii) are

not what a reasonable consumer would expect; and

(iii) are not what Ford had advertised. Further, the

vehicles’ promised power, fuel economy and efficiency,

and towing capacity are obtained only by altering the

testing calculations.” (Id. at ¶ 21). “Ford’s

representations are deceptive and false, and Ford sold

its 2019 and 2020 Ford Rangers and 2018, 2019, and

2020 F-150 models while omitting information that

would be material to a reasonable consumer; namely,

that Ford miscalculated factors during internal

vehicle testing processes in order to report that its

vehicles were more fuel efficient than they actually

53a

were, and discounted common real-world driving

conditions.” (Id. at ¶ 22).

“Plaintiffs bring this action individually and on

behalf of all other current and former owners or

lessees of the Coastdown Cheating Vehicles. Plaintiffs

seek damages, injunctive relief, and equitable relief

for Ford’s misconduct related to the design,

manufacture, marketing, sale, and lease of the

Coastdown Cheating Vehicles, as alleged in this

Complaint.” (Id. at ¶ 23).

The FAC includes named Plaintiffs from the

following twenty eight states: Alabama, Arizona,

California, Florida, Georgia, Hawaii, Illinois,

Louisiana, Maryland, Massachusetts, Michigan,

Minnesota, Missouri, Nebraska, New Jersey, New

York, Ohio, Oklahoma, Oregon, Pennsylvania, South

Carolina, South Dakota, Tennessee, Texas, Utah,

Virginia, Washington, and Wisconsin. There are no

named Plaintiffs who assert claims under the law of

the remaining twenty-two states.

The Court includes here some factual

allegations in the FAC that are relevant to the

challenges in the pending Motion to Dismiss.

Plaintiffs allege that “Ford deliberately

miscalculated and misrepresented factors used in

vehicle certification testing in order to report that its

vehicles used less fuel and emitted less pollution than

they actually did. The certification test-related

54a

cheating centers on the ‘Coastdown” testing and

“Road Load” calculations.” (FAC at ¶ 397).

“The Coastdown test results are sent by Ford to

the EPA to be used as the basis for mileage

information used on window stickers, also called a

‘Monroney sticker.’” (FAC at ¶ 404).

“The Monroney sticker is on the window of

every new car and included information about the

vehicles’s

price,

engine

and

transmission

specifications, other mechanical and performance

specs, fuel economy and emissions ratings, safety

ratings, and standard and optional features.” (Id. at ¶

405). “The Monroney sticker is named for A.S. ‘Mike’

Monroney, a longtime Oklahoma congressman who

wrote the 1958 Automobile Information Disclosures

Act, the federal law that requires the Monroney

sticker.” (Id. at ¶ 406).

Included on the Monroney sticker “is a section

called ‘the EPA sticker.’ The

Environmental

Protection Agency section of the sticker tells how

many miles per gallon of gas the vehicle gets on the

highway and in the city. The EPA label provides

miles-per-gallon equivalent (MPGe) figures for

electric and hybrid cars to help consumers compare

the fuel economy of these vehicles with gas- and

diesel-powered cars. The EPA section hereinafter will

detail the vehicles’s potential environmental impact

with green house gas emissions.” (Id. at ¶ 407).

55a

“The fuel economy figures are used by car

reviewers and used by consumers to rate cars.” (Id. at

¶ 408).

“Ford has admitted that in September of 2018

several of its own employees were questioning its

computer modeling and physical test practices for

certification of fuel economy and emissions. Yet, Ford

took no action to correct these ongoing

misrepresentations or to alert consumers.” (FAC at ¶

410). Plaintiffs allege that, “[p]ressured by a pending

governmental criminal investigation, Ford has now

stated that it will look into the testing of the 2019

Ranger truck before looking at its other vehicles.” (Id.

at ¶ 411).

Plaintiffs allege that Ford’s “March 2019

Securities and Exchange Commission filing revealed

that it is under criminal investigation by the United

States Department of Justice for its emissions

certification practices.” (FAC at ¶ 430). They further

allege that in “September 2018, several Ford

employees expressed concerns about the testing

practices at Ford pertaining to emissions and fuel

efficiency. In February 2019, Ford admitted it was

looking into these concerns about its ‘computermodeling methods and calculations used to measure

fuel economy and emissions.’” (Id. at ¶ 432).

“Even after Ford employees had come forward

about the cheating, Ford’s media center touted the

2019 Ranger truck as having amazing performance

without compromise,” with claims about fuel

56a

efficiency “front and center.” (FAC at ¶ 462). “Ford’s

claim of most fuel efficient in its class” is set forth in

its “sales brochures for the 2019 Ranger.” (Id. at ¶

463) (emphasis added).

Ford’s “F-150 is the best-selling vehicle in the

United States and has been for decades.” (FAC at ¶

464). “To stimulate F-150 sales and maintain its lead

over competitors like the Dodge Ram, Ford

announced that the 2018 Ford F-150 would be best in

class for fuel economy and/or published inflated MPG

estimates.” (Id. at ¶ 465).

Exhibit 18 to the FAC is a Monroney sticker for

a 2018 F-150 2.7 V6. The sticker notes that “This

label is affixed pursuant to the Federal Automobile

Information Disclosure Act.” The sticker lists the

“Fuel Economy” as “22 MPG” for combined city/hwy,

“20 city,” and “26 highway,” with “4.5 gallons per 100

miles.” (Id. at ¶ Ex. 18). The sticker states that

“Actual results will vary for many reasons, including

driving conditions and how you drive and maintain

your vehicle.” (Id.).

“The 2018 F-150 brochure lists the estimated

fuel economy for the various types of 150s,” with

various “EPA-estimated ratings” for each of the types

and stating that “[a]ctual mileage will vary.” (Ex. 20

to FAC).

Plaintiffs allege that, as a result of Ford’s

“unfair, deceptive, and/or fraudulent business

practices, Plaintiffs did not receive the fuel efficiency

57a

that was advertised and will incur increased fuel costs

over the life of their vehicle. Had Ford told the truth,

that it was cheating on its coastdown testing,

Plaintiffs would not have bought their vehicle or

would have paid substantially less.” (FAC at ¶ 471).

The FAC asks this Court to certify a

“Nationwide Class” that would consist of “[a]ll persons

who purchased or leased a Ford vehicle whose

published EPA fuel economy ratings, as printed on the

vehicles’ window sticker, were more than the fuel

economy rating produced by a properly conducted

applicable federal mileage test. The vehicles in the

Class include but are not limited to the model year

2019 and 2020 Ford Ranger and the 2018, 2019, and

2020 Ford F150.” (FAC at ¶ 481).

The FAC also asks the Court to certify fifty

subclasses, one for each of the states in the United

States (i.e., an “Alabama Subclass,” an “Alaska

Subclass,” etc.).

The FAC contains three-hundred and eleven

separate counts, consisting mostly of state-law claims,

that are organized by subclasses. That is, the FAC

first asserts all of the causes of action brought on

behalf of the Alabama subclass under Alabama law,

and then does the same for each of the proposed

subclasses. It then asserts five counts as a

“Nationwide Class.”

The FAC’s request for relief asks this Court to

certify this case as a class action. It also asks the

58a

Court to declare that Ford’s conduct is “unlawful,

unfair, and deceptive.” (FAC at 960). It further asks

this Court to require that “all Class members be

notified about the lower fuel economy ratings and

higher emissions at Ford’s expense” and provide

“correct fuel economy and emissions ratings” to Class

members. (Id. at 961) (emphasis added). The FAC also

seeks an award of compensatory and exemplary

damages, “disgorgement of all profits wrongfully

received by Ford for the Coastdown Cheating

Vehicles,” and an award of statutory penalties. (Id.).

STANDARD OF DECISION

Ford brings the instant Motion to Dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

Fed. R. Civ. P. 12(b)(1) provides for the

dismissal of an action for lack of subject matter

jurisdiction. “Article III standing is a question of

subject matter jurisdiction properly decided under

12(b)(1).” American BioCare, Inc. v. Howard &

Howard Attorneys, Pllc, 702 F. App’x 416, 419 (6th

Cir. 2017). Because Ford challenges subject matter

jurisdiction, Plaintiffs have the burden of proof to

show that subject matter jurisdiction exists. Id. When

ruling on a motion to dismiss for lack of standing

under Rule 12(b)(1), the district court must accept all

material allegations of the complaint as true.

Courtney v. Smith, 297 F. App’x 455, 459 (6th Cir.

2002).

59a

“To survive a motion to dismiss” under Fed. R.

Civ. P. 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007)). A claim is facially plausible when a plaintiff

pleads factual content that permits a court to

reasonably infer that the defendant is liable for the

alleged misconduct. Id. When assessing the

sufficiency of a plaintiff’s claim, this Court must

accept the complaint’s factual allegations as true.

Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th

Cir. 2001). “Mere conclusions,” however, “are not

entitled to the assumption of truth. While legal

conclusions can provide the complaint’s framework,

they must be supported by factual allegations.” Iqbal,

556 U.S. at 664, 129 S.Ct. 1937. Thus, a plaintiff must

provide “more than labels and conclusions,” or a

“formulaic recitation of the elements of a cause of

action” in order to survive a motion to dismiss.

Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do

no suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Rule 9(b) of the Federal Rules of Civil

Procedure “sets the pleading standard for ‘alleging

fraud or mistake’ and governs state fraudulent

concealment claims in diversity cases.” Smith v.

General Motors, LLC, 988 F.3d 873, 883 (6th Cir.

60a

2021). “Rule 9(b) requires parties to ‘state with

particularity the circumstances constituting fraud or

mistake’ for fraud claims but permits general

allegations about the defendant’s knowledge to avoid

a 12(b)(6) motion to dismiss. The adequacy of 9(b)

pleadings in the face of a motion to dismiss under

12(b)(6) are analyzed under the Twombly/Iqbal

framework.” Id. “To satisfy Rule 9(b), ‘the plaintiff

must allege (1) ‘the time, place, and content of the

alleged misrepresentation,’ (2) ‘the fraudulent

scheme,’ (3) the defendant’s fraudulent intent, and (4)

the resulting injury.’” Smith, supra (citations

omitted).

ANALYSIS

I.

Plaintiffs’ Claims Are Preempted By

Federal Law.

As its opening and central argument, Ford

asserts that all of Plaintiffs’ claims in this action are

preempted under federal law and must be dismissed.

The Court agrees.

“The federal preemption doctrine has grown out

the Supremacy Clause of the United States

Constitution, which provides in part ‘the Laws of the

United States which shall be made in Pursuance’ of

the Constitution ‘shall be the supreme Law of the

Land.’ U.S. Const., art. VI, cl. 2.” State Farm v.

Reardon, 539 F.3d 336, 341 (6th Cir. 2008). “According

to the Supreme Court, ‘[t]he phrase ‘Laws of the

61a

United States’ encompasses both federal statutes

themselves and federal regulations that are properly

adopted in accordance with statutory authorization.’”

Id. (quoting City of New York, v. FCC, 486 U.S. 57, 63,

108 S.Ct. 100 L.Ed.2d 664 (1982)). “Federal law may

preempt state law either expressly or impliedly.” Id.

Here, Ford makes arguments regarding both

express preemption and implied preemption. Before

analyzing those arguments, the Court will discuss

the basic federal framework relating to fuel economy

estimates.

The testing and disclosure of estimated fuel

economy for new vehicles sold in the United States is

governed by a comprehensive federal regulatory

scheme created by the Environmental Policy and

Conservation Act (“EPCA”), and enforced by the

Federal Trade Commission (“FTC”) and the

Environmental Protection Agency (“EPA”).

“The EPCA provides that every new vehicle

sold in the United States be labeled with a sticker (a

‘Monroney Sticker’) indicating estimated fuel

economy, and that a booklet comparing fuel

economies of similar vehicles, prepared by the EPA,

be made available by vehicle dealerships.” In re Ford

Fusion & C-MAX Fuel Econ. Litig., 2015 WL 7018369

(S.D. N.Y. 2015“(C-Max I”), supra, at *4 (citing 49

U.S.C. § 32908(b) and Giles v. Ford Motor Co., 24

F.Supp.3d 1039, 1045 (D. Colo. 2014)). “The

Monroney Sticker must also include a disclaimer

indicating that ‘[a]ctual results will vary for many

62a

reasons, including driving conditions and how you

drive and maintain your vehicle.” Id. (citing 40 C.F.R.

600.302-12(b)(4) and Giles, supra).

“The EPA regulates the calculation of

estimated fuel economy.” C-MAX I, supra. The

current regime allows automobile manufacturers like

Ford to choose between two methods of calculating

fuel economy. 40 C.F.R. § 600.210-12.

“The FTC, by contrast, regulates the

advertisement of fuel economy estimates to

consumers. As explained in C-MAX I:

Its regulations provide, in relevant part,

that “[n]o manufacturer or dealer shall

make any express or implied representation

in advertising concerning the fuel economy

of any new automobile unless . . . the [EPA]

is the source of the ‘estimated city mpg’ and

‘estimated highway mpg’ and that the

numbers are estimates” and marked as

such. 16 C.F.R. § 259.2(a); see also Gilles, 24

F.Supp.2d at 1046-47 (describing these

regulations and noting that, “[s]imply put,

when a manufacturer includes miles per

gallon numbers in an advertisement, it

must, in a clear and conspicuous manner,

include the EPA mileage estimates, state

that they are estimates, and indicate that

the EPA is the source of the estimates.”).

The FTC regulations further provide that

63a

“[f]uel economy estimates derived from a

non-EPA test may be disclosed provided

that,” inter alia, the EPA estimates have

“substantially more prominence than any

other estimate.” 16 C.F.R. § 259.2(c). Unlike

the EPA regulations, the FTC regulations

do not require an “actual results will vary”

disclaimer. Gilles, 24 F.Supp.3d at 1047. If

a manufacturer fails to comply, the FTC

may take “corrective action . . . under

appropriate statutory provisions.” 16 C.F.R.

§ 1.5.

C-MAX I, supra, at *5.

As Ford’s brief notes, “EPA fuel economy

estimates are not, and have never been, guarantees

of real-world fuel economy performance,” explaining:

As the EPA itself has stressed, its fuel economy

“ratings are a useful tool for comparing the fuel

economies of different vehicles but may not accurately

predict the average [miles per gallon] you will get.

EPA Your Mileage Will Vary, available at

https://www.fueleconomy.gov/feg/why_differ.shtml

(last visited Oct. 12, 2020) (emphasis in original).

Indeed, a vehicle’s fuel economy “will vary.” Id. For

this reason, when designing the Monroney label,

regulators acknowledged that it must contain a

“statement . . . informing the buyer that the values on

the label are not guaranteed[.]” 76 Fed. Reg. at 39505.

64a

And as the EPA has long-acknowledged, its required

fuel economy estimates are not – and can never be –

“perfect” figures that can predict the performance of

each vehicle for each driver under all conditions:

It is important to emphasize that fuel

economy varies from driver to driver for a

wide variety of reasons, such as different

driving styles, climates, traffic patterns, use

of accessories, loads, weather, and vehicle

maintenance. Even different drivers of the

same vehicle will experience different fuel

economy as these and other factors vary.

Therefore, it is impossible to design a

“perfect” fuel economy test that will provide

accurate, real-world economy estimates for

every consumer. With any estimate, there

will always be consumers that get better or

worse actual fuel economy. The EPA

estimates are meant to be a general

guideline for consumers, particularly, to

compare the relative fuel economy of one

vehicle to another.

71 Fed. Reg. at 77874; see also 76 Fed. Reg.

at 39505 (emphasizing “tradition” of

ensuring consumers know estimates do not

reflect real world economy); EPA Your

Mileage

Will

Vary,

available

at

https://www.fueleconomy.gov/feg/why_diffe

r.shtml (last visited Oct. 12, 2020).

65a

(Def.’s Br. at 6-7).

A.

Express Preemption

“Express preemption exists where either a

federal statute or regulation contains explicit

language indicating that a specific type of state law

is preempted.” State Farm, 539 F.3d at 34142.

Chapter 329 of Title 49 of the United States

Code (“Transportation”) is titled “Automobile Fuel

Economy.” Section 32919 of Chapter 329 is titled

“Preemption,” and provides, in its entirety:

(a) General. – When an average fuel

economy standard prescribed under this

chapter is in effect, a State or a political

subdivision of a State may not adopt or

enforce a law or regulation related to fuel

economy standards or average fuel

economy standards for automobiles covered

by an average fuel economy standard under

this chapter.

(b) Requirements must be identical. – When

a requirement under section 32908 of this

title is in effect, a State or a political

subdivision of a State may adopt or enforce

a law or regulation on disclosure of fuel

economy or fuel operating costs for an

automobile covered by section 32908 only if

66a

the law or regulation is identical to that

requirement.

(c) State

and

political

subdivision

automobiles.– A State or political

subdivision of a State may prescribe

requirements for fuel economy for

automobiles obtained for its own use.

49 U.S.C. § 32919.

Where, as here, the “statute contains an

express preemption clause,” the Court should “not

invoke any presumption against pre-emption but

instead focus on the plain wording of the clause,

which necessarily contains the best evidence of

Congress’ pre-emptive intent.” Puerto Rico v.

Franklin California Tax-Free Trust, 579 U.S. 115, 136

S.Ct. 1938, 1946 (2016) (internal quotations omitted);

see also Dialysis Newco, Inc. v. Community Health

Sys. Group Health Plan, 938 F.3d 246, 258 (8th Cir.

2019).

Ford asserts that Plaintiffs’ claims in this

action are expressly preempted by 49 U.S.C.

§ 32919(a) and (b).

Ford argues that the vehicles at issue in this

case “are undisputedly covered by 49 U.S.C. § 32908,

the general fuel economy labeling provision. And the

accompanying preemption provision expresses

Congress’s intent clearly: no State may obligate a

vehicle manufacturer to comply with any

67a

requirement pertaining to the disclosure of a vehicle’s

fuel economy unless an identical requirement is

already imposed by Section 32908.” (Def.’s Br. at 15).

Ford contends that “[b]ecause Plaintiffs’ core theory

of this case would impose such forbidden ‘nonidentical’ testing and disclosure requirements, their

claims are expressly preempted.” (Id.). Ford asserts

that “the plain wording of Congress’s express

preemption clause, combined with the overall

structure and purpose of the surrounding regulatory

scheme, leaves no doubt that Congress intended to

preempt all state-law efforts to impose differing fuel

economy testing and disclosure obligations on vehicle

manufacturers.” (Def.’s Br. at 16).

Ford argues that Plaintiffs’ claims in this

action are expressly preempted under § 32919(b),

arguing:

Plaintiffs claim that Ford “cheated” on fuel

economy testing and produced fuel economy

estimates for the subject vehicles that are

per se deceptive. See, e.g., [FAC] ¶ 2. They

bring this action seeking a judicial decree

requiring Ford to, inter alia, “correct” those

estimates. Id. at Prayer for Relief. As their

chosen means to achieve that result,

Plaintiffs invoke various state laws that

would impose widely differing obligations

than those contained in 49 U.S.C. § 32908.

Thus, under the plain language of Section

32919(b)’s express preemption clause,

68a

Plaintiff’s state

dismissed.

law

claims

must

be

(Def.’s Br. at 16-17).

Ford also argues that while § 32919(b)

“preempts the use of state law to impose different

labeling standards than those in Section 32908,

Section 32919(a) sweeps much more broadly and also

compels the dismissal of this litigation in its entirety,”

arguing:

Specifically, that provision bars any “law or

regulation related to fuel economy

standards for automobiles covered by an

average fuel economy standard[.]” 49 U.S.C.

§32919(a). “The words ‘related to,’ as used in

this context, ‘express a broad presumptive

purpose.’” Wellons v. Northwest Airlines,

Inc., 165 F.3d 493, 495 (6th Cir. 1999)

(quoting Morales v. Trans World Airlines,

Inc., 504 U.S. 374 (1992)). That broad

preemptive construction applies in the

context of many federal statutory regimes,

including the EPCA. See, e.g, Metro Taxicab

Bd. of Trade v. City of New York, 615 F.3d

152, 156-57 (2d Cir. 2010) (holding that the

“related to” language in § 32919(a) should be

interpreted consistent with other statutory

preemption provisions containing that

phrase and citing case law noting its

“expansive” nature).

69a

Federal law defines the term “average fuel

economy standard” as “a performance

standard specifying a minimum level of

average fuel economy applicable to a

manufacturer in a year.” 49 U.S.C. §

32901(a)(6). Courts have used this phrase

interchangeably with the term “fuel

economy standard,” which is not separately

defined. See, e.g., In re Ctr. for Auto Safety,

793 F.2d 1346, 1348 (D.C. Cir. 1986). Given

the rules of broad interpretation, “[r]elated

to fuel economy standards’ means having “a

connection with, or reference to” those

standards, Morales, 504 U.S. at 383-84,

when viewed in light of the objectives of the

statutory scheme. Egelhoff v. Egelhoff ex.

rel. Breiner, 532 U.S. 141, 147 (2001).

Here, the procedures designed by the

EPA to test fuel economy – in accordance

with the EPA’s mandate under 49 U.S.C. §

32904 – are undoubtedly “related to fuel

economy standards or average fuel economy

standards.”

Indeed,

these

testing

procedures, and the resulting fuel-economy

figures, are used to determine whether

vehicle manufacturers meet the fuel

economy and emissions standards by the

federal government. See 40 C.F.R. 600.21012,

600.210-08(a)

(2008).

Plaintiffs

repeatedly acknowledge these governing

standards in the [FAC]. See, e.g., [FAC] ¶¶

70a

436 (noting that “the FTP-75 (Federal Test

Procedure) cycle [] has been created by the

EPA and is used for emission certification

and fuel economy testing of passenger

vehicles in the United States”), 439 (“The

standardized technique for performing a

coastdown is prescribed in the Code of

Federal Regulations”), 442 (alluding to

“[t]he processes required by the Code of

Federal Regulations”).

Nevertheless, Plaintiffs go beyond

those requirements by implausibly claiming

that Ford had a duty to disclose the “true

fuel economy” for the subject vehicles, as if

such a figure actually exists. And by

advancing claims that are untethered from

the standards and procedures that the EPA

has prescribed for estimating and disclosing

fuel economy, Plaintiffs introduce an

inherent conflict with the words and

intentions of Congress. (See, e.g,, [FAC] ¶¶

31, 25 & others). This should not be

permitted. Indeed, under the Supremacy

Clause of the U.S. Constitution, where

conflict exists between a state claim and an

express preemption of federal law, the

federal law must be held supreme. -See

- - U.S.

Const. art. VI, CL. 2; Maryland v Louisiana,

451 U.S. 725, 746 (1981) (“It is basic to this

constitutional command that all conflicting

state provisions be without effect.”).

71a

Plaintiffs’

preempted.

claims

are

undoubtedly

(Def.’s Br. at 16-18).

In support of its position that Plaintiffs’ claims

in this case are expressly preempted by federal law,

Ford directs this Court to cases such as C-MAX I and

Paduano v. Am. Honda Motor Co., Inc., 169 Cal. App.

4th 1453, 1468 (Cal. App. 2009).

The C-Max Fuel Economy Litigation case

against Ford was an MDL that was assigned to a

district court judge in the Southern District of New

York. C-Max I, supra. Like this case, the plaintiffs

asserted state-law statutory claims under various

consumer protection acts and common law claims

such as fraud, negligent misrepresentation, breach of

contract, unjust enrichment and breach of warranty

claims. After the plaintiffs file\d a consolidated

amended class action complaint, Ford filed a motion

to dismiss in which it made a number of challenges –

including that the claims are expressly preempted by

federal law. Ford made the same express preemption

arguments it makes here.

In an opinion and order issued in 2015, the

district court ruled that the plaintiffs’ claims were

“partially preempted.” Id. at *25. In doing so, the

district court stated that the plaintiffs’ “claims appear

to rest on two separate strands of alleged

wrongdoing:” 1) allegations that challenged Ford’s

“guarantees of a real-world fuel economy that go

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beyond including EPA estimates in advertisements,”

(i.e., allegations that Ford’s advertisements

emphasized that the MPG estimates were something

their vehicles would “actually deliver”); and 2)

allegations that “appear to challenge the mere use of

EPA fuel estimates, in ways that the EPA

contemplated using them, as opposed to ‘actual’ fuel

economy.” Id.

The district court concluded that claims based

upon allegations concerning advertisements that

functioned to “guarantee specific, real-world

performance,” are not preempted by federal law. Id. at

*26. On the other hand, it concluded that to the extent

plaintiffs’ claims were based on Ford’s mere use of

EPA estimates, such claims are preempted. It

explained that “[t]he use of EPA estimates themselves

clearly falls within the scope of the relevant FTC

regulations, and any state law indicating otherwise

would constitute ‘a law or regulation on disclosures of

fuel economy or fuel operating costs’ that is not

identical to those contained in, or contemplated by,

the EPCA.” Id. at *27. It further explained that:

Likewise, as Defendant contends, any

obligation to include “actual” fuel economy

based on independent testing of each

Vehicle goes beyond what automobile

manufacturers are required to do under the

EPCA. Accordingly, to the extent that

Plaintiffs’ claims are premised on the idea

that the advertisements (or Monroney

73a

Stickers) included EPA estimates, rather

than some other “actual” fuel economy

calculation, or to the extent that Plaintiffs’

claims are based on the contention that

Defendant failed to independently test and

disclose the fuel economy of the C-Max in

order to determine its “actual” performance,

(CAC ¶¶ 97, 100-01), the Court finds that

those claims are preempted by the EPCA

and FTC, because they seek to impose a

regime above and beyond that required by

those regulations.

Id. at *27. Thus, the district court ruled that “[t]o the

extent that Plaintiffs made claims based on the mere

use of EPA fuel economy estimates in advertisements

or on Monroney Stickers, those claims are dismissed

because they are preempted by federal law.” Id. at

*40.

Paduano is an earlier case that was cited in CMAX I and has been followed in other similar cases.

In Paduano, the plaintiff asserted state-law claims

against an automobile manufacturer because he was

displeased with the fuel efficiency of the vehicle he

had purchased. Paduano v. Am. Honda Motor Co.,

Inc., 169 Cal. App. 4th 1453 (Cal. App. 2009). The

defendant sought to dismiss the claims on several

grounds, including express preemption by federal law,

and the trial court granted the motion. The appellate

court concluded that the plaintiff raised claims that

are not preempted by federal law and reversed the

74a

trial court’s judgment as to his state-law causes of

action for deceptive advertising.

In addressing the preemption issue, the

appellate court concluded that § 32919(a) had no

application to the claims. Id. at 1475-76. It then

addressed express preemption under § 32919(b) and

concluded that the particular claims asserted by

Paduano were not preempted, explaining:

Contrary to Honda’s characterization of

Paduano’s UCL and CLRA claims, Paduano

is not claiming that disclosing the EPA

mileage estimates is, by itself, deceptive.

Rather, Paduano maintains that Honda has

voluntarily made additional assertions,

beyond the disclosure of the mileage

estimates, that are untrue or misleading,

and that federal law does not require, or

even address, these additional assertions.

Paduano’s claims are based on statements

Honda made in its advertising brochure to

the effect that one may drive a Civic Hybrid

in the same manner as one would a

conventional car, and need not do anything

“special,” in order to achieve the beneficial

fuel economy of the EPA estimates. It is not,

as Honda maintains, the disclosure of the

EPA estimates that Paduano claims is

deceptive per se. What Paduano is

challenging is Honda’s added commentary

in which it alludes to those estimates in a

75a

manner that may give consumers the

misimpression that they will be able to

achieve mileage close to the EPA estimates

while driving a Honda hybrid in the same

manner as they would a conventional

vehicle. Paduano does not seek to require

Honda to provide “additional alleged facts”

regarding the Civic Hybrid’s fuel economy,

as Honda suggests, but rather, seeks to

prevent Honda from making misleading

claims about how easy it is to achieve better

fuel economy. Contrary to Honda’s

assertions, if Paduano were to prevail on his

claims, Honda would not have to do

anything differently with regard to its

disclosures of the EPA mileage estimates.

Id. at 1477 (emphasis added).

Kim v. General Motors, LLC is another case

wherein the plaintiff asserted various state-law

claims against an automobile manufacturer, asserting

they were misled about the vehicle’s fuel economy.

Kim v. General Motors, LLC, 99 F.Supp.3d 1096 (C.D.

Calf. 2015). The defendant moved to dismiss, arguing

that the claims “are expressly preempted by 49 U.S.C.

§ 32919 because, if allowed to go forward, they would

amount to ‘inconsistent state regulation of fuel

economy or the disclosure of fuel economy.’” Id. at

1102. The district court rejected the defendant’s

argument that the claims asserted against it were

preempted by federal law. In doing so, it first agreed

76a

with Paduano that § 32919(a) had no application to

the claims. It then went on to consider whether the

claims were preempted under § 32919(b) and

concluded they were not, relying on Paduano:

Here, as in Paduano, Plaintiff does not

challenge the disclosure of the EPA estimate

itself, nor does it focus on representations

made on the Monroney label. (FAC ¶ 26;

Opp. at 4.) As in Paduano, Plaintiff cites to

additional

statements,

made

in

advertisements rather than on a Monroney

label, that Plaintiff alleges could lead a

reasonable consumer to believe that the

vehicle is capable of achieving these EPA

estimates under real world conditions. In

other words, Plaintiff challenges GM’s use of

the EPA estimates in a way that may give

consumers the mistaken impression that

they are able to achieve real-world mileage

and tank range derived from those figures.

Kim, 99 F.Supp.3d at 1104 (emphasis added).

In response to Ford’s express preemption

arguments, Plaintiffs make arguments against

preemption under both subsections.

In arguing that their claims are not expressly

preempted under § 32919(a), Plaintiffs note that

Ford’s own cited authorities, C-MAX I and Paduano,

found no express preemption under subsection (a)

77a

because Ҥ 32919(a) pertains to fleet fuel efficiency

standards, not the mileage of individual models.”

(Pls.’ Br. at 18). Both of those cases so ruled (see CMAX-I, supra, at *25 and Paduano, supra, at 1476),

as did the district court in Kim (see Kim, 99 F.

Supp.3d at 110203). This Court rejects Ford’s express

preemption argument based upon § 32919(a) under

that line of authority.

But that still leaves Ford’s express

preemption argument under § 32919(b). As to that,

Plaintiffs argue that “Ford premises its argument on

a series of cases in which plaintiffs did not challenge

the underlying Monroney Sticker information but

alleged that non-Sticker misrepresentations were

actionable under state law – as opposed to Plaintiffs

here, who allege both sorts of misrepresentations.”

(Pls.’ Br. at 20). In other words, Plaintiffs

characterize the cases cited by Ford as: 1) not having

addressed the issue of whether a “false-sticker

claim” was preempted; and 2) having found that

claims based on “non-sticker misrepresentations” (ie,

assertions other than stating EPA mileage

estimates) were actionable under state law.

Plaintiffs mischaracterize those decisions as

not having rejected the issue of whether federal law

preempts state-law claims based on a manufacturer’s

use of EPA estimates in advertisements or Monroney

Stickers, rather than the vehicle’s “actual” or “true”

fuel economy calculation. The district court in C-MAX

I rejected that very argument:

78a

Likewise, as Defendant contends, any

obligation to include “actual” fuel economy

based on independent testing of each

Vehicle goes beyond what automobile

manufacturers are required to do under the

EPCA. Accordingly, to the extent that

Plaintiffs’ claims are premised on the idea

that the advertisements (or Monroney

Stickers) included EPA estimates, rather

than some other “actual” fuel economy

calculation, or to the extent that Plaintiffs’

claims are based on the contention that

Defendant failed to independently test and

disclose the fuel economy of the C-Max in

order

to

determine

its

“actual”

performance, (CAC ¶¶ 97, 100-01), the

Court finds that those claims are

preempted by the EPCA and FTC, because

they seek to impose a regime above and

beyond that required by those regulations.

C-MAX I, supra, at *27.

And recall that in rejecting the express

preemption argument in Paduano, the court

explained that “if Paduano were to prevail on his

claims, Honda would not have to do anything

differently with regard to its disclosures of the EPA

mileage estimates.” Paduano, supra, at 1477. Here,

the same is not true. The FAC asks this Court to

certify a “Nationwide Class” that would consist of

“[a]ll persons who purchased or leased a Ford vehicle

79a

whose published EPA fuel economy ratings, as

printed on the vehicles’ window sticker, were more

than the fuel economy rating produced by a properly

conducted applicable federal mileage test.” (FAC at ¶

481). If Plaintiffs were to prevail on their claims in

this case, the very relief Plaintiffs seek includes that

this Court require that all Class members be notified

about the “correct fuel economy” of the vehicles. (FAC

at ¶ 961).

This Court concludes that Plaintiffs’ “falsesticker” claims are expressly preempted by federal

law.

There is case law that does reflect, however,

that claims that are based upon certain

representations, that go beyond including EPA

estimates in advertisements, are not preempted. For

example, in C-MAX I, the court concluded that the

“Plaintiffs’ allegation that Ford did not only rely on

the EPA estimate, but also guaranteed real-world

fuel economy based upon it, is an allegation that goes

‘beyond’ that estimate. The Court therefore

concur[red] with holdings of other courts that

considered similar allegations, namely that

advertisements functioned to guarantee specific,

real-world performance, and conclude[d] that such

claims are not preempted.” C-MAX I, supra, at *26.

In responding to Ford’s motion, Plaintiffs

contend their state-law claims in this case are not

expressly preempted because they are based upon

alleged misstatements made by Ford that go beyond

80a

the EPA estimates in advertising or Monroney

Stickers. The problem for Plaintiffs is that, unlike the

plaintiffs in C-MAX I, Paduano, and Kim, they do not

allege that Ford made any statements that went

beyond EPA estimates to state (or even suggest) that

such real-world fuel economy could be achieved by

their vehicles.

Instead, Plaintiffs direct the Court to alleged

“other” kinds of representations that they contend are

“extrinsic” to fuel economy estimates and, therefore,

are not preempted. Plaintiffs allege that Ford claimed

in an advertisement “that ‘[w]ith EPA-estimated fuel

economy ratings of 21 mpg city, 26 mpg highway and

23 mph combined, the 2019 Ford Ranger is the most

fuel efficient gas-powered midsize pickup in America”

and that another vehicle was “best in class” for fuel

economy with stated EPA fuel economy estimates.

(Pls.’ Br. at 27) (emphasis added).

Plaintiffs have not directed the Court to any

case wherein a court has ruled that claims based upon

those kind of allegations are not expressly preempted

by federal law.

Moreover, under the reasoning in the above

cases, Ford persuasively argues that it used the EPA

fuel estimates of its vehicles in the very way the EPA

contemplated they would be used – to compare the

estimated fuel economy of different vehicles.

This Court therefore concludes that all of

Plaintiffs’ claims in this action, that are based upon

81a

Ford’s alleged use of the EPA mileage estimates in the

Monroney

stickers

and

in

its

challenged

advertisements, are preempted under federal law and

shall be dismissed on that basis.

Given this ruling, the Court need not address

Ford’s alternative or additional challenges raised in

the pending motion. Because the Court finds a

number of those challenges also have merit, however,

it shall address them.

B.

Implied Conflict Preemption

Ford contends that, in addition to being

expressly preempted, Plaintiffs claims also fail due to

implied conflict preemption.

“Implied preemption has been subdivided into

‘field preemption’ and ‘conflict preemption.” State

Farm, 539 F.3d at 342. Here, Ford asserts that conflict

preemption exists.

Conflict preemption “occurs ‘when compliance

with both state and federal law is impossible, or when

the state law stands as an obstacle to the

accomplishment and execution of the full purposes

and objectives of Congress.’” United States v. Locke,

529 U.S. 89, 109, 120 S.Ct. 1135, 146 L.Ed.2d 69

(2000) (citations omitted); see also Chrysler Group

LLC v. Fox Hills Motor Sales, Inc., 776 F.3d 411, 424

(6th Cir. 2015) (“Conflict preemption occurs when a

state law ‘stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

82a

Congress.’”). “In other words, ‘[i]f the purpose of the

act cannot otherwise be accomplished – if its operation

within its chosen field . . . must be frustrated and its

provisions be refused their natural effect – the state

law must yield to the regulation of Congress.’” Id.

(quoting Savage v. Jones, 225 U.S. 501, 533, 32 S.Ct.

715, 56 L.Ed. 1192 (1912)).

In support of this argument that Plaintiffs’

claims in this action are also barred by conflict

preemption Ford asserts:

The federal government, through the EPA,

and at direction of Congress, promulgated a

comprehensive set of statutes and

regulations to further the federal objective

of providing consumers with uniform and

comparable fuel economy information. See,

e.g., 49 U.S.C. § 32904 (vesting EPA with

responsibility to establish test methods and

calculation procedures for determining fuel

economy estimates); 49 U.S.C. § 32908(b)(1)

(requiring automobile manufacturers to

display EPA fuel economy estimates on each

new automobile offered for retail sale in the

United States); 49 U.S.C. § 32908(c)(3)

(mandating that the EPA prepare an annual

Fuel Economy Guide); 40 C.F.R. § 533.6

(setting forth measurement and calculation

procedures for light trucks); 40 C.F.R. §§

600.40508 and 600.407-08 (requiring

dealers to make available a printed copy of

83a

the annual Fuel Economy Guide). In

furtherance of this pervasive federal

scheme, the FTC has adopted the

aforementioned directives that require

manufacturers to generate EPA fuel

economy estimates and to use them in any

advertising referring to fuel-economy

performance.

The

FTC’s

definitive

advertising requirements, and the EPA’s

explicit

testing/labeling

requirements,

together evidence a comprehensive federal

scheme to provide consumers with

consistent and comparable fuel economy

information.

(Def.’s Br. at 21-22). Ford persuasively argues that

“Plaintiffs’ position in this litigation, if sustained,

would wholly frustrate this federal scheme” and

explains:

Each of the 45 named Plaintiffs complain

that Ford acted unlawfully by failing to

disclose the “true fuel economy” for the

subject vehicles. (See, e.g., ACAC ¶ 31

(stating that a Plaintiff would not have

purchased, or would have paid less for the

subject vehicles, “[h]ad Ford disclosed the

[vehicle’s] true fuel economy[.]”).) Even if

“true” fuel economy existed for any vehicle –

it does not, as fuel performance is highly

dependent on operating conditions, driving

habits, etc. – this is not what federal law

84a

requires. As explained in detail above,

manufacturers are instructed to provide fuel

economy estimates generated according to

EPA-mandated testing procedures, which

prescribe the actual fuel type and driving

cycle to be administered during the test, and

to explain that a consumer’s actual mileage

“will vary.” Plaintiffs’ claims are impliedly

preempted because they would require Ford

not only to make disclosures that are

different from what federal law requires,

but also to construct and disclose supposed

“true” fuel economy, which is impossible and

would surely mislead consumers.

(Def.’s Br. at 22).

In response, Plaintiffs assert that it is not clear

“which theory of implied preemption Ford relies upon

– field or conflict preemption” and so they address

both. Ford’s brief is clear, however, that it asserts that

conflict preemption applies. (See, e.g., Def.’s

Statement of Issues Presented No. 1, arguing “conflict

preemption” applies, Def.’s Br. at 20 with heading

stating that “conflict preemption also bars Plaintiffs’

claims.”).

As to conflict preemption, Plaintiffs argue that

“Ford incorrectly argues that disclosure of the

vehicles’ true fuel economy would require Ford ‘to

make disclosures that are different from what federal

law requires’ and to construct and disclose a supposed

85a

‘true’ fuel economy, which is impossible and would

surely mislead consumers.’” (Pls.’ Br. at 33). Plaintiffs

argue that their “claims are that because of Ford’s

false advertising, Ford had a duty under state law to

disclose the true fuel economy in addition to the

Monroney Sticker.” (Id. at 33-34) (italics in original,

bolding added for emphasis). Plaintiffs argue that

claim does not create a conflict, because it is not

impossible to comply with both the regulation and the

obligation that Plaintiffs identify. (Id. at 34).

Plaintiffs rely on C-MAX I, where the district court

found no conflict preemption, 2 and then direct the

Court to various cases dealing with emissions that are

not analogous to this fuel economy case.

The federal government, through the EPA, and

at direction of Congress, has established a

comprehensive set of statutes and regulations to

2 See C-MAX-I, supra, at *28. This Court does not agree with

this ruling, wherein the district court concluded that “a

manufacturer could disclose an alternative fuel economy

estimate yet still ensure that EPA estimates are the most

prominent.” Moreover, Plaintiffs are not suggesting that Ford

should provide an alternative “estimate.” Plaintiffs assert that

Ford should have to disclose the “true fuel economy” of its

vehicles. If Ford were required to provide “true fuel economy”

figures for their vehicles, that would directly conflict with the

federally-mandated language on the Monroney Stickers that

“[a]ctual results will vary for many reasons, including driving

conditions and how you drive and maintain your vehicle,” which

is the whole reason why the federal government requires that

“estimates” of the fuel economy of new vehicles be provided to

consumers.

86a

further the federal objective of providing consumers

with uniform and comparable fuel economy

information. This Court agrees with Ford that

Plaintiffs’ state-law claims in this case – that they

admit would require Ford to construct and disclose to

consumers an additional, supposed “true fuel

economy” for their vehicles – stand as an obstacle to

the accomplishment and execution of that federal

regime.

II.

Plaintiffs Lack Standing To Assert

Claims Arising Under The Laws Of The

States Where No Named Plaintiff

Claims To Reside Or Have Been

Injured.

Ford’s Motion to Dismiss includes alternative

or additional arguments pertaining to standing.

Among other things, Ford asserts that Plaintiffs lack

Article III standing to assert claims arising under the

laws of the twenty two states where no named

Plaintiff claims to reside or have been injured. (Def.’s

Br. at 28). In response, Plaintiffs assert that this

challenge is premature and should be addressed later,

at the class certification stage.

This Court has addressed this very same

challenge in other putative class actions. See In re

Refrigerant Compressors Antitrust Litig., 2012 WL

2917465 at *4 (E.D. Mich. 2012); Flores v. FCA US

LLC, 2021 WL 1122216 at *24-25 (E.D. Mich. 2021).

Other district courts in this district have as well. See,

87a

eg., In re Packaged Ice Antitrust Litig., 779 F. Supp

2d 642, 657 (E.D. Mich. 2011, Judge Borman). This

Court shall follow that same approach here and rules

that Plaintiffs lack standing to assert claims arising

under the laws of the twenty two states where no

named Plaintiff claims to reside or have been injured.

Accordingly, the following counts are also

subject to dismissal on this basis: Counts 712

(asserted under Alaska law), Counts 19-24 (asserted

under Arkansas law), Counts 33-38 (asserted under

Colorado law), Counts 39-44 (asserted under

Connecticut law), Counts 45-50 (asserted under

Delaware law), Counts 70-75 (asserted under Idaho

law), Counts 82-87 (asserted under Indiana law),

Counts 88-93 (asserted under Iowa law), Counts 9499 (asserted under Kansas law), Counts 100-105

(asserted under Kentucky law), Counts 112-117

(asserted under Maine law), Counts 143-148

(asserted under Mississippi law), Counts 155-160

(asserted under Montana law), Counts 167-172

(asserted under Nevada law), Counts 173-178

(asserted under New Hampshire Law), Counts 185190 (asserted under New Mexico law), Counts 198203 (asserted under North Carolina law), Counts

204-209 (asserted under North Dakota law), Counts

234-239 (asserted under Rhode Island law), Counts

271-276 (asserted under Vermont law), Counts 289294 (asserted under West Virginia law), and Counts

301-306 (asserted under Wyoming law).

88a

III.

Plaintiff’s Claims Are Also Barred By The

Doctrine Of Primary Jurisdiction.

Ford contends that even if this Court were to

find that some claims in the FAC are viable, “it should

nevertheless decline to exercise jurisdiction over this

case under the doctrine of primary jurisdiction.”

(Def.’s Br. at 34).

“The doctrine of primary jurisdiction ‘arises

when a claim is properly cognizable in court but

contains some issue within the special competence of

an administrative agency.’” United States v. Any and

All Radio Station Trans. Equip., 204 F.3d 658, 664

(6th Cir. 2000) (quoting United States v. Haun, 124

F.3d 745, 749 (6th Cir. 1997) (citing Reiter v. Cooper,

507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604

(1993)).

“Unfortunately, ‘[n]o fixed formula exists for

applying the doctrine.’” Id. (citing United States v.

Western Pacific R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1

L.Ed.2d 126 (1956)). Rather, a district court “must

apply the doctrine of primary jurisdiction on a caseby-case basis,” deferring to an administrative agency

when the reasons for the existence of the doctrine are

present. Alltel Tennessee, Inc. v. Tennessee Pub. Serv.

Comm’n, 913 F.2d 305, 309 (6th Cir. 1990). “Those

reasons, broadly speaking, are the desire for

uniformity in adjudication and the belief that the

decisionmaker with the most expertise and broadest

perspective regarding a statutory or regulatory

scheme will be most likely to resolve the issue

89a

correctly.” Any and All Radio Station Trans. Equip.,

supra, at 664.

Here, Ford argues that the “EPA has primary

jurisdiction regarding the accuracy of EPA-mandated

fuel-economy estimates because their calculation is

obviously within the EPA’s special expertise and the

Agency has a need to promote the uniformity of its

administrative policy in this important area. These

concerns are highlighted by the comprehensive and

complex nature of the federal regulatory scheme

promulgated by the EPA.” (Def.’s Br. a 34-35). In

support of this argument, at pages 35 to 36 of its brief,

Ford details the regulatory scheme at issue. It also

discusses the regulatory authority to enforce the

regulations and notes that “the federal government is

currently exercising its authority to investigate Ford’s

fuel-economy testing of the Subject Vehicles. (See

ACAC, at Ex. 2).” (Def.’s Br. at 36).

Ford argues that, despite the complexity of the

EPA’s regulatory scheme, and an ongoing

governmental investigation, “Plaintiffs continue to

ask this Court – not the EPA – to determine whether

the fuel-economy estimates displayed on select Fordbrand vehicles are accurate.” (Def.’s Br. at 36). Ford

contends it would be improper to supplant the special

expertise of the EPA in this manner and direct the

Court to both C-Max I and Giles.

In C-Max I, Ford argued that the district court

should decline to exercise jurisdiction over the

plaintiffs’ claims under the doctrine of primary

90a

jurisdiction. C-Max I, supra, at *29. The district court

accepted that argument in part and rejected it in part.

As to the plaintiffs’ claims that were based upon

advertisements that went beyond using the EPA

mileage estimates being misleading, the district court

concluded those claims were not barred by the

doctrine. Id. at 2930 (Concluding this court “properly

may determine whether Defendant’s alleged

guarantees of real-world fuel economy were

misleading to consumers without treading on the

calculation methods devised by the EPA, or their

disclosure as mandated by the EPA.”). But the district

court found that the other claims were barred by the

doctrine:

On the other hand, passing judgment on

whether there is a way to calculate fuel

economy for the C-Max, and whether that

should be disclosed, directly implicates the

methods devised by the EPA, and the

disclosure requirements devised by the

FTC. Accordingly, those claims are barred

here by the primary jurisdiction doctrine, as

they fall within the competence, and

mandate, of the EPA and FTC. Id. at *30.

Here, Plaintiffs do not assert claims about

guarantees of real-world fuel economy

performance. To the contrary, the only

claims they raise in this case are the claims

that the district court found were barred in

C-Max I – claims challenging the accuracy of

91a

Ford’s EPA fuel economy estimates and

Ford’s disclosure of them.

The district court in Giles also considered

whether it should decline to exercise jurisdiction

over claims under the doctrine of primary

jurisdiction. Giles, 24 F.Supp.3d 1039 at 1049-50.

The district court rejected Ford’s primary

jurisdiction argument because the claims in that

case were not based upon the accuracy of the EPA

estimates:

The problem with Ford’s argument is that

this case does not involve claims based on

matters within an agency’s special

competence. In support of this argument,

Ford points out that the “EPA has primary

jurisdiction regarding the accuracy of EPA

mileage estimates.” [ECF No. 16 at 25.]

This is undoubtedly true, and those

estimates surely depend on technical

information not within the conventional

experience of this Court. However, as noted

above, this case is not about the accuracy of

the EPA estimates. Rather, Mr. Giles is

challenging specific advertisements which

failed to disclose that they were based on

the EPA estimates and, in his opinion,

misled him and other purchasers of the

Ford Escape. These claims are closer to the

garden variety fraud cases that are very

92a

much within the conventional experience of

the courts. This Court therefore declines

Ford’s invitation to refer the case to the

EPA.

Giles, supra, at *1050 (emphasis added). Unlike the

Giles case, this case is about the accuracy of the EPA

estimates.

This Court agrees with Ford that the claims in

this action are barred by the doctrine of primary

jurisdiction.

IV.

Plaintiffs’ Misrepresentation-Based

Consumer Fraud And Consumer

Protection Claims Fail For Additional

Reasons.

In addition to preemption, Ford’s motion also

challenges Plaintiffs’ consumer fraud and consumer

protection

claims

and

focus

on

their

misrepresentation-based

claims.

Plaintiffs

misrepresentation-based claims can be divided into

two categories: 1) claims based on materials that

simply

disclose

EPA-mandated

fuel-economy

estimates; and 2) claims based upon representations

other than EPA estimates.

A.

Claims Based On Materials

Merely Containing EPAMandated Fuel-Economy

93a

Estimates Fail To State A

Claim.

Numerous courts have found that a plaintiff

fails to state a consumer protection act claim where

the claim is based upon materials that merely contain

EPA-mandated fuel-economy estimates. See, e.g., In re

Ford Fusion & C-MAX Fuel Econ. Litig., 2015 WL

7018369 * 32 (“[T]he Court is persuaded that any

[consumer protection] claims based on the mere

inclusion of EPA estimated fuel economy and

associated disclaimers do not state a claim upon which

relief can be granted. The case law makes clear . . .

that the mere use of EPA estimates, as opposed to any

other supposed estimates of ‘actual’ fuel-economy, are

not actionable.”); Paduano v. Am. Honda Motor Co.,

88 Cal.Rptr.3d at 105 (“As a matter of law, there is

nothing false or misleading about Honda’s advertising

with regard to its statements that identify the EPA

fuel economy estimates for the two Civic Hybrid

models.”); Gray v. Toyota Motor Sales, USA, 2012 WL

313703 at *6 (D. Cal. 2012) (“[T]he claims must fail as

they rely solely on advertisements that merely repeat

the approved EPA mileage estimates, without any

additional representations as to, for example, a

consumer’s ability to achieve those figures under

normal driving conditions”), aff’d, Gray v. Totoya

Motor Sales, USA, Inc., 554 F. App’x 608, 609 (9th Cir.

2014) (“[N]o misrepresentation occurs when a

manufacturer merely advertises EPA estimates.”);

Kim v. General Motors, LLC, 99 F.Supp.3d 1096, 1108

(C.D. Calf. 2015) (District court agreeing with other

94a

authorities “which held that [consumer protection]

claims that ‘rely solely on advertisements that merely

repeat the approved EPA mileage estimates, without

any additional representations as to, for example, a

consumer’s ability to achieve those figures under

normal driving conditions,’ must fail.”) (emphasis in

original).

Plaintiffs do not appear to dispute that the

authority Ford relies on, “stands for the narrow

proposition ‘that the mere use of EPA estimates, as

opposed to any other supposed estimates of ‘actual’

fuel-economy, are not actionable.’” (Pls.’ Br. at 68).

This Court concurs with that line of authority

and rules that, to the extent that any of the consumer

protection act claims are based upon materials that

merely

contain

EPA-mandated

fuel-economy

estimates, those claims fail to state a claim.

B.

Plaintiffs’ Claims Based On

Misrepresentations Other Than

EPA Estimates Also Fail To State A

Claim.

Plaintiffs argue, however, that “even Ford’s

authority recognizes ‘additional’ representations that

go beyond EPA estimates are sufficient to establish

claims.” (Pls.’ Br. at 68). Plaintiff contends their

statutory claims should not be dismissed because they

“have alleged reliance on misrepresentations other

than EPA estimates.” (Pls.’ Br. at 69) (emphasis

added).

The

only

such

alleged

“other”

95a

misrepresentations that Plaintiffs direct the Court to

are Ford “falsely claiming” that the “Class Vehicles

were ‘most fuel efficient’ and ‘best in class’ for fuel

economy – in other words better than the competition

to induce sales – in places like Ford’s website, dealer

brochures and sales pamphlets, television and radio

commercials, and/or on the Vehicle’s window Stickers.

(See ¶¶ 11, 17-22, 414-415, 456, 462-470).” (Id.).

For example, in paragraph 17, Plaintiffs allege

that, “[w]ith respect to its 2019 Ford Ranger, Ford

promised that its midsize truck ‘will deliver with

durability, capability, and fuel efficiency” and “also

claimed that its All-New Ford Ranger [was] Rated

Most Fuel Efficient Gas-Powered Midsize Pickup in

America.” “With EPA-estimated fuel economy ratings

of 21 mpg city, 26 mpg highway and 23 mpg combined,

2019 Ford Ranger is the most fuel efficient gaspowered midsize pickup in America.” (FAC at ¶ 19).

In paragraph 19, Plaintiffs allege that “Ford

promised that ‘[t]he adventure-ready 2019 Ford

Ranger is the most fuel-efficient gas-powered midsize

pickup in America – providing a superior EPAestimated city fuel economy rating and an

unsurpassed EPA-estimated combined fuel economy

rating versus the competition. The all-new Ranger

has earned EPA-estimated fuel economy ratings of 21

mpg city, 26 mpg highway and 23 mpg combined for

4x2 trucks.’ Ford claimed that ‘[t]his is the best-inclass EPA-estimated city fuel economy rating of any

gasoline-powered four-wheel-drive midsize pickup

96a

and it is an unsurpassed EPA-estimated combined

fuel economy rating.’” (FAC at ¶ 19).

Unlike the representations found to be

sufficient to be actionable in the above cases, Plaintiffs

have not alleged that Ford made any representations

that the vehicles at issue would actually achieve the

EPA-estimated figures under real-world conditions.

Rather, Plaintiffs take issue with alleged

statements wherein Ford stated that its vehicles were

“best-in-class” or “most fuel efficient” – comparative

statements about ratings.

In its reply brief, Ford makes two points. First,

it asserts that the “additional” alleged statements

about “most fuel efficient” is non-actionable “puffery,”

and direct the Court to Raymo v. FCA US LLC, 475 F.

Supp.3d 680, 706 (E.D. Mich. 2020). In that case,

Judge Berg ruled alleged statements, such as “leading

fuel economy” are “general and nonquantifiable” and

are therefore “nonactioanble puffery.”

Second, Ford asserts that the additional

statements Plaintiffs rely on are “generalized

statements about comparing the EPA-estimated fueleconomy figures among vehicles” that are not

actionable. (Def.’s Reply Br. at 24). Ford directs the

Court to “C-Max II,” wherein the court ruled that

statements that “C-Max [ ] bests in MPG” and “most

fuel-efficient midsize hybrid in America” are not

actionable. In this regard, Ford asserts that

“[c]omparisons are, after all, the purpose of the EPA

97a

estimates. EPA Your Mileage Will vary, available at

https://www.fueleconomy.gov/feg/why_differ.shtml

(last visited Feb. 2, 2021) (estimates ‘are a useful tool

for comparing the fuel economies of different

vehicles.’). Yet that is all Plaintiffs allege.” (Id.)

(emphasis in original).

In C-MAX II, the district court rejected the

argument that the comparative statements at issue

in that case were mere puffery, because the

statements are “capable of verification.” Id. at *10. It

agreed, however, that the comparative statements

were not actionable, explaining:

Nowhere in these commercials does Ford

promise that the C-MAX will achieve

better gas mileage than the Prius V or that

the Fusion’s fuel economy “doubles the fuel

economy of the average vehicle” under

real-world conditions. Instead, the

commercials rely on the EPA-estimated

fuel economy of the Vehicles in making

these comparisons . . .

In re Ford Fusion and C-Max Fuel Econ. Litig., 2017

WL 3142078 at * 10 (S.D. 2017).

This Court concludes that Plaintiffs have not

sufficiently alleged a misrepresentation-based

consumer protection claim against Ford.

98a

V.

The Consumer Protection Claims Under

The Law Of Several State’s Laws Fail

DueTo Statutory Class-Action Bars.

In addition to preemption, Ford asserts that

several of Plaintiffs’ state consumer protection act

claims fail as a result of statutory class-action bars.

(Def.’s Br. at 39). Ford notes that the “Alabama,

Arkansas, Georgia, Louisiana, Mississippi, Montana,

Ohio, South Carolina, Tennessee and Virginia

consumer protection statutes preclude class actions or

otherwise provide a private right of action exclusively

for individuals acting in their own capacities. See, e.g.,

Ala. Code § 8-19-10(f); Ark. Code Ann. 4-88113(f)(1)(B); Ga. Code Ann. § 10-1-399(a); La. Stat.

Ann. § 51:1409(A); Miss. Code Ann. § 75-24-15(4);

Mont. Code Ann. § 30-14-133(1); Ohio Rev. Code Ann.

§ 1345.09(A); S.C. Code Ann. § 39-5-140(a); Tenn.

Code Ann. § 47-18-109(a)(1); Va. Code § 59.1-204.”

(Id.). Ford claims that, as federal courts in this district

have decided, this “means that Plaintiffs’ claims

under these statutes, seeking class-wide recovery, are

inappropriate and subject to dismissal.” (Id.).

In response, Plaintiffs do not dispute that the

consumer protection act statutes of the abovereferenced states contain provisions that bar class

actions. They contend, however, that Fed. R. Civ. P.

23 displaces such state statutory provisions in a

diversity case like this one.

There is a split of authority on this issue.

Several district courts within the Sixth Circuit –

99a

including this Court – have rejected Plaintiffs’

argument and enforced the statutory bars. See, e.g.,

Matanky v. Gen. Motors LLC, 370 F. Supp.3d 772,

987-99 (E.D. Mich. 2019); In re Packaged Ice Antitrust

Litig., 779 F. Supp.2d at 663 n.4; McKinney v. Bayer

Corp., 744 F. Supp.2d 733, 749 (N.D. Ohio 2010);

Flores v. FCA US LLC, supra, at *23-24. This Court

concludes that Plaintiffs’ representative claims

brought under the consumer protection statutes of the

following states are subject to dismissal on this basis:

Alabama (Count 1), Georgia (Count 57), Louisiana

(Count 106), Ohio (210), South Carolina (Count 240),

Tennessee (Count 253), and Virginia (Count 277). 3

VI.

Plaintiffs’ Breach Of Contract Claims Are

Also Subject To Dismissal Because

Plaintiffs Do Not Allege The Existence Of

An Enforceable Contract With Ford.

Ford asserts that Plaintiffs breach of contract

claims against it should also be dismissed because

Plaintiffs do not allege the existence of an enforceable

contract with Ford. (Def.’s Br. at 43). In support of this

challenge, Ford notes that Plaintiffs allege that

“[e]ach and every sale or lease of a [ ] vehicle

constitutes a contract between Ford and the

purchasers or lessee.” (See, eg., FAC at ¶ 518). Ford

3 The representative consumer protection act claims brought

under the laws of Arkansas, Mississippi, and Montana are also

subject to dismissal on this same basis, but as explained above,

are being dismissed for lack of standing.

100a

notes that “[a]t no point, however, do Plaintiffs plead

facts plausibly showing that Ford is a party to any

such contract, much less specify the offers that Ford

allegedly made, what consideration supposedly

passed between them, or what contractual provision

was supposedly breached.” (Def.’s Br. at 43). Ford

further states “there is no allegation that Ford offered

to sell, or sold, a vehicle directly to any individual

Plaintiff, as each individual lead Plaintiff alleges that

they purchased or leased their vehicle from an

‘authorized Ford dealership.’ See, e.g., [FAC] ¶ 29.”

(Id.). Ford therefore argues that Plaintiffs’ contract

claims fail “upon review of the hornbook elements of

contract law. They fail to allege facts showing that

Ford made an offer to them, that they accepted that

offer, that they paid any consideration to Ford, and

that Ford failed to honor a binding promise made to

them.” (Id. at 43-44). Ford asserts that the “mere

conclusory allegations that the purchase or a lease of

a vehicle ‘constitutes a contract’ with Ford is

insufficient” and argues that all of Plaintiffs’ breach of

contract claims should be dismissed. (Id.).

Plaintiffs barely respond to this challenge. (See

Pls.’ Br. at 72-73). They address this challenge in a

single paragraph wherein they state that “Plaintiffs

alleged that they bought or leased a Ford vehicle from

an authorized Ford dealership” and claim they need

not allege a direct relationship with Ford to

sufficiently plead their breach of contract claims

against Ford.” (Id.). Plaintiffs do not attempt to

explain how their allegations in the FAC are sufficient

101a

to state a breach of contract claim under any of the

applicable states’ laws.

Plaintiffs have not identified a contract

between Plaintiffs and Ford in their allegations in the

FAC and have not identified the term(s) of the alleged

contract that were allegedly breached by Ford. As

such, Plaintiffs have failed to plead a plausible breach

of contract claim against Ford. See, e.g.,

Northhampton Restaurant Group, Inc. v. FirstMerit

Bank, N.A., 492 F. App’x 518, 522 (6th Cir. 2012) (It

is a basic tenant of contract that a party can only

advance a claim of breach of written contract by

identifying and presenting the actual terms of the

contract allegedly breached); Alchaibani v. Litton

Loan Servicing, LP, 528 F. App’x 462, 465 (6th Cir.

2013) (mere vague legal conclusions fall short of

Twombly’s plausibility standard).

VII.

Plaintiffs’ Express Warranty Claims Are

Also Barred By Federal And State Laws.

In addition to preemption, Ford contends that

Plaintiffs have failed to state any valid warrantybased claims in the FAC. Plaintiffs allege that Ford

made two different warranties: 1) the EPA fuel

economy estimates on the Monroney label; and 2) the

New Vehicle Limited Warranty (“NVLW”). Ford

contends that both claims fail. The Court agrees.

A.

The EPA Fuel Economy

Estimates Do Not Establish A

102a

Warranty Under Federal Or

State Law.

First, Ford persuasively argues that, as a

matter of law, the EPA fuel economy estimates do not

establish a warranty under federal or state law:

The same federal statute that

requires Ford to generate and disclose EPA

fuel economy estimates explicitly bars any

claim that such estimates constitute a

warranty under state or federal law. See 49

U.S.C. § 32908(d) (“[a] disclosure about fuel

economy or estimated annual fuel costs

under this section does not establish a

warranty under the law of the United

States or a State.”). That statute bars all

such warranty claims, regardless of whether

they are directed to the EPA estimate on the

window sticker itself, or to other advertising

statements that reiterate the EPA

estimated fuel economy. See, e.g., Paduano,

169 Cal.App. 4tth at 1453, 1467 (“Thus, to

the extent that Honda identified the EPA

fuel economy estimates in its own

advertising, Honda’s provision of those

estimates

does

not

constitute

an

independent warranty that [plaintiff’s]

vehicle would achieve the EPA fuel economy

estimates or a similar level of fuel

economy.”). Plaintiffs base their express

warranty claim directly on the Monroney

103a

labels on Ford’s vehicles, which federal law

makes clear do not establish warranty. (See,

e.g., ACAC¶ 524 (“Ford expressly warranted

in advertisements, including in the

stickers affixed to the windows of its

vehicles, that its vehicles provided a

favorable fuel economy of specific

MPGs, depending on the vehicle.”). Based

on this straightforward application of §

32908(d), Plaintiffs’ breach of express

warranty claim should be dismissed with

prejudice.

(Def.’s Br. at 47-48) (emphasis in original).

In response to this argument, Plaintiffs rely on

C-MAX I, wherein the district court found that §

32908(d) did not bar claims based upon guarantees in

advertising that went beyond a mere disclosure of

EPA estimates. (Pls.’ Br. at 47-48). Again, however,

this case does not involve claims based on such

guarantees of real-world performance. Rather,

Plaintiffs assert express warranty claims based upon

the EPA estimates themselves. These claims are

barred by 49 U.S.C. § 32908(d) that provides that a

“disclosure about fuel economy or estimated annual

fuel costs under this section does not establish a

warranty under a law of the United States or a

State.”

B.

Any Express Warranty Claims

Based Upon The NVLW Also Fail

104a

Because The Alleged Design

Defects Are Not Covered.

Ford also asserts that, to the extent Plaintiffs’

express warranty claim is based upon the New Vehicle

Limited Warranty (“NVLW”), that covers defects in

factory supplied material or workmanship, the claims

fail because they have not pleaded any facts showing

that the alleged defect falls within the scope of the

warranty coverage. (Def.’s Br. at 48). Ford asserts

that, in fact, Plaintiffs characterize the “issue as one

of design. See ACAC ¶¶2164, 2238 (‘ . . . Ford failed to

inform [the Mississippi and Missouri Plaintiffs] that

the [subject vehicles] were defectively designed, and

failed to fix the defectively designed [vehicles] free of

charge.’” (Id. at 49) (emphasis added).

In response, Plaintiffs direct the Court to a nonbinding district court case that rejected distinctions

between design and materials/workmanship defects

at the motion-to-dismiss phase.

This Court, however, has already taken a

position on this issue, in Flores, wherein it followed

Matanky v. Gen. Motors, LLC, 370 F.Supp.3d 772

(E.D. Mich. 2019) and ruled that the plaintiffs

pleaded a design defect that was not covered under

the express warranty provided. Flores v. FCA US

LLC, 2021 WL 1122216 at * 7-8 (E.D. Mich. 2021).

The Court concludes that this is an additional ground

for dismissal of the express warranty claims in this

case.

105a

VIII. Plaintiffs’ MMWA Claims Must Also Be

Dismissed For Failure To Allege

Sufficient Pre-Suit Notice.

Count 307 of Plaintiffs’ FAC asserts claims

under the federal Magnuson-Moss Warranty Act

(“MMWA).

Ford contends that Plaintiffs cannot sustain

an MMWA claim. Among other things, Ford asserts

that Plaintiffs have failed to allege sufficient pre-suit

notice. Ford argues that even if Plaintiffs “had stated

a viable warranty claim, their MMWA claim should

still be dismissed because they failed to meet the

Act’s pre-suit notice requirements.” (Def.’s Br. at 52).

Class actions brought under the MMWA are

subject to specific notice requirements. 15 U.S.C. §

2310(e); Bhatt v. Mercedes-Benz USA, LLC, 2018 WL

5094932 at *4 (C.D. Cal. 2018); Kuns v. Ford Motor

Co., 543 F. App’x 572, 576 (6th Cir. 2013). First, the

MMWA “requires each named plaintiffs to give the

warrantor a reasonable opportunity to cure any

failure to comply with the express or implied terms of

the warranty.” Bhatt, supra, (citing 15 U.S.C.

§ 2310(e)); Kuns, supra (noting the “requirement that

a warrantor have an opportunity to cure is codified at

section 2310(e), which states that ‘no action . . . may

be brought under subsection (d) of this section for

failure to comply with any obligation under any

written or implied warranty . . . unless the person

obligated under the warranty . . . is afforded a

reasonable opportunity to cure such failure to

106a

comply.’”).

Second,

“[a]fter

this

reasonable

opportunity is afforded, each plaintiff must, then,

notify the warrantor that the plaintiff is going to

initiate a suit on behalf of a class.” Bhatt, supra; 15

U.S.C. § 2310(e).

Failure to comply with these notice

requirements compels dismissal. See, e.g., Bearden

v. Honeywell Intern., Inc., 720 F.Supp.2d 932, 936

(M.D. Tenn. 2010) (Noting mandatory language of

notice language in MMWA and dismissing claims

for failure to allege that required notice was

provided); Stearns v. Select Comfort Retail Corp.,

2009 WL 4723366 at *10 (N.D. Cal. 2009)

(dismissing MMWA claims in putative class action

for failure to allege that named plaintiffs provided

required notice under the MMWA); Nadler v.

Nature’s Way Pods., LLC, 2014 WL 12601567 at *3

(C.D. Cal. 2014) (same).

Here, Ford claims that Plaintiffs failed to

comply with the MMWA’s notice requirements

because each named Plaintiff does not allege to have

given the required pre-suit notice. It also contends

that the second requirement is not met as Plaintiffs

have not alleged that they notified Ford of their

intent to initiate a suit on behalf of a class.

Plaintiffs respond to this two-part challenge in

the following paragraph of their brief, wherein they

argue:

107a

Plaintiffs allege that (1) Ford was

provided an opportunity to cure and

multiple written notices of the intent to sue

(¶3974); (2) Ford knew of the defect at the

time of the sale, thus waiving an

opportunity to cure (¶3971); and (3) that it

would be futile to afford Ford an opportunity

to cure its breach (see, e.g., ¶ 528). These

allegations sufficiently plead a viable

MMWA claim. See Persad, 2018 WL

3428690, at *6 (holding that plaintiffs’

complaint properly alleged futility and

denied motion to dismiss based on lack of

pre-suit notice).

(Pls.’ Br. at 56).

As the Stearns court noted, the language

requiring notice in the MMWA is mandatory. And in

Kuns, the plaintiff made the same futility argument

that Plaintiffs make here and the Sixth Circuit did not

find it persuasive. Kuns, 543 F. App’x at 576 (Noting

the plaintiff’s argument that any request to cure the

defect would have been futile, and rejecting it because

the plaintiff “does not cite – and we cannot locate –

any case law indicating that this statutory

requirement can be waived if a plaintiff subjectively

determines that demand would be futile and does not

so much as request the seller to cover the necessary

repair.”).

Thus, Plaintiffs’ failure to allege that they

provided adequate pre-suit notice under the statute is

108a

an additional basis for dismissal of Plaintiffs’ MMWA

count.

IX.

Plaintiffs’ Transactions Are Exempt From

The Michigan Consumer Protection Act.

In addition to preemption, Ford argues that

Plaintiffs’ claims under the Michigan Consumer

Protection Act (Count 130) also fail because their

motor vehicle sales and lease transactions are exempt

from the Act. In support of this argument, Ford

asserts:

The MCPA does not apply to transactions

that are specifically authorized and fully

regulated by state and federal law. See

Mich. Comp. Laws § 445.904(a); accord

Zaher v. Argent Mortg. Co., LLC, No. 14111848, 2017 WL 193550, at *5 (E.D. Mich.

Jan. 18, 2017). This exemption is construed

broadly and looks to the general

transaction. See Divis v. General Motors,

LLC, No. 18-13025, 2019 WL 4735405, at *9

(E.D. Mich. Sept. 27, 2019) (citing Liss v.

Lewiston-Richards, Inc., 478 Mich. 203, 210

(2007)). Indeed, the Michigan Court of

Appeals confirmed that ‘the manufacture,

sale, and lease of automobiles, and the

provision of express and implied warranties

concerning those automobiles and their

components are all conduct that is

‘specifically authorized’ under federal and

109a

state law.” Cyr v. Ford Motor Co., 2019 WL

7206100, a *2-3 (Mich. Ct. App. Dec. 26,

2019).

(Def.’s Br. at 60-61).

In response, Plaintiffs direct the Court to single

district court decision wherein the court declined to

make a ruling on this issue at the motion-to-dismiss

phase, and choosing to revisit the issue on summary

judgment.

This Court very recently addressed this same

issue in Gant, concluding that the exemption applies

to motor vehicle sales. Gant v. Ford Motor Co., 2021

WL 364250 at *7-8 (E.D. Mich. Feb. 3, 2021).

Plaintiffs’ claims under the Michigan Consumer

Protection Act (Count 130 of the FAC) are subject to

dismissal on this same basis.

CONCLUSION & ORDER

Accordingly, the Court ORDERS that

Defendant Ford’s Motion to Dismiss is GRANTED

because the Court concludes that Plaintiffs’ claims are

preempted under federal law, and because the claims

110a

are subject to dismissal for the additional reasons

discussed above.

IT IS SO ORDERED.

s/ Sean F. Cox

Sean F. Cox

United States District Judge

111a

Appendix F

EPA Coastdown Testing and Road Load

Measurement Regulations

40 C.F.R. § 1066.210

(a) General requirements. A chassis dynamometer

typically uses electrically generated load forces

combined with its rotational inertia to recreate the

mechanical inertia and frictional forces that a vehicle

exerts on road surfaces (known as “road load”). Load

forces are calculated using vehicle-specific coefficients

and response characteristics. The load forces are

applied to the vehicle tires by rolls connected to

motor/absorbers. The dynamometer uses a load cell to

measure the forces the dynamometer rolls apply to the

vehicle’s tires.

(b) Accuracy and precision. The dynamometer's

output values for road load must be NIST–traceable.

We may determine traceability to a specific national

or international standards organization to be

sufficient to demonstrate NIST–traceability. The

force-measurement system must be capable of

indicating force readings as follows:

(1) For dynamometer testing of vehicles at or

below 20,000 pounds GVWR, the dynamometer forcemeasurement system must be capable of indicating

force readings during a test to a resolution of ±0.05%

112a

of the maximum load-cell force simulated by the

dynamometer or ±9.8 N (±2.2 lbf), whichever is

greater.

(2) For dynamometer testing of vehicles above

20,000 pounds GVWR, the force-measurement system

must be capable of indicating force readings during a

test to a resolution of ±0.05% of the maximum loadcell force simulated by the dynamometer or ±39.2 N

(±8.8 lbf), whichever is greater.

(c) Test cycles. The dynamometer must be capable of

fully simulating vehicle performance over applicable

test cycles for the vehicles being tested as referenced

in the corresponding standard-setting part, including

operation at the combination of inertial and road-load

forces corresponding to maximum road-load

conditions and maximum simulated inertia at the

highest acceleration rate experienced during testing.

(d) Component requirements.

specifications apply:

The

following

(1) The nominal roll diameter must be 120 cm

or greater. The dynamometer must have an

independent drive roll for each drive axle as tested

under § 1066.410(g), except that two drive axles may

share a single drive roll. Use good engineering

judgment to ensure that the dynamometer roll

diameter is large enough to provide sufficient tire-roll

113a

contact area to avoid tire overheating and power

losses from tire-roll slippage.

(2) Measure and record force and speed at 10

Hz or faster. You may convert measured values to 1–

Hz, 2–Hz, or 5–Hz values before your calculations,

using good engineering judgment.

(3) The load applied by the dynamometer

simulates forces acting on the vehicle during normal

driving according to the following equation:

Where:

FR = total road-load force to be applied at the surface

of the roll. The total force is the sum of the individual

tractive forces applied at each roll surface.

i = a counter to indicate a point in time over the

driving schedule. For a dynamometer operating at 10–

Hz intervals over a 600–second driving schedule, the

maximum value of i should be 6,000.

A = a vehicle-specific constant value representing the

vehicle's frictional load in lbf or newtons. See subpart

D of this part.

Gi = instantaneous road grade, in percent. If your

duty cycle is not subject to road grade, set this value

to 0.

114a

B = a vehicle-specific coefficient representing load

from drag and rolling resistance, which are a function

of vehicle speed, in lbf/(mi/hr) or N·s/m. See subpart D

of this part.

v = instantaneous linear speed at the roll surfaces as

measured by the dynamometer, in mi/hr or m/s. Let

vi–1 = 0 for i = 0.

C = a vehicle-specific coefficient representing

aerodynamic effects, which are a function of vehicle

speed squared, in lbf/(mi/hr)2 or N·s2/m2. See subpart

D of this part.

Me = the vehicle's effective mass in lbm or kg,

including the effect of rotating axles as specified in §

1066.310(b)(7).

t = elapsed time in the driving schedule as measured

by the dynamometer, in seconds. Let ti–1 = 0 for i = 0.

M = the measured vehicle mass, in lbm or kg.

ag = acceleration of Earth's gravity = 9.80665 m/s2.

(4) We recommend that a dynamometer capable

of testing vehicles at or below 20,000 pounds GVWR

be designed to apply an actual road-load force within

±1% or ±9.8 N (±2.2 lbf) of the reference value,

whichever is greater. Note that slightly higher errors

115a

may be expected during highly transient operation for

vehicles above 8,500 pounds GVWR.

(e) Dynamometer manufacturer instructions. This

part specifies that you follow the dynamometer

manufacturer’s recommended procedures for things

such as calibrations and general operation. If you

perform testing with a dynamometer that you

manufactured or if you otherwise do not have these

recommended procedures, use good engineering

judgment to establish the additional procedures and

specifications we specify in this part, unless we specify

otherwise. Keep records to describe these

recommended procedures and how they are consistent

with good engineering judgment, including any

quantified error estimates.

_________♦_________

40 C.F.R. § 1066.301

Vehicle testing on a chassis dynamometer involves

simulating the road-load force, which is the sum of

forces acting on a vehicle from aerodynamic drag, tire

rolling resistance, driveline losses, and other effects of

friction. Determine dynamometer settings to simulate

road-load force in two stages. First, perform a roadload force specification by characterizing on-road

operation. Second, perform a road-load derivation to

determine the appropriate dynamometer load settings

116a

to simulate the road-load force specification from the

on-road test.

(a) The procedures described in this subpart are used

to determine the road-load target coefficients (A, B,

and C) for the simulated road-load equation in §

1066.210(d)(3).

(b) The general procedure for determining road-load

force is performing coastdown tests and calculating

road-load coefficients. This procedure is described in

SAE J1263 and SAE J2263 (incorporated by reference

in § 1066.1010). Continued testing based on the 2008

version of SAE J2263 is optional, except that it is no

longer available for testing starting with model year

2026. This subpart specifies certain deviations from

those procedures for certain applications.

(c) Use good engineering judgment for all aspects of

road-load determination. For example, minimize the

effects of grade by performing coastdown testing on

reasonably level surfaces and determining coefficients

based on average values from vehicle operation in

opposite directions over the course.

_________♦_________

40 C.F.R. § 1066.305

(a) For motor vehicles at or below 14,000 pounds

GVWR, develop representative road-load coefficients

117a

to characterize each vehicle covered by a certificate of

conformity. Calculate road-load coefficients by

performing coastdown tests using the provisions of

SAE J1263 and SAE J2263 (incorporated by reference

in § 1066.1010). This protocol establishes a procedure

for determination of vehicle road load force for speeds

between 115 and 15 km/hr (71.5 and 9.3 mi/hr); the

final result is a model of road-load force (as a function

of speed) during operation on a dry, level road under

reference conditions of 20 °C, 98.21 kPa, no wind, no

precipitation, and the transmission in neutral. You

may use other methods that are equivalent to SAE

J2263, such as equivalent test procedures or

analytical modeling, to characterize road load using

good engineering judgment. Determine dynamometer

settings to simulate the road-load profile represented

by these road-load target coefficients as described in §

1066.315. Supply representative road-load forces for

each vehicle at speeds above 15 km/hr (9.3 mi/hr), and

up to 115 km/hr (71.5 mi/hr), or the highest speed from

the range of applicable duty cycles.

(b) For cold temperature testing described in subpart

H of this part, determine road-load target coefficients

using one of the following methods:

(1) You may perform coastdown tests or use

other methods to characterize road load as described

in paragraph (a) of this section based on vehicle

operation at a nominal ambient temperature of -7 °C

(20 °F).

118a

(2) You may multiply each of the road-load

target coefficients determined using the procedures

described in paragraph (a) of this section by 1.1 to

approximate a 10 percent decrease in coastdown time

for the test vehicle.

_________♦_________

40 C.F.R. § 1066.315

Determine dynamometer road-load settings for

chassis testing by following SAE J2264 (incorporated

by reference in § 1066.1010).

_________♦_________

40 C.F.R. § 1066.401

(a) Use the procedures detailed in this subpart to

measure vehicle emissions over a specified drive

schedule. Different procedures may apply for criteria

pollutants and greenhouse gas emissions as described

in the standard-setting part. This subpart describes

how to—

(1) Determine road-load power, test weight, and

inertia class.

(2) Prepare the vehicle, equipment, and

measurement instruments for an emission test.

119a

(3) Perform pre-test procedures to verify proper

operation of certain equipment and analyzers and to

prepare them for testing.

(4) Record pre-test data.

(5) Sample emissions.

(6) Record post-test data.

(7) Perform post-test procedures to verify

proper operation of certain equipment and analyzers.

(8) Weigh PM samples.

(b) The overall test generally consists of prescribed

sequences of fueling, parking, and driving at specified

test conditions. An exhaust emission test generally

consists of measuring emissions and other parameters

while a vehicle follows the drive schedules specified in

the standard-setting part. There are two general

types of test cycles:

(1) Transient cycles. Transient test cycles are

typically specified in the standard-setting part as a

second-by-second sequence of vehicle speed

commands. Operate a vehicle over a transient cycle

such that the speed follows the target values.

Proportionally

sample

emissions

and

other

parameters and calculate emission rates as specified

in subpart G of this part to calculate emissions. The

120a

standard-setting part may specify three types of

transient testing based on the approach to starting

the measurement, as follows:

(i) A cold-start transient cycle where you

start to measure emissions just before starting

an engine that has not been warmed up.

(ii) A hot-start transient cycle where you

start to measure emissions just before starting

a warmed-up engine.

(iii) A hot-running transient cycle where

you start to measure emissions after an engine

is started, warmed up, and running.

(2) Cruise cycles. Cruise test cycles are typically

specified in the standard-setting part as a discrete

operating point that has a single speed command.

(i) Start a cruise cycle as a hot-running

test, where you start to measure emissions

after the engine is started and warmed up and

the vehicle is running at the target test speed.

(ii) Sample emissions and other

parameters for the cruise cycle in the same

manner as a transient cycle, with the exception

that the reference speed value is constant.

Record instantaneous and mean speed values

over the cycle.

121a

_________♦_________

40 C.F.R. § 1066.1010

Certain material is incorporated by reference into this

part with the approval of the Director of the Federal

Register under 5 U.S.C. 552(a) and 1 CFR part 51. To

enforce any edition other than that specified in this

section, EPA must publish a document in the Federal

Register and the material must be available to the

public. All approved incorporation by reference (IBR)

material is available for inspection at EPA and at the

National Archives and Records Administration

(NARA). Contact EPA at: U.S. EPA, Air and Radiation

Docket Center, WJC West Building, Room 3334, 1301

Constitution Ave. NW, Washington, DC 20004;

www.epa.gov/dockets;

(202)

202–1744.

For

information on inspecting this material at NARA,

visit

www.archives.gov/federal-register/cfr/ibrlocations.html or email fr.inspection@nara.gov. The

material may be obtained from the following sources:

(a) National Institute of Standards and Technology

(NIST), 100 Bureau Drive, Stop 1070, Gaithersburg,

MD 20899–1070; (301) 975–6478; www.nist.gov.

(1) NIST Special Publication 811, 2008 Edition,

Guide for the Use of the International System of Units

(SI), Physics Laboratory, March 2008; IBR approved

for §§ 1066.20(a); 1066.1005.

122a

(2) [Reserved]

(b) SAE International, 400 Commonwealth Dr.,

Warrendale, PA 15096–0001; (877) 606–7323 (U.S.

and Canada) or (724) 776–4970 (outside the U.S. and

Canada); www.sae.org.

(1) SAE J1263 MAR2010, Road Load

Measurement and Dynamometer Simulation Using

Coastdown Techniques, Revised March 2010, (“SAE

J1263”); IBR approved for §§ 1066.301(b);

1066.305(a); 1066.310(b).

(2) SAE J1634 JUL2017, Battery Electric

Vehicle Energy Consumption and Range Test

Procedure, Revised July 2017, (“SAE J1634”); IBR

approved for § 1066.501(a).

(3) SAE J1711 JUN2010, Recommended

Practice for Measuring the Exhaust Emissions and

Fuel Economy of Hybrid–Electric Vehicles, Including

Plug–In Hybrid Vehicles, Revised June 2010, (“SAE

J1711”); IBR approved for §§ 1066.501(a); 1066.1001.

(4) SAE J2263 DEC2008, Road Load

Measurement Using Onboard Anemometry and

Coastdown Techniques, Revised December 2008; IBR

approved for §§ 1066.301(b); 1066.305; 1066.310(b).

123a

(5) SAE J2263 MAY2020, (R) Road Load

Measurement Using Onboard Anemometry and

Coastdown Techniques, Revised May 2020, (“SAE

J2263”); IBR approved for §§ 1066.301(b); 1066.305;

1066.310(b).

(6)

SAE

J2264

JAN2014,

Chassis

Dynamometer Simulation of Road Load Using

Coastdown Techniques, Revised January 2014, (“SAE

J2264”); IBR approved for § 1066.315.

(7) SAE J2711 MAY2020, (R) Recommended

Practice for Measuring Fuel Economy and Emissions

of Hybrid–Electric and Conventional Heavy–Duty

Vehicles, Revised May 2020, (“SAE J2711”); IBR

approved for §§ 1066.501(a); 1066.1001.

(8) SAE J2951 JAN2014, Drive Quality

Evaluation for Chassis Dynamometer Testing,

Revised January 2014, (“SAE J2951”); IBR approved

for § 1066.425(j).

124a

Appendix G

State Consumer Protection Statutes

ARIZONA CONSUMER FRAUD ACT

(ARIZONA REV. STAT.§ 44-1522)

A. The act, use or employment by any person of any

deception, deceptive or unfair act or practice, fraud,

false pretense, false promise, misrepresentation, or

concealment, suppression or omission of any material

fact with intent that others rely on such concealment,

suppression or omission, in connection with the sale

or advertisement of any merchandise whether or not

any person has in fact been misled, deceived or

damaged thereby, is declared to be an unlawful

practice.

_________♦_________

CALIFORNIA UNFAIR COMPETITION LAW

(CAL. BUS. & PROF. CODE § 17200)

As used in this chapter, unfair competition shall mean

and include any unlawful, unfair or fraudulent

business act or practice and unfair, deceptive, untrue

or misleading advertising and any act prohibited by

Chapter 1 (commencing with Section 17500) of Part 3

of Division 7 of the Business and Professions Code.

_________♦_________

125a

CALIFORNIA’S CONSUMERS LEGAL REMEDIES

ACT (CAL. BUS. & PROF. CODE § 1770)

(a) The unfair methods of competition and unfair or

deceptive acts or practices listed in this subdivision

undertaken by any person in a transaction intended

to result or that results in the sale or lease of goods or

services to any consumer are unlawful: . . .

(2) Misrepresenting the source, sponsorship,

approval, or certification of goods or services. . . .

(5) Representing that goods or services have

sponsorship, approval, characteristics, ingredients,

uses, benefits, or quantities that they do not have . . .

.

(7) Representing that goods or services are of a

particular standard, quality, or grade, or that goods

are of a particular style or model, if they are of

another. . . .

(9) Advertising goods or services with intent not to sell

them as advertised. . . .

(16) Representing that the subject of a transaction has

been supplied in accordance with a previous

representation when it has not. . . .

_________♦_________

126a

CALIFORNIA FALSE ADVERTISING LAW

(CAL. BUS. & PROF. CODE § 17500)

It is unlawful for any person, firm, corporation or

association, or any employee thereof with intent

directly or indirectly to dispose of real or personal

property or to perform services, professional or

otherwise, or anything of any nature whatsoever or to

induce the public to enter into any obligation relating

thereto, to make or disseminate or cause to be made

or disseminated before the public in this state, or to

make or

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