O'Connor v. Ford Motor Co.

• Citation: 567 F.Supp.3d 915
• Decision Date: 19 October 2021
• Docket Number: Case No. 19-cv-5045,C/w Case Nos. 20-cv-1981, 20-cv-2095, 20-cv-2612
• Parties: Justin O'CONNOR, et al., on behalf of himself and all other similarly situated, Plaintiffs, v. FORD MOTOR COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

567 F.Supp.3d 915

Justin O'CONNOR, et al., on behalf of himself and all other similarly situated, Plaintiffs,

v.FORD MOTOR COMPANY, Defendant.

Case No. 19-cv-5045

C/w Case Nos. 20-cv-1981, 20-cv-2095, 20-cv-2612

United States District Court, N.D. Illinois, Eastern Division.

Signed October 19, 2021

Edward A. Wallace, Wallace Legal Group, LLC, Umar Sattar, Wexler Wallace LLP, Chicago, IL, John R. Fabry, Pro Hac Vice, The Carlson Law Firm, Round Rock, TX, Lisa Anne White, Gregory F. Coleman, Rachel Lynn Soffin, Greg Coleman Law PC, Mark E. Silvey, Pro Hac Vice, Ryan Patrick McMillan, Pro Hac Vice, Milberg Coleman Bryson Phillips Grossman, PLLC, Knoxville, TN, Sidney F. Robert, Pro Hac Vice, Brent Coon & Associates, Houston, TX, for Plaintiffs.

Mark Howard Boyle, Mason William Kienzle, Donohue Brown Mathewson & Smyth LLC, Chicago, IL, Cindy Caranella Kelly, Pro Hac Vice, Hector Torres, Pro Hac Vice, Stephen P. Thomasch, Pro Hac Vice, Kasowitz Benson Torres LLP, New York, NY, Constantine Z. Pamphilis, Pro Hac Vice, Kasowitz Benson Torres LLP, Houston, TX, Mary Terese Novacheck, Pro Hac Vice, Bowman and Brooke LLP, Minneapolis, MN, for Defendant.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge Plaintiffs bring this class action complaint against Defendant Ford Motor Company ("Defendant" or "Ford") for damages allegedly arising out of Defendant's sale and lease of 2017 to 2020 Model Year Ford F-150 trucks with defective 10R80 10-speed automatic transmissions. Currently before the Court is Defendant's motion [64] to dismiss the Consolidated Amended Class Action Complaint [63]. For the reasons explained below, the motion to dismiss [64] is granted in part and denied in part. In particular, the motion to dismiss:

Count 1, for breach of express warranty, is granted as to Plaintiff Smith (one of several California Plaintiffs), but otherwise denied;

Count 2, for breach of implied warranty, is granted to the extent it is based on the Massachusetts, New York, and Pennsylvania implied warranties of fitness for a particular purpose and the Illinois implied warranty of merchantability, but otherwise denied;

Count 3, for violation of the Magnuson-Moss Warranty Act, is granted as to Plaintiff O'Connor (one of two Illinois Plaintiffs), but otherwise denied;

Count 4, for negligence, is granted as to California, Florida, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and Texas;

Count 5, for fraud and fraudulent concealment, is granted as to the California, Florida, Illinois, New Jersey, and Pennsylvania fraud and fraudulent concealment claims, the New York fraud claim, the Massachusetts and Texas fraudulent concealment claims, and Massachusetts Defendant Barcelona's fraud claim; but denied as to Massachusetts Defendant Marino's fraud claim and the New York fraudulent concealment claim;

Count 6, for unjust enrichment, is granted as to California, Florida, Illinois, Massachusetts, New Jersey, and New York, but denied as to Pennsylvania and Texas;

Count 7, for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, is granted;

Count 8, for violation of California's Song-Beverly Consumer Warranty Act based on express warranties, is granted as to Plaintiff Smith (one of several California Plaintiffs), but otherwise denied;

Count 9, for violation of California's Song-Beverly Consumer Warranty Act based on implied warranties, is denied;

Count 10, for breach of California's implied warranty of merchantability, is denied;

Count 11, for violation of California's Consumer Legal Remedies Act, is denied;

Count 12, for violation of California's Unfair Competition Law, is denied;

Count 13, for violation of Florida's Deceptive and Unfair Trade Practices Act, is denied;

Count 14, for breach of Massachusetts’ implied warranty of merchantability, is granted because it is duplicative of Count 2;

Count 15, for breach of Massachusetts’ implied warranty of fitness for a particular purpose, is granted;

Count 16, for violation of Massachusetts’ Consumer Protection Law, is denied;

Count 17, for violation of the New Jersey Consumer Fraud Act, is denied; Count 18, for violation of the New York General Business Law § 349, is denied;

Count 19, for violation of the New York General Business Law § 350, is denied;

Count 20, for violation of Pennsylvania's Unfair Trade Practice and Consumer Protection Law, is denied;

Count 21, for violation of Texas’ implied warranty of merchantability, is denied;

Count 22, for violation of Texas’ implied warranty of fitness for a particular purpose, is granted; and

Count 23, for violation of Texas’ Deceptive Trade Practices and Consumer Protection Act, is denied.¹

Counsel are directed to file a joint status report by no later than 10/21/2021 that includes (a) a proposed discovery schedule; and (b) a statement in regard to any settlement discussions and/or any mutual request for a referral to the assigned Magistrate Judge for a settlement conference.

I. Background

This action was originally brought by Illinois Plaintiff Justin O'Connor on behalf of himself and a proposed class. In July 2020, the Executive Committee reassigned three related, higher-numbered cases (Case Nos. 20-cv-1981, 20-cv-2095, and 20-cv-2612) to this Court to be consolidated with Case No. 19-cv-5045. See [57]. On August 7, 2020, the Court entered an order dismissing the amended complaint in the lead case, but authorizing Plaintiffs to file a second amended complaint. See [59]. Plaintiffs filed their 127-page Consolidated Amended Class Action Complaint [63] ("Complaint") on September 25, 2020.

The following facts are taken from the Complaint [63]. All well-pled allegations in the Complaint are assumed to be true for purposes of Defendant's motion to dismiss. See Calderon-Ramirez v. McCament , 877 F.3d 272, 275 (7th Cir. 2017). Defendant is a publicly traded company, incorporated in Delaware and with a principal place of business in Dearborn, Michigan. The twelve named Plaintiffs are individuals who purchased or leased Model Year 2017-2020 Ford F-150 vehicles ("Class Vehicles" or "Vehicles") that were designed, manufactured, distributed, marketed, sold, and leased by Defendant or Defendant's parent, subsidiary, or affiliates.² Each Vehicle was equipped with a 10R80, which is a 10-speed automatic transmission ("Transmission"). The Complaint explains that an automatic transmission is essentially an automatic gear shifter. Instead of manually shifting the gears with a clutch, the automatic transmission does it on its own. The transmission acts as a powertrain to convert the vehicle engine's force into a controlled source of power. It allows drivers to safely and reliably accelerate and decelerate their vehicles.

Plaintiffs have proposed a class that includes at least 100 members and aggregated claims that exceed $5 million, exclusive of interest and costs. The proposed Class is defined as: "All persons in the United States and its territories who formerly or currently own or lease one or more of 2017 to 2020 Model Year Ford F-150 trucks with a 10R80 10-speed automatic transmission." [63] at 58. The Complaint also proposes Illinois, California, Florida, Massachusetts, New Jersey, New York, Pennsylvania, and Texas Subclasses. Id. at 59-60.

The Complaint details all of the Plaintiffs’ decisions to buy or lease their Vehicles from Ford and their experiences driving the Vehicles. See [63] at 14-45. The Court will discuss the more granular details of each Plaintiff's decision and experience as necessary in the Analysis section below. At a high level, many or most of the Plaintiffs performed research before deciding to buy or lease their Vehicles, including reviewing Vehicle specifications and advertising touting the Vehicles’ performance and reliability, as well as speaking with salespeople at Ford dealerships. None of the Plaintiffs were informed of the problems with the Vehicles’ Transmissions. Plaintiffs allege that they would not have purchased/leased the Vehicles or would have paid significantly less if they had known that the Transmission contain a defect ("Defect").

All of the Plaintiffs report experiencing problems with their Transmissions, including: a loud "clunking" or banging noise when the engine starts; a "clanking" noise from the Transmission; jerky and rough acceleration and deceleration; delayed engagement of the Transmission and gears holding too long then roughly slamming into gear; the Vehicle failing to speed up when trying to accelerate; the Transmission slipping and jerking while accelerating and shifting gears; the Transmission slipping while driving in any gears; and, most seriously, the loss of acceleration and shifting capability while driving. The Complaint alleges that because of the Defect, the Class Vehicles are likely to suffer serious damages and potentially catch fire if accidents occur, causing an unreasonable and extreme risk of serious bodily harm or death to the Vehicle's occupants and others in the vicinity. [63] at 7. Nearly all of the Plaintiffs report that they took their Vehicles into Ford dealerships for repairs and/or complained to Ford, but the problems with their Vehicles were not fixed and they were not provided the relief they requested.

The Complaint alleges that Defendant knew or should have known of the Transmission Defect prior to Plaintiffs’ purchase or lease of their Vehicles. It details numerous complaints that consumers filed with the National Highway Traffic Safety Administration ("NHTSA") concerning the Transmissions, beginning in late 2017 and continuing through 2020. See [63] at 47-53. Defendant issued its first Technical Service Bulletin ("TSB") concerning the Defect in March 2018 and additional TSBs after that. The TSBs stated that 2017 and 2018 F-150 vehicles "may exhibit harsh/bumpy upshift, downshift and/or engagement concerns." Id. at 46. To address this problem, the TSBs suggested reprogramming the powertrain control module ("PCM"). The TSBs explained that the Vehicles...