In re Ford Fusion & C-Max Fuel Econ. Litig.
Decision Date | 12 November 2015 |
Docket Number | Case No. 13-MD-2450 (KMK) |
Parties | In re: FORD FUSION AND C-MAX FUEL ECONOMY LITIGATION, This Document Relates to All Actions |
Court | U.S. District Court — Southern District of New York |
Appearances:
Paul Geller, Esq., Stuart Davidson, Esq., Mark Dearman, Esq., & Sheri Coverman, Esq.
Boca Raton, FL
Samuel Rudman, Esq.
Robbins Geller Rudman & Dowd LLP
Melville, NY
Rachel Jensen, Esq.
Robbins Geller Rudman & Dowd LLP
San Diego, CA
Eric Gibbs, Esq., Geoffrey Munroe, Esq., & David Stein, Esq.
San Francisco, CA
John Yanchunis, Esq. & Rachel Soffin, Esq.
Morgan & Morgan
Tampa, FL
Peter Safirstein, Esq.
Morgan & Morgan
New York, NY
Counsel for Plaintiffs' Executive Committee
Richard McCune, Esq. & Elaine Kusel, Esq.
McCune Wright LLP
Redlands, CA
Jonathan Shub, Esq. & Scott George, Esq.
Seeger Weiss LLP
New York, NY
Stephen Jaffe, Esq., Mark Fistos, Esq., & Seth Lehrman, Esq.
Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.
Fort Lauderdale, FL
Bruce Steckler, Esq. & Mazin Sbaiti, Esq.
Steckler Law LLP
Dallas, TX
Cory Fein, Esq.
Caddell & Chapman
Houston, TX
Joel Dewey, Esq., Jeffrey Yeatman, Esq., Matthew Goldberg, Esq., & Timothy Birnbaum, Esq.
New York, NY
Plaintiffs are "consumers who purchased or leased a 2013 Ford Fusion Hybrid ("Fusion") or 2013 Ford C-MAX ("C-MAX") (collectively, the "Vehicles") from dealerships licensed by Ford Motor Company ("Ford," or "Defendant"), an automobile manufacturer based in Dearborn, Michigan, allegedly in reliance on Ford's "misrepresentations and material omissions" about the Vehicles' fuel economy. (Consolidated Am. Class Action Compl. ("CAC") ¶¶ 7-9, 41 (Dkt. No. 51).) Plaintiffs bring this Consolidated Amended Class Action Complaint ("CAC"), on theirown behalf and on behalf of members of a putative class ("Class"), alleging that they would not have otherwise purchased or leased the Vehicles, or would not have paid as much for them, had it not been for Ford's misrepresentations, and that they have otherwise been damaged because of higher fuel costs and the diminution in the Vehicles' value. (Id. ¶ 8.) Before the Court is Defendant's Motion To Dismiss the CAC. For the reasons stated herein, the Motion is denied in part and granted in part.
The following facts are drawn from the CAC, and they are assumed to be true for purposes of deciding Defendant's Motion.
Until 2012, following Ford's release of its first hybrid sedan—the Fusion—Ford's "efforts to break into the . . . market for hybrid vehicles had been largely unsuccessful." (Id. ¶¶ 2, 47.) As of mid-2012, Ford had only a 3% share of that market. (Id. ¶ 3.) Plaintiffs allege that this was due to an inability of Ford's "primary hybrid offering," the Fusion, with offered an estimated combined 39 miles per gallon ("MPG")—36 MPG city, 41 MPG highway—fuel economy, to compete with the Toyota Prius and its estimated combined 51 MPG city, 48 MPG highway. (Id. ¶¶ 2, 48.)
In 2013, Ford "launched a massive," and allegedly misleading, "advertising campaign" focusing on two of its new hybrid models—the Fusion and the C-MAX, highlighting their estimated 47 MPG. (Id. ¶ 3.) The campaign included a "Times Square '47' kick-off," which featured Ryan Seacrest and "the number '47' featured prominently and in a variety of ways,"including a sign held by Ford's CEO, the number "47" on "giant LED screens," and "crowds of people" wearing "47" t-shirts and holding "up signs to make a '47' montage visible from the sky." (Id. ¶¶ 3, 56.)
Ford also launched a "'47 Challenges, 47 Days' multi-media campaign" designed to "target all hybrid [buyers] on the fence" about purchasing a hybrid vehicle. (Id. ¶¶ 3, 57 (brackets and internal quotation marks omitted).) The campaign included commercials aired "thousands of times, in all major media markets, on major networks, and at all times of day touting the fuel economy of the Vehicles," magazine advertisements in "numerous and varied magazines . . . with collective national circulations in the tens of millions," newspaper advertisements, a social media campaign on "Facebook, Twitter, and other social media" which included the "47 Day Photo Challenge," in which "consumers were asked to submit photos that 'captured the spirit of the Hybrid Fusion's 47 [MPG]'," promotional brochures "touting . . . 47 MPG," on-line profiles on Ford's website, and "a number of national press releases boasting about the Vehicles' improved fuel economy and the success of [Ford's] 47 MPG advertising." (Id. ¶¶ 3, 58.) Ultimately, the campaign was a "tremendous success" and contributed to "record hybrid sales," allegedly attributable to the increase in fuel economy. (Id. ¶ 4.) By the end of 2012, Ford had increased its share of the hybrid market to 16% and by April 2013 was the "second-leading auto company in the hybrid market," with record hybrid sales continuing through August 2013. (Id. ¶¶ 4, 52-53.)
The problem, Plaintiffs contend, is that Ford's advertising was "highly misleading." (Id. ¶ 5.) Plaintiffs allege that while the campaign "emphasized that the '47 MPG' was something the Vehicles would actually deliver," (Id. ¶ 59), designed to convey "real vehicle[] performance"and "truly reflect the vehicle," (id. ¶ 60 (internal quotation marks omitted), "under real-world driving conditions, consumers . . . [were] consistently unable to get anywhere near the advertised 47 MPG," (id. ¶ 5). Plaintiffs further aver that only " and that, even so, this "standard boilerplate language . . . did not alter the campaign's overall impression on consumers," (id. ¶ 62), in part because "nowhere in the [advertising] campaign did [Ford] make a distinction between real-world performance and the EPA-estimated rating," (id. ¶ 63.)1
Plaintiffs maintain that the offending representations included:
(Id. (emphasis and internal quotation marks omitted).) Plaintiffs further allege that Ford made two misleading posts on the C-MAX official Facebook page: (1) On August 7, 2012, a post noting that "[i]f someone asks what MPG the C-MAX Hybrid gets, you can tell them 47[,] [and] [t]hat's because the all-new . . . C-MAX . . . delivers EPA-certified 47 mpg city and 47 mpghighway ratings for a 47-mph combined rating"; (2) On August 21, 2012, a post indicating that "the C-MAX . . . can more than keep up [with the 2013 Ford Escape] and achieve an estimated 570 miles on a single tank of gas." (Id. ¶ 67.) Additionally, Plaintiffs allege that on February 6, 2013, during a "Ford Fusion Lunch Date," Gil Portalatin, the Chief Programming Engineer for Electrified Programs and Integration at Ford, (Id. ¶ 64). Finally, Plaintiffs allege that, in a press release, Ford stated that the "C-MAX . . . returns the same fuel economy whether driving cross-county or across the city—stemming mostly from a growing list of Ford innovations that have helped the vehicle to deliver an impressive list of metrics, such as its 570-mile overall range, taking customers from Los Angeles to Las Vegas and back on one tank of gas," a range Ford referred to as "real car range" which "beat[s] Toyota Prius [V] by 120 miles."2 (Id. ¶¶ 65-66 (internal quotation marks omitted).)
Plaintiffs also allege that several other advertisements compared the Fusion and C-MAX to other hybrid cars available for sale. These advertisements include the following:
As indicated above, the advertising campaign targeted the Toyota Prius V in particular, which "provided space comparable to Ford's 2012 Fusion Hybrid, but was advertised as achieving 44 MPG city, 40 MPG highway, for a combined 42 MPG." (Id. ¶¶ 51, 74.) Plaintiffs allege that, in its advertisements, Ford "regularly compared the mileage of the C-MAX to that of the...
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