Tershakovec v. Ford Motor Co.
| Decision Date | 01 July 2021 |
| Docket Number | Case Number: 17-21087-CIV-MORENO |
| Parties | George TERSHAKOVEC, Diana Tershakovec, Jacques Rimokh, Herbert Alley, Michael Delagarza, Attila Gondan, Eric Kamperman, Greg Roberts, Richard Kowalchik, Travis McRae, Michael McCurry, Mark Hochsprung, John Aubrey, Jose Cruz, Eric Evans, Byron Harper, and Todd Newton, individually and on behalf of all others similarly situated, Plaintiffs, v. FORD MOTOR COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Catherine Y.N. Gannon, Pro Hac Vice, Nicholas Styant-Browne, Steve W. Berman, Garth Daniel Wojtanowicz, Pro Hac Vice, Jerrod C. Patterson, Pro Hac Vice, Shelby R. Smith, Pro Hac Vice, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Rachel Wagner Furst, Stuart Z. Grossman, Grossman Roth Yaffa Cohen, P.A., Coral Gables, FL, for Plaintiffs George Tershakovec, Diana Tershakovec, Jacques Rimokh, Herbert Alley.
Rachel Wagner Furst, Stuart Z. Grossman, Grossman Roth Yaffa Cohen, P.A., Coral Gables, FL, for Plaintiffs Michael Delagarza, Michael McCurry.
Nicholas Styant-Browne, Garth Daniel Wojtanowicz, Pro Hac Vice, Jerrod C. Patterson, Pro Hac Vice, Shelby R. Smith, Pro Hac Vice, Hagens Berman Sobol Shapiro LLP, Seattle, WA, Rachel Wagner Furst, Stuart Z. Grossman, Grossman Roth Yaffa Cohen, P.A., Coral Gables, FL, for Plaintiffs Attila Gondan, Eric Kamperman, Greg Roberts, Richard Kowalchik, Travis McRae, Mark Hochsprung, John Aubrey, Jose Cruz, Eric Evans, Byron Harper, Todd Newton, Wayne Linn, Stephen Kelly, Jill Kelly, Frank Porter, Ernesto Larios, Shaunti Yanik-Larios, Josh Long.
Henry Salas, Sean Hernandez, Cole, Scott, & Kissane P.A., Miami, FL, John M. Thomas, Pro Hac Vice, Dykema Gossett, PLLC, Ann Arbor, MI, David George, Pro Hac Vice, Ashley R. Fickel, Pro Hac Vice, Krista L. Lenart, Pro Hac Vice, Dykema Gossett PLLC, for Defendant.
ORDER ON SUMMARY JUDGMENT AND CLASS CERTIFICATION
THIS CAUSE came before the Court upon Ford's Motion for Summary Judgment and Plaintiffs’ Motion for Class Certification.
THE COURT has considered the motions, the responses, the replies, the supplemental briefing, oral argument, the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ADJUDGED that the motions are disposed of as follows:
This Order grants Ford summary judgment on Plaintiffs’ claims concerning the occurrence of Limp Mode on public roads, all of Plaintiff Cruz's claims, the express and implied warranty claims of Plaintiffs Roberts, Hochsprung, Kowalchik, and Porter, as well as the express warranty claims of any class members who did not fulfill their presentment and notice obligations. It denies summary judgment on all other claims.
The Order also certifies nine state law classes and Magnuson-Moss classes in Texas and California under Rule 23(b)(3). The class is defined as "All persons who purchased a Class Vehicle from a Ford-authorized dealer or distributor located in [insert state here] before April 1, 2016."
Plaintiffs are purchasers of Defendant Ford's Shelby GT350 Mustang car. The Shelby Mustang is a performance version of the standard Mustang. It is several cuts above both the base version of the Mustang and the Mustang GT (which has a V8 engine). Only true car enthusiasts opt for the Shelby GT350, and they do so mainly for its racing and track capabilities. In fact, the name "Shelby" comes from Carroll Shelby, a race car driver and designer for Ford in the mid-20th century. Indeed, Ford touted the Shelby as "an all-day track car that is also street legal."
Like any car, consumers had the option to customize it to their liking. This included choosing between five packages—the base package, technology package, track package, R package, and R technology package. The two lowest packages, base and technology, did not come with transmission and differential coolers. The coolers prevent the engine from overheating at consistently high rotations per minute, allowing the driver to drive faster for longer. In order to prevent overheating in the Shelbys without the coolers, Ford programmed the Base and Technology packages to rapidly decelerate when engine temperature got too high. Both parties refer to this as "Limp Mode." This was an intentional design choice. Originally, all Shelbys had the coolers, but Ford removed the coolers from the Base and Tech packages a few years before launch—allegedly to increase profit margins in their volume-leading Tech package.
Obviously, track driving is done at very fast speeds for a prolonged period. Plaintiffs allege that many of their vehicles unexpectedly entered Limp Mode, both on the track and the open road. The Shelbys are essentially unusable for sustained track driving—the main reason many Plaintiffs bought the car. Plaintiffs now bring a variety of claims under the statutory and common laws of several different states. To be brief, the Plaintiffs make two broad categories of complaint: 1) Ford advertised all Shelbys as track-capable, the advertising induced Plaintiffs to purchase the car, and then the car did not perform as advertised. 2) The consistent occurrence of limp mode is a breach of Ford's express and implied warranties. Finally, the named Plaintiffs ask this Court to certify a class.
Fed. R. Civ. P. 56 provides, "summary judgment is appropriate where there ‘is no genuine issue as to any material fact’ and the moving party is ‘entitled to judgment as a matter of law.’ " See Alabama v. N. Carolina , 560 U.S. 330, 130 S. Ct. 2295, 2308, 176 L.Ed.2d 1070 (2010) (quoting Fed. R. Civ. P. 56(a) ). The existence of some factual disputes between litigants will not defeat an otherwise properly ground motion for summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added). Mere "metaphysical doubt as to the material facts" will not suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The basic issue before the court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251, 106 S.Ct. 2505 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992).
Many of Plaintiffs’ claims focus on Ford's marketing. There are claims under various state statutes prohibiting deceptive business practices, common law fraudulent concealment claims, and one claim for violation of California's false advertising law. In their summary judgment briefing, the parties do not discuss the differences between the various states’ laws. Instead, Ford makes the general objection that its advertisements are not actionable because they are mere puffery.
Most of the facts are not disputed. Ford advertised the entire Shelby lineup "track-ready" and "track-capable." While not directly relevant to the puffery analysis, Ford knew race-track enthusiasts were the Shelbys target audience. In a track day invitation sent to all Shelby owners post-purchase, Ford's marketing manager wrote that the GT350 had "exceptional race track capabilities, we're sure that's one of the reasons you purchased your GT350—perhaps the main reason." There should be no doubt that Ford touted the Shelby lineup as designed for the track. Other advertising materials include phrases like "an all-day track car that's also street legal," "tested endlessly on the most challenging roads and tracks in the world," "we wanted to build the best possible Mustang for the places we most love to drive – challenging back roads with a variety of corners and elevation changes – and the track on weekends," and finally described the Mustang as "track-focused."
Rather than deny the obvious, Ford's two categories of responses argue that 1) their advertising is mere puffery, as evidenced by the fact that no one really agrees on what "track-capable" means and 2) Ford's advertising actually differentiated the Base and Tech models from the others because Ford lavished much more "track" praise on the higher end models and specifically warned consumers that Base and Tech models would need aftermarket coolers. See D.E. 140 at 3; D.E. 141-54.
While true that each circuit and the various states will have their own slightly nuanced definition of puffery, puffery can be generally understood as "generalized, vague, nonquantifiable statements of corporate optimism." Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund , 575 U.S. 175, 135 S.Ct. 1318, 191 L.Ed.2d 253 (2015) ; Carvelli v. Ocwen Fin. Corp. , 934 F.3d 1307, 1318 (11th Cir. 2019). Or, as Judge Learned Hand wrote, "[t]here are some kinds of talk which no sensible man takes seriously, and if he does he suffers from his credulity." Vulcan Metals Co. v. Simmons Mfg. Co. , 248 F. 853, 856 (2d Cir. 1918). One Multi-District Litigation judge considering puffery across several jurisdictions held that the "touchstone" of the puffery analysis is "the likelihood that reasonable consumers would rely on that representation."
In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales Practices, & Prod. Liab. Litig. , 295 F. Supp. 3d 927, 1007 (N.D. Cal. 2018). Finally, "[w]hether a representation is mere puffery...
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