firestone class action suit

8/8/2019 Firestone Class Action Suit

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANAINDIANAPOLIS DIVISION

In re BRIDGESTONE/FIRESTONE, INC. )ATX, ATX II AND WILDERNESS TIRES ) Master File No. IP 00-9373-C-B/SPRODUCTS LIABILITY LITIGATION ) MDL No. 1373____________________________________) (Centralized Before Judge SarahTHIS DOCUMENT RELATES TO ) Evans Barker)ALL CLASS ACTIONS )____________________________________)

____________________

BRIEF III

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS: REASONS TO DISMISS

PLAINTIFFS CLAIMS FOR VIOLATION OF STATE CONSUMER PROTECTION STATUTES,

VIOLATIONS OF THE MAGNUSON-MOSS ACT, BREACH OF WARRANTY, REDHIBITION,

NEGLIGENCE, AND UNJUST ENRICHMENT (COUNTS I, IX, X-XIV)

____________________

Hugh R. Whiting John H. BeisnerMark Herrmann Stephen J. HarburgJONES, DAY, REAVIS & POGUE OMELVENY & MYERS LLPNorth Point 555 13th Street, N.W.901 Lakeside Avenue Washington, D.C. 20004

Cleveland, Ohio 44114 (202) 383-5370(216) 586-3939

Mark J.R. Merkle Randall R. RiggsKREIG DEVALUT ALEXANDER LOCKE REYNOLDS LLP

& CAPEHART, LLP 201 N. Illinois Street, Suite 1000One Indiana Square P.O. Box 44961Suite 2800 Indianapolis, Indiana 46244-0961Indianapolis, Indiana 46204-2017 (317) 237-3814(317) 636 4341

ATTORNEYS FOR DEFENDANT ATTORNEYS FOR DEFENDANT

BRIDGESTONE/FIRESTONE, INC. FORD MOTOR COMPANY


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below), the named plaintiffs claims are each flawed in several respects, each of which dictatesdismissal.

First, under Fed. R. Civ. P. 9(b), plaintiffs are required to plead their fraud-basedclaims with particularity. See General Elec. Capital v. Lease Resolution, 128 F.3d 1074, 1078(7th Cir. 1997). Rule 9(b)s mandate requires plaintiffs to plead not only the elements of thespecific state consumer protection statutes they purportedly are invoking (as discussed above),but also the who, what, when, and where of the alleged fraud. See Lachmund v. ADM InvestorServs., Inc., 191 F.3d 777, 782 (7th Cir. 1999) (internal citation omitted) (emphasis added); seealso Unique Coupons, Inc. v. Northfield Corp., No. 99 C 7445, 2000 U.S. Dist. LEXIS 6767, *9-10(N.D. Ill. May 11, 2000) (Claims under the Consumer Fraud Act are subject to theheightened pleading standard under Rule 9(b).). Under Rule 9(b), plaintiffs must plead withparticularity the circumstances constituting fraud; thus, the Seventh Circuit has required thatplaintiffs must plead the identity of the person who made the misrepresentation, the time, placeand content of the misrepresentation, and the method by which the misrepresentation wascommunicated to the plaintiff. See General Elec. Capital, 128 F.3d at 1078 (internal quotationmarks and citation omitted); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)(explaining that Rule 9(b) particularity means the who, what, when, where, and how: the firstparagraph of any newspaper story). None of the named plaintiffs meets these rigorousrequirements. Although the Complaint contains a laundry list of allegedly deceptiveadvertisements and representations (see Compl. 124-129), not one named plaintiff alleges thathe or she saw any of those supposed misrepresentations, or, if so, when or where themisrepresentation was allegedly encountered. These omissions are fatal to their fraud-basedconsumer protection statute claims. Likewise, the claims of the Exhibit A plaintiffs must alsobe dismissed on this ground as well.

Second, as discussed in more detail in Brief I, the named plaintiffs have notalleged that they experienced any manifestation of the alleged defect or injury, an essential

element under all the relevant state consumer protection statutes.6 See, e.g., Briehl v. GeneralMotors Corp., 172 F.3d 623, 628-29 (8th Cir. 1999) (dismissing, inter alia, plaintiffs stateconsumer protection statute claims under Texas, Florida, Illinois, New York and Mississippi law,because plaintiffs failed to plead damages, an essential element of those causes of action); 73 Pa.Cons. Stat. 201-9.2 (cause of action for ascertainable loss of money or property); Ala. Code 8-19-10 (requiring actual money damages); Tex. Bus. & Com. Code 17.50(a) (requiringdamages). Consequently, the vast majority of the claims of the named plaintiffs, as well as theExhibit A plaintiffsclaims, must be dismissed on this ground as well.

named plaintiffs acquired their vehicles and tires in their respective home states, they may assert a consumer fraudclaim only under the relevant statute of that state. See, e.g., Goodrich v. E.F. Hutton Group, Inc., 542 A.2d 1200,1202 (Del. Ch. Ct. 1988) (Delaware consumer protection statute does not apply where there is no transaction in thestate and the consumers are not in the state); Tylka v. Gerber Prods., 182 F.R.D. 573, 576-78 (N.D. Ill. 1998)(holding that only Illinois consumers and any non-resident consumers who purchased the allegedly misrepresenteditems in Illinois within the relevant time period have standing to sue under the Illinois Consumer Fraud Act).

6 Only Gary Gustafson, William Wehking, and Allan Simpson have alleged that the purported tire defectmanifested itself. (See Compl. 12, 14, 22.) Their consumer protection claims, as well as all of their other claims,fail for other reasons.


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Third, many named plaintiffs have failed to allegeother necessary elementsunder the relevant consumer protection statutes. For instance, the New York named plaintifffailed to allege that any underlying conduct took place in New York, as required by New Yorksconsumer protection statute. See N.Y. Gen. Bus. Law 349, 350. Many named plaintiffs havefailed to allege that they purchased or leased their vehicle or tires.7 The failure to allege a

consumer transaction is fatal under some of the relevant statutes. See, e.g, Ohio Rev. Code. 1345.01(D); 1345.09 (A)(B)(only a consumer may bring an action under the Ohio ConsumerSales Practice Act, consumer defined as a person who engages in a consumer transaction witha supplier [e.g. seller, franchisor].). No namedplaintiff has even alleged that any particularaction of either Firestone or Ford constitutes an unfair or deceptive trade practice, as defined bythe specific consumer protection statute. See, e.g., Cal. Civ. Code 1780(a) (authorizing right ofaction to any consumer who is injured by any act or practice declared to be unlawful by Cal. Civ.Code 1770).

A.A. Each Named Plaintiffs Consumer Protection Act Claim Fails.Each Named Plaintiffs Consumer Protection Act Claim Fails.The following is a state-by-state summary of selected additional (but certainly not

all ) reasons why the consumer protection act claim of each plaintiff named in the body of theComplaint fails.8

1.1. Alabama.Alabama.The Alabama Deceptive Trade Practices Act (ADTPA) claim of the sole

Alabama named plaintiff Margaret Clarke should be dismissed for several reasons. First, theADTPA authorizes a private right of action only where the allegedly deceptive trade practicecauses monetary damage. See Ala. Code 8-19-10(a). Clarke, however, has not alleged anymonetary damage. (See Compl. 32.) See, e.g., Billions v. White and Stafford Furniture Co.,Inc., 528 So.2d 878, 880 (Ala. Ct. App. 1988) (rejecting claim under ADTPA where plaintiffs

suffered no monetary damages as a result of defendants actions); Ford Motor Co. v. Rice, 726So.2d 626, 629 (Ala. 1998) (plaintiffs did not successfully allege any adverse economicconsequences when they claimed that their vehicles risk of rollover was greater than suggestedby Fords silence).

Second, Clarke has not alleged that she purchased the vehicle and tires, letalone purchased them for personal, family, or household use, a necessary element to bring aclaim under the ADTPA. See Ala. Code 8-19-3 (2) (defining consumer as any naturalperson whobuys goods or services for personal, family or household use) (emphasis added).Clarke alleges nothing more than that she has a 2000 Ford Explorer equipped with WildernessAT Tires. (Compl. 32.) See Deerman v. Federal Home Loan Mortgage Corp., 955 F. Supp.

7 See, e.g., Compl 31 (Plaintiff Kurt Kellerman resides in Baton Rouge, Louisiana, and is a citizen of theState of Lousiana); Compl. 32-42, 44, 49 (plaintiffs are alleged only to have a vehicle and/or tires, not to havepurchased them).

8 In the interest of not making this brief even longer, the following state-specific treatment of the reasonswhy plaintiffs claims fail is not exhaustive. Firestone and Ford, however, reserve the right to raise additionalarguments in subsequent briefing if any of plaintiffs consumer protection claims should survive. Moreover, justbecause certain arguments are made with respect to certain states and not others, does not mean that those argumentsare foreclosed in the other states.


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1393, 1399 (N.D. Ala. 1997) (finding that plaintiffs could not bring suit because the AlabamaDTPA provides a cause of action for a consumer and plaintiffs failed to meet thatrequirement).

Finally, Clarkes claim must fail for the additional reason that she did not providea written demand for relief to the defendants at least fifteen days before filing an action under theADTPA. See Ala. Code 8-9-10(e); Givens v. Rent-a-Center, Inc., 720 F. Supp. 160 (S.D. Ala.1988), affd, 885 F.2d 879 (11th Cir. 1989).9

2.2. Arizona.Arizona.The one Arizona named plaintiff, Florence Bruemmer, fails to state a claim under

the Arizona Consumer Fraud Act (ACFA) for several reasons. Under the ACFA, a privateindividuals relief is limited to the recovery of actual damages suffered as a result ofdefendants unlawful conduct. See, e.g., Peery v. Hansen, 585 P.2d 574, 577 (Ariz. Ct. App.1978). Bruemmer has alleged nothing more than that she has a 1999 Ford Ranger that wasequipped with Wilderness Tires. (Compl. 36.) Because plaintiff makes no allegations of

personal injury to herself or damage to property, she has not pleaded actual damages. See,e.g., Nataros v. Fine Arts Gallery of Scotsdale, Inc., 612 P.2d 500, 504 (Ariz. Ct. App. 1980)(under ACFA, the misled consumer must have suffered some damage as a result of themisrepresentation).

Moreover, Bruemmer has failed to allege any specific facts demonstratingreliance, an essential element of a consumer fraud claim in Arizona. See, e.g., Peery, 585 P.2d at577 (It is clear that before a private party may exert a claim under the statute, he must have beendamaged by the prohibited practice. A prerequisite to such damages is reliance on the unlawfulacts.). She does not identify a specific alleged misrepresentation that she relied on in acquiringher vehicle or tires. Instead, the Complaint merely alleges in a conclusory fashion as to all

plaintiffs that [i]n the absence of the material information uniformly concealed by [defendants],it may reasonably be inferredthat Plaintiffs and Members of the Plaintiff Classes relied on theadvertising campaigns of [defendants] and they may be presumed to have done so. (Compl.129 (emphasis added); see also Compl. 113, 131.) Such a conclusory assertion is nosubstitute for the specificity required to plead reliance. Accordingly, Bruemmers claim must bedismissed.

3.3. Arkansas.Arkansas.A private right of action under the Arkansas Deceptive Trade Practices Act

(ADTPA) exists only for a person who suffersactual damage or injury as a result of

conduct prohibited by the Act. See Ark. Rev. Stat. 4-88-113 (f) (emphasis added). A personbringing a claim under this section may recoveractual damages, if appropriate. Id. (emphasisadded); see alsoGallion v. Cole, CA00-297, 2000 Ark. App. LEXIS 709, *5 (Ark. Ct. App. Nov.8, 2000) (dismissing fraud claim because apparent from complaint plaintiff suffered no actual9 It also should be noted that class actions are not permitted under the ADTPA. See Ala. Code 8-19-10(f)(A consumer or other person bringing an action under this chapter may not bring an action on behalf of a class);

Ex parte Exxon Corp., 725 So.2d 930 (Ala. 1993). Thus, Clarkes assertion of her claim on a class basis isimproper.


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damages). The only Arkansas named plaintiff, Deanna Connell, does not allege that shesuffered any actual damage or injury. She asserts only that she has a 1999 Ford Ranger thatwas equipped with Wilderness AT Tires. (Compl. 35.) Therefore, she may not bring a causeof action under the ADTPA.

Connells claim also fails because the Complaint alleges no facts demonstratingthe fiduciary relationship necessary for a claim of concealment. Plaintiffs do not allege that theyspoke to anyone at Firestone or Ford about their vehicles or tires, or that they dealt directly withFirestone or Ford in any way. See Herring-Marathon Master Partnership B v. Boardwalk Fries,Inc., 979 F.2d 1326, 1329 (8th Cir. 1992) (finding no duty to disclose under Arkansas law fortypical commercial sales transaction); Consolidated Oil & Gas, Inc., v. Ryan, 250 F. Supp. 600,605 (W.D. Ark. 1966) (As a general rule there is no duty between vendor and purchaser todisclose any information affecting the value of property in an arms length transaction.);Chrysler Credit Corp. v. First Natl Bank & Trust Co., 746 F.2d 200, 207 (3d Cir. 1984) (noduty to disclose because parties were not engaged in a business transaction).

Connells claim also is deficient because the affirmative misrepresentations upon

which plaintiffs purport to rely cannot reasonably be construed to be statements of fact andtherefore cannot constitute actionable misrepresentation. The alleged misrepresentationsincluded in the Complaint involve representations regarding exceptional control, highquality, and excellent products and other similar statements. (Compl. 123-127.) Theseallegations are not actionable. See, e.g., Grendell v. Kiehl, 723 S.W.2d 830, 832-33 (Ark. 1987)(holding mere sales puffery not actionable as misrepresentation);R.S. Miskimins v. The CityNatl Bank, 456 S.W.2d 673, 680 (Ark. 1970) (holding that statements of opinion cannot furnishthe basis for a cause of action of fraud);In re Anti-Lock Brake, 966 F. Supp. 1525, 1534 (E.D.Mo. 1997) (It is appropriate for a court to determine whether an alleged misrepresentation is astatement of fact or mere puffery on a Rule 12(b)(6) motion to dismiss.)(citation omitted).

4.4. California.California.For several reasons, the sole California plaintiff, Beth Simon, cannot state a claim

under Californias Consumers Legal Remedies Act (CLRA), Cal. Civ. Code 1750 et seq.First, Simon has failed to allege that she purchased her vehicle and tires for personal, family, orhousehold purposes. (Compl. 21.) There is no cause of action under the CLRA for anindividual who is not a consumer, which is defined by the CLRA as meaning an individualwho seeks or acquires, by purchase or lease, any goods or services for personal, family, orhousehold purposes. Cal. Civ. Code 1761(d); seeCalifornia Grocers Assn, Inc. v. Bank ofAm., Nat. Trust and Sav. Assn, 27 Cal. Rptr. 2d 396, 404 (App. 1994).

Second, Simon has failed to allege that she suffered any damages as a result ofdefendants alleged conduct. Section 1780 of the California Civil Code provides that [a]nyconsumer who suffers anydamages as a result of the use or employment by any person of amethod, act or practice declared to be unlawful by Section 1770 [listing proscribed practices]may bring an action against that person to obtain . . . actual damages. (Emphasis added.) Thus,plaintiff Simon cannot state a claim under the CLRA.


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Finally, a plaintiff must give defendants written notice thirty days before filing aCLRA lawsuit if plaintiff is seeking damages under Section 1780 of the California Civil Code.Simon has not alleged that she gave Firestone or Ford written notice of her consumer protectionclaim. Her CLRA claim is thus patently deficient. See In re Anti Lock Brake, 966 F. Supp. at1536-1537; Cal. Civ. Code. 1782.10

5.5. Connecticut.Connecticut.The sole Connecticut named plaintiff, Neal Zimmerman, does not state a valid

claim under the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. 42-110aet seq., for several reasons. As an initial matter, he cannot maintain a cause of action againstFord because he has not alleged any connection to Ford. Zimmerman alleges that he owns a2000 Subaru Legacy Outback station wagon equipped with non-recalled tires. (Compl. 24.)

Zimmerman cannot state a claim under CUTPA against either Firestone or Fordfor the additional reason that he has failed to allege essential elements of a claim under the Act.As the Connecticut Supreme Court has explained, a party seeking to recover under CUTPA must

satisfy two threshold requirements. First, Zimmerman must allege that the defendants conductconstituted an unfair or deceptive trade practice within the meaning of the Act. See A. Secondinoand Son Inc. v. LoRicco, 576 A.2d 464, 468 (Conn. 1990). Second, he must allege that hesuffered damages. Id.; see also Conn. Gen. Stat. 42-110g(a) (ascertainable loss of money orproperty required); Service Road Corp. v. Quinns, 698 A.2d 258, 259 (Conn. 1997)(ascertainable loss of money or property is required to maintain an action pursuant to[CUTPA]).

Zimmerman fails on both counts. He has not alleged that the defendants conductconstituted an unfair or deceptive trade practice as defined by CUTPA. The vague, non-statespecific allegations contained in the Complaint under the Tenth Claim of Relief are insufficient

to satisfy this requirement. (Compl. 308-311.)

Nor has Zimmerman alleged that he sufferedany ascertainable loss of money or property as a result of defendants alleged unfair tradepractice. See Conn. Gen. Stat. 42-110g(a). He alleges only that Firestone declined his requestto replace his non-recalled tires. (Compl. 24.) Zimmermans claim under the ConnecticutUnfair Trade Practices Act must be dismissed.

6.6. Florida.Florida.The Florida plaintiffs cannot state claims under the Florida Deceptive and Unfair

Trade Practices Act, Fla. Stat. 501.204 (FDUTPA).11 Under the FDUTPA, a claimant mustallege actual damages. Fla. Stat. 501.211(2) (recovery of actual damages for consumer who

has suffered a loss); see alsoMaroone Chevrolet, Inc. v. Nordstrom, 587 So.2d 514, 518 (Fla.Dist. Ct. App. 1991) (FDUTPA claim where plaintiff suffered absolutely no damages as a resultof the alleged breach of warranty);Briehl, 172 F.3d 623, 628-29 (dismissing, inter alia, claim

10 Even if Simon were able to state a claim under 1780, she has failed to allege that the prerequisites forbringing a class action under the CLRA have been satisfied. See Cal. Civ. Code 1781 (class action provisions).

11 The Florida plaintiffs are Richard Glover, Clark Schaffer, Allan Simpson, Sue Pledger, James Stone,Margaret Naylor, Diana Grant, and Jane Lill. (See Compl. 17, 20,22, 40, 41, 42, 52, 53.)


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under Floridas consumer protection statute for failure to allege actual damages); Swindell v.Crowson, 712 So.2d 1162, 1164 (Fla. Dist. Ct. App. 1998) (Damages cannot be based onspeculation, conjecture or guesswork.);Macias v. HBC of Florida, 694 So.2d 88, 90 (Fla. Dist.Ct. App. 1997) (complaint correctly dismissed because speculative losses as a result of missedopportunities are not recoverable under FDUTPA). Only named plaintiff Allan Simpson

alleges any event related to his tires or vehicle (i.e., a tread separation event). The other namedplaintiffs allege no manifestation of the purported defect or damage, and therefore cannot state aclaim under the FDUPTA.

Simpson, however, is unable to maintain a cause of action under the FDUTPAbecause his claim is time barred. Simpson alleges that he bought a 1991 Ford Explorer withFirestone ATX tires as original equipment.12 (Compl. 22.) He also alleges that the tire thatpurportedly separated in April 2000, resulting in damage to his Explorer, was one of the originalequipment tires, purchased with his 1991 Ford Explorer. He had four years from the time of saleto bring his FDUTPA claim. See Fla. Stat. 95.11(3)(f) (prescribing a four-year limitationsperiod for an action founded on a statutory liability). Under Florida law, there is no tolling ofthis statute of limitations. See Beck v. Lazard Freres & Co.,LLC, 175 F.3d 913, 914 (11th Cir.1999); Federal Ins. Co. v. Southwest Fla. Retirement Ctr., Inc ., 707 So.2d 1119, 1121-22 (Fla.1998). For this same reason, the claims of plaintiffs Glover and Lill are also time barred.13

The claims of Florida plaintiffs Glover, Pledger, Stone, Naylor, and Grant must bedismissed for an additional reason: They do not allege that they purchased or leased theirvehicles or tires. Instead, they allege only that they have or own the class tires or vehicles.(Compl. 17, 40, 41, 42, 52.) Under the FDTUPA, only a consumer may sue for actualdamages suffered as a result of a violation of the Act. See Fla. Stat. 501.211(2). Absent anallegation that the plaintiff has engaged in a consumer transaction, he or she cannot plead aviolation of the Act. See Fla. Stat. 501.204(1) (unfair and deceptive practices renderedunlawful by the Act).

12 For the purposes of this motion, defendants assume that plaintiffs acquired their vehicles and tires new inthe year (if a year is identified) provided. Thus, defendants assume that plaintiff Simpson purchased his 1991 FordExplorer (and the original equipment Firestone tires) in 1991.

13 Plaintiff Glover alleges that he owns a 1993 Ford Explorer. (Compl. 17.)


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7.7. Illinois.Illinois.The claims under the Illinois Consumer Fraud and Deceptive Trade Practices Act

(ICFA), 815 ILCS 505/1 et seq., fail because Illinois plaintiffs have not alleged the essentialelements of their statutory claim with the same particularity and specificity as that requiredunder common law fraud. Connick v. Suzuki Motor Co., Ltd., 675 N.E. 2d 584, 593 (Ill. 1996);see alsoElson v. State Farm Fire & Cas. Co., 691 N.E.2d 807, 816-817 (Ill. App. Ct. 1998)(affirming dismissal of Consumer Fraud Act claim on same grounds as common law fraud claimbecause both must be pled with the same standard of specificity).14

Among the necessary elements of an ICFA claim is causation the consumerfraud must have proximately caused plaintiffs injury. Connick, 675 N.E.2d at 594. TheSupreme Court of Illinois has held that plaintiffs can state a valid claim for consumer fraud onlywhere premised upon statements made prior to their dates of purchase. Id. Illinois plaintiffshave not alleged which specific alleged representations supposedly provide the basis for theirICFA claims and whether those statements were made before the date they purchased theirvehicle or tires. Because the Illinois named plaintiffs have not adequately alleged causation,

their claims must fail. See Connick, 675 N.E.2d at 594.

The Illinois plaintiffs (except William Wehking and Gary Gustafson) do notallege any problems with the products at issue. Thus, those claims must be dismissed on theground that the ICFA provides a cause of action only for those persons who have incurredactual damageas a result of the defendants alleged conduct. See 815 ILCS 505/10a(a) (Anyperson who suffersactual damage as a result of a violation of this Act committed by any otherperson may bring an action against such person) (emphasis added); Smith v. Prime Cable, 658N.E.2d 1325, 1337 (Ill. App. Ct. 1995) (The Consumer Fraud Act provides a private cause ofaction only where a plaintiff can show that he suffered damage as a result of unlawful conductproscribed by the statute.); see also Verb v. Motorola, Inc., 672 N.E.2d 1287, 1296 (Ill. App. Ct.

1996) (plaintiffs fail to state a cause of action because plaintiffs claims are all based upon meretheoretical possibilities of injury and/or damages).

To the extent that the Illinois named plaintiffs claims are based on fraudulentconcealment, the Complaint likewise fails because it does not allege any special or fiduciaryrelationship between plaintiffs and Ford and/or Firestone giving rise to a duty to disclose. SeeLionel Trains, Inc. v. Alabano, 831 F. Supp. 647, 650-51 (N.D. Ill 1993), affd, 35 F.3d 568 (7thCir. 1994) (dismissing fraudulent concealment-based claim under ICFA for lack of allegation ofany special or fiduciary relationship between the parties giving rise to a duty to speak).

Named plaintiffs Wonacott and Siewert-Sitzmore also cannot state a claim under

ICFA for the additional reason that they have not alleged that they purchased or leased vehiclesor tires. They allege merely that they have a 1999 Mercury Mountaineer and a 1999Expedition, respectively. (Compl. 38, 49.) Because one of the elements of an ICFA claim isa deceptive act or practice that occurred in the course of conduct involvingtrade and commerce,

14 The Illinois named plaintiffs are Michael Huber, Dennis Mickunas, Esther Siewet-Sitzmore, JeanaWonnacot, Dawn Whorl, Kathleen Wehking, William Wehking, Susan Grayson, Sam Martin, Michael Devening,Gary Gustafson, and William Moran. (Compl. 12, 13, 14, 15, 19, 25, 27, 29, 38, 46, 48, 49.)


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they cannot state a claim against Firestone and Ford for violating ICFA, and their claims must bedismissed. See Connick, 675 N.E.2d at 593.

8.8. Louisiana.Louisiana.The Louisiana named plaintiffs consumer protection claims fail for several

reasons.15 The Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPCPL)authorizes a cause of action to recover actual damages,for any person who suffersanyascertainable loss of moneyor movable property, corporeal or incorporeal, as a result of the useor employment by another person of an unfair or deceptive method, act or practice . . . See La.R.S. 51:1409(A)(emphasis added). None of the Louisiana named plaintiffs has alleged,however, such an ascertainable loss of money or movable property. Plaintiff Kellermanalleges only that he resides in Baton Rouge and is a citizen of Louisiana. (Compl. 31.)Plaintiff Heather Gaudet alleges only that she owns a 1997 Honda Civic that was equipped withFirestone FR-680 tires. (Compl. 43.)16 Donita Qualey alleges only that she has a 2000 FordExplorer that is or was equipped with Wilderness tires. (Compl. 34.) Accordingly, theclaims of all three named Louisiana plaintiffs must be dismissed. See, e.g., Barbe v. A.A.Harmon & Co., 705 So.2d 1210, 1221 (La. App. 1998) (holding that claim could not bemaintained under consumer protection statute when plaintiff suffered no ascertainable loss asresult of defendants conduct).17

9.9. Massachusetts.Massachusetts.The lone Massachusetts plaintiff, Thomas Kerner, cannot state a claim under the

Massachusetts Consumer Protection Act (MCPA). First, the MCPA provides relief only foractions that occurred primarily and substantially within the commonwealth of Massachusetts.Mass. Gen. Law. ch. 93A 9 (7). The only fact pleaded relating to Massachusetts is that Kerneris a resident and citizen of that state. (Compl. 45.) Because plaintiff does not allege that any

event purportedly violative of the statute occurred within Massachusetts, he cannot bring a claimunder the Act. See, e.g., Boston Hides & Furs, Ltd. v. Sumitomo Bank, Ltd., 870 F. Supp. 1153,1167 (D. Mass. 1994) (holding that events did not occur primarily and substantially inMassachusetts when all parties but plaintiff were foreign entities and the allegedly unfair conductoccurred outside Massachusetts).

Second, Kerners bare-bones allegations fail to set forth the deceptive acts withthe particularity required by Fed. R. Civ. P. 9(b) and the Massachusetts Consumer ProtectionAct. See, e.,g., Mead Corp. v. Stevens Cabinets, Inc., 938 F. Supp. 87, 90 (D. Mass. 1996)(granting defendants summary judgment motion where plaintiff gave no reference to specificstatements in defendants advertising and not even an allusion to the general character of the

15 The Louisiana named plaintiffs are Kurt Kellerman, Donita Qualey, and Heather Gaudet. (Compl. 31,34, 43.)

16 Because Gaudet does not allege that she even owns a Ford vehicle, her claim must be dismissed as to Ford.

17 It should also be noted that the LUTPCPL does not permit class actions brought by private individuals. La.R.S. 51:1409(A) (person may bring an action individually but not in a representative capacity); Green v.

Honeywell, Inc., No. 98-1470, 1998 WL 423416, *2 (E.D. La. July 27, 1998) (dismissing action because plaintiff,without involvement of Louisiana attorney general, sought to bring class action under consumer protection statute).


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alleged misrepresentations);Abbott Chemicals v. Emco Engineering, Inc., 1994 WL 759232, *4(D.P.R. 1994).

Finally, Kerners claim must be dismissed for the additional reason that he doesnot allege that he provided defendants with written notice thirty days before filing a claim, asrequired by the Act. See Mass. Gen. Laws ch. 93A, 9, 11; see also Clegg v. Butler, 676N.E.2d 1134 (Mass. 1997).

10 .10. Mississippi.Mississippi.The two Mississippi plaintiffs, James Powell and Allison Simmons, cannot state a

cause of action under the Mississippi Consumer Protection Act, Miss. Code Ann. 75-24-15(1)et seq. (MCPA).18 Under the MCPA, plaintiffs are required to make a reasonable attempt toresolve any claim through an informal dispute settlement program approved by the AttorneyGeneral before commencing suit under the statute. Miss. Code Ann. 75-24-15(2). TheMississippi plaintiffs have not alleged that they satisfied this prerequisite, and their claims musttherefore be dismissed.

The Mississippi named plaintiffs claims also fail for the independent reason thatthey have not alleged actual damages or injury. See Miss. Code Ann. 75-24-13 (referring toproof of damages in fact); Miss. Code Ann. 75-24-15(1) (limiting relief to ascertainableloss and requiring causation);Briehl, 172 F.3d 623, 628-29 (construing Mississippi law);Jarman v. United Indus Corp., 98 F. Supp. 2d 757, 768 (S.D. Miss. 2000) ([U]nless there isactually a failure in product performance, there is no basis at all for claiming that the plaintiff hasbeen damaged in any way. Mere suspicion of a lost bargain . . . will not support an award ofdamages). Moreover, neither plaintiff has alleged that he or she purchased or leased thevehicles primarily for personal, family or household purposes as required by the Act. SeeMiss. Code Ann. 75-24-15. (Compl. 26, 39.)

The Mississippi named plaintiffs consumer fraud claim must also be dismissedbecause they fail to plead facts demonstrating the fiduciary relationship necessary for a claim ofconcealment. See Baldwin v. Laurel Ford Lincoln-Mercury, Inc., 32 F. Supp. 2d 894, 898-900(S.D. Miss. 1998) (construing Mississippi law and holding that an ordinary retail automobile saledoes not create a fiduciary relationship). Moreover, the affirmative misrepresentations uponwhich plaintiffs purport to rely cannot reasonably be construed to be statements of fact andtherefore cannot constitute actionable misrepresentation. Thompson v. Nationwide Mut. Ins. Co.,971 F. Supp. 242, 243 (N.D. Miss. 1997) (Under Mississippi law the mere expression of anopinion is not actionable).19

18 Of course, Powell has no basis for asserting a MCPA claim against Ford because he does not allege anyconnection with Ford. The Complaint alleges only that Powell is a resident and citizen of Mississippi and that hepurchased Firestone ATX Tires in or about the summer of 1998. (See Compl. 26.)

19 It also should be noted that the MCPA does not permit class action lawsuits. See Miss. Code Ann. 75-24-15(4). Therefore, these named plaintiffs cannot bring their claims on behalf of a purported class. See In re Anti-

Lock Brake, 966 F. Supp. at 1536 (holding that Mississippi plaintiffs were barred from bringing their claim onbehalf of a purported class because the MCPA does not allow class action lawsuits).


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11 .11. New York.New York.Named plaintiff Jennifer Hakkers claim under the New York Deceptive Acts and

Practices Act, N.Y. Gen. Bus. Law 349 et seq. (NYDAPA), must be dismissed. First, she hasfailed to allege any deceptive acts or practices occurring within the state of New York a fatalomission under the Act. (Compl. 33.)20 The NYDAPA provides: Deceptive acts or practicesin the conduct of any business, trade or commerce or in the furnishing of any service in this stateare hereby declared unlawful. N.Y. Gen. Bus. Law 349(a) (emphasis added). See Weaver v.Chrysler Corp., 172 F.R.D. 96, 100 (S.D.N.Y. 1997) (dismissing NYDAPA claim because, interalia, plaintiff failed to allege any deceptive act that occurred within New York).

Hakkers claim also fails because only persons who have been injured by aviolation of the Act may file suit. N.Y. Gen. Bus. Law 349(h); Moses v. Citicorp MortgageInc., 982 F. Supp. 897 (E.D.N.Y. 1997); Small v. Lorillard Tobacco Co., Inc., 252 A.D. 2d 1, 15,679 N.Y.S.2d 593, 604 (App. Div. 1998);Briehl, 172 F.3d 623, 628-29 (affirming dismissal ofNYDAPA claim for failure to allege manifestation of alleged defect in product). Hakker allegesno injury; thus, she cannot state a claim under the Act.

Nor has Hakker pleaded a NYDAPA violation with specificity. In pleading aclaim under the Consumer Protection Act, a Plaintiff is required to set forth specific detailsregarding the allegedly deceptive acts or practices. See Weaver, 172 F.R.D. at 100 (dismissingNYDAPA claim because, inter alia, claim was pleaded with inadequate specificity); see alsoTinlee Enter., Inc. v. Aetna Cas. & Sur. Co., 834 F. Supp. 605, 609-10 (E.D.N.Y. 1993) (grantingdefendants motion to dismiss because NYDAPA claim lacked specificity).

Plaintiff Hakkers claim fails for the additional reason that the only allegedmisrepresentations contained in the Complaint cannot be construed to be statements of fact and,therefore, cannot constitute actionable misrepresentation. SeeChevys Intl, Inc. v. Sal De

Enters., Inc., 697 F. Supp. 110, 112 (E.D.N.Y. 1988) (restaurants description of itself as theOriginal Chevys, even if factually incorrect, was not the type of statement that rises to thelevel of consumer deception under 349); Cytyc Corp. v. Neuromedical Sys., Inc., 12 F. Supp.2d 296 (S.D.N.Y. 1998) (statements of opinion or puffing, and [s]ubjective claims aboutproducts, which cannot be proven either true or false cannot form the basis for a claim under 349 and 350);Hubbard v. General Motors Corp., No. 95 CV 4326, 1999 WL 274019, at * 7(S.D.N.Y. May 22, 1996)(dismissing with prejudice fraud and negligent misrepresentationclaims for statements such as like a rock, popular, and dependable because constitutepuffery).

Finally, to the extent plaintiff Hakkers claim under the NYDAPA is based on

fraudulent concealment, it must be dismissed for the failure to plead facts demonstrating theexistence of a fiduciary relationship necessary for a claim of concealment. See Mobil Oil v.Joshi, 609 N.Y.S.2d 214, 215 (1994).

20 Hakker alleges only that she is a resident and citizen of New York and that she has a 1998 Ford Explorerthat was equipped with Wilderness AT Tires. (Compl. 33.)


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12 .12. Ohio.Ohio.The two Ohio plaintiffs, Leroy Eberly and John Dovich, fail to state a claim under

the Ohio Consumer Sales Practice Act, Ohio Rev. Code Ann 1345.01 et seq. (OCSPA).(Compl. 16, 44.) As in other jurisdictions, it is well established in Ohio that generalstatements about product quality such as those plaintiffs recite in the Complaint and that aretypically found in automobile advertisements are not actionable and cannot form the basis of aclaim under the OCSPA. Abele v. Bayliner Marine Corp., 11 F. Supp. 2d 955, 963-64 (N.D.Ohio 1997) (no action lies against dealer who describes automobile as a good little car, thepride or our line, the best in the American market, or rock-solid);Dent v. Ford Motor Co.,614 N.E.2d 1074, 1077 (Ohio App. 1992) (holding that Ford cannot be held liable for breach ofexpress warranties based on advertising of vehicle as Built Fun Tough). Their claims thereforemust be rejected.

The Ohio named plaintiffs claims also fail because an action may be institutedunder the OCSPA only for purposes that are primarily personal, family, or household. OhioRev. Code Ann. 1345.01(A). Because plaintiffs do not allege that they purchased their

vehicles or tires for these purposes, their claims must be dismissed.

The Ohio plaintiffs have also failed to plead facts demonstrating the statutorilyrequired element of reliance. See, e.g., Amato v. General Motors Corp., 463 N.E.2d 625, 629-631 (Ohio Ct. App. 1982); Universal Coach, Inc. v. New York City Transit Authority, 629 N.E.2d28, 33 (Ohio Ct. App. 1993) (elements of fraud claim include justifiable reliance upon therepresentation or concealment). Plaintiffs have failed to identify a specific statement of factthat they relied on in purchasing their vehicles or tires.

Dovichs claim is also time barred. An OCSPA claim may not be brought morethan two years after the occurrence of the violation which is the subject of suit. Ohio Rev. Code

Ann. 1345.10(c). The discovery rule does not apply to a consumers action for damages. SeeSproles v. Simpson Fence Co., 649 N.E.2d 1297, 1302 (Ohio Ct. App. 1994) (cause of actionarose when allegedly defective product installed and not when plaintiff sustained his injuries).Dovich alleges that he has a 1993 Ford Explorer that was equipped with ATX Tires. (Compl. 44) (emphasis added). His claim is therefore time barred.21

13 .13. Oklahoma.Oklahoma.The sole Oklahoma plaintiff, Joyce Wilson, cannot state a claim under the

Oklahoma Consumer Protection Act, Okla. Stat. tit. 15, 751 et seq. (OCPA). ( See Compl. 23.) The OCPA provides that one who violates the Act shall be liable to the aggrieved

consumer for the payment of actual damages. Okla. Stat. 15-761.1 (emphasis added).21 The OCSPA bars class litigation of claims brought under the Act. See Ohio. Rev. Code Ann. 1345.09(A)(authorizing individual action[s]). A consumer may bring a class action only when the violation of the Act wasdeclared to be deceptive or unconscionable by a previous Ohio regulation or a judicial decision. See Ohio. Rev.Code Ann. 1345.09(B) (limiting the right to bring class actions and cases for treble damages to instances wherethe violation at issue was declared to be deceptive or unconscionable by rule or court decision). The Ohio plaintiffsdo not allege that defendants conduct has been the subject of a previous Ohio regulation or court decision. Thus,they are precluded from proceeding here on a class basis.


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Wilson alleges that she owns a Ford Expedition with Firestone tires, one of which failedwhile she was driving. She does not allege that she purchased any tires or vehicle, so there is noallegation of a consumer transaction under OCPA. Further, there is no allegation that she isaggrieved by any action of defendants. Wilson makes no allegation that her tire failureinvolved the purported tread separation defect at issue in plaintiffs Complaint. (See Compl.

23.) Tires can, of course, fail for many reasons (such as a puncture).

Wilsons OCPA claim fails for the additional reason that she has not alleged acausal connection between any alleged misrepresentation or concealment (or other violation ofthe OCPA) and any purported actual damage as required by the Act. See Walls v. AmericanTobacco Co., 11 P.3d 626, 629-30 (Okla. 2000) (denying cause of action under OCPA becauseplaintiff failed to plead actual injury or damage and causation); Patterson v. Beall, No. 92,399,2000 Okla. LEXIS 94, *30-*31 (Nov. 14, 2000) (requiring injury in fact and causation for aclaim under the OCPA). Wilson alleges only that one of her tires failed and that she replacedit at her own expense. She has pleaded no connection between any unfair or deceptive tradepractice under OCPA and the cost she incurred to replace her tire.

To the extent Wilsons claim is predicated on fraudulent concealment, it must bedismissed for the additional reason that she has failed to plead facts demonstrating the existenceof the necessary fiduciary relationship. See Silk v. Phillips Petroleum Co., 760 P.2d 174, 179(Okla. 1988) (finding no fiduciary duty in arms-length business transaction and no duty todisclose absent peculiar circumstances).

14 .14. Oregon.Oregon.Oregon plaintiff Barbara Jackson fails to state a claim under the Oregon Unlawful

Trade Practices Act, Or. Rev. Stat. 646.605 et seq. (OUTPA). Jacksons claim fails becauseshe has not alleged any ascertainable loss of money or property a requirement under the Act.

See Or. Rev. Stat. 646.638(1); see also Denson v. Ron Tomkin Gran Turismo, Inc ., 566 P.2d1177, 1191 (Or. 1977) (ascertainable loss is necessary under statute to bring an individualaction for recovery of damages). Moreover, to the extent her claim is based on an affirmativemisrepresentation, she is required to plead reliance in fact. See Feitler v. Animation Celection,Inc., 13 P.3d 1044, 1047 (Or. 2000). Jackson alleges only that she is a resident and citizen ofOregon and that she owns a 1999 Ford Ranger equipped with both 15-inch and 16-inchFirestone Wilderness Tires. (Compl. 18.) Because Jackson has failed to allege ascertainableloss or reliance, her OUTPA claim must be dismissed.

15 .15. Pennsylvania.Pennsylvania.The Pennsylvania plaintiffs cannot state a claim under the Pennsylvania UnfairTrade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. 201-1 et seq.

(PUTPCPL).22 Claimants under the PUTPCPL must demonstrate some ascertainable loss ofmoney or property. See 73 Pa. Cons. Stat. 201-9.2 (a) (emphasis added). None of the

22 The Pennsylvania named plaintiffs are Carol Kusturris, Robert Rudeck, Michael Louridas , and ArleneRomano. (Compl. 30, 47, 50, 54). Plaintiff Louridas is the only Pennsylvania named plaintiff who alleges aloss. (Compl. 50.) His so-called loss is that he replaced his nonrecalled tires at his own expense.


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Pennsylvania plaintiffs has alleged any ascertainable loss of money or property, therefore theirclaims must be dismissed.

The Pennsylvania plaintiffs also fail to allege causation, another requirementunder the Act. Under the PUTPCPL, a plaintiff must plead and prove the existence of a causalconnection between the defendants conduct and an injury. See 73 Pa. Cons. Stat. 201-9.2(a);Weinberg v. Sun Co., 740 A.2d 1152, 1168-69 (Pa. Super. 1999) ([I]n order to proceed withtheir claims under the [PUTPCPL], [plaintiffs] must be able to establish that the allegedrepresentations by [defendant] caused their loss.);DiLucido v. Terminix Intl,676 A.2d 1237,1241 (Pa. Super. 1996) (requiring proof of causation under PUTPCPL for claims of deceptivepractices involving misrepresentation and false statements). The Pennsylvania named plaintiffsclaims fail on this ground as well.

In addition, none of the named plaintiffs has adequately alleged that he or she is amember of the class of persons the PUTPCPL is intended to protect; that is, a purchaser ofgoods or services as consumers. SeeGemini Physical Therapy and Rehabilitation, Inc. v. StateFarm Mutual Auto. Ins. Co., 40 F.3d 63 (3d Cir. 1994) (the protected class of the PUTPCPL is

only those who have purchased goods or services, not all those who receive benefits from thepurchase of goods or service); see also 73 Pa. C.S. 201-9.2(a) (authorizing private action torecover actual damages to any person who purchases or leases goods or services primarily forpersonal, family or household purposes.)(emphasis added). 23 Rudeck, Kusturris, and Louridasown Ford vehicles equipped with Firestone tires, and Romano ownsa Ford vehicle equippedwith Goodyear tires. None of the Pennsylvania plaintiffs alleges apurchase of vehicles or tires;therefore, their PUTPCPL claims must be dismissed. (Compl. 30, 47, 50, 54.)

The alleged representations about the quality of the vehicles and tires are alsonon-actionable statements of opinion that cannot support a PUTPCPL claim. See, e.g.,Hoffmanv. A.B. Chance Co., 339 F. Supp. 1385, 1388 (M.D. Pa. 1972) (The general representation that a

product offered unprecedented safety is a statement of opinion and is in the nature of sellerspuffing.);Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 903 (Penn. 1975) (holding thatmanufacturers statement that you are assured of a safe, dependable helicopter could notconstitute a misrepresentation of material fact); Tucker v. Whitaker Travel, Ltd., 620 F. Supp.578, 585 (E.D. Pa. 1985) (finding no liability for alleged misrepresentations contained inadvertisements which were statements of opinion only).

To the extent plaintiffs are grounding their PUTPCPL claim on fraudulentconcealment, they fail to state a claim because the applicable section of the Act section 201-2(4)(xxi) requires proof of all the elements of common law fraud.24 See Prime Meats, Inc. v.Yochim, 422 Pa. Super. 460, 469, 619 A.2d 769, 773 (1993). To state a common law fraud claim

for non-disclosure in Pennsylvania, a plaintiff must allege a duty to disclose. See, e.g.,Sevin v.

23 Nor do plaintiffs allege that their vehicles or tires were purchased primarily for personal, family orhousehold purposes. Their PUTPCPL claim must be dismissed for this reason as well. See, e.g., DiLucido,676A.2d at 1242;Mara v. Burgdor Relators, Inc., 726 F. Supp. 1000 (E.D. Pa. 1989);Zerpol Corp. v. DMP Corp., 561F. Supp. 404 (E.D. Pa. 1983);Merv Swing Agency, Inc. v. Graham Co., 579 F. Supp. 429 (E.D. Pa. 1983).

24 Section 201-2(4)(xxi) makes unlawful under the Act the engaging in any other fraudulent or deceptiveconduct which creates a likelihood of confusion or of misunderstanding.


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Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. 1992) (Mere silence in the absence of a duty tospeak, however, cannot suffice to prove fraudulent concealment.). Such a duty to disclosearises only from a fiduciary or similar relationship of trust and confidence between the parties,Gibbs v. Ernst, 538 Pa. 193, 215, 647 A.2d 882, 893 (1994) (internal quotations omitted), or aspecific inquiry regarding the material fact at issue, seeS. Bend Woolen Co. v. Jacob Reeds

Sons, Inc., 116 A. 805, 806 (Penn. 1922). Such a duty does not arise from a mere arms lengthsale of goods. SeeGibbs, 538 Pa. at 215, 647 A.2d at 893; Taylor v. Wachtler, 825 F. Supp. 95,104 (E.D. Pa. 1993) (the buyer and seller of jewelry are not in a fiduciary relationship giving riseto a duty to disclose). Here, plaintiffs do not and cannot allege that they had a fiduciaryrelationship with the defendants. On this distinct ground, plaintiffs PUTPCPL claims must bedismissed.

16 .16. Texas.Texas.Greyson Knapp, the only Texas named plaintiff, has failed to allege any

relationship with Ford. The Complaint alleges only that Knapp is a resident and citizen of Texasand that he owned, and has replaced, Wilderness AT Tires. (Compl. 37.) Therefore, Knapp

cannot state a claim against Ford for violation of the Texas Deceptive Trade Practices Act, Tex.Bus. & Com. Code Ann. 17.41 et seq. (TDTPA).

Knapp cannot state a claim under the TDTPA against either Firestone or Ford forother reasons as well. The TDTPA provides that a consumer may maintain an action where oneof a number of listed types of conduct is a producing cause of economic [or other]damages.Tex. Bus. & Com. Code Ann. 17.50(a)(emphasis added). The Fifth Circuit has held that underthe Texas DTPA, the allegedly deceptive trade practices must cause the plaintiff to beactuallydamagedbefore he can recover. City of Marshall v. Bryant Air Conditioning Co., 650 F.2d724, 726 (5th Cir. Unit A 1981) (emphasis added). See also Martin v. Ford, 914 F. Supp. 1449,1452, 1455 (S.D. Tex. 1996) (granting defendants motion for summary judgment on TDTPA

claim because plaintiffs failed to show that they suffered any palpable injury).

Moreover, plaintiff Knapp has not alleged that he gave Firestone and Ford writtennotice before filing his TDTPA claim, as required by the statute. See Tex. Bus. & Com. CodeAnn. 17.505(a). Section 17.505(a) requires, as a prerequisite to filing a suit seeking damagesunder the TDTPA, that a consumer shallgive written notice to the person [the consumer intendsto sue] 60 days before filing suit. (Emphasis added.) Because plaintiff Knapp failed to satisfythe mandatory statutory prerequisites before filing a TDTPA claim against defendants, his claimis not properly before this Court. See In re Anti-Lock Brake, 966 F. Supp. at 1536 (holding thatTexas plaintiffs claim under the TDTPA was patently deficient because plaintiffs failed toallege that they had given defendants written notice as required under Tex. Bus. & Com. Code

Ann. 17.505(a)).

17 .17. West Virginia.West Virginia.Cheryl Stuart, the lone West Virginia named plaintiff, has failed to state a claim

under the West Virginia Consumer Credit and Protection Act. First, Stuart fails to plead that sheis a consumer. West Virginia provides a cause of action only to someone who haspurchased orleaseda good for a personal, family, household or agricultural purpose. W. Va. Code 46A-


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6-102(b). Stuart does not plead a purchase or lease; she pleads only that she owns a 1998 FordExplorer that was equipped with Wilderness AT tires. (Compl. 28.)

Second, Stuart has not alleged that she suffered any ascertainable loss of moneyor property. W. Va. Code 46A-6-106(1) (emphasis added). Because plaintiff does not claimthat the alleged latent defect has caused her damage, she has not pleaded an ascertainable losswithin the meaning of the statute. See, e.g.,Orlando v. Finance One of West Virginia, Inc., 369S.E.2d 882, 888 (W. Va. 1988) (finding no ascertainable loss of money or property whenunlawful loan clause was not enforced by defendant). Thus, the West Virginia consumer fraudclaim must be dismissed.

B.B. Plaintiffs Who Fail To Allege That They Have A Ford Explorer CannotPlaintiffs Who Fail To Allege That They Have A Ford Explorer CannotMaintain Claims Against Ford For Violation Of Their Respective StateMaintain Claims Against Ford For Violation Of Their Respective State

Consumer Protection Statutes.Consumer Protection Statutes.

Plaintiffs consumer protection statute claims are aimed at defendants allegedlyunfair trade practices with respect to certain Firestone tires and FordExplorers. For example,

plaintiffs allege that defendants violated state consumer protection statutes when they, inter alia,advertised the Tires andExplorers with the intent not to sell them as advertised, and thatdefendants allegedly deceptive practices were specifically designed to induce Plaintiffs and theClasses to buy the Tires andExplorers. (Compl. 308, 309 (emphasis added).) Plaintiffsmake no allegations that Ford violated the state consumer protection statutes with respect to anyother Ford model vehicle. The following named plaintiffs have made noExplorer-relatedallegations: William Wehking, Barbara Jackson, Joyce Wilson, Neal Zimmerman, James Powell,Carol Kusturris, Kurt Kellerman, Deanna Connell, Florence Bruemmer, Greyson Knapp, JeannaWonnacott, Allison Simmons, Heather Gaudet, and Michael Huber. (See Compl. 14, 18, 23,24, 26, 30, 31, 35, 36, 37, 38, 39, 43, 46.) Accordingly, their claims against Ford for violation oftheir respective states consumer protection statute must be dismissed. In light of the states of

residency of these non-Explorer plaintiffs, no claims under the Texas, Connecticut, Oregon,Oklahoma, Arkansas, and Arizona state consumer protection statutes can be maintained againstFord.25 Conversely, those plaintiffs, such as Arlene Romano, who have Explorers that are notequipped with Firestone tires, may not state a claim against Firestone for violation of their stateconsumer protection statutes. (Compl. 54.)

25 The following additional plaintiffs listed in Exhibit A have made no Ford Explorer-related allegations:Marc Albanese, Robert Blank, Marc Boutwell, Gloria Arnold, Jim Barrentine, Debbie Bramlett, Laurie Bridewell,Charles Brooks, Terry Brown, Jennifer Burge, Robert Bridewell, A.R. Brown, George Burkes, Marvin Burnett,Randal Cauley, Jr., Billy Cain, William Chandler, Peter Choe, Ronny Clay, John Connell, Brian Davis, Pam Cooper,Kevin Craig, Tom Drumright, Dan Edwards, George Elliott, Kathe Dietzler, Conrad Encarnacion, Frank Fietz,Robert Gaiennie, Harold Facemyer, Jane Fitzharris, Robert Fretina, Jimmy Gamble, Tim Gossett, John Grantham,Lynn Harkness, Rodger Glover, Sheila Griffin, Arthur C. Harding, David Hays, Sammy Hinson, Shelly Hotchkiss,Wayne Henson, Ronald D. Johnson, Walt Johnson, Billy Keller, Deborah Kean, Ida Lamb, Jason Lamb, Fred Lester,Karen Lewis, Roy Majors, Judy Lenoir Day, Charlie Leuenberger, Charles Mize, Matthew Martelli, MabryMcBride, Gene McWilliams, Winston Milonski, Richard Moulton, Lawrence Peterson, Stephen Morris , RichardOlson, Howard M.Peregoy, Cheryl Porter, Michael Raim, Edward Rupp, Paul Sharpe, Bryone Sharpe, Jr., VernonSikes, Ervin Smith, Sarah Swanson, Timothy Trouy, Joe Southern, David Swafford, Acey Swearingen, JerryTucker, Dennis Wallace, Joseph D. Ward, Lawrence J. Weis, Bill Williams, Allen Vestal, Ryan Wallace, LarryWilliams, and Thomas S. Williams. (See Compl. Ex. A.)


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C.C. Exhibit A Plaintiffs Consumer Protection Claims Fail As Well.Exhibit A Plaintiffs Consumer Protection Claims Fail As Well.The Master Complaint includes as Exhibit A a list of purported additional

plaintiffs. In some instances, only a name and address is provided. The typical entry includes aname, address, the name of a make and model of a vehicle, and the name of a model of tire. Themost that is pled about any Exhibit A plaintiff is that he or she has a Ford vehicle equippedwith subject tires. There is no allegation of tire failure, replacement costs, or any other actualdamages or loss. For those plaintiffs who reside in the states discussed above, their claims failfor the same reasons as the named plaintiffs. The remaining Exhibit A plaintiffs reside in thefollowing ten states: Colorado, Georgia, Maryland, Missouri, New Jersey, North Carolina,Rhode Island, Utah, Tennessee, and Virginia. Allof their claims fail as well, because they havenot pled any actual damage or loss. A brief state-by-state summary follows:

1.1. Colorado.Colorado.The lone plaintiff listed in Exhibit A from Colorado, Terry Etl, cannot state a

claim under the Colorado Consumer Protection Act (CCPA), Colo. Rev. Stat. 6-1-101 et seq.

The sole allegations relating to Etls vehicle and tires are the words Ford Explorer and ATX.(Compl. Ex. A, at 6.) Under Colorado law, Etl lacks standing to bring a claim under the CCPAbecause he does not allege damages or injury in fact. See Hall v. Walter, 969 P.2d 224, 230-231(Colo. 1998). InHall, the Supreme Court of Colorado held that it would be unconstitutional tointerpret the CCPA as permitting a private cause of action regardless of whether the plaintiffhad suffered injury in fact. Id. at 231.

2.2. Georgia.Georgia.The Georgia plaintiffs cannot state a claim under Georgias Fair Business

Practices Act (GFBPA), Ga. Code Ann. 10-1-390 et seq., because they have not alleged

recoverable damages and causation.26

See Ga. Code Ann. 10-1-399(a) (providing a privateright of action for a person whosuffers injury or damagesas a result ofa violation . . .andallowing recovery of damages sustained)(emphasis added);Zeeman v. Black, 273 S.E.2d 910,916 (Ga. Ct. App. 1980) (construing language as requiring three elements: a violation of theAct, causation, and injury). Moreover, the GFBPA expressly contains a reliance requirementthat plaintiffs fail to plead. See Ga. Code Ann. 10-1-399(b);Zeeman, 273 S.E.2d at 916(construing relied upon language contained in notice provision as creating a reliancerequirement). In addition, because the GFBPAs scope is limited to the sale, purchase, lease, orrental of goods . . . primarily for personal, family, or household purposes, Ga. Code Ann. 10-1-392(a)(3), plaintiffs failure to allege that they purchased or leased a vehicle for personalpurposes provides another basis for dismissal. See Kason Indus., Inc. v. Component Hardware

Group, Inc., 120 F.3d 1199, 1203-04 (11th

Cir. 1997) (noting the GFBPAs focus on theconsumer (as opposed to the commercial) marketplace). Furthermore, plaintiffs did not provide

26 The Georgia plaintiffs are Jim Barrentine, Debra Hicks, Judy Latonis, Charlie Leuenberger, and FlorenceMontanez. (See Compl., Ex. A.)


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defendants with the written demand of relief required to be delivered to a prospective respondent30 days before filing an action. See Ga. Code Ann. 10-1-399(b).27

3.3. Maryland.Maryland.The Maryland plaintiffs fail to state a claim under the Maryland Consumer

Protection Act (MCPA).28 First, they fail to allege the actual injury and causation necessaryto maintain a claim under the MCPA. See Md. Com. Law Code 13-408(a) (allowing cause ofaction for injury or loss sustained . . . as the result of a prohibited practice);Morris v. OsmoseWood Preserving, 667 A.2d 624, 634 n.10 (Md. 1995) (requiring establishment of actual injuryor loss);Hallowell v. Citaramanis, 594 A.2d 591, 594-96 (Md. Ct. Spec. App. 1991), affd613A.2d 964 (Md. 1992) (construing statute as requiring actual damages and causation for aprivate action). Second, they do not allege that they are covered consumer[s] who purchasedan allegedly defective vehicle as a consumer good[]. Md. Com. Law Code 13-101(c) & (d).A consumer is a purchaser . . . of consumer goods. Md. Com. Law Code 13-101(c).Consumer goods, in turn, are goods . . . which are primarily for personal, household, family,or agricultural purposes. Id. 13-101(d); see Penn-Plax, Inc. v. L. Schultz, Inc., 988 F. Supp.

906, 909-10 (D. Md. 1997) (granting motion to dismiss MCPA claim for failure to satisfyconsumer requirement);Morris, 667 A.2d at 634-36 (affirming dismissal of MCPA claim onsame grounds); Scotch Whisky Assn v. Majestic Distilling Co., 958 F.2d 594, 597 n.9 (4th Cir.1992) (rejecting MCPA claim because plaintiff was not a consumer);Layton v. AAMCOTransmissions, Inc., 717 F. Supp. 368, 371 (D. Md. 1989) (same). Accordingly, the Marylandplaintiffs MCPA claim must be dismissed.

4.4. Missouri.Missouri.The Missouri plaintiffs cannot state a claim under the Missouri Merchandising

Practices Act (MMPA), Mo. Rev. Stat. 407.010 et seq.29 The MMPA provides a remedy

only for ascertainable loss . . . as a result of a prohibited practice and authorizes the recoveryof actual damages. See Mo. Rev. Stat. 407.025 (emphasis added). Plaintiffs have failed toallege ascertainable loss or actual damages, and therefore their MMPA claims must bedismissed. Briehl, 172 F.3d at 626, 627-29 (construing Missouri law and affirming dismissal ofvarious claims, including consumer protection claim, for failure to allege damages);Jackson v.Charlies Chevrolet, Inc., 664 S.W.2d 675, 676 (Mo. Ct. App. 1984) (holding that plaintifflacked standing to sue under MMPA because no ascertainable damages incurred). In addition,the MMPA allows actions only for the purchase[] or lease[] of goods for personal, familyor household purposes. Id. The Missouri plaintiffs have not pleaded this statutory requirement.See State ex rel. Nixon v. Telco Directory Publg, 863 S.W.2d 596, 599 (Mo. 1993) (en banc)(noting that purchase for personal or household use is a condition precedent for a private right of

action under the MMPA);Jackson, 664 S.W.2d at 676 (Mo. Ct. App. 1984) (holding thatplaintiff lacked standing to sue under the MMPA where no purchase involved). Accordingly, theMissouri plaintiffs claims under the MMPA must be dismissed.

27 Moreover, class action suits are expressly forbidden under the GFBPA. See Ga. Code Ann. 10-1-399(a).

28 The Maryland plaintiffs are Matthew, et al Sibley and Steven Wilkerson. (See Compl., Ex. A.)

29 The Missouri plaintiffs are James Hartman and Kevin Stafford. (See Compl. Ex. A.)


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5.5. New Jersey.New Jersey.The New Jersey plaintiffs cannot assert a claim under the New Jersey Consumer

Fraud Act (NJCFA) because the statute limits a private remedy under the NJCFA to [a]nyperson who suffers anyascertainable lossof moneys or property . . . .as a result of a violationof the statute.30 N.J. Stat. Ann. 56:8-19 (emphasis added); Carroll v. Cellco Partnership, 713A.2d 509, 516 (N.J. Super. Ct. App. Div. 1998) (focusing on acertainability of loss and requiringa causal connection); Gennari v. Weichert Co. Realtors, 691 A.2d 350, 369 (N.J. 1997)(interpreting NJFCA to require ascertainable loss). Because the New Jersey plaintiffs do notallege loss or damage, their NJCFA claims must be dismissed.

6.6. North Carolina.North Carolina.Sole North Carolina plaintiff, Joe Southern, cannot state a claim under the North

Carolina Unfair and Deceptive Trade Practices Act (NCUDTPA). First, Southern has failed toallege actual injury and causation as required by the Act. See N.C. Gen. Stat. 75-16 (If anyperson shall be injured[by a prohibited act], such person shall have a right of actionon

account ofsuch injury done. (emphasis added)); Furr v. Fonville Morisey Realty, Inc., 503S.E.2d 401, 408 (N.C. Ct. App. 1998) ([E]lements of a claim for unfair and deceptive practicesin violation of [the NCUDTPA include] an unfair or deceptive act or practice . . . whichproximately caused actual injury to the plaintiff); First Atlantic Mgmt., Corp. v. Dunlea Realty,Co., 507 S.E.2d 56, 63 (N.C. Ct. App. 1998) (same). Second, the North Carolina plaintiffsclaim must be dismissed because the general statements of quality identified in the Complaintare mere opinions that, as a matter of North Carolina law, are not actionable asmisrepresentation. SeePerformance Motors Inc. v. Allen, 186 S.E.2d 161, 166 (N.C. 1972)(holding sellers statement that a mobile home was supposed to last a lifetime and be in perfectcondition to be an expression of opinion, not an actionable representation).

7.7. Rhode Island.Rhode Island.The lone Rhode Island plaintiff, Eric Gasbarro, cannot state a claim under the

Rhode Island Unfair Trade Practice and Consumer Protection Act (the Act), R.I. Gen. Laws 6-13.1.1 et seq. Plaintiff Gasbarro alleges nothing more than his address and the words FordExplorer and Wilderness AT. (See Compl. Ex. A at 6.) The Act, however, authorizes acause of action to recoveractual damages only for persons who have suffered ascertainableloss of money or property as a result of a violation of the Act. R.I. Gen. Laws 6-13.1-5.2(a)(emphasis added). In addition, the Act authorizes a right of action only for persons who havepurchased or leased goods or services primarily for personal, family, or household purposes.Id. Because Gasbarro has pleaded nothing, he has failed to allege either that he suffered an

ascertainable loss of money or property or that he purchased his vehicle or tires for one of thecovered purposes. His claim must therefore be dismissed.

30 There are two New Jersey plaintiffs, Roberta Greenberg and Beth Leahy. (See Compl. Ex. A.)


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8.8. Tennessee.Tennessee.The Tennessee plaintiffs fail to state a claim under the Tennessee Consumer

Protection Act (TCPA), Tenn. Code Ann. 47-18-101 et seq.31 The TCPA authorizes aprivate right of action to recover actual damages to any person who suffers an ascertainableloss of money or property . . . as a result of . . . an unfair or deceptive act or practice declared tobe unlawful by this part. Tenn. Code Ann. 47-18-109(a)(1) (emphasis added); see alsoHaverlah v. Memphis Aviation, 674 S.W.2d 297, 304-305 (Tenn. Ct. App. 1984) (the TCPAconfers a private right of action on an individual whosuffers an ascertainable loss as a resultof an unlawful practice under the Act)(emphasis added). The Tennessee plaintiffs listed inExhibit A have obviously not alleged that they suffered an ascertainable loss as a result of apractice prohibited by the Act. See Tenn. Code Ann. 47-18-104 (proscribing 32 unfair ordeceptive acts). Accordingly, the claims of the plaintiffs from Tennessee must be dismissed.

9.9. Utah.Utah.The sole Utah plaintiff, Racheal DeMill, fails to state a claim under the Utah

Consumer Sales Practices Act (UCSPA), Utah Code Ann. 13-11-1 et seq. Besides her nameand address, the only allegations as to DeMill are Ford Explorer and ATX P235/75R 15.(Compl. Ex. A, at 5.) The UCSPA authorizes a consumer whosuffers loss as a result ofaviolation of this chapter to file suit to recover actual damages or $2000, whichever is greater.Utah Code. Ann. 13-11-19(2) (emphasis added). DeMill has not alleged that she has sufferedany loss or damage as a result of a violation of the UCSPA, and thus may not maintain a suitunder the Act. 32

10 .10. Virginia.Virginia.The sole Virginia plaintiff, George Burkes, Jr., fails to state a claim under the

Virginia Consumer Protection Act, Va. Code Ann. 59.1-196 et seq. Theonly allegation withrespect to Burkes is that he lives in Alexandria, Virginia. (Compl. Ex. A, at 2.) The Actprovides that [a]ny person whosuffers loss as the result of a violation of this chapter shall beentitled to initiate an action to recoveractual damages, or $500, whichever is greater. Va.Code Ann. 59.1-204(A) (emphasis added). Because Burkes has failed to plead any relationshipwith the defendants, let alone that he suffered any loss as a result of a practice made unlawful bythe Virginia Consumer Protection Act, he cannot state a claim under the Act.

II.II . THE NAMED PLAINTIFFS FAIL TO STATE A CLAIM FOR BREACH OFTHE NAMED PLAINTIFFS FAIL TO STATE A CLAIM FOR BREACH OFEXPRESS WARRANTY (COUNT ELEVEN).EXPRESS WARRANTY (COUNT ELEVEN).

In their Eleventh Claim for Relief, the named plaintiffs allege that Firestone,Bridgestone, and Ford expressly warrant the Tires and Explorers to be free of defects at the timeof delivery, which warranties are express warranties within the meaning of 2-313 of the31 The Tennessee plaintiffs are Tom Drumright, Robert Dawson, and Kevin Milkgan. (See Compl. Ex. A.)

32 Class actions for actual damages are authorized only under specific circumstances, which plaintiff has notalleged are present here. See Utah Code Ann. 13-11-19(4)(a) (a consumer who has suffered loss as a result of aviolation of the Act may bring a class action for actual damages only if the challenged act or practice has beendeclared to be a violation of the Act by regulation or by a final court judgment.)


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Uniform Commercial Code. (Compl. 314.) Plaintiffs contend that defendants breached thesepurported express warranties by offering for sale, and selling as safe, Tires and Explorers thatare, by design, defective in that they are unreasonably dangerous and likely to cause seriousinjury or death to Plaintiffs and members of the Classes. (Compl. 315.)

Plaintiffs have failed, however, to allege a breach of an express warranty underthe Uniform Commercial Code 2-313 (1) (UCC). Section 2-313(1) provides that expresswarranties by the seller are created by, inter alia, (a) [a]ny affirmation of fact or promise madeby the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.. . ., [or] (b) [a]ny description of the goods which is made part of the basis of the bargain. Anexpress warranty may take the form of an explicit written promise concerning how the risks ofpost-purchase defects will be allocated (i.e., a limited written warranty), or an express warrantymay be created by a statement or advertisement that makes certain representations of fact (ratherthan opinion), which forms part of the basis of the bargain. See, e.g., In re Anti-Lock Brake, 966F. Supp. 1525, 1531-32 (E.D. Mo. 1997) (applying laws of Florida, Illinois, Mississippi, NewYork and Texas); Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So. 2d 324, 326-27 (Miss.1998) (applying Mississippi law). Plaintiffs have failed to state a claim for breach of expresswarranty under either theory.

First, none of the named plaintiffs alleges that defendants took any actions (orengaged in any omissions) that violated the terms of the limited written warranties that camewith their vehicles and tires. Further, none alleges that defendants breached any warranty termsduring the warranty coverage period an omission fatal to their claims. Second, plaintiffs havealso failed to identify any other specific representation or affirmation of fact that formed thebasis of their respective bargains.33 Third, plaintiffs fail to allege that they provided notice of thealleged breach as required by U.C.C. 2-607. Finally, some of the named plaintiffs fail to statea claim for a variety of other reasons, which include failure to allege actual malfunction or injuryand the running of the statutes of limitations. Accordingly, the breach of express warranty claim

must be dismissed as to all named plaintiffs.

A.A. The Complaint Does Not Allege Any Breach of the Limited WrittenThe Complaint Does Not Allege Any Breach of the Limited WrittenWarranty That Came With The Plaintiffs Vehicles Or Tires.Warranty That Came With The Plaintiffs Vehicles Or Tires.

Plaintiffs incorrectly assert that Firestone and Ford expressly warrant the Tiresand Explorers to be free of defects at the time of delivery. (Compl. 314.) Contrary toplaintiffs assertion, Fords limited written warranty a repair and replace warranty does notpromise a perfect, defect-free, maintenance-free vehicle. Fords limited written warranty insteadprovides that authorized Ford dealers will repair, replace, or adjust all parts (except tires) . . .that are defective in factory-supplied materials or workmanship for 3 years or 36,000 miles,

33 See, e.g.,Lujan v. Tampo Mfg. Co., 825 S.W.2d 505, 511 (Tex. App. 1992)(there can be no expresswarranty under Texas law unless an affirmation or promise is made by the manufacturer/seller directly to the buyer);Fitzner Pontiac-Buick-Cadillac, Inc. 523 So. 2d at 326 (under the Mississippi Code, an express warranty requires averbal or written statement of fact or promise); Friedman v. Medtronic, Inc., 42 A.D.2d 185, 190 (N.Y. App. Div.1973) (for an express warranty to exist, there must be an affirmation of fact or promise by the seller which has thetendency to induce the buyer to purchase);Reed v. Sears, Roebuck & Co., 426 S.E.2d 539, 546 (W. Va. 1992)(under the West Virginia Code, express warranties are created only when the affirmation of fact, promise ordescription of the goods is part of the basis of the bargain).


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(whichever occurs first). (See Warranty Information Booklet for 1995-Model Ford andMercury Cars and Light Trucks, at 5 (attached at Tab 9).) 34 The limited written warranty simplyprovides that during the warranty period, Ford will service parts (other than tires) thatmalfunction due to a defect. See, e.g., Walsh v. Ford Motor Co., 588 F. Supp. 1513, 1536(D.D.C. 1984) (Fords limited written warranty covers only defects discovered during the

warranty period, thus, plaintiffs who fail to allege . . . malfunctions within the warranty periodmay not assert written warranty claims) opinion amended on other grounds, 592 F. Supp. 1359(D.D.C 1984), order amended on other grounds, 612 F. Supp. 983 (D.D.C. 1985).

Thus, under that warranty, a claim may arise only if (a) there was a malfunctionor failure of the vehicle due to a defect and (b) Ford declined to repair the vehicle. See Walsh,id. at 1537 (holding that failure to allege compliance with presentment requirements constitutesa failure to state a claim for breach of . . . warranty);Arnold v. Ford Motor Co., 566 P.2d 98, 99(N.M. 1977) (providing that to recover for breach of Fords limited written warranty, plaintiffmust allege that he presented the vehicle to the automobile dealer with a request that the defectbe repaired, and . . . that the dealer failed or refused to repair or replace the defective parts);Broe v. Oneonta Sales Co., 420 N.Y.S.2d 436, 437 (Sup. Ct. 1978).

Plaintiffs have attached to the Complaint two Firestone written limited warranties(dated April 1991 and May 1998), and they allege that these documents were delivered toconsumers in the glove box of [n]ew Ford Explorers. (Compl. 110 and Ex. C.) Thosewarranties provide that, if before wearing down to 2/32nds of an inch of tread depth . . . , anytire covered by this warranty becomes unusable for any reason within the manufacturers control,such tire will be replaced with an equivalent" Firestone tire in accordance with the terms set forthin the balance of the warranties.35 The 1998 limited written warranty adds to this language therequirement that the tire returned must have been purchased within six years of its return (ormanufactured within this six-year period if the purchase date is unknown).36 These limitedwarranties then expressly list events that are not within the manufacturer's control, including

"road hazards," "overloading," "improper inflation pressure," and "failure to observe any of thesafety and maintenance precautions contained in this manual." Id. Thus, the Firestone writtenwarranty can be breached only if (a) a covered tire with more than the specified tread depthbecame unusable for any reason within the manufacturers control, as defined, and (b)Firestone refused to replace the tire as specified in the warranty.

34 Where plaintiffs have failed to attach pertinent documents to their complaint, defendants may attach suchdocuments to its Rule 12 motion to dismiss, without transforming the motion into a Rule 56 motion. See, e.g.,Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); Parrino v. FHP, Inc. 146 F.3d699, 705-06 (9th Cir. 1998), amended by, 98 Cal. Daily Op. Serv 5819. Ford has attached a copy of its limitedwritten warranty for Ford Explorers and other light trucks for model years 1995 and 1998. The relevant language isthe same for all Ford models represented among plaintiffs vehicles. For example,the 1998 limited written warrantyprovides: During this coverage period [3 years or 36,000 miles, whichever occurs first], authorized Ford MotorCompany dealers will repair, replace, or adjust all parts on your vehicle (except tires) that are defective in factory-supplied materials or workmanship. See Ford & Mercury Cars & Light Trucks 1998-Model Warranty Guide, at 6.(Attached at Tab 10.)

35 See Compl. Ex. C., Firestone Tire Maintenance and Safety Manual, at 1.

36 See Compl. Ex. C., Firestone Passenger and Light Truck Limited Warranty, at 1.


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The named plaintiffs allegations are wholly insufficient to state a claim forbreach of either the Ford or Firestone limited written warranty. With respect to the Fordwarranty, no named plaintiff alleges any problem with the non-tire aspects of their Ford Explorerwithin the warranty period. Further, no named plaintiff alleges that he or she ever presented acovered vehicle to an authorized Ford dealer for warranty repair within the warranty period and

was denied service. See Walsh, 588 F. Supp. at 1536 ([P]laintiffs who fail to allege . . .malfunctions within the warranty period may not assert written warranty claims.); Taterka v.Ford Motor Co., 271 N.W. 2d 653, 657 (Wis. 1978) (Fords limited written warranty onlycovers those [defects] discover[ed] within 12 months or 12, 000 miles. The buyer is to bear therisk of repairs beyond that point); Tokar v. Crestwood Imports, Inc., 532 N.E.2d 382, 388 (Ill.App. 1988) (relying on Taterka v. Fordand Walsh v. Ford, supra, and holding that plaintiffcould not recover for allegedly latent defects in his automobile which manifested themselvesafter the automobile manufacturers warranty period). Thus,no named plaintiffasserts a validclaim for breach of the Ford warranty.

As to the Firestone warranty, only three of the plaintiffs named in the body of theComplaint alleges that his or her tires manifested the alleged defect.37 Andnone of the namedplaintiffs allege that he or she satisfied the minimum preconditions for obtaining a replacementtire under Firestones warranty: first, that the tires tread depth is greater than 2/32nds of aninch; second, that the tire is unusable for a reason within the manufacturers control (and not fora reason listed in the warranty's list of excluded conditions); and third, that the plaintiff presentedthe tire to Firestone under the terms of the limited written warranty for replacement. None ofthe named plaintiffs alleges that he or she experienced any problems within the warrantycoverage period. Finally, no plaintiff alleges that Firestone refused to provide any replacementsto which they were entitled. (Compl. 12-54.) Under the cases noted above, these omissionsare fatal to plaintiffs claims against Firestone for breach of express warranty based on a breachof limited written warranty theory. 38 See, e.g., Canal Elec. Co. v. Westinghouse Elec. Co., 973F.2d 988, 993 (1st Cir. 1992) (collecting cases upholding limited written warranties and holdingthat time limited warranties do not protect buyers against hidden defects). Accordingly, nonamed plaintiff can state a claim for breach of express warranty based on Firestone or Fordslimited written warranty.

37 Gary Gustafson, William Wehking, and Allan Simpson. (See Compl. 12, 14, 22.)

38 Although the Complaint alleges that named plaintiff Leroy Eberly (Compl. 16) bought non-Firestone tiresat his own expense after the Ford dealership from whom he leased his Explorer refused to replace his nonrecalledFirestone tires, he cannot state a claim for breach of express warranty for several reasons. As an initial matter, hehas no claim against Ford because tires are excluded from Fords limited written waranty. Even if tires werecovered by Fords warranty, he failed to allege that a defect manifested itself within the warranty coverage period.Nor has he alleged that his tire tread was deeper than 2/32nds of an inch or that his tires were unusable for a reasonwithin the manufacturers control, as is required for Firestones warranty. For similar reasons, plaintiff Beth Simonfails to state a claim for breach of express warranty predicated on a limited written warranty when her Ford dealeralleged did not replace her nonrecalled tires. (Compl. 21.) Neal Zimmerman cannot state a claim against Fordbecause he does not allege that the tires were installed on a Ford; instead, he has a Subaru. (Compl. 24.) Nor canhe state a claim against Firestone for breach of the limited written warranty when Firestone allegedly did not replacehis nonrecalled tires because he has not alleged the necessary prerequisites for breach of Firestones limitedwarranty.


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The Eleventh Claim for Relief must be dismissed because no plaintiff has allegedthe necessary elements for that claim.

B.B. The Complaint Fails To Allege Any Specific Statement Or Affirmation ThatThe Complaint Fails To Allege Any Specific Statement Or Affirmation ThatCould Support An Express Warranty Claim.Could Support An Express Warranty Claim.

Besides failing to allege facts constituting a breach of the applicable limitedwritten warranties, the plaintiffs do not allege facts indicating the creation of any other expresswarranty (let alone any breach thereof). Plaintiffs may contend that they intended to assertbreach of an express warranty by advertisement, but such a theory would fail for at least threereasons. First, plaintiffs have failed to specifically identify the promotional or advertisingmaterials alleged by each plaintiffto have been an affirmation of fact or promise that couldcreate an express warranty. In other words, the complaint must identify, separately as to eachowner of the subject vehicle or tires, thespecific advertisement that particular owner saw andconstrued as an affirmation of fact (rather than as a non-actionable opinion). See, e.g., FalconEquip. Corp. v. Courtesy Lincoln-Mercury, Inc., 536 F.2d 806, 808-09 (8th Cir. 1976) (expresswarranty is not created unless the seller has made a specific representation about product at

issue); Ciba-Geigy Corp. v. Alter, 834 S.W. 2d 136, 146 (Ark. 1992) (An affirmation of thesellers opinion or commendation does not create an express warranty.) .

Second, to state a claim for breach of express warranty by advertising orstatements, plaintiffs must allege that a specific representation or advertisement formed part ofthe basis of the bargain. See, e.g.,Ciba-Giegy Corp., 834 S.W.2d at 147 (An affirmation of factmust be part of the basis of the parties bargain to be an express warranty.);Reed v. SearsRoebuck & Co., Inc., 426 S.E. 2d 539, 546 (W. Va. 1992)(same). The Complaint is silent,however, with respect to which specific advertisement or representation purportedly formed thebasis of each particular bargain defendants allegedly breached. Indeed, none of the generic tireadvertisements identified in the Complaint even mention the tires owned by these particular

plaintiffs.

Third, although plaintiffs refer to numerous advertisements in their Complaint,they do not and cannot allege that such advertisements created express warranties. (SeeCompl. 124-128.) These advertisements describe the Explorer, for example, as The Best theWorld Has to Offer, (Compl. 124(f)), or state that Bridgestones Tire Performance StandardsAre Going Up All The Time. (Compl. 127(c).) As is detailed in Brief II, Part B.1, theseadvertisements, however, are classic examples of unactionable opinion. See, e.g., Haskell v.Time, Inc., 857 F. Supp. 1392, 1399 (E.D. Cal. 1994) (Advertising that amounts to merepuffery is not actionable because no reasonable consumer relies on puffery. The distinguishingcharacteristics of puffery are vague, highly subjective claims as opposed to specific, detailed

factual assertions.); Anderson v. Bungee Intl. Mfg. Corp., 44 F. Supp. 2d 534 (S.D.N.Y.1999)(statements Premium Quality and Made in the USA which appeared on package weremere puffery under New York law and thus did not constitute express warranties). Theadvertisements alleged in the Complaint are unactionable opinions and cannot support a claimfor breach of express warranty.

Even if these advertisements were not obviously mere opinions that could giverise to an express warranty, plaintiffs express warranty claim nonetheless fails because, as


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explained above, plaintiffs have failed to identify separately, as to each named plaintiff, thespecific advertisement that he or she supposedly saw and construed as an affirmation of fact,which formed part of the basis of each plaintiffs respective bargain. Plaintiffs conclusoryassertion that whatever alleged warranties were made were express warranties within themeaning of 2-313 of the Uniform Commercial Code is legally insufficient and cannot survive

a motion to dismiss. (Compl. 314.) SeeBriehl v. General Motors Corp., 172 F.3d 623 (8thCir. 1999) (Complaint must contain facts which state a claim as a matter of law and must not beconclusory.).

C.C. The Complaint Fails To Allege That Plaintiffs Provided Notice Of Breach AsThe Complaint Fails To Allege That Plaintiffs Provided Notice Of Breach AsRequired By U.C.C. 2-607.Required By U.C.C. 2-607.

Plaintiffs have also failed to meet their obligation under U.C.C. 2-607(3)(a),which requires that the buyer notify the seller that there has been a breach within a reasonabletime after he discovers the breach or should have discovered any breach or the buyer will bebarred from any remedy. All the relevant jurisdictions have adopted this notice requirement.39

Notice of breach opens the way for settlement and gives the seller ample opportunity to cure

any alleged breach before a lawsuit is filed. See Parker v. Bell Ford, 425 So. 2d 1101, 1103(Ala. 1983) (citation and internal quotation marks omitted).

As the Illinois Supreme Court recently explained, the notice requirement of 2-607 is satisfied where the manufacturer is somehow apprised of the trouble with the particularproduct purchased by a particular buyer. See Connick v. Suzuki Motor Co., 675 N.E.2d 584,

39 See, e.g.,Aqualon Co. v. MAC Equip., Inc., 149 F.3d 262, 265-67 (4th Cir. 1998) (interpreting UCC lawand holding that court must distinguish between the sellers knowledge of facts of the breach and knowledge ofbuyers claim that those facts constitute a breach; the notice must be sufficient to alert the seller to the possibility of

a claim by the buyer); Connick v. Suzuki Motor Co., 675 N.E.2d 584, 590 (Ill. 1996) (holding that even if amanufacturer is aware of problems with a particular product line . . . it is essential that the seller be notified that thisparticular transaction is troublesome and must be watched.)(emphasis in original); Goldwater v. Ollies Garage,No. CV94 0357372, 1995 Conn. Super. LEXIS 1687, at *8-11 (Conn. Super. Ct. June 5, 1995) (striking breach ofwarranty claim for failure to allege notice); Williams v. Mozark Fire Extinguisher Co., 888 S.W.2d 303, 305 (Ark.1994) (giving of reasonable notice required and must be alleged in complaint in order to state a cause of action forbreach of warranty);Industria de Calcados Martini LFLA v. Maxwell Shoe Co. Inc., 630 N.E. 2d 299, 303 n. 1(Mass. App. Ct. 1994) (buyer must notify the seller of any breach of warranty or be barred from a remedy)(Massachusetts law); Hart v. Yamaha-Parts Distribs., Inc., 787 F.2d 1468, 1474 (11th Cir. 1986)(notice of breachis a condition precedent to bringing a breach of warranty action) (Alabama law);Royal Typewriter Co. v.

Xerographic Supplies Corp., 719 F.2d 1092, 1102 (11th Cir. 1983) (notice of breach is required before bringing abreach of warranty action)(Florida law);Allen v. G.D. Searle & Co., 708 F. Supp. 1142, 1159-60 (D. Or. 1989)(Oregon law); Gen. Matters Inc. v. Paramount Canning Co., 382 So. 2d 1262, 1263-64 (Fla. Dist. Ct. App. 1980)(notice requirement is a precondition of imposing liability on a seller of goods); Fieldstone Co. v. BriggsPlumbing Prods. Inc., 62 Cal. Rptr. 2d. 701, 708-09 ( Cal. Ct. App. 1997) (affirming summary judgment fordefendant on breach of warranty claim because plaintiff failed to give manufacturers notice of breach of warranty)(California law); Conn. Gen. Stat. 42a-2-607(3); 13 Pa. Cons. Stat. Ann. 2607(c)(1); Ala. Code 7-2-607(3)(a);Ariz. Rev. Stat. 47-2607(C)(1); Ark. Code 4-2-607(3)(a); Cal. Com. Code 2607(3); Fla. Stat. Ann. 672.607(3)(a); 810 Ill. Comp. Stat. 5/2-607(3)(a); Mass. Gen. Law ch. 106 2-607(3)(a); Miss.Code Ann. 75-2-607(3)(a); N.Y.U.C.C. Law 2-607(3)(a); Ohio Rev. Code 1302.65(C)(1); 12A Okl. St. Ann. 2-607(3)(a); Or.Rev. Stat. 72.6070(3)(a); Tex. Bus. & Com. Code 2.607(c)(1); W.Va. Code 46-2-607 (3)(a). As explainedinfra, because the Louisiana plaintiffs assert a claim under Louisianas redhibition statute, they are barred from alsobringing warranty claims.


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warranty claims. Ohio Rev. Code 1302.98. Ohio plaintiff John Dovich has a 1993 FordExplorer. (Compl. 44.) Dovichs breach of express warranty claim is thus time barred underOhio law.

4.4. Plaintiffs Tolling Claim Fails.Plaintiffs Tolling Claim Fails.Although plaintiffs vaguely

firestone class action suit

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