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1831887.1 AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
Elizabeth J. Cabraser (State Bar No. 083151) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: 415.956.1000 Facsimile: 415.956.1008 E-mail: [email protected]
Lead Counsel for Plaintiffs (Plaintiffs’ Steering Committee Members Listed on Signature Page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
IN RE: VOLKSWAGEN ‘CLEAN DIESEL’ MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Document Relates to: Audi CO2 Cases
MDL 2672 CRB (JSC) AUDI CO2 AMENDED CONSOLIDATED CONSUMER CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED
Case 3:15-md-02672-CRB Document 6628 Filed 08/30/19 Page 1 of 430
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1831887.1 - i - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
I. INTRODUCTION .............................................................................................................. 1
II. NATURE OF THE ACTION ............................................................................................. 1
III. PARTIES ............................................................................................................................ 7
A. Plaintiffs .................................................................................................................. 7
B. Defendants............................................................................................................. 10
C. Non-Party Participants .......................................................................................... 11
IV. JURISDICTION AND VENUE ....................................................................................... 13
V. INTRADISTRICT ASSIGNMENT .................................................................................. 14
VI. FACTS COMMON TO ALL COUNTS ........................................................................... 14
A. The Warm-up Program in Gasoline Vehicles ....................................................... 15
B. Defendants’ False Advertising Touted Inaccurate Fuel Economy. ...................... 21
C. Defendants Concealed the Class Vehicles’ Excessive CO2 Emissions. ............................................................................................................. 24
VII. CLASS ACTION ALLEGATIONS ................................................................................. 25
VIII. ANY APPLICABLE STATUTES OF LIMITATION ARE TOLLED ............................ 34
A. Discovery Rule Tolling ......................................................................................... 34
B. Tolling Due to Fraudulent Concealment ............................................................... 35
C. Estoppel ................................................................................................................. 35
IX. CAUSES OF ACTION ..................................................................................................... 36
A. Claims Asserted on Behalf of the Nationwide Class ............................................ 36
NATIONWIDE COUNT I: VIOLATION OF 18 U.S.C. § 1962(C)-(D) The Racketeer Influenced And Corrupt Organizations Act (“RICO”) .................................... 36
B. Description of the Warm-up RICO Enterprise...................................................... 37
C. The Warm-up RICO Enterprise Came Together to Increase its Members’ Profits and Revenues ........................................................................... 41
D. Mail and Wire Fraud ............................................................................................. 44
NATIONWIDE COUNT II: FRAUD BY CONCEALMENT (Common Law) .................................................................................................................................. 51
Case 3:15-md-02672-CRB Document 6628 Filed 08/30/19 Page 2 of 430
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1831887.1 - ii - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
COUNT III: IMPLIED AND WRITTEN WARRANTY Magnuson - Moss Warranty Act (15 U.S.C. §§ 2301, et seq.) ....................................................................... 52
E. State-Specific Claims ............................................................................................ 55
ALABAMA COUNT I: Violations of the Alabama Deceptive Trade Practices Act Ala. Code § 8-19-1, et seq. (On Behalf of the Alabama State Class) ................................................................................................................................. 55
ALABAMA COUNT II: Breach of Express Warranty Ala. Code §§ 7-2-313 and 7-2A-210 (On Behalf of the Alabama State Class) .................................................... 57
ALABAMA COUNT III: Breach of Implied Warranty of Merchantability Ala. Code §§ 7-2-314 and 7-2A-212 (On Behalf of the Alabama State Class) ........................................................................................................................................... 60
ALASKA COUNT I: Violations of the Alaska Unfair Trade Practices and Consumer Protection Act Alaska Stat. Ann. § 45.50.471 et seq. (On Behalf of the Alaska State Class) ................................................................................................. 61
ALASKA COUNT II: Breach of Express Warranty Alaska Stat. §§ 45.02.313 and 45.12.210 (On Behalf of the Alaska State Class) ...................................... 64
ALASKA COUNT III: Breach of Implied Warranty of Merchantability Alaska Stat. §§ 45.02.314 and 45.12.212 (On Behalf of the Alaska State Class) ................................................................................................................................. 67
ARIZONA COUNT I: Violations of the Arizona Consumer Fraud Act Ariz. Rev. Stat. § 44-1521, et seq. (On Behalf of the Arizona State Class)............................... 68
ARIZONA COUNT II: Breach of Express Warranty Ariz. Rev. Stat. §§ 47-2313 and 47-2A210 (On Behalf of the Arizona State Class) ...................................... 70
ARIZONA COUNT III: Breach of Implied Warranty of Merchantability Ariz. Rev. Stat. §§ 47-2314 and 47-2A212 (On Behalf of the Arizona State Class) ................................................................................................................................. 74
ARKANSAS COUNT I: Violations of the Deceptive Trade Practices Act Ark. Code Ann. § 4-88-101 et seq. (On Behalf of the Arkansas State Class) .................. 75
ARKANSAS COUNT II: Breach of Express Warranty Ark Code Ann. §§ 4-2-313 and 4-2A-210 (On Behalf of the Arkansas State Class) ...................................... 77
ARKANSAS COUNT III: Breach of Implied Warranty of Merchantability Ark. Code Ann. §§ 4-2-314 and 4-2A-212 (On Behalf of the Arkansas State Class) ................................................................................................................................. 80
CALIFORNIA COUNT I: Violation of California Consumers Legal Remedies Act Cal Bus. & Prof. Code § 1750, et seq. (On Behalf of the California State Class)....................................................................................................... 81
Case 3:15-md-02672-CRB Document 6628 Filed 08/30/19 Page 3 of 430
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1831887.1 - iii - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
CALIFORNIA COUNT II: Violations of the California Unfair Competition Law Cal. Bus. & Prof. Code § 17200 et seq. (On Behalf of the California State Class) ........................................................................................................................ 83
CALIFORNIA COUNT III: Violations of the California False Advertising Law Cal. Civ. Code § 17500 et seq. (On Behalf of the California State Class) ........................................................................................................................................... 84
CALIFORNIA COUNT IV: Breach of Express Warranty Cal. Com. Code §§ 2313 and 10210 (On Behalf of the California State Class) .......................................... 85
CALIFORNIA COUNT V: Breach of Implied Warranty of Merchantability Cal. Com. Code §§ 2314 and 10212 (On Behalf of the California State Class) ................................................................................................................................. 88
CALIFORNIA COUNT VI: Violation of Song-Beverly Consumer Warranty Act, Breach of Implied Warranty Cal Civ. Code § 1790, et seq. (On Behalf of the California State Class) ............................................................................................ 89
CALIFORNIA COUNT VII: Violation of the Song-Beverly Consumer Protection Act, Breach of Express Warranty Cal Civ. Code § 1790, et seq. (On Behalf of the California State Class) ......................................................................... 91
CALIFORNIA COUNT VIII: Breach of Express California Emissions Warranties Cal. Civ. Code § 1793.2, et seq. (On Behalf of the California State Class) ........................................................................................................................ 92
CALIFORNIA COUNT IX: Failure to Recall/Retrofit (On Behalf of the California State Class)....................................................................................................... 94
COLORADO COUNT I: Violations of the Colorado Consumer Protection Act Colo. Rev. Stat. § 6-1-101 et seq. (On Behalf of the Colorado State Class) ................................................................................................................................. 94
COLORADO COUNT II: Breach of Express Warranty Colo. Rev. Stat. §§ 4-2-313 and 4-2.5-210 (On Behalf of the Colorado State Class) ...................................... 97
COLORADO COUNT III: Breach of Implied Warranty of Merchantability Colo. Rev. Stat. §§ 4-2-314 and 4-2.5-212 (On Behalf of the Colorado State Class) ............................................................................................................................... 100
CONNECTICUT COUNT I: Violations of Connecticut Unlawful Trade Practice Act Conn. Gen. Stat. § 42-110a, et seq. (On Behalf of the Connecticut State Class) ................................................................................................. 101
CONNECTICUT COUNT II: Breach of Express Warranty Conn. Gen. Stat. Ann. § 42A-2-313 (On Behalf of the Connecticut State Class) ...................................... 103
CONNECTICUT COUNT III: Breach of Implied Warranty of Merchantability Conn. Gen. Stat. Ann. § 42A-2-314 (On Behalf of the Connecticut State Class) ................................................................................................. 106
Case 3:15-md-02672-CRB Document 6628 Filed 08/30/19 Page 4 of 430
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1831887.1 - iv - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
DELAWARE COUNT I: Violations of the Delaware Consumer Fraud Act 6 Del. Code § 2513 et seq. (On Behalf of the Delaware State Class) ................................ 107
DELAWARE COUNT II: Breach of Express Warranty 6 Del. Code §§ 2-313 and 2A-210 (On Behalf of the Delaware State Class) .......................................... 110
DELAWARE COUNT III: Breach of Implied Warranty of Merchantability 6. Del. Code §§ 2-314 and 7-2A-212 (On Behalf of the Delaware State Class) ............................................................................................................................... 113
DISTRICT OF COLUMBIA COUNT I: Violations of the Consumer Protection Procedures Act D.C. Code § 28-3901 et seq. (On Behalf of the District of Columbia Class) ............................................................................................. 114
DISTRICT OF COLUMBIA COUNT II: Breach of Express Warranty D.C. Code §§ 28:2-313 and 28:2A-210 (On Behalf of the District of Columbia Class) ............................................................................................................................... 117
DISTRICT OF COLUMBIA COUNT III: Breach of Implied Warranty of Merchantability D.C. Code §§ 28:2-314 and 28:2A-212 (On Behalf of the District of Columbia Class) ............................................................................................. 120
FLORIDA COUNT I: Violations of the Florida Unfair & Deceptive Trade Practices Act Fla. Stat. § 501.201, et seq. (On Behalf of the Florida State Class) ............................................................................................................................... 121
FLORIDA COUNT II: Breach of Express Warranty F.S.A. §§ 672.313 and 680.21 (On Behalf of the Florida State Class) ................................................................ 123
FLORIDA COUNT III: Breach of Implied Warranty of Merchantability F.S.A. §§ 672.314 and 680.212 (On Behalf of the Florida State Class) ......................... 126
GEORGIA COUNT I: Violations of Georgia’s Fair Business Practices Act Ga. Code Ann. § 10-1-390 et seq. (On Behalf of the Georgia State Class) .................... 127
GEORGIA COUNT II: Violations of Georgia’s Uniform Deceptive Trade Practices Act Ga. Code Ann. § 10-1-370 et seq. (On Behalf of the Georgia State Class) ...................................................................................................................... 130
GEORGIA COUNT III: Breach of Express Warranty Ga. Code Ann. §§ 11-2-313 and 11-2A-210 (On Behalf of the Georgia State Class) .................................. 132
GEORGIA COUNT IV: Breach of Implied Warranty of Merchantability Ga. Code Ann. §§ 11-2-314 and 11-2A-212 (On Behalf of the Georgia State Class) ............................................................................................................................... 135
HAWAII COUNT I: Unfair and Deceptive Acts in Violation of Hawaii Law Haw. Rev. Stat. § 480 et seq. (On Behalf of the Hawaii State Class) ............................. 136
HAWAII COUNT II: Breach of Express Warranty Haw. Rev. Stat. §§ 490:2-313 and 490:2A-210 (On Behalf of the Hawaii State Class)................................ 138
Case 3:15-md-02672-CRB Document 6628 Filed 08/30/19 Page 5 of 430
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1831887.1 - v - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
HAWAII COUNT III: Breach of Implied Warranty of Merchantability Haw. Rev. Stat. §§ 490:2-314 and 490:2A-212 (On Behalf of the Hawaii State Class) ............................................................................................................................... 142
IDAHO COUNT I: Violations of the Idaho Consumer Protection Act Idaho Code § 48-601 et seq. (On Behalf of the Idaho State Class)........................................... 143
IDAHO COUNT II: Breach of Express Warranty Idaho Code §§ 28-2-313 and 28-12-210 (On Behalf of the Idaho State Class) ...................................................... 145
IDAHO COUNT III: Breach of Implied Warranty of Merchantability Idaho Code §§ 28-2-314 and 28-12-212 (On Behalf of the Idaho State Class) ........................ 148
ILLINOIS COUNT I: Violations of the Illinois Consumer Fraud and Deceptive Business Practices Act 815 ILCS 505/1, et seq. and 720 ILCS 295/1a (On Behalf of the Illinois State Class) ................................................................ 149
ILLINOIS COUNT II: Breach of Express Warranty 810 Ill. Comp. Stat. §§ 5/2-313 and 5/2A-210 (On Behalf of the Illinois State Class) ........................................ 152
ILLINOIS COUNT III: Breach of Implied Warranty of Merchantability 810 Ill. Comp. Stat. §§ 5/2-314 and 5/2A-212 (On Behalf of the Illinois State Class) ............................................................................................................................... 155
INDIANA COUNT I: Violations of the Indiana Deceptive Consumer Sales Act Ind. Code § 24-5-0.5-3 (On Behalf of the Indiana State Class) ............................... 156
INDIANA COUNT II: Breach of Express Warranty Ind. Code §§ 26-1-3-313 and 26-1-2.1-210 (On Behalf of the Indiana State Class) ............................ 158
INDIANA COUNT III: Breach of Implied Warranty of Merchantability Ind. Code §§ 26-1-3-314 and 26-1-2.1-212 (On Behalf of the Indiana State Class) ......................................................................................................................................... 161
IOWA COUNT I: Violations of the Private Right of Action For Consumer Frauds Act Iowa Code § 714h.1, et seq. (On Behalf of the Iowa State Class) ......................................................................................................................................... 162
IOWA COUNT II: Breach of Express Warranty Iowa Code §§ 554.2313 and 554.13210 (On Behalf of the Iowa State Class) .............................................................. 165
IOWA COUNT III: Breach of Implied Warranty of Merchantability Iowa Code §§ 554.2314 and 554.13212 (On Behalf of the Iowa State Class) ........................ 168
KANSAS COUNT I: Violations of the Kansas Consumer Protection Act Kan. Stat. Ann. § 50-623 et seq. (On Behalf of the Kansas State Class) ........................ 169
KANSAS COUNT II: Breach of Express Warranty Kan. Stat. §§ 84-2-313 and 84-2A-210 (On Behalf of the Kansas State Class) ................................................... 171
KANSAS COUNT III: Breach of Implied Warranty of Merchantability Kan. Stat. §§ 84-2-314 and 84-2A-212 (On Behalf of the Kansas State Class) ...................... 175
Case 3:15-md-02672-CRB Document 6628 Filed 08/30/19 Page 6 of 430
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1831887.1 - vi - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
KENTUCKY COUNT I: Violations of the Kentucky Consumer Protection Act Ky. Rev. Stat. Ann. § 367.110 et seq. (On Behalf of the Kentucky State Class) ............................................................................................................................... 176
KENTUCKY COUNT II: Breach of Express Warranty Ky. Rev. Stat. §§ 335.2-313 and 355.2A-210 (On Behalf of the Kentucky State Class) ............................ 178
KENTUCKY COUNT III: Breach of Implied Warranty of Merchantability Ky. Rev. Stat. §§ 335.2-314 and 355.2A-212 (On Behalf of the Kentucky State Class) ...................................................................................................................... 181
LOUISIANA COUNT I: Violations of the Louisiana Unfair Trade Practices and Consumer Protection Law La. Stat. Ann. § 51:1401 et seq. (On Behalf of the Louisiana State Class) ............................................................................................... 182
LOUISIANA COUNT II: Breach of Implied Warranty of Merchantability/Warranty Against Redhibitory Defects La. Civ. Code Art. 2520, 2524 (On Behalf of the Louisiana State Class) ..................................................... 185
MAINE COUNT I: Violations of the Maine Unfair Trade Practices Act Me. Rev. Stat. Ann. Tit. 5, § 205-A et seq. (On Behalf of the Maine State Class) ................ 185
MAINE COUNT II: Breach of Express Warranty Me. Rev. Stat. Tit. 11 §§ 2-313 and 2-1210 (On Behalf of the Maine State Class) ................................................ 188
MAINE COUNT III: Breach of Implied Warranty of Merchantability Me. Rev. Stat. Tit. 11 §§ 2-314 and 2-1212 (On Behalf of the Maine State Class) ......................................................................................................................................... 191
MARYLAND COUNT I: Violations of the Maryland Consumer Protection Act Md. Code Com. Law § 13-101 et seq. (On Behalf of the Maryland State Class) ............................................................................................................................... 192
MARYLAND COUNT II: Maryland Lemon Law Md. Code Com. Law § 14-1501 et seq. (On Behalf of the Maryland State Class)............................................... 194
MARYLAND COUNT III: Breach of Express Warranty Md. Code Com. Law §§ 2-313 and 2a-210 (On Behalf of the Maryland State Class) .............................. 195
MARYLAND COUNT IV: Breach of Implied Warranty of Merchantability Md. Code Com. Law §§ 2-314 and 2a-212 (On Behalf of the Maryland State Class) ............................................................................................................................... 199
MASSACHUSETTS COUNT I: Deceptive Acts or Practices Prohibited by Massachusetts Law Mass. Gen. Laws Ch. 93a, § 1, et seq. (On Behalf of the Massachusetts State Class) .............................................................................................. 200
MASSACHUSETTS COUNT II: Massachusetts Lemon Law Mass. Gen. Laws Ch. 90, § 7N1/2(1) (On Behalf of the Massachusetts State Class)........................ 203
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1831887.1 - vii - AUDI CO2 AMENDED CONSOLIDATED
CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
MASSACHUSETTS COUNT III: Breach of Express Warranty Mass. Gen. Laws c. 106 §§ 2-313 and 2A-210 (On Behalf of the Massachusetts State Class) ............................................................................................................................... 204
MASSACHUSETTS COUNT IV: Breach of Implied Warranty of Merchantability Mass. Gen. Laws c. 106 §§ 2-314 and 2A-212 (On Behalf of the Massachusetts State Class) ................................................................................... 207
MICHIGAN COUNT I: Violations of the Michigan Consumer Protection Act Mich. Comp. Laws § 445.903 et seq. (On Behalf of the Michigan State Class) ............................................................................................................................... 208
MICHIGAN COUNT II: Breach of Express Warranty Mich. Comp. Laws §§ 440.2313 and 440.2860 (On Behalf of the Michigan State Class)............................. 211
MICHIGAN COUNT III: Breach of Implied Warranty of Merchantability Mich. Comp. Laws §§ 440.2314 and 440.2860 (On Behalf of the Michigan State Class) ...................................................................................................................... 214
MINNESOTA COUNT I: Violations of the Minnesota Prevention of Consumer Fraud Act Minn. Stat. § 325F.68 et seq. (On Behalf of the Minnesota State Class) .................................................................................................... 215
MINNESOTA COUNT II: Violations of the Minnesota Uniform Deceptive Trade Practices Act Minn. Stat. § 325D.43-48 et seq. (On Behalf of the Minnesota State Class) .................................................................................................... 217
MINNESOTA COUNT III: Breach of Express Warranty Minn. Stat. §§ 336.2-313 and 336.2A-210 (On Behalf of the Minnesota State Class) .......................... 220
MINNESOTA COUNT IV: Breach of Implied Warranty of Merchantability Minn. Stat. §§ 336.2-314 and 336.2A-212 (On Behalf of the Minnesota State Class) ............................................................................................................................... 223
MISSISSIPPI COUNT I: Violations of Mississippi Consumer Protection Act Miss. Code. Ann. § 75-24-1, et seq. (On Behalf of the Mississippi State Class) ............................................................................................................................... 224
MISSISSIPPI COUNT II: Breach of Express Warranty Miss. Code §§ 75-2-313 and 75-2A-210 (On Behalf of the Mississippi State Class) ............................ 227
MISSISSIPPI COUNT III: Breach of Implied Warranty of Merchantability Miss. Code §§ 75-2-314 and 75-2A-212 (On Behalf of the Mississippi State Class) ............................................................................................................................... 230
MISSOURI COUNT I: Violations of the Missouri Merchandising Practices Act Mo. Rev. Stat. § 407.010 et seq. (On Behalf of the Missouri State Class) ......................................................................................................................................... 231
MISSOURI COUNT II: Breach of Express Warranty Mo. Stat. §§ 400.2-313 and 400.2A-210 (On Behalf of the Missouri State Class) ............................. 233
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1831887.1 - viii - AUDI CO2 AMENDED CONSOLIDATED
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MISSOURI COUNT III: Breach of Implied Warranty of Merchantability Mo. Stat. §§ 400.2-314 and 400.2A-212 (On Behalf of the Missouri State Class) ............................................................................................................................... 236
MONTANA COUNT I: Violations of the Montana Unfair Trade Practices and Consumer Protection Act of 1973 Mont. Code Ann. § 30-14-101 et seq. (On Behalf of the Montana State Class) ......................................................................... 237
MONTANA COUNT II: Breach of Express Warranty Mont. Code §§ 30-2-313 and 30-2A-210 (On Behalf of the Montana State Class) ................................ 240
MONTANA COUNT III: Breach of Implied Warranty of Merchantability Mont. Code §§ 30-2-314 and 30-2A-212 (On Behalf of the Montana State Class) ............................................................................................................................... 243
NEBRASKA COUNT I: Violations of the Nebraska Consumer Protection Act Neb. Rev. Stat. § 59-1601 et seq. (On Behalf of the Nebraska State Class) ............................................................................................................................... 243
NEBRASKA COUNT II: Breach of Express Warranty Neb. Rev. St. U.C.C. §§ 2-313 and 2A-210 (On Behalf of the Nebraska State Class) ..................................... 246
NEBRASKA COUNT III: Breach of Implied Warranty of Merchantability Neb. Rev. St. U.C.C. §§ 2-314 and 2A-212 (On Behalf of the Nebraska State Class) ............................................................................................................................... 249
NEVADA COUNT I: Violations of the Nevada Deceptive Trade Practices Act Nev. Rev. Stat. § 598.0903 et seq. (On Behalf of the Nevada State Class) ......................................................................................................................................... 250
NEVADA COUNT II: Breach of Express Warranty N.R.S. §§ 104.2313 and 104A.2210 (On Behalf of the Nevada State Class)......................................................... 252
NEVADA COUNT III: Breach of Implied Warranty of Merchantability N.R.S. §§ 104.2314 and 104A.2212 (On Behalf of the Nevada State Class) ................. 255
NEW HAMPSHIRE COUNT I: Violations of the New Hampshire Consumer Protection Act N.H. Rev. Stat. § 358-A:1 et seq. (On Behalf of the New Hampshire State Class) ........................................................................................... 256
NEW HAMPSHIRE COUNT II: Breach of Express Warranty N.H. Rev. Stat. §§ 382-A:2-313 and 382-A:2A-210 (On Behalf of the New Hampshire State Class) ...................................................................................................................... 259
NEW HAMPSHIRE COUNT III: Breach of Implied Warranty of Merchantability N.H. Rev. Stat. §§ 382-A:2-314 and 382-A:2A-212 (On Behalf of the New Hampshire State Class) ..................................................................... 262
NEW JERSEY COUNT I: Violations of the New Jersey Consumer Fraud Act N.J. Stat. Ann. § 56:8-1 et seq. (On Behalf of the New Jersey State Class) ............................................................................................................................... 263
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1831887.1 - ix - AUDI CO2 AMENDED CONSOLIDATED
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NEW JERSEY COUNT II: Breach of Express Warranty N.J.S. 12A:2-313 and 2A-210 (On Behalf of the New Jersey State Class) ................................................. 265
NEW JERSEY COUNT III: Breach of Implied Warranty of Merchantability N.J.S. 12A:2-314 and 2A-212 (On Behalf of the New Jersey State Class) .................... 268
NEW MEXICO COUNT I: Violations of the New Mexico Unfair Trade Practices Act N.M. Stat. Ann. § 57-12-1 et seq. (On Behalf of the New Mexico State Class)......................................................................................................... 269
NEW MEXICO COUNT II: Breach of Express Warranty N.M. Stat. §§ 55-2-313 and 55-2A-210 (On Behalf of the New Mexico State Class) .......................... 272
NEW MEXICO COUNT III: Breach of Implied Warranty of Merchantability N.M. Stat. §§ 55-2-314 and 55-2A-212 (On Behalf of the New Mexico State Class) ................................................................................................ 275
NEW YORK COUNT I: Violations of the New York General Business Law § 349 N.Y. Gen. Bus. Law § 349 (On Behalf of the New York State Class) ................. 276
NEW YORK COUNT II: Violations of the New York General Business Law § 350 N.Y. Gen. Bus. Law § 350 (On Behalf of the New York State Class) ............................................................................................................................... 278
NEW YORK COUNT III: Breach of Express Warranty N.Y. U.C.C. Law §§ 2-313 and 2A-210 (On Behalf of the New York State Class)......................................... 280
NEW YORK COUNT IV: Breach of Implied Warranty of Merchantability N.Y. U.C.C. Law §§ 2-314 and 2A-212 (On Behalf of the New York State Class) ............................................................................................................................... 283
NORTH CAROLINA COUNT I: Violations of the North Carolina Unfair and Deceptive Acts and Practices Act N.C. Gen. Stat. § 75-1.1 et seq. (On Behalf of the North Carolina State Class) ....................................................................... 284
NORTH CAROLINA COUNT II: Breach of Express Warranty N.C.G.S.A. §§ 25-2-313 and 252A-210 (On Behalf of the North Carolina State Class) ................... 286
NORTH CAROLINA COUNT III: Breach of Implied Warranty of Merchantability N.C.G.S.A. §§ 25-2-314 and 252A-212 (On Behalf of the North Carolina State Class) ............................................................................................. 290
NORTH DAKOTA COUNT I: Violations of the North Dakota Consumer Fraud Act N.D. Cent. Code § 51-15-02 (On Behalf of the North Dakota State Class) ............................................................................................................................... 291
NORTH DAKOTA COUNT II: Breach of Express Warranty N.D. Cent. Code §§ 41-02-30 and 41-02.1-19 (On Behalf of the North Dakota State Class) ............................................................................................................................... 293
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NORTH DAKOTA COUNT III: Breach of Implied Warranty of Merchantability N.D. Cent. Code §§ 41-02-31 and 41-02.1-21 (On Behalf of the North Dakota State Class) ......................................................................................... 297
OHIO COUNT I: Violations of the Ohio Consumer Sales Practices Act Ohio Rev. Code § 1345.01 et seq. (On Behalf of the Ohio State Class).................................. 298
OHIO COUNT II: Violations of the Ohio Deceptive Trade Practices Act Ohio Rev. Code § 4165.01 et seq. (On Behalf of the Ohio State Class)......................... 301
OHIO COUNT III: Breach of Express Warranty Ohio. Rev. Code § 1302.26, et seq. / U.C.C. § 2-313 (On Behalf of the Ohio State Class) ......................................... 303
OHIO COUNT IV: Breach of Implied Warranty of Merchantability Ohio Rev. Code Ann. §§ 1302.27 and 1310.19 (On Behalf of the Ohio State Class) ......................................................................................................................................... 306
OKLAHOMA COUNT I: Violations of the Oklahoma Consumer Protection Act Okla. Stat. Tit. 15 § 751 et seq. (On Behalf of the Oklahoma State Class) ......................................................................................................................................... 307
OKLAHOMA COUNT II: Breach of Express Warranty Okla. Stat. Tit. 12 §§ 2-313 and 2A-210 (On Behalf of the Oklahoma State Class) .................................... 310
OKLAHOMA COUNT III: Breach of Implied Warranty of Merchantability Okla. Stat. Tit. 12A §§ 2-314 and 2A-212 (On Behalf of the Oklahoma State Class) ............................................................................................................................... 313
OREGON COUNT I: Violations of the Oregon Unlawful Trade Practices Act Or. Rev. Stat. § 646.605, et seq. (On Behalf of the Oregon State Class) ................. 314
OREGON COUNT II: Breach of Express Warranty Or. Rev. Stat. §§ 72.3130 and 72A.2100 (On Behalf of the Oregon State Class) ...................................... 316
OREGON COUNT III: Breach of Implied Warranty of Merchantability Or. Rev. Stat. §§ 72.3140 and 72A.2120 (On Behalf of the Oregon State Class) ................ 319
PENNSYLVANIA COUNT I: Violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law 73 P.S. § 201-1 et seq. (On Behalf of the Pennsylvania State Class) ..................................................................................... 320
PENNSYLVANIA COUNT II: Breach of Express Warranty 13. Pa. Cons. Stat. §§ 2313 and 2A210 (On Behalf of the Pennsylvania State Class) ......................... 322
PENNSYLVANIA COUNT III: Breach of Implied Warranty of Merchantability 13. Pa. Cons. Stat. §§ 2314 and 2A212 (On Behalf of the Pennsylvania State Class) ............................................................................................... 325
RHODE ISLAND COUNT I: Violations of the Rhode Island Deceptive Trade Practices and Consumer Protection Law R.I. Gen. Laws § 6-13.1 et seq. (On Behalf of the Rhode Island State Class) ........................................................... 326
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RHODE ISLAND COUNT II: Breach of Express Warranty 6A R.I. Gen. Laws §§ 6A-2-313 and 6A-2.1-210 (On Behalf of the Rhode Island State Class) ............................................................................................................................... 329
RHODE ISLAND COUNT III: Breach of Implied Warranty of Merchantability 6A R.I. Gen. Laws §§ 6A-2-314 and 6A-2.1-212 (On Behalf of the Rhode Island State Class) .......................................................................... 332
SOUTH CAROLINA COUNT I: Violations of the South Carolina Unfair Trade Practices Act S.C. Code Ann. § 39-5-10 et seq. (On Behalf of the South Carolina State Class) ............................................................................................. 333
SOUTH CAROLINA COUNT II: Violations of the South Carolina Regulation of Manufacturers, Distributors, & Dealers Act S.C. Code Ann. § 56-15-10 et seq. (On Behalf of the South Carolina State Class) ..................................... 335
SOUTH CAROLINA COUNT III: Breach of Express Warranty S.C. Code §§ 36-2-313 and 36-2A-210 (On Behalf of the South Carolina State Class).................. 337
SOUTH CAROLINA COUNT IV: Breach of Implied Warranty of Merchantability S.C. Code §§ 36-2-314 and 36-2A-212 (On Behalf of the South Carolina State Class) ............................................................................................. 340
SOUTH DAKOTA COUNT I: Violations of the South Dakota Deceptive Trade Practices and Consumer Protection Law S.D. Codified Laws § 37-24-6 (On Behalf of the South Dakota State Class) .................................................... 341
SOUTH DAKOTA COUNT II: Breach of Express Warranty S.D. Codified Laws §§ 57A-2-313 and 57-2A-210 (On Behalf of the South Dakota State Class) ............................................................................................................................... 343
SOUTH DAKOTA COUNT III: Breach of Implied Warranty of Merchantability S.D. Codified Laws §§ 57A-2-314 and 57-2A-212 (On Behalf of the South Dakota State Class) ......................................................................... 346
TENNESSEE COUNT I: Violations of the Tennessee Consumer Protection Act Tenn. Code Ann. § 47-18-101 et seq. (On Behalf of the Tennessee State Class) ............................................................................................................................... 347
TENNESSEE COUNT II: Breach of Express Warranty Tenn. Code Ann. §§ 47-2-313 and 47-2A-210 (On Behalf of the Tennessee State Class) .............................. 350
TENNESSEE COUNT III: Breach of Implied Warranty of Merchantability Tenn. Code Ann. §§ 47-2-314 and 47-2A-212 (On Behalf of the Tennessee State Class) ...................................................................................................................... 353
TEXAS COUNT I: Violations of the Deceptive Trade Practices Act Tex. Bus. & Com. Code § 17.41 et seq. (On Behalf of the Texas State Class) ...................... 354
TEXAS COUNT II: Breach of Express Warranty Tex. Bus. & Com. Code §§ 2.313 and 2A.210 (On Behalf of the Texas State Class) ........................................... 357
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TEXAS COUNT III: Breach of Implied Warranty of Merchantability Tex. Bus. & Com. Code §§ 2.314 and 2A.212 (On Behalf of the Texas State Class) ............................................................................................................................... 360
UTAH COUNT I: Violations of the Utah Consumer Sales Practices Act Utah Code Ann. § 13-11-1 et seq. (On Behalf of the Utah State Class) ......................... 361
UTAH COUNT II: Breach of Express Warranty Utah Code §§ 70A-2-313 and 70-2A-210 (On Behalf of the Utah State Class)....................................................... 363
UTAH COUNT III: Breach of Implied Warranty of Merchantability Utah Code §§ 70A-2-314 and 70-2A-212 (On Behalf of the Utah State Class)...................... 366
VERMONT COUNT I: Violations of the Vermont Consumer Fraud Act Vt. Stat. Ann. Tit. 9, § 2451 et seq. (On Behalf of the Vermont State Class) ...................... 367
VERMONT COUNT II: Vermont Lemon Law Vt. Stat. Tit. 9, § 4170 et seq. (On Behalf of the Vermont State Class) ......................................................................... 370
VERMONT COUNT III: Breach of Express Warranty Vt. Stat. Tit. 9, §§ 2-313 and 2A-210 (On Behalf of the Vermont State Class) ........................................... 371
VERMONT COUNT IV: Breach of Implied Warranty of Merchantability Vt. Stat. Tit. 9, §§ 2-314 and 2A-212 (On Behalf of the Vermont State Class) ......................................................................................................................................... 374
VIRGINIA COUNT I: Violations of the Virginia Consumer Protection Act Va. Code Ann. § 59.1-196 et seq. (On Behalf of the Virginia State Class) .................... 375
VIRGINIA COUNT II: Breach of Express Warranty Va. Code §§ 8.2-313 and 8.2A-210 (On Behalf of the Virginia State Class) ................................................... 377
VIRGINIA COUNT III: Breach of Implied Warranty of Merchantability Va. Code §§ 8.2-314 and 8.2A-212 (On Behalf of the Virginia State Class)........................ 381
WASHINGTON STATE COUNT I: Violations of the Washington Consumer Protection Act Wash. Rev. Code Ann. § 19.86.010 et seq. (On Behalf of the Washington State Class)............................................................................ 382
WASHINGTON STATE COUNT II: Washington Lemon Law Wash. Rev. Code § 19.118.005 et seq. (On Behalf of the Washington State Class) .......................... 384
WASHINGTON STATE COUNT III: Breach of Express Warranty Wash Rev. Code §§ 62A.2-313 and 62A.2A-210 (On Behalf of the Washington State Class) ...................................................................................................................... 386
WASHINGTON STATE COUNT IV: Breach of Implied Warranty of Merchantability Wash Rev. Code §§ 62A.2-314 and 62A.2A-212 (On Behalf of the Washington State Class)............................................................................ 389
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WEST VIRGINIA COUNT I: Violations of the West Virginia Consumer Credit and Protection Act W. Va. Code § 46A-1-101 et seq. (On Behalf of the West Virginia State Class) ........................................................................................ 390
WEST VIRGINIA COUNT II: West Virginia Lemon Law W. Va. Code § 46A-6A-1 et seq. (On Behalf of the West Virginia State Class) .................................... 392
WEST VIRGINIA COUNT III: Breach of Express Warranty W. Va. Code §§ 46-2-313 and 46-2A-210 (On Behalf of the West Virginia State Class) ................... 395
WEST VIRGINIA COUNT IV: Breach of Implied Warranty of Merchantability W. Va. Code §§ 46-2-314 and 46-2A-212 (On Behalf of the West Virginia State Class) .............................................................................................. 398
WISCONSIN COUNT I: Violations of the Wisconsin Deceptive Trade Practices Act Wis. Stat. § 100.18 et seq. (On Behalf of the Wisconsin State Class) ............................................................................................................................... 399
WISCONSIN COUNT II: Breach of Express Warranty Wis. Stat. §§ 402.313 and 411.210 (On Behalf of the Wisconsin State Class) .................................... 402
WISCONSIN COUNT III: Breach of Implied Warranty of Merchantability Wis. Stat. §§ 402.314 and 411.212 (On Behalf of the Wisconsin State Class) ......................................................................................................................................... 405
WYOMING COUNT I: Violations of the Wyoming Consumer Protection Act, Wyo. Stat. § 40-12-101, et seq. (On Behalf of the Wyoming State Class) ......................................................................................................................................... 406
WYOMING COUNT II: Breach of Express Warranty Wyo. Stat. §§ 34.1-2-313 and 34.1-.2A-210 (On Behalf of the Wyoming State Class) ........................ 409
WYOMING COUNT III: Breach of Implied Warranty of Merchantability Wyo. Stat. §§ 34.1-2-314 and 34.1-.2A-212 (On Behalf of the Wyoming State Class) ...................................................................................................................... 412
II. REQUEST FOR RELIEF ............................................................................................... 413
III. DEMAND FOR JURY TRIAL ....................................................................................... 414
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CLASS ACTION COMPLAINT
MDL 2672 CRB (JSC)
I. INTRODUCTION
Plaintiffs Nancy Aynehchi, Scott Diogenes, Cleveland Kelly, Themistoklis Kolitsas, John
Perches, and Melvin Thornton individually and on behalf of all others similarly situated (the
“Class”), allege the following against Audi AG, Audi of America, LLC (together, “Audi”),
Volkswagen Group of America, Inc., Volkswagen AG (together, “Volkswagen”), Dr. Ing. H.c. F.
Porsche AG, Porsche Cars North America, Inc. (together, “Porsche”), Bentley Motors Limited, and
Bentley Motors, Inc. (together, “Bentley”) (Audi, Volkswagen, Porsche, and Bentley are
collectively “Defendants”) based, where applicable, on personal knowledge, information and
belief, and the investigation of counsel.
II. NATURE OF THE ACTION
1. This case involves a scheme in which Defendants installed software programs that
operate primarily during testing, but not during on-road driving, in approximately 100,000 gasoline
powered Audi, Bentley, Porsche, and Volkswagen vehicles sold or leased in the United States.
2. Plaintiffs began investigating the facts alleged herein after an article published in the
German newspaper Bild am Sonntag (“Bild”) on November 5, 2016 reported that the California Air
Resources Board (“CARB”) discovered an emissions cheating device in gasoline powered Audi
models equipped with a particular 8-speed automatic transmission, the AL 551-8Q.1 The Bild
article claimed that software in these vehicles operates to reduce carbon dioxide (CO2) emissions to
legal levels only during emissions testing cycles, and results in increased emissions (and decreased
fuel economy) during on-road driving.
3. Following the Bild report, Plaintiffs and their experts conducted extensive further
investigation and technical vehicle testing to detect discrepancies in emissions and fuel economy
performance between lab and normal driving conditions. As Plaintiffs’ investigations have borne
out, the AL 551-8Q was merely one of many transmissions Defendants used in their vehicles along
with a software program that is primarily active in testing but not in real world driving, thus
1 The transmission described in the Bild report is the 8HP55 eight-speed automatic manufactured
by Zahnradfabrik Friedrichshafen Aktiengesellschaft (“ZF AG” or “ZF Friedrichshafen”), which was installed on certain Audi passenger cars including the A8 and A8L, and referred to by Audi as the AL 551-8Q.
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impacting the emissions and fuel economy in each setting. As used in this Complaint, this software
is referred to as the “Warm-up Program,” the “Program,” or “Low-Rev Mode.”
4. The Class Vehicles at issue in this Complaint—which were identified after
significant expert testing and discovery—include approximately 100,000 gasoline-powered
vehicles that, as a result of the Warm-up Program, emit more CO2 and achieve worse fuel economy
on the road than what was disclosed to regulators and represented to consumers who purchased or
leased them. The Class Vehicles are listed in the table below.
Make Model Engine Capacity
(liters) Transmission Model Year
Audi A8L 4.0L AL551-8Q 2015
Audi A8L 6.3L AL551-8Q 2013
Audi A8L 6.3L AL551-8Q 2014
Audi A8L 6.3L AL551-8Q 2015
Audi A8L 6.3L AL551-8Q 2016
Audi RS7 4.0L AL551-8Q 2014
Audi RS7 4.0L AL551-8Q 2015
Audi RS7 4.0L AL551-8Q 2016
Audi S8 4.0L AL551-8Q 2013
Audi S8 4.0L AL551-8Q 2014
Audi S8 4.0L AL551-8Q 2015
Audi S8 4.0L AL551-8Q 2016
Bentley Continental GT 4.0L AL951-8Q 2013
Bentley Continental GT 4.0L AL951-8Q 2014
Bentley Continental GT 4.0L AL951-8Q 2015
Bentley Continental GT 4.0L AL951-8Q 2016
Bentley Continental GT 4.0L AL951-8Q 2017
Bentley Continental GTC 4.0L AL951-8Q 2013
Bentley Continental GTC 4.0L AL951-8Q 2014
Bentley Continental GT Convertible 4.0L AL951-8Q 2015
Bentley Continental GT Convertible 4.0L AL951-8Q 2016
Bentley Continental GT Convertible 4.0L AL951-8Q 2017
Bentley Flying Spur 4.0L AL951-8Q 2015
Bentley Flying Spur 4.0L AL951-8Q 2016
Bentley Flying Spur 6.0L AL951-8Q 2014
Bentley Flying Spur 6.0L AL951-8Q 2015
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Make Model Engine Capacity
(liters) Transmission Model Year
Bentley Flying Spur 6.0L AL951-8Q 2016
Porsche Cayenne 3.6L AL1000-8A 2013
Porsche Cayenne 3.6L AL1000-8A 2014
Porsche Cayenne 3.6L AL1000-8A 2016
Porsche Cayenne GTS 3.6L AL1000-8A 2016
Porsche Cayenne GTS 4.8L AL1000-8A 2013
Porsche Cayenne GTS 4.8L AL1000-8A 2014
Porsche Cayenne S 3.6L AL1000-8A 2015
Porsche Cayenne S 3.6L AL1000-8A 2016
Porsche Cayenne S 4.8L AL1000-8A 2013
Porsche Cayenne S 4.8L AL1000-8A 2014
Porsche Cayenne Turbo 4.8L AL1000-8A 2013
Porsche Cayenne Turbo 4.8L AL1000-8A 2014
Porsche Cayenne Turbo S 4.8L AL1000-8A 2014
Porsche Cayenne Turbo S 4.8L AL1000-8A 2016
Volkswagen Tiguan 4MOTION 2.0L AQ450-6A 2017
Volkswagen Touareg 3.6L AL1000-8A 2013
Volkswagen Touareg 3.6L AL1000-8A 2014
5. In each of these Class Vehicles, the Warm-up Program alters the points at which the
transmission shifts between gears and results in increased CO2 emissions and decreased fuel
economy. The Program is embedded in the Vehicles’ Transmission Control Unit (“TCU”), which
was supplied to Defendants by the non-party suppliers and co-conspirators identified and defined
further below. The TCU’s primary function is to regulate shifting between gears by reacting to
various inputs from sensors monitoring, for example, coolant temperature, exhaust temperature,
ignition timing, crankshaft and camshaft positioning, fuel mixture and air flow volumes.
6. The Class Vehicles operate with the Warm-up Program either “active” or
“inactive.” When the Program is active, the transmission changes gears at lower engine speeds
(measured in rotations per minute or “RPMs”) than when it is inactive. Shifting between gears at
lower engine speeds (when the Program is active) keeps the average engine speed low, thus burning
less fuel and emitting less carbon dioxide. Conversely, when the Program is inactive (i.e., in
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regular driving), the Class Vehicles shift gears at higher RPMs, resulting in higher carbon dioxide
emissions and reduced fuel economy.
7. In each Class Vehicle, the Warm-up Program software is calibrated to activate when
it encounters certain “entry conditions” and de-activate under certain “exit conditions.” In the AL
551-8Q, for example, the Warm-up Program activates immediately after a key-start (when the
vehicle’s ignition is turned on) and remains on until the steering wheel is turned 15 degrees or more
(which does not occur during emissions testing). After a wheel turn, as occurs in real-world
driving, the transmission switches to a “normal” mode (i.e., with Warm-up Program off) in which it
shifts at higher RPMs, uses more gas, and emits more carbon dioxide.
8. As with the AL 551-8Q, the Warm-up Program in each Class Vehicle is active for at
least some portion of standard emissions testing procedures and mostly inactive during on-road
driving. This is so because the “exit conditions” that render the Program inactive (like turning the
steering wheel) are encountered in everyday driving conditions, but not during emissions testing.
9. While each of the Class Vehicles and transmissions at issue in this case is
programmed with the Warm-up Program, the Program calibrations vary across the different Class
Vehicle models (i.e., the Program is activated and de-activated by somewhat different conditions in
different Class Vehicles). For example, in the AL 551-8Q, manufactured by non-party
co-conspirator ZF, the “exit condition”—which renders the Warm-up Program inactive—is
triggered by the angle of the steering wheel. The AL 951-8Q is also manufactured by ZF, and its
Warm-up Program operates similarly. When ignition is turned on, the transmission will use the
Warm-up Program unless and until a steering angle exit condition is met.
10. For Class Vehicles with the AL 1000-8A transmission, different parameters trigger
the active and inactive status for the Warm-up Program, but with a similar result. In these vehicles,
the Program is active after every key-start ignition, and then turns off when prompted by exit
conditions including lateral and longitudinal acceleration, two parameters likely to be triggered
during on-road driving, and not on a dynamometer test.
11. For affected vehicles with the AQ 450-6A transmission, the vehicles enter the
Warm-up Program once the ignition is turned on and if the temperature of ATF is lower than a
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specific value (again, this occurs in virtually all testing situations). The Warm-up Program
deactivates when certain exit conditions, such as lateral acceleration, are met.
12. Regardless of the specific calibrations in each of the Class Vehicles, the outcomes
are the same: the Warm-up Program resulted in better fuel economy and lower emissions in the
testing environment, and worse fuel economy and higher emissions on the road.
13. Fuel economy is an important factor in consumers’ decisions to purchase or lease a
vehicle. Fuel economy ratings are conveyed to consumers through “Monroney” stickers
prominently displayed in the window of every new vehicle, through advertisements and other
media, and governmental resources, among other sources.
14. Significant expert testing and discovery have demonstrated the following
differences between the fuel economy of the Class Vehicles as represented to Class Members and
as tested later tested with Warm-up Program manually de-activated:
Make Model
Engine
Capacity
(liters)
Model
Year
Decrease in
Combined
MPG
Decrease
in City
MPG
Decrease in
Highway
MPG
Audi A8L 4.0L 2015 1 0 0
Audi A8L 6.3L 2013 1 0 1
Audi A8L 6.3L 2014 1 0 1
Audi A8L 6.3L 2015 1 1 0
Audi A8L 6.3L 2016 1 1 0
Audi RS7 4.0L 2014 0 1 0
Audi RS7 4.0L 2015 0 1 0
Audi RS7 4.0L 2016 0 1 0
Audi S8 4.0L 2013 1 0 0
Audi S8 4.0L 2014 1 0 0
Audi S8 4.0L 2015 0 1 0
Audi S8 4.0L 2016 1 0 0
Bentley Continental
GT 4.0L 2013 0 1 0
Bentley Continental
GT 4.0L 2014 0 1 0
Bentley Continental
GT 4.0L 2015 1 0 0
Bentley Continental
GT 4.0L 2016 1 0 0
Bentley Continental
GT 4.0L 2017 1 0 0
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Make Model
Engine
Capacity
(liters)
Model
Year
Decrease in
Combined
MPG
Decrease
in City
MPG
Decrease in
Highway
MPG
Bentley Continental
GTC 4.0L 2013 0 1 0
Bentley Continental
GTC 4.0L 2014 0 0 1
Bentley Continental
GT Convertible
4.0L 2015 1 1 1
Bentley Continental
GT Convertible
4.0L 2016 1 1 1
Bentley Continental
GT Convertible
4.0L 2017 1 1 1
Bentley Flying Spur 4.0L 2015 0 1 0
Bentley Flying Spur 4.0L 2016 0 1 0
Bentley Flying Spur 6.0L 2014 1 0 0
Bentley Flying Spur 6.0L 2015 1 0 0
Bentley Flying Spur 6.0L 2016 1 0 0
Porsche Cayenne 3.6L 2013 0 1 0
Porsche Cayenne 3.6L 2014 1 0 0
Porsche Cayenne 3.6L 2016 1 2 0
Porsche Cayenne GTS 3.6L 2016 1 0 0
Porsche Cayenne GTS 4.8L 2013 1 1 1
Porsche Cayenne GTS 4.8L 2014 1 1 1
Porsche Cayenne S 3.6L 2015 1 1 0
Porsche Cayenne S 3.6L 2016 1 1 0
Porsche Cayenne S 4.8L 2013 0 1 0
Porsche Cayenne S 4.8L 2014 0 1 0
Porsche Cayenne
Turbo 4.8L 2013 0 1 1
Porsche Cayenne
Turbo 4.8L 2014 0 1 1
Porsche Cayenne Turbo S
4.8L 2014 1 1 0
Porsche Cayenne Turbo S
4.8L 2016 1 0 0
Volkswagen Tiguan
4MOTION 2.0L 2017 0 0 1
Volkswagen Touareg 3.6L 2013 0 1 0
Volkswagen Touareg 3.6L 2014 0 1 0
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15. As shown in the chart above, because the fuel economy values on the Monroney
label are calculated in testing conditions (with the Warm-up Program active), the fuel economy
ratings in consumer-facing resources for the Class Vehicles overstate their real-world fuel
economy. Plaintiffs bring this lawsuit to obtain compensation for the damages they incurred as
result of this discrepancy. Plaintiffs have suffered economic damages because the Class Vehicles
they received are not the vehicles they were promised. Plaintiffs have operated these Vehicles,
some for many years, without obtaining the reported fuel efficiency and while emitting excess
pollutants.
16. The excess emissions are also a serious matter. Carbon dioxide is dangerous. In
2008, Stanford University conducted the first study connecting increased CO2 emissions to deaths.
This study concluded that upward of 20,000 air-pollution-related deaths per year per degree Celsius
may be due to this greenhouse gas. Increased CO2 is also one of the major causes of climate
change. For this reason, increases in CO2 emissions have immediate and deleterious effects on
health and the environment.
17. Plaintiffs thus bring this action against the Defendants under the federal Racketeer
Influenced and Corrupt Organizations Act (18 U.S.C. § 1961 et seq. (“RICO”)) and
Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq. (“MMWA”)), and the warranty and
consumer protection laws of all 50 states and the District of Columbia, seeking monetary damages
and injunctive relief.
III. PARTIES
A. Plaintiffs
18. Plaintiff Nancy Aynehchi (for the purpose of this paragraph, “Plaintiff”), a citizen
of California, residing in Tustin, California, leased a 2016 3.6L Porsche Cayenne (for the purpose
this paragraph, the “Class Vehicle”) on or about May 1, 2016, at Porsche South Bay, in Hawthorne,
California. Plaintiff decided to lease the Class Vehicle based in part on Porsche’s representations
regarding the vehicle’s fuel economy, emissions, and/or performance. At the time of lease,
Plaintiff did not know that the Class Vehicle could perform as advertised only by emitting CO2 and
consuming fuel at levels that are greater than represented. Plaintiff has paid more for fuel during
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her possession of the vehicle than she would have had it achieved the represented fuel economy,
and has been inconvenienced by having to refill the fuel tank more often. Plaintiff has therefore
suffered a concrete injury as a direct and proximate result of Defendants’ misconduct.
19. Plaintiff Scott Diogenes (for the purpose of this paragraph, “Plaintiff”), a citizen of
Massachusetts, residing in Carver, Massachusetts, bought a 2015 4.0L Audi A8L (for the purpose
this paragraph, the “Class Vehicle”) on or about June 14, 2017, at Audi Stratham, in Stratham, New
Hampshire. Plaintiff decided to buy the Class Vehicle based in part on Audi’s representations
regarding the vehicle’s fuel economy, emissions, and/or performance. At the time of purchase,
Plaintiff did not know that the Class Vehicle could perform as advertised only by emitting CO2 and
consuming fuel at levels that are greater than represented. Plaintiff has paid more for fuel during
his ownership of the vehicle than he would have had it achieved the represented fuel economy, and
has been inconvenienced by having to refill the fuel tank more often. Plaintiff has therefore
suffered a concrete injury as a direct and proximate result of Defendants’ misconduct.
20. Plaintiff Cleveland Kelly (for the purpose of this paragraph, “Plaintiff”), a citizen
of North Carolina, residing in Chinquapin, North Carolina, bought a 2016 Porsche Cayenne (for the
purpose this paragraph, the “Class Vehicle”) on or about December 27, 2016 at Leith Porsche, in
Cary, North Carolina. Plaintiff decided to buy the Class Vehicle based in part on Porsche’s
representations regarding the vehicle’s fuel economy, emissions, and/or performance. At the time
of purchase, Plaintiff did not know that the Class Vehicle could perform as advertised only by
emitting CO2 and consuming fuel at levels that are greater than represented. Plaintiff has paid more
for fuel during his ownership of the vehicle than he would have had it achieved the represented fuel
economy, and has been inconvenienced by having to refill the fuel tank more often. Plaintiff has
therefore suffered a concrete injury as a direct and proximate result of Defendants’ misconduct.
21. Plaintiff Themistoklis Kolitsas (for the purpose of this paragraph, “Plaintiff”), a
citizen of Connecticut, residing in Monroe, Connecticut, bought a 2014 4.8L Porsche Cayenne S
(for the purpose this paragraph, the “Class Vehicle”) on or about December 18, 2017, at Autohaus,
Inc., in Naugatuck, Connecticut. Plaintiff decided to buy the Class Vehicle based in part on
Porsche’s representations regarding the vehicle’s fuel economy, emissions, and/or performance.
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At the time of purchase, Plaintiff did not know that the Class Vehicle could perform as advertised
only by emitting CO2 and consuming fuel at levels that are greater than represented. Plaintiff has
paid more for fuel during his ownership of the vehicle than he would have had it achieved the
represented fuel economy, and has been inconvenienced by having to refill the fuel tank more
often. Plaintiff has therefore suffered a concrete injury as a direct and proximate result of
Defendants’ misconduct.
22. Plaintiff John Perches (for the purpose of this paragraph, “Plaintiff”), a citizen of
Texas, residing in Richmond, Texas, bought a 2015 3.6L Porsche Cayenne (for the purpose this
paragraph, the “Class Vehicle”) on or about November 23, 2018, at Continental Autosports, in
Hinsdale, Illinois. Plaintiff decided to buy the Class Vehicle based in part on Porsche’s
representations regarding the vehicle’s fuel economy, emissions, and/or performance. At the time
of purchase, Plaintiff did not know that the Class Vehicle could perform as advertised only by
emitting CO2 and consuming fuel at levels that are greater than represented. Plaintiff has paid more
for fuel during his ownership of the vehicle than he would have had it achieved the represented fuel
economy, and has been inconvenienced by having to refill the fuel tank more often. Plaintiff has
therefore suffered a concrete injury as a direct and proximate result of Defendants’ misconduct.
23. Plaintiff Melvin Thornton (for the purpose of this paragraph, “Plaintiff”), a citizen
of California, residing in San Bruno, California, bought a 2014 4.8L Porsche Cayenne GTS (for the
purpose this paragraph, the “Class Vehicle”) on or about April 27, 2015, at Porsche of South Shore,
in Freeport, New York. Plaintiff decided to buy the Class Vehicle based in part on Porsche’s
representations regarding the vehicle’s fuel economy, emissions, and/or performance. At the time
of purchase, Plaintiff did not know that the Class Vehicle could perform as advertised only by
emitting CO2 and consuming fuel at levels that are greater than represented. Plaintiff has paid more
for fuel during his ownership of the vehicle than he would have had it achieved the represented fuel
economy, and has been inconvenienced by having to refill the fuel tank more often. Plaintiff has
therefore suffered a concrete injury as a direct and proximate result of Defendants’.
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B. Defendants
24. Audi AG (“Audi AG”) is a German corporation with its principal place of business
in Ingolstadt, Germany. Audi AG is the parent of Audi of America, LLC and a subsidiary of the
Audi Group, which is a wholly-owned subsidiary of VW AG. Audi AG designs, develops,
manufacturers, and sells luxury automobiles.
25. Audi AG engineered, designed, developed, manufactured and installed the
Warm-up Program software at issue in this case on certain of the Class Vehicles and exported these
vehicles with the knowledge and understanding that they would be sold throughout the United
States. Audi AG also reviewed and approved the marketing and advertising campaigns designed to
sell certain of the Class Vehicles.
26. Audi of America, LLC (“Audi America”) is a Delaware limited liability company
with its principal place of business located at 2200 Ferdinand Porsche Drive, Herndon, Virginia
20171. Audi America is a wholly-owned U.S. subsidiary of Audi AG, and it engages in business,
including the advertising, marketing and sale of Audi automobiles, in all 50 states.
27. Volkswagen AG (“VW AG”) is a German corporation with its principal place of
business in Wolfsburg, Germany. VW AG is one of the largest automobile manufacturers in the
world, and is in the business of designing, developing, manufacturing, and selling automobiles.
VW AG is the parent corporation of VW America and Audi AG.
28. VW AG engineered, designed, developed, manufactured, and installed the software
on the Class Vehicles and exported these vehicles with the knowledge and understanding that they
would be sold throughout the United States. On information and belief, VW AG also reviewed and
approved the marketing and advertising campaigns designed to sell the Class Vehicles.
29. Volkswagen Group of America, Inc. (“VW America”) is a New Jersey
corporation with its principal place of business located at 2200 Ferdinand Porsche Drive, Herndon,
Virginia 20171. VW America is a wholly-owned subsidiary of Volkswagen AG, and it engages in
business, including the advertising, marketing and sale of Volkswagen automobiles, in all 50 states.
In 2014 alone, VW America sold 552,729 vehicles from its 1,018 dealer locations in all 50 states.
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30. Dr. Ing. h.c. F. Porsche AG (“Porsche AG”) is a German corporation with its
principal place of business located in Stuttgart, Germany. Porsche AG designs, develops,
manufacturers, and sells luxury automobiles. Porsche AG is a wholly-owned subsidiary of VW
AG.
31. Porsche AG engineered, designed, developed, manufactured, and installed the
software on the Class Vehicles and exported these vehicles with the knowledge and understanding
that they would be sold throughout the United States. On information and belief, Porsche AG also
reviewed and approved the marketing and advertising campaigns designed to sell the
Porsche-branded Class Vehicles.
32. Porsche Cars North America, Inc. (“Porsche America”) is a Delaware
corporation with its principal place of business located at 1 Porsche Drive, Atlanta, Georgia 30354.
Porsche America is a wholly-owned U.S. subsidiary of Porsche AG, and it engages in business,
including the advertising, marketing and sale of Porsche automobiles, in all 50 states.
33. Bentley Motors Limited is a British limited liability company with its principal
place of business located in Crewe, United Kingdom. Bentley Motors Limited designs, engineers,
and manufactures luxury automobiles. Bentley Motors Limited is a wholly-owned subsidiary of
VW AG. Bentley Motors Limited engineered, designed, developed, manufactured, and installed
the software on the Class Vehicles and exported these vehicles with the knowledge and
understanding that they would be sold throughout the United States. On information and belief,
Bentley Motors Limited also reviewed and approved the marketing and advertising campaigns
designed to sell the Bentley-branded Class Vehicles.
34. Bentley Motors, Inc. is a Delaware corporation with its principal place of business
located at 2200 Ferdinand Porsche Drive, Herndon, Virginia 20171. Bentley Motors, Inc. is a
wholly-owned U.S. subsidiary of Bentley Motors Limited, and it engages in the advertising,
marketing and sale of Bentley automobiles in the U.S.
C. Non-Party Participants
35. Although they are not named parties in this case, Defendants worked closely with
their suppliers and other third parties identified herein to ensure that their transmissions installed in
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the Class Vehicles were calibrated with the Warm-up Program that allowed the Defendants to
misrepresent the Class Vehicles’ actual fuel economy and emissions.
36. ZF AG is a German auto part manufacturer specializing in research, development,
and engineering for the automotive industry. ZF AG developed the AL 551-8Q and AL 951-8Q
transmissions which included the Warm-up Program that was calibrated in certain Class Vehicles
in a way that yielded lower emissions and greater fuel economy in a testing environment than on the
road. The AL 551-8Q transmission was used in gasoline vehicles with tiptronic transmissions and
biturbo engines, which were controlled by the Warm-up Program software to shift earlier, and
which consequently affected the vehicle’s fuel consumption and carbon emissions. ZF AG also
worked closely with non-party Robert Bosch GmbH, and held 50% of ZF Lenksysteme GmbH in a
joint venture with Robert Bosch GmbH. On January 30, 2015, Bosch GmbH acquired ZF AG’s
share of ZF Lenksysteme GmbH, which is now known as Robert Bosch Automotive Steering
GmbH.
37. ZF North America, Inc. (“ZF America”) (together with ZG AG, “ZF”) was
established in 1979 in Northville, Michigan, and operates as a subsidiary of ZF. ZF AG boasts that
“North America has become one of ZF’s most important markets; since 2009 alone, ZF has more
than tripled its sales in North America.”2
38. Aisin is a Japanese corporation headquartered in Kariya, Japan, that develops and
produces components and systems for the automotive industry, including engines, drivetrains, body
and chassis, and other main automotive parts for various major OEMs. Aisin developed and
manufactured the AL1000 and AQ450 transmissions and the TCUs installed in certain of the Class
Vehicles, which contained the Warm-up Program software.
39. IAV GmbH is a privately held engineering company that is headquartered in
Berlin, Germany, and is the parent corporation of IAV-Automotive Engineering, Inc. The
company specializes in powertrain, electronic, and vehicle development, and has at least three
2 ZF in North America a Long Tradition,
https://www.zf.com/corporate/en_de/magazine/magazin_artikel_viewpage_22069481.html.
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offices and one subsidiary in the United States. Defendants Audi and Volkswagen are clients of
IAV GmbH, and Volkswagen AG holds a 50% ownership share of IAV GmbH.3
40. IAV Automotive Engineering, Inc. (“IAV-AE”) (together with IAV GmbH,
“IAV”) is a Michigan corporation with its principal place of business in Northville, Michigan.
IAV-AE is a United States subsidiary of IAV GmbH. Defendants Audi and Volkswagen are clients
of IAV-AE.
41. Robert Bosch GmbH (“Bosch GmbH”) is a German multinational engineering
and electronics company headquartered in Gerlingen, Germany. Bosch GmbH is the parent
company of Robert Bosch LLC. Bosch GmbH, directly and/or through its North-American
subsidiary Robert Bosch LLC, designed, manufactured, and supplied the TCMs as well as other
elements of the software for certain Class Vehicles.
42. Robert Bosch LLC (“Bosch LLC”) (collectively with Bosch GmbH, (“Bosch”) is a
Delaware limited liability company with its principal place of business located at 38000 Hills Tech
Drive, Farmington Hills, Michigan 48331. Bosch LLC is a wholly-owned subsidiary of Bosch
GmbH, which wholly owns and controls Bosch LLC. Bosch LLC, directly and/or in conjunction
with its parent Bosch GmbH, designed, manufactured, and supplied the TCMs for certain Class
Vehicles, as well as certain other elements of the software for certain Class Vehicles.
IV. JURISDICTION AND VENUE
43. This Court has jurisdiction over this action pursuant to the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1332(d), because at least one Class member is of diverse citizenship
from one Defendant, there are more than 100 Class members, and the aggregate amount in
controversy exceeds $5 million, exclusive of interest and costs. Subject-matter jurisdiction also
arises under 28 U.S.C. § 1331 based upon the federal RICO claims asserted under 18 U.S.C.
§ 1961, et seq. and the Magnuson-Moss Warranty Act claims asserted under 15 U.S.C. § 2301, et
seq. The Court has personal jurisdiction over Defendants pursuant to 18 U.S.C. §§ 1965(b) and (d),
3 The other entities that own IAV GmbH and their respective shares are as follows: Continental
Automotive GmbH (20%), Freudenberg & Co. KG (10%), Schaeffler Technologies AG & Co. KG (10%), and SABIC Innovative Plastics B.C. (10%).
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and Cal. Code Civ. P. § 410.10, and supplemental jurisdiction over the state-law claims pursuant to
28 U.S.C. § 1367.
44. Venue is proper in this District under 28 U.S.C. § 1391(b) because a substantial part
of the events and/or omissions giving rise to the claims occurred in this District, and because
Defendants have caused harm to Class members residing in this District. Defendants have
marketed, advertised, sold and leased the Class Vehicles from dealers located in this District.
Further, CARB maintains a significant presence in this District through its Bay Area Air Quality
Management District branch. CARB played an important initial role in investigating and,
ultimately, in revealing Defendants’ illegal use of the Warm-up Program.
V. INTRADISTRICT ASSIGNMENT
45. This action is properly assigned to the San Francisco Division of this District
pursuant to N.D. Cal. L.R. 3-2 because a substantial part of the events or omissions giving rise to
Plaintiffs’ claims arose in the counties served by the San Francisco Division. Moreover,
Defendants conduct substantial business in the counties served by this Division, have marketed,
advertised, sold and leased the Class Vehicles in those counties, and have caused harm to Class
members residing in those counties. Finally, the Consolidated Consumer Class Action Complaint
in this action—which is being amended by this Amended Consolidated Consumer Class Action
Complaint—was filed as an original action in this District and as the Consolidated Consumer Class
Action in the MDL No. 2672 proceedings, which have been consolidated before Judge Charles R.
Breyer, presiding in the San Francisco Division of this District.
VI. FACTS COMMON TO ALL COUNTS
46. This case concerns a software function in certain gasoline-powered Volkswagen,
Audi, Porsche, and Bentley vehicles that caused customers to achieve worse fuel economy during
on-road driving than was measured and reported in certification testing conditions and represented
to consumers. As noted above, this feature is referred to herein as the “Warm-up Program,”
“Program,” and “Low-Rev Mode.”
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A. The Warm-up Program in Gasoline Vehicles
47. Information and evidence garnered from Plaintiffs’ investigation, expert testing,
documents produced in the MDL, and public sources demonstrate that all of the Class Vehicles
contain a Warm-up Program that results in worse fuel economy in on-road driving than testing
conditions. These differentials in laboratory versus regular driving are further confirmed by the
extensive testing performed by Defendants in response to this lawsuit and regulatory inquiries, the
results of which were extensively evaluated by Plaintiffs’ counsel and their experts.
1. Development of the Warm-up Program
48. All vehicles sold in the United States must meet individual and fleetwide emissions
standards. Fleetwide standards for CO2 emissions and average fuel economy affecting MY
2012-2015 vehicles were implemented in 2011, beginning with 2012 model years, and increased in
stringency through model year 2016.4 New, even more stringent standards went into effect for
model year 2017.5
49. The EPA set CO2 emissions standards for light-duty vehicles under section 202(a) of
the Clean Air Act. Under these standards, by model year 2016, light-duty vehicles were required to
meet an estimated combined average emissions level of 250 grams/mile of CO2. The National
Highway Traffic Safety Administration (“NHTSA”) set fleetwide Corporate Average Fuel
Economy (“CAFE”) standards for passenger cars and light trucks under 49 U.S.C. § 32902.
NHTSA’s standards required manufacturers to meet an estimated combined average fuel economy
level of 34.1 miles per gallon (“MPG”) by model year 2016.
50. Defendants knew that the Class Vehicles had to meet these standards to be sold in
the United States, and were equally aware that fuel consumption (MPG ratings) and emissions are
important factors for consumers choosing a vehicle to purchase or lease. To that end, Defendants
and their non-party co-conspirators developed and installed the Warm-up Program in the Class
Vehicles to feign compliance with these standards and cater to consumer demands. They then
4 https://www.gpo.gov/fdsys/pkg/FR-2010-05-07/pdf/2010-8159.pdf, p.8.
5 http://www.eesi.org/papers/view/fact-sheet-vehicle-efficiency-and-emissions-standards#1.
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misled consumers by representing the Class Vehicles as consuming less fuel and emitting less CO2
and other pollutants than they actually do in normal driving conditions.
51. In some instances, a vehicle’s existing sensors are used in emissions testing to
measure the presence of pollutants and track compliance with EPA and state emissions standards.
To do so, emissions testing stations plug a diagnostic device into the car’s on-board diagnostics
(“OBD II”) port and use the car’s own exhaust sensors to measure the substances emitted. Some
states use a separate probe inserted into the car’s exhaust pipe (instead of or in addition to an OBD
II diagnostic device) to measure the chemicals emitted.
52. In either case, testing is conducted by “driving” the vehicle for a standardized
duration and at standardized engine speeds on a stationary dynamometer, simulating driving on the
road without actually moving the vehicle. One respect in which driving on a dynamometer, akin to
a treadmill, differs significantly from normal operation is that the steering wheel need not (and,
realistically, cannot) be turned more than a few degrees from straight.
53. Each of the Class Vehicles contains a Warm-up Program that, as the program was
calibrated, causes those Vehicles to shift gears early to maintain artificially low engine speed
(RPMs) and emissions on a stationary dynamometer in laboratory testing conditions. The
Warm-up Program works by reducing fuel supply and limiting revolutions per minute (RPMs) per
gear, resulting in higher mpg and lower emissions.
54. The Warm-up Program in the Class Vehicles is housed in a computerized control
system (the “TCU”) that monitors and controls operation of the engine, transmission, and exhaust
systems to ensure their optimal performance. Those systems control functions including
transmission shift points, fuel injection, valve and ignition timing, and operation of the engines’
forced air induction systems such as turbochargers. For example, the engine control computer
ensures that the air-to-fuel mixture is correct based on sensor readings such as throttle position, air
flow, and engine temperature.
55. Defendants’ document production, expert testing, and publicly available
information confirm the existence of the Warm-up Program software in all Class Vehicles.
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56. For example, Audi tested representative vehicles in the “SummerFahrt,” or
“Summer Drive,” in South Africa in February 2013. The final report indicated noticeable shift
quality and other issues at vehicle start. It was in this report that Audi engineer Axel Eiser made his
now-notorious comment that the cycle-optimized “shifting program” was to be set to operate 100%
under testing conditions, and be noticeable only .01% of the time when driven normally.6
57. This Program, active during testing conditions, allowed Defendants to misrepresent
the Class Vehicles’ fuel consumption and emissions. A vehicle’s advertised fuel economy is
typically determined by driving a vehicle over standardized driving patterns (or “drive cycles”), all
of which are performed in a laboratory on a dynamometer where the conditions for all tests can be
controlled. These driving cycles can include cold engine starts, hot engine starts, highway driving,
aggressive and high speed driving, driving with the air conditioner in use under conditions similar
to a hot day in the summer in Los Angeles and driving in cold temperatures.
58. The amount of gasoline used during the tests is divided into the distance driven on
the test to calculate the fuel economy. Data from the relevant drive cycles are combined and
adjusted for “real world” conditions to represent “City” driving and “Highway” driving. The
“combined” fuel economy is the average of the City and Highway values with weights of 55% and
45% respectively. These adjusted and combined values then appear on the vehicle’s Monroney
label, commonly referred to as the “window sticker.”
59. Laboratory testing is used to measure vehicle emissions as well. This process
includes measuring un-combusted or partially combusted gasoline (hydrocarbons or HC), carbon
monoxide (CO), and CO2. The amount of carbon produced is then converted to the amount of
gasoline which was required to produce the carbon in the exhaust. Based on this equation, as the
amount of CO2 produced increases, the gasoline used increases and the fuel economy decreases.
Within this framework, if a Class Vehicle produced less CO2 during laboratory testing, but higher
6 Kayhan Oezgenc and Jan C. Wehmeyer, “This is How Audi Cheated in CO2,” Bild am Sonntag
(November 5, 2016) http://www.bild.de/bild-plus/auto/auto-news/audi/so-schummelte-der-hersteller-bei-co-48621300.bild.html (see also Dkt. 4545-2 for a certified translation).
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CO2 when driven on road, the Monroney sticker would correspondingly represent better estimated
fuel economy than it would actually achieve during every day driving.
60. This is exactly what happened with the Class Vehicles. Testing for the Class
Vehicles occurred in laboratory conditions in which the Warm-up Program is calibrated to be
“active.” As such, the Program was active for at least some portion of the testing used to calculate
the Class Vehicles’ purported fuel economy. In contrast, during every day driving, the engine turns
higher RPMs in each gear, and provides the necessary (and higher) fuel supply required to deliver
advertised torque and performance, while sacrificing on fuel economy and emissions.
2. Authorities First Detect the Warm-up Program
61. In late 2015 or early 2016, German authorities—namely, the German Motor
Transportation Authority (“KBA”)—detected increased CO2 emissions and other irregularities in
certain Audi vehicles and questioned Audi about these results. Newspaper reports indicate that
Audi offered an explanation pointing to a number of factors that could have distorted the
measurement results.7
62. Then, on November 5, 2016, the Bild report first publicly exposed the Warm-up
Program in the AL 551-Q.8 According to reports at that time, “Certain Audi models have been able
to distinguish whether they are on a roller stand or on the road using the so-called steering angle
detection. If the steering wheel is not moved after the start, a shift program activates itself in
automatic gearboxes . . . if the driver turns the steering wheel, this ‘warm-up strategy’ is
deactivated. The vehicle then runs with a different shifting program that uses more fuel and CO2.”9
7 See, e.g., Carsten Rehder, “Examiners Measure Excessive CO2-Values for Many Car Models,”
Bild (November 13, 2016) http://www.bild.de/geld/aktuelles/wirtschaft/pruefer-messen-bei-vielen-automodellen-ueberhoehte-48744426.bild.html; “Ministry of Transportation Examines Accusations Against Audi,” Handelsblatt (November 7, 2016), http://www.handelsblatt.com/politik/deutschland/abgaswertemanipulation-verkehrsministerium-prueft-vorwuerfe-gegen-audi/14804236.html. 8 “CARB Finds New Audi Defect Device, German Paper Digs Up Smoking Gun Document,”
Forbes (November 6, 2016), https://www.forbes.com/sites/bertelschmitt/2016/11/06/carb-finds-new-audi-defeat-device-german-paper-digs-up-smoking-gun-document/#3c3517634d84. 9 “New allegations against Audi in exhaust affair,” Bild (November 7, 2016),
https://www.bild.de/geld/aktuelles/wirtschaft/neue-vorwuerfe-gegen-audi-in-abgasaffaere-486268Footnote continued on next page
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63. Based on these revelations, German authorities renewed their investigations into
CO2 emissions irregularities.10
64. Following the public revelation of the NOx defeat device in the “Clean Diesel”
vehicles in September 2015 by CARB and EPA, Volkswagen also began internal investigations
related to CO2 in its gasoline vehicles. In November 2015, new Volkswagen CEO Matthias Müller
announced that internal investigations had identified potential irregularities in CO2 levels in
hundreds of thousands of Volkswagen Group vehicles.
65. In December 2015, in a statement to investors, Mueller changed course, reporting
that VW had in fact made a mistake and that there was no such scandal. Volkswagen announced
that “[t]he suspicion that fuel consumption figures of current production vehicles had been
unlawfully changed was not confirmed…These cars can be offered for sale by dealers without
any reservations.”11
66. More than half a year later, European officials also questioned Volkswagen about its
vehicle carbon emissions.12
At no point did Defendants inform the public or Class members that
their emissions and fuel efficiency representations for the Class Vehicles were falsely inflated and
misleading.
3. Expert Testing Confirmed the Warm-up Program’s Existence, Prevalence, and Effects.
67. Plaintiffs’ counsel retained numerous technical experts to conduct extensive testing
to measure and compare, among other things, the Class Vehicles’ emissions and fuel economy
under laboratory and on-road driving conditions.
Footnote continued from previous page 48.bild.html. 10
Oezgenc and Wehmeyer, “This is How Audi Cheated in CO2,” supra. 11
Andrew Krok, “Volkswagen says carbon dioxide emissions problem is smaller than feared,” Roadshow by CNET (December 9, 2015), https://www.cnet.com/roadshow/news/volkswagen-drops-carbon-dioxide-issue-uncovers-no-illegal-wrongdoing/ (emphasis added). 12
Gabriele Steinhauser, “EU Still Questions Volkswagen Data on CO2 Emissions, Documents Show,” The Wall Street Journal (June 2, 2016), http://www.wsj.com/articles/eu-still-questions-volkswagen-data-on-co2-emissions-documents-show-1464863775.
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68. Plaintiffs worked with their experts for many months to test several vehicles under
approved federal vehicle testing processes. Specifically, the experts conducted a full set of
certification testing including the Federal Test Procedure (“FTP75”), the Highway Fuel Economy
Test (“HWFET”), and the “US06” test cycle. Testing took place on a four-wheel dynamometer and
followed the certification test procedures set out in 40 C.F.R. § 1065, such as using the approved
fuel formulation for certification tests, documenting vehicle conditioning, driving a pre-test cycle,
and storing a vehicle overnight at approximately 75 degrees Fahrenheit to “reset” before further
testing. These tests were conducted both before and after inputs mimicking real-world driving
conditions, such as adjusting the steering angle (among other conditions examined).
69. Plaintiffs’ experts also conducted on-road emissions testing using portable
emissions measurement systems (“PEMS”) on several vehicles with the AL 551-8Q transmission.
The OBD II port was used to collect vehicle speed and engine data.
70. These tests were conducted and data collected in part to identify changes, if any, in
“shift points” (the point of transition between gears) under testing and non-testing conditions.
Lowering the shift point, for example, reduces average engine RPMs and results in higher fuel
economy. However, this so-called “early shifting” can also negatively impact vehicle
performance.
71. This expert testing has showed that in certain vehicles tested fuel economy was
higher with no steering wheel movement before testing, indicating that steering triggers a switch
between the two modes (active versus inactive Warm-up Program). This consistent increase in fuel
economy across all testing cycles following steering angle movement was no accident, and,
according to Plaintiffs’ experts , could not be explained by normal test-to-test variations.
72. Defendants also conducted thorough testing in response to Plaintiffs’ complaint and
regulatory inquiries. Plaintiffs’ counsel and their experts discussed the testing methodology with
Defendants’ engineers, carefully reviewed Defendants’ testing data, and observed some of the
testing in person, including in two separate visits to Audi’s testing facilities in Ingolstadt, Germany.
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73. For each of the Class Vehicles, these test results confirmed a fuel economy
deviation that would have changed the Combined, City, and/or Highway fuel economy ratings on
the Vehicles’ Monroney labels. The specific deviations are listed in Paragraph II.14, above.
74. Through Plaintiffs’ own testing and their input into and evaluation of the testing
conducted by Defendants, Plaintiffs’ investigation confirmed that each of the Class Vehicles
contains software that serves to reduce CO2 emissions and increase fuel economy for some portion
of dynamometer testing, but not during on-road driving. Consumers, as a result, purchased or
leased Class Vehicles that achieve worse fuel economy on-road than the MPG ratings disclosed
when they were certified and offered for sale.
B. Defendants’ False Advertising Touted Inaccurate Fuel Economy.
75. To many customers, including Plaintiffs, environmental friendliness, fuel economy,
and the range of miles between fuel tank refills are important factors in their decision to purchase or
lease a vehicle. Defendants targeted these preferences in their misleading advertising and other
consumer facing representations about the Class Vehicles.
76. As alleged above, new vehicles include a window or “Monroney” sticker disclosing
the vehicles’ fuel economy. The fuel economy statistics disclosed in Monroney stickers for the
Class Vehicles were false because they were calculated in testing conditions in which the Vehicles
were programmed to maintain better fuel economy than on-road driving.
77. Examples of Monroney labels for some the Class Vehicles are included below:
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78. In addition to the Monroney labels, Defendants advertised for the Class Vehicles
and otherwise supplied consumers with information about them, including incorrect fuel economy
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statistics, on their websites and in brochures. A brochure for the 2014 Bentley GT and GTC serves
as a representative example. It boasts of a new “engine management system, an eight-speed
transmission and careful refinement of the turbocharger” leading to an “improvement of 12% in
fuel economy, with a commensurate increase in tank range.” In this same brochure, the new
eight-speed transmission is credited with helping deliver “lower emissions and better fuel
economy.” Indeed, it continues, “the transmission may also be saving you a diversion to a fuel
station” because it delivers “improved fuel efficiency, with a commensurate reduction in CO2
emissions and increase in tank range.”
79. Other illustrative vehicle brochures include the following—all of which include the
vehicles’ falsely-inflated EPA fuel economy ratings, in addition to the representations included
below:
a. The brochure for the 2016 Bentley Flying Spur which touts its “even greater
fuel efficiency”;
b. The brochure for the 2013 Audi A8, which features the benefits of the
eight-speed transmission in providing “impressive fuel efficiency due to its shift versatility”;
c. The brochure for the 2014 Volkswagen Touareg which boasts about the
vehicle’s “reduced fuel consumption and CO2 emissions”;
d. The brochure for the 2013 Audi A8 which emphasizes “fuel savings you
wouldn’t expect”;
e. The brochure for the 2016 Porsche Cayenne Turbo S that markets the
vehicles “boost[ed] fuel economy”; and
f. The brochure for the 2016 Audi RS7 notes that the new transmission’s
“upper range emphasizes fuel economy.”
80. Apart from their own representations on fuel economy statistics, Defendants also
directed consumers to government-regulated resources featuring the same fuel economy data as the
Monroney label—such as www.fueleconomy.gov—by including the information directly in their
brochures. Brochures for the 2013-2015 Audi A8, for example, direct consumers to visit that
website for more information on those vehicles’ fuel economy.
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81. The Defendants also launched a “Think Blue” program, which they explained is part
of their policy of being “more responsible on the road and more environmentally conscious—not
just in our cars.” Volkswagen advertised their Think Blue Collection as “eco-conscious” on its
Facebook webpage in or about April 2014, using the image below:
82. As described throughout this complaint, however, Defendants’ representations
about the Class Vehicle’s fuel economy were false and misleading.
C. Defendants Concealed the Class Vehicles’ Excessive CO2 Emissions.
83. In the autumn of 2015, after the diesel Defeat Device scandal came to light,
Volkswagen’s then-CEO, Martin Winterkorn, said in a statement that he was “deeply sorry that we
have broken the trust of our customers and the public,” and that Defendants would be suspending
sales of some 2015 and 2016 vehicles with diesel engines.
84. Defendants continued to sell gasoline vehicles equipped with the Warm-up Program
long after Winterkorn’s statement.
85. Defendants manufactured, marketed, and sold the Class Vehicles equipped with a
Warm-up Program that concealed the true emissions fuel economy of the Class Vehicles, thus
defrauding their customers and engaging in unfair competition under state and federal laws.
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86. Plaintiffs’ investigation shows that this was no accident: Defendants knew the
software’s effects on vehicle performance. Audi, for example, commissioned its own study which
found that for the Audi A8 with 6.3 liter engine, fuel consumption on the road increased by 8.5
percent after the wheel was turned.13
87. Indeed, Bild further reported that in February 2013, during the testing phase for
these Audi vehicles, Audi’s then-head of powertrain development, Axel Eiser, asked when the
“cycle-optimized shift program” would be ready (referring to a program optimized to perform
during an emissions testing cycle), and suggested that the emissions-cheating shift program be
configured so that it “runs at 100% on the roller [emissions test], but only .01% with the customer.”
* * *
88. Defendants’ deceptive actions harmed Plaintiffs and the Class. As a result of
Defendants’ unfair, deceptive, and/or fraudulent business practices, and failure to disclose that the
Class Vehicles utilize the Warm-up Program to artificially inflate fuel economy, owners and/or
lessees of the Class Vehicles have suffered losses in money and/or property. Plaintiffs have
suffered damages as a result their purchases of the Class Vehicles, including but not limited to
payment for additional fuel costs required by the lower fuel economy performance in their
Vehicles.
VII. CLASS ACTION ALLEGATIONS
89. Plaintiffs bring this lawsuit as a class action pursuant to Federal Rules of Civil
Procedure 23(a); (b)(1); (b)(2); (b)(3); and/or (c)(4), on behalf of themselves and all others
similarly situated as members of the following Nationwide Class and State Classes (collectively,
the “Classes”); on their federal and state claims as the purchasers and lessees of the following Class
Vehicles with gasoline engines:
Make Model Engine Capacity
(liters) Model Year
Audi A8L 4.0L 2015
Audi A8L 6.3L 2013
Audi A8L 6.3L 2014
Audi A8L 6.3L 2015
13
Oezgenc and Wehmeyer, “This is How Audi Cheated in CO2,” supra.
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Make Model Engine Capacity
(liters) Model Year
Audi A8L 6.3L 2016
Audi RS7 4.0L 2014
Audi RS7 4.0L 2015
Audi RS7 4.0L 2016
Audi S8 4.0L 2013
Audi S8 4.0L 2014
Audi S8 4.0L 2015
Audi S8 4.0L 2016
Bentley Continental GT 4.0L 2013
Bentley Continental GT 4.0L 2014
Bentley Continental GT 4.0L 2015
Bentley Continental GT 4.0L 2016
Bentley Continental GT 4.0L 2017
Bentley Continental GTC 4.0L 2013
Bentley Continental GTC 4.0L 2014
Bentley Continental GT Convertible 4.0L 2015
Bentley Continental GT Convertible 4.0L 2016
Bentley Continental GT Convertible 4.0L 2017
Bentley Flying Spur 4.0L 2015
Bentley Flying Spur 4.0L 2016
Bentley Flying Spur 6.0L 2014
Bentley Flying Spur 6.0L 2015
Bentley Flying Spur 6.0L 2016
Porsche Cayenne 3.6L 2013
Porsche Cayenne 3.6L 2014
Porsche Cayenne 3.6L 2016
Porsche Cayenne GTS 3.6L 2016
Porsche Cayenne GTS 4.8L 2013
Porsche Cayenne GTS 4.8L 2014
Porsche Cayenne S 3.6L 2015
Porsche Cayenne S 3.6L 2016
Porsche Cayenne S 4.8L 2013
Porsche Cayenne S 4.8L 2014
Porsche Cayenne Turbo 4.8L 2013
Porsche Cayenne Turbo 4.8L 2014
Porsche Cayenne Turbo S 4.8L 2014
Porsche Cayenne Turbo S 4.8L 2016
Volkswagen Tiguan 4MOTION 2.0L 2017
Volkswagen Touareg 3.6L 2013
Volkswagen Touareg 3.6L 2014
90. The proposed Classes are defined as:
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Nationwide Class
All persons and entities in the United States, including its territories, who purchased or leased a Class Vehicle.
Alabama State Class
All persons and entities in the state of Alabama who purchased or leased a Class Vehicle.
Alaska State Class
All persons and entities in the state of Alaska who purchased or leased a Class Vehicle.
Arizona State Class
All persons and entities in the state of Arizona who purchased or leased a Class Vehicle.
Arkansas State Class
All persons and entities in the state of Arkansas who purchased or leased a Class Vehicle.
California State Class
All persons and entities in the state of California who purchased or leased a Class Vehicle.
Colorado State Class
All persons and entities in the state of Colorado who purchased or leased a Class Vehicle.
Connecticut State Class
All persons and entities in the state of Connecticut who purchased or leased a Class Vehicle.
Delaware State Class
All persons and entities in the state of Delaware who purchased or leased a Class Vehicle.
District of Columbia Class
All persons and entities in the District of Columbia who purchased or leased a Class Vehicle.
Florida State Class
All persons and entities in the state of Florida who purchased or leased a Class Vehicle.
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Georgia State Class
All persons and entities in the state of Georgia who purchased or leased a Class Vehicle.
Hawaii State Class
All persons and entities in the state of Hawaii who purchased or leased a Class Vehicle.
Idaho State Class
All persons and entities in the state of Idaho who purchased or leased a Class Vehicle.
Illinois State Class
All persons and entities in the state of Illinois who purchased or leased a Class Vehicle.
Indiana State Class
All persons and entities in the state of Indiana who purchased or leased a Class Vehicle.
Iowa State Class
All persons and entities in the state of Iowa who purchased or leased a Class Vehicle.
Kansas State Class
All persons and entities in the state of Kansas who purchased or leased a Class Vehicle.
Kentucky State Class
All persons and entities in the state of Kentucky who purchased or leased a Class Vehicle.
Louisiana State Class
All persons and entities in the state of Louisiana who purchased or leased a Class Vehicle.
Maine State Class
All persons and entities in the state of Maine who purchased or leased a Class Vehicle.
Maryland State Class
All persons and entities in the state of Maryland who purchased or leased a Class Vehicle.
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Massachusetts State Class
All persons and entities in the state of Massachusetts who purchased or leased a Class Vehicle.
Michigan State Class
All persons and entities in the state of Michigan who purchased or leased a Class Vehicle.
Minnesota State Class
All persons and entities in the state of Minnesota who purchased or leased a Class Vehicle.
Mississippi State Class
All persons and entities in the state of Mississippi who purchased or leased a Class Vehicle.
Missouri State Class
All persons and entities in the state of Missouri who purchased or leased a Class Vehicle.
Montana State Class
All persons and entities in the state of Montana who purchased or leased a Class Vehicle.
Nebraska State Class
All persons and entities in the state of Nebraska who purchased or leased a Class Vehicle.
Nevada State Class
All persons and entities in the state of Nevada who purchased or leased a Class Vehicle.
New Hampshire State Class
All persons and entities in the state of New Hampshire who purchased or leased a Class Vehicle.
New Jersey State Class
All persons and entities in the state of New Jersey who purchased or leased a Class Vehicle.
New Mexico State Class
All persons and entities in the state of New Mexico who purchased or leased a Class Vehicle.
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New York State Class
All persons and entities in the state of New York who purchased or leased a Class Vehicle.
North Carolina State Class
All persons and entities in the state of North Carolina who purchased or leased a Class Vehicle.
North Dakota State Class
All persons and entities in the state of North Dakota who purchased or leased a Class Vehicle.
Ohio State Class
All persons and entities in the state of Ohio who purchased or leased a Class Vehicle.
Oklahoma State Class
All persons and entities in the state of Oklahoma who purchased or leased a Class Vehicle.
Oregon State Class
All persons and entities in the state of Oregon who purchased or leased a Class Vehicle.
Pennsylvania State Class
All persons and entities in the state of Pennsylvania who purchased or leased a Class Vehicle.
Rhode Island State Class
All persons and entities in the state of Rhode Island who purchased or leased a Class Vehicle.
South Carolina State Class
All persons and entities in the state of South Carolina who purchased or leased a Class Vehicle.
South Dakota State Class
All persons and entities in the state of South Dakota who purchased or leased a Class Vehicle.
Tennessee State Class
All persons and entities in the state of Tennessee who purchased or leased a Class Vehicle.
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Texas State Class
All persons and entities in the state of Texas who purchased or leased a Class Vehicle.
Utah State Class
All persons and entities in the state of Utah who purchased or leased a Class Vehicle.
Vermont State Class
All persons and entities in the state of Vermont who purchased or leased a Class Vehicle.
Virginia State Class
All persons and entities in the state of Virginia who purchased or leased a Class Vehicle.
Washington State Class
All persons and entities in the state of Washington who purchased or leased a Class Vehicle.
West Virginia State Class
All persons and entities in the state of West Virginia who purchased or leased a Class Vehicle.
Wisconsin State Class
All persons and entities in the state of Wisconsin who purchased or leased a Class Vehicle.
Wyoming State Class
All persons and entities in the state of Wyoming who purchased or leased a Class Vehicle.
91. Excluded from the Classes are:
a. Defendants’ officers, directors and employees and participants in
Volkswagen’s Internal Lease Program, and/or Porsche Associate Lease Program; Defendants’
affiliates and affiliates’ officers, directors and employees; Defendants' distributors and distributors’
officers, directors and employees; and
b. Judicial officers and their immediate family members and associated court
staff assigned to this case.
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92. Plaintiffs reserve the right to amend the Class definitions if discovery and further
investigation reveal that any Class should be expanded, divided into additional subclasses under
Rule 23(c)(5), or modified in any other way.
93. Certification of Plaintiffs’ claims for class-wide treatment is appropriate because
Plaintiffs can prove the elements of their claims on a class-wide basis using the same evidence as
would be used in individual actions alleging the same claims.
94. This action has been brought and may be properly maintained on behalf of each of
the Classes proposed herein under Federal Rule of Civil Procedure 23 and satisfies the numerosity,
commonality, typicality, adequacy, predominance, and superiority requirements of its provisions.
1. Numerosity: Federal Rule of Civil Procedure 23(a)(1)
95. The members of the Class are so numerous and geographically dispersed that
individual joinder of all Class members is impracticable. Plaintiffs are informed and believe that
there are more than one hundred thousand members of the Class, and at least hundreds of members
in each State Class. The precise number and identities of Nationwide Class and State Class
members may be ascertained from Defendants’ records and motor vehicle regulatory data. Class
members may be notified of the pendency of this action by recognized, Court-approved notice
dissemination methods, which may include U.S. mail, electronic mail, Internet postings, and/or
published notice.
2. Commonality and Predominance: Federal Rule of Civil Procedure 23(a)(2) and 23(b)(3)
96. This action involves common questions of law and fact, which predominate over
any questions affecting individual Class members, including, without limitation:
a. Whether Defendants engaged in the conduct alleged herein;
b. Whether Defendants designed, advertised, marketed, distributed, leased,
sold, or otherwise placed Class Vehicles into the stream of commerce in the United States;
c. Whether the transmission control system in the Class Vehicles contains a
defect in that it does not comply with EPA requirements outside of lab testing conditions;
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d. Whether the transmission control system in the Class Vehicles contains a
Warm-up Program that causes the vehicles to achieve worse fuel economy and emit more CO2
during on-road driving than in testing;
e. Whether the Class Vehicles’ disclosed fuel economy rating was improperly
inflated;
f. Whether Defendants’ conduct violates consumer protection statutes,
warranty laws, and other laws as asserted herein;
g. Whether Plaintiffs and the other Class members are entitled to equitable
relief, including, but not limited to, restitution or injunctive relief; and
h. Whether Plaintiffs and the other Class members are entitled to damages and
other monetary relief and, if so, in what amount.
3. Typicality: Federal Rule of Civil Procedure 23(a)(3)
97. Plaintiffs’ claims are typical of the claims of the Class members whom they seek to
represent under Fed. R. Civ. P. 23(a)(3), because Plaintiffs and each Class member purchased or
leased a Class Vehicle and were comparably injured through Defendants’ wrongful conduct as
described above. Plaintiffs and the other Class members suffered damages as a direct proximate
result of the same wrongful practices by Defendants. Plaintiffs’ claims arise from the same
practices and courses of conduct that give rise to the claims of the other Class members. Plaintiffs’
claims are based upon the same legal theories as the claims of the other Class members.
4. Adequacy: Federal Rule of Civil Procedure 23(a)(4)
98. Plaintiffs will fairly and adequately represent and protect the interests of the Class
members as required by Fed. R. Civ. P. 23(a)(4). Plaintiffs’ interests do not conflict with the
interests of the Class members. Plaintiffs have retained counsel competent and experienced in
complex class action litigation, including vehicle emissions litigation and other consumer
protection litigation. Plaintiffs intend to prosecute this action vigorously. Neither Plaintiffs nor
their counsel have interests that conflict with the interests of the other Class members. Therefore,
the interests of the Class members will be fairly and adequately protected.
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5. Declaratory and Injunctive Relief: Federal Rule of Civil Procedure 23(b)(2)
99. Defendants have acted or refused to act on grounds generally applicable to Plaintiffs
and the other members of the Class, thereby making appropriate final injunctive relief and
declaratory relief, as described below, with respect to the Class as a whole.
6. Superiority: Federal Rule of Civil Procedure 23(b)(3)
100. A class action is superior to any other available means for the fair and efficient
adjudication of this controversy, and no unusual difficulties are likely to be encountered in its
management. The damages or other financial detriment suffered by Plaintiffs and the other Class
members are relatively small compared to the burden and expense that would be required to
individually litigate their claims against Defendants, so it would be impracticable for members of
the Class to individually seek redress for Defendants’ wrongful conduct.
101. Even if Class members could afford individual litigation, the court system could not.
Individualized litigation creates a potential for inconsistent or contradictory judgments, and
increases the delay and expense to all parties and the court system. By contrast, the class action
device presents far fewer management difficulties and provides the benefits of single adjudication,
economy of scale, and comprehensive supervision by a single court.
VIII. ANY APPLICABLE STATUTES OF LIMITATION ARE TOLLED
A. Discovery Rule Tolling
102. For the following reasons, any otherwise-applicable statutes of limitation have been
tolled by the discovery rule with respect to all claims.
103. Through the exercise of reasonable diligence, and within any applicable statutes of
limitation, Plaintiffs and members of the proposed Class could not have discovered that Defendants
were concealing and misrepresenting the Class Vehicles’ true emissions and fuel efficiency levels,
including but not limited to their use of Warm-up Program in their TCU software.
104. Plaintiffs and the other Class members could not have reasonably discovered, and
did not know of facts that would have caused a reasonable person to suspect, that Defendants
intentionally failed to report information within their knowledge to federal and state authorities,
dealerships, or consumers until—at the earliest—November 7, 2016, when published reports
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surfaced for the first time disclosing the existence of the Warm-up Program in certain Audi vehicles
with an AL 551-8Q transmission (but not in any of the other Class Vehicles).
105. Likewise, a reasonable and diligent investigation could not have disclosed that
Defendants had information in their possession about the existence of its sophisticated emissions
and fuel economy deception and that they concealed that information, which was only discovered
by Plaintiffs immediately before this action was filed.
B. Tolling Due to Fraudulent Concealment
106. Throughout the relevant time period, all applicable statutes of limitation have been
tolled by Defendants’ knowing and active fraudulent concealment and denial of the facts alleged in
this Complaint.
107. Upon information and belief, prior to the date of this Complaint, and at least as early
as February 2013, if not earlier, Defendants knew of the Warm-up Program in certain Class
Vehicles, but continued to distribute, sell, and/or lease the Class Vehicles to Plaintiffs and the class
members. In so doing, Defendants concealed and/or failed to notify Plaintiffs and the Class
members about the true nature of the Class Vehicles.
108. Instead of disclosing their deception, or that the emissions and fuel economy from
the Class Vehicles were worse than represented, Defendants falsely represented the Class Vehicles’
true emissions and fuel economy.
109. Any otherwise-applicable statutes of limitation have therefore been tolled by
Defendants’ exclusive knowledge and active concealment of the facts alleged herein.
C. Estoppel
110. Defendants were and are under a continuous duty to disclose to Plaintiffs and Class
members the true character, quality, and nature of the Class Vehicles, including their fuel economy,
emissions systems, and their compliance with applicable federal and state law.
111. Although Defendants had the duty throughout the relevant period to disclose to
Plaintiffs and Class members that they had engaged in the deception described in this Complaint,
Defendants did not actively disclose fuel economy statistics and did not correct their disclosures
with respect to the Class Vehicles, actively concealed the true character, quality, and nature of the
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Class Vehicles, and made misrepresentations about the quality, reliability, characteristics, and/or
performance of the Class Vehicles.
112. Defendants actively concealed the true character, quality, performance, and nature
of the Warm-up Program in the Class Vehicles, and Plaintiffs and the class members reasonably
relied upon Defendants’ knowing and active concealment of these facts.
113. Based on the foregoing, Defendants are estopped from relying on any statutes of
limitations in defense of this action.
IX. CAUSES OF ACTION
A. Claims Asserted on Behalf of the Nationwide Class
NATIONWIDE COUNT I: VIOLATION OF 18 U.S.C. § 1962(C)-(D)
The Racketeer Influenced And Corrupt Organizations Act (“RICO”)
114. Plaintiffs reallege and incorporate by reference each preceding paragraph as though
fully set forth herein.
115. Plaintiffs bring this Count on behalf of the Nationwide Class against all Defendants.
116. Defendants conduct their business—legitimate and illegitimate—through various
affiliates and subsidiaries, each of which is a separate legal entity.
117. At all relevant times, Defendants have been “persons” under 18 U.S.C. § 1961(3)
because they are capable of holding, and do hold, “a legal or beneficial interest in property.”
118. Section 1962(c) makes it “unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity.” 18 U.S.C. § 1962(c).
119. Section 1962(d) makes it unlawful for “any person to conspire to violate” Section
1962(c), among other provisions. See 18 U.S.C. § 1962(d).
120. For many years, Defendants and their non-party RICO co-conspirators aggressively
sought to increase sales of the Class Vehicles (and thereby, the component parts contained therein)
in an effort to bolster their revenues, augment profits, and increase their market share in the United
States.
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121. Faced with increasingly stringent fleetwide emissions and fuel economy
requirements, Defendants misrepresented their vehicles to maintain and increase sales.
Specifically, Defendants and their co-conspirators planned and implemented a fraudulent scheme
and conspiracy to inflate the Class Vehicles’ fuel economy ratings. The illegal scheme was hatched
overseas by VW AG, Audi AG, Porsche AG, and Bentley Limited (collectively, the “Foreign
Volkswagen Defendants”), brought to U.S. shores by and through the vehicles of VW America,
Audi America, Porsche Cars North America, and Bentley Motors, Inc. (collectively, the
“American Volkswagen Defendants”), and executed in conjunction with several non-party
co-conspirators responsible for manufacturing and calibrating component parts, including the
transmissions and TCUs, necessary to effectuate the Warm-up Program RICO Enterprise.
122. In particular, Defendants were employed by or associated with, and conducted or
participated in the affairs of, one or several RICO enterprises (described below and referred to
collectively as the “Warm-up RICO Enterprise”), whose purpose was to misrepresent the Class
Vehicles as consuming less fuel and emitting less CO2 and other pollutants than the actual
performance for each, so as to incentivize sales, increase revenues and minimize losses from the
design, manufacture, distribution and sale of the Class Vehicles and the Warm-up Programs
installed therein. As a direct and proximate result of their fraudulent scheme and common course
of conduct, Defendants were able to extract millions dollars from Plaintiffs and the Class. As
explained in detail below, Defendants’ years-long misconduct violated Sections 1962(c) and (d).
B. Description of the Warm-up RICO Enterprise
123. In an effort to expand its market share in the U.S. and beyond, VW AG, a
publicly-traded German company, formed VW America, a separate New Jersey company, which is
headquartered in Virginia. VW America is not publicly traded and thus has no SEC reporting
obligations, but it does have reporting obligations, protections and responsibilities unique to the
State of New Jersey. VW AG also controls Audi AG which, in turn, formed a separate U.S. subsidy
that is not publicly traded—Audi America—to market and sell the Class Vehicles throughout the
U.S. VW AG also controls Bentley Limited and Porsche AG. At all relevant times, the Foreign
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Volkswagen Defendants maintained tight control over the design, manufacture, and testing of the
Class Vehicles.
124. At all relevant times, Defendants, along with their non-party RICO co-conspirators
and other individuals and entities, including unknown third parties involved in the design,
manufacture, testing, and sale of the Class Vehicles, operated an association-in-fact enterprise,
which was formed for the purpose of misrepresenting the Class Vehicles’ fuel economy and
emissions profiles to increase the sales and profits therefrom throughout the U.S., and through
which they conducted a pattern of racketeering activity under 18 U.S.C. § 1961(4).
125. Alternatively, each of the American Volkswagen Defendants constitutes a single
legal entity “enterprise” within the meaning of 18 U.S.C. § 1961(4), through which Defendants
conducted their pattern of racketeering activity in the U.S. Specifically, VW America is the entity
through which Volkswagen reported results from the EPA-regulated “drive cycles” for the Class
Vehicles’ with inflated fuel efficiency ratings that were then included on the Monroney labels for
the VW and Audi branded Class Vehicles. Porsche Cars North America did the same for the
Porsche-branded vehicles, and Bentley Motors Ltd. reported the falsely inflated results for
Bentley-branded vehicles. And, on information and belief, the Foreign Volkswagen Defendants
used each of the American Volkswagen Defendants to distribute and sell the Class Vehicles
throughout the United States with misleading Monroney labels. The American Volkswagen
Defendants’ separate legal statuses facilitated the fraudulent scheme and provided a hoped-for
shield from liability for Defendants and their co-conspirators.
126. At all relevant times, the Warm-up RICO Enterprise constituted a single
“enterprise” or multiple enterprises within the meaning of 18 U.S.C. § 1961(4), as legal entities, as
well as legal entities associated-in-fact for the common purpose of engaging in Defendants and
their co-conspirators’ profit-making scheme.
127. The association-in-fact Warm-up RICO Enterprise consisted of the entities
described below.
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1. The Named Defendants
128. Each named Defendant is a distinct legal entity, but they all are controlled (directly
or indirectly) by Defendant VW AG.14
129. The Defendants made it their mission to become the dominant automotive
manufacturing conglomerate in the world. At the time they articulated this goal, however,
Volkswagen was struggling to retain its foothold in the U.S. market. The strategy of wooing
customers with premium products was not paying off, and VW America’s costly plant in
Chattanooga, Tennessee was “woefully underutilized.”15
130. In response to these obstacles, VW AG and its leader at the time, Martin
Winterkorn, set in motion an ambitious plan to triple Volkswagen’s sales in the United States.
While the linchpin of this strategy was increasing sales of “diesel-powered cars . . . [and] promising
high mileage and low emissions without sacrificing performance,”16
the strategy also included
expanding its market share in the U.S. through the sale of gasoline vehicles. Audi AG’s CEO,
Rupert Stadler, was tasked with implementing Winterkorn’s lofty growth goals through the sale of
Audi vehicles, including certain of the Class Vehicles.
131. As with diesel vehicle emission standards, the emission standards pertaining to
gasoline vehicles in the U.S. were ratcheting up. Specifically, increasingly stringent standards for
both CO2 emissions and average fuel economy were implemented by the EPA and NHTSA
beginning in 2011.
14
VW AG Brands & Models, http://www.volkswagenag.com/content/vwcorp/content/en/brands_and_products.html; Moving Progress, Volkswagen AG Annual Report 2014, https://web.archive.org/web/20160314113720/http://www.volkswagenag.com/content/vwcorp/info_center/en/publications/2015/03/Y_2014_e.bin.html/binarystorageitem/file/GB+2014_e.pdf. 15
Jens Meiners, “VW Drama: Why Piëch Wants Winterkorn Out—and What the Future May Hold,” Car and Driver (Apr. 16, 2015), https://www.caranddriver.com/news/a15356184/vw-drama-why-piech-wants-winterkorn-out-and-what-the-future-may-hold/. 16
Danny Kim, Aaron Danny Hakim, Aaron Kessler, and Jack Ewing, “As Volkswagen Pushed to Be No. 1, Ambitions Fueled a Scandal,” New York Times (Sept. 26, 2015), https://www.nytimes.com/2015/09/27/business/as-vw-pushed-to-be-no-1-ambitions-fueled-a-scandal.html.
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132. Defendants knew that to sell the Class Vehicles in the U.S., they had to meet these
new standards, and wanted to capitalize on consumer preferences for increased fuel economy.
133. As such, Defendants devised a scheme to misrepresent the Class Vehicles’ true
emissions and fuel economy by incorporating Warm-up Programs into the Class Vehicles’ TCUs
and/or ECUs. Employing this technology, Defendants sold Class Vehicles that had worse fuel
economy during normal operating conditions than they represented to consumers in their window
stickers and other advertising materials.
134. To profit from the scheme and increase their sales according to plan, Defendants did
not disclose the correct fuel economy statistics when marketing the Class Vehicles to consumers.
135. In sum, as part of their effort to become a leading automotive manufacturing
conglomerate, Defendants controlled and directed the Warm-up RICO Enterprise with the common
purpose of evading increasingly stringent emissions requirements and misrepresenting the Class
Vehicles’ actual fuel economy through lies and deception to increase their market shares and
profits, and minimize losses.
2. The Non-Party Co-Conspirators
136. As explained above, although they are not named parties in this case, the Defendants
conspired closely with their suppliers and other third parties within the Warm-up RICO Enterprise
and worked together with them in furtherance of its goals, including the following members of the
Enterprise identified below.
137. ZF—a German auto part manufacturer and its U.S. subsidiary—furthered the
Warm-up RICO Enterprise by supplying the AL 551-8Q and AL 951-8Q transmissions in the Class
Vehicles. ZF participated in developing and calibrating the TCUs regulating the transmissions in
the Class Vehicles to operate with the deceptive Warm-up Program. Ultimately, these
transmissions were controlled by the Warm-up Program software, thus affecting the Class
Vehicles’ actual fuel economy and emissions, and inflating the Vehicles’ reported fuel economy
ratings.
138. Aisin is a Japanese corporation that develops and produces components and systems
for the automotive industry. Like ZF with respect to the transmissions it manufactured for the Class
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Vehicles, Aisin developed and manufactured the AL1000 and AQ450 transmissions in the Class
Vehicles, including their TCUs which contained the Warm-up Program software, and assisted in
calibrating the TCU with the Program.
139. Bosch designed, manufactured and supplied the TCUs through which the Warm-up
Program functioned in many of the Class Vehicles. Bosch participated in calibrating the TCU
through working with the Defendants to develop and implement software algorithms to allow for
the Warm-up Program to take its desired effect in the Class Vehicles: inflating actual fuel economy
and feigning compliance with emissions standards only in the testing environment.
140. IAV is an engineering company that was involved in the development and testing of
the Class Vehicles, including concealment of the Warm-up Program.
141. Each of these non-party RICO co-conspirators worked with the Defendants to
further the common, money-driven goals of the Warm-up RICO Enterprise, took steps to ensure its
success, and reaped the rewards stemming from increased sales and profits from the Class Vehicles.
C. The Warm-up RICO Enterprise Came Together to Increase its Members’ Profits and Revenues
142. The Warm-up RICO Enterprise began by 2013 at the latest, when a final report on
Audi’s vehicle testing from the “SummerFahrt,” or Summer Drive, in South Africa essentially
identified the Warm-up Program as a solution to the increasingly stringent emission and fuel
economy standards by reducing vehicle emissions of CO2 through a change in engine electronics.
As described herein, the Enterprise adopted this approach by installing and calibrating the
Warm-up Program in the Class Vehicles and in their component TCUs for multiple years. The
Enterprise continued towards in profit driven goals, and began to unravel in late 2015 or early 2016,
when German authorities detected irregularities and increased CO2 emissions in certain Audi
vehicles. Thereafter, in the summer of 2016, CARB also reportedly discovered the Warm-up
Program in the Class Vehicles. The prevalence of the Program across the Class Vehicles’ multiple
make and model years was further established by testing conducted by experts for both Plaintiffs
and Defendants.
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143. At all relevant times, the Warm-up RICO Enterprise: (a) had an existence separate
and distinct from each Defendant; (b) was separate and distinct from the pattern of racketeering in
which Defendants engaged; and (c) was an ongoing and continuing organization consisting of legal
entities, including the Defendants and their network of dealerships, and other entities and
individuals associated for the common purpose of designing, manufacturing, distributing, testing,
and selling the Class Vehicles to Plaintiffs and the Nationwide Class through deceptive and
misleading sales tactics and materials, and deriving profits and revenues from those activities.
Each member of the Warm-up RICO Enterprise shared in the bounty generated by the enterprise,
i.e., by sharing the benefit derived from increased sales revenue from Class Vehicles and their
component parts, facilitated by the scheme to defraud Class members nationwide.17
144. The Warm-up RICO Enterprise functioned by selling vehicles and component parts
to the consuming public. Many of these products sold by Defendants and their co-conspirators are
legitimate, including vehicles that do not contain the Warm-up Program. However, Defendants and
their non-party co-conspirators named herein, through their illegal Enterprise, engaged in a pattern
of racketeering activity, which involves a fraudulent scheme to increase revenue for Defendants
and the other entities and individuals associated-in-fact with the Enterprise’s activities through the
illegal scheme to misrepresent and sell the Class Vehicles.
145. The Warm-up RICO Enterprise engaged in, and its activities affected interstate and
foreign commerce, because it involved commercial activities across state boundaries, such as the
marketing, promotion, advertisement and sale or lease of the Class Vehicles throughout the
country, and the receipt of monies from the same.
146. Within the Warm-up RICO Enterprise, there was a common communication
network by which co-conspirators shared information on a regular basis. The Warm-up RICO
Enterprise used this common communication network for the purpose of manufacturing,
marketing, testing, and selling the Class Vehicles to the general public nationwide.
17
The Volkswagen Defendants sold more Class Vehicles through representing the Vehicles to have greater fuel efficiency than their actual performance.
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147. Each participant in the Warm-up RICO Enterprise had a systematic linkage to each
other through corporate ties, contractual relationships, financial ties, and continuing coordination
of activities. Through the Warm-up RICO Enterprise, Defendants and their non-party RICO
co-conspirators functioned as a continuing unit with the purpose of furthering the illegal scheme
and their common purposes of increasing their revenues and market share, and minimizing losses.
148. Defendants participated in the operation and management of the Warm-up RICO
Enterprise by directing its affairs, as described herein. While Defendants participated in, and are
members of, the Enterprise, they have a separate existence from the enterprise, including distinct
legal statuses, different offices and roles, bank accounts, officers, directors, employees, individual
personhood, reporting requirements, and financial statements.
149. Defendants exerted substantial control over the Warm-up RICO Enterprise, and
participated in the affairs of the Warm-up RICO Enterprise by, among other things:
a. designing and calibrating the Class Vehicles with Warm-up Programs;
b. manufacturing, distributing, and selling the Class Vehicles that had worse
fuel economy than represented;
c. misrepresenting and omitting (or causing such misrepresentations and
omissions to be made) vehicle specifications resulting from “drive cycle” testing for the fuel
economy ratings included on Monroney labels;
d. introducing the Class Vehicles into the stream of U.S. commerce without
accurate fuel economy disclosures;
e. persisting in the manufacturing, distribution, and sale of the Class Vehicles
even after questions were raised about the testing and discrepancies concerning the same;
f. designing and distributing marketing materials that misrepresented and
concealed the true fuel economy of the Class Vehicles;
g. otherwise misrepresenting or concealing the defective nature of the Class
Vehicles from the public and regulators;
h. illegally selling and/or distributing the Class Vehicles;
i. collecting revenues and profits from the sale of such products; and
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j. ensuring that the other Defendants and non-party co-conspirators complied
with the fraudulent scheme.
150. Defendants directed and controlled the ongoing organization necessary to
implement the scheme at meetings and through communications of which Plaintiffs cannot fully
know at present, because such information lies in the Defendants’ and others’ hands.
D. Mail and Wire Fraud
151. To carry out, or attempt to carry out the scheme to defraud, Defendants, each of
whom is a person associated-in-fact with the Warm-up RICO Enterprise, did knowingly conduct or
participate, directly or indirectly, in the conduct of the affairs of the Warm-up RICO Enterprise
through a pattern of racketeering activity within the meaning of 18 U.S.C. §§ 1961(1), 1961(5), and
1962(c), and which employed the use of the mail and wire facilities, in violation of 18 U.S.C.
§ 1341 (mail fraud) and § 1343 (wire fraud).
152. Specifically, Defendants have committed, conspired to commit, and/or aided and
abetted in the commission of, at least two predicate acts of racketeering activity (i.e., violations of
18 U.S.C. §§ 1341 and 1343), within the past ten years. The multiple acts of racketeering activity
which Defendants committed, or aided or abetted in the commission of, were related to each other,
posed a threat of continued racketeering activity, and therefore constitute a “pattern of racketeering
activity.” The racketeering activity was made possible by Defendants’ regular use of the facilities,
services, distribution channels, and employees of the Warm-up RICO Enterprise. Defendants
participated in the scheme to defraud by using mail, telephone and the Internet to transmit mailings
and wires in interstate or foreign commerce.
153. Defendants used, directed the use of, and/or caused to be used, thousands of
interstate mail and wire communications in service of their scheme through virtually uniform
misrepresentations, concealments and material omissions.
154. In devising and executing the illegal scheme, Defendants devised and knowingly
carried out a material scheme and/or artifice to defraud Plaintiffs and the Nationwide Class or to
obtain money from Plaintiffs and the Nationwide Class by means of materially false or fraudulent
pretenses, representations, promises, or omissions of material facts. For the purpose of executing
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the illegal scheme, Defendants committed these racketeering acts, which number in the thousands,
intentionally and knowingly with the specific intent to advance the illegal scheme.
155. Defendants’ predicate acts of racketeering (18 U.S.C. § 1961(1)) include, but are not
limited to:
a. Mail Fraud: Defendants violated 18 U.S.C. § 1341 by sending or receiving,
or by causing to be sent and/or received, materials via U.S. mail or commercial interstate carriers
for the purpose of executing the unlawful scheme to design, manufacture, market, and sell the Class
Vehicles by means of false pretenses, misrepresentations, promises, and omissions.
b. Wire Fraud: Defendants violated 18 U.S.C. § 1343 by transmitting and/or
receiving, or by causing to be transmitted and/or received, materials by wire for the purpose of
executing the unlawful scheme to defraud and obtain money on false pretenses, misrepresentations,
promises, and omissions.
156. Defendants’ use of the mails and wires include, but are not limited to, the
transmission, delivery, or shipment of the following by Defendants, their co-conspirators, or other
parties that were foreseeably caused to be sent as a result of Defendants’ illegal scheme:
a. the Class Vehicles themselves;
b. component parts for the Class Vehicles’ TCU software;
c. essential hardware for the Class Vehicles;
d. results from EPA-regulated “drive cycles” including inflated fuel economy
ratings;
e. sales and marketing materials, including advertising, websites, product
packaging, brochures, and labeling, which misrepresented and concealed the true nature of the
Class Vehicles’ fuel economy and performance characteristics;
f. documents intended to facilitate the manufacture and sale of the Class
Vehicles, including bills of lading, invoices, shipping records, reports and correspondence;
g. documents to process and receive payment for the Class Vehicles by
unsuspecting Class members, including invoices and receipts;
h. deposits of proceeds; and
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i. other documents and things, including the electronic communications
identified herein and others not in Plaintiffs’ possession.
157. Defendants (or their agents), for the purpose of executing the illegal scheme, sent
and/or received (or caused to be sent and/or received) by mail or by private or interstate carrier,
shipments of the Class Vehicles and related documents by mail or a private carrier affecting
interstate commerce, including but not limited to the items described above and alleged below:
From To Date Description
VW AG and/or VW America
Palisades Audi, New York
Upon information and belief, fourth quarter of 2013
Shipment of 2014 Audi A8 Class Vehicles.
VW America Audi Dealerships Upon information and belief, third quarter of 2014
Marketing materials, including brochures, for 2015 Class Vehicles.
EPA, Michigan Volkswagen America, Michigan
February 2011 COC for 2012 Class Vehicles based on application prepared with Warm-up Program installed and active.
EPA, Michigan Volkswagen America, Michigan
March 2012 and November 2012
COCs for 2013 Class Vehicles based on application prepared with Warm-up Program installed and active.
CARB, California Volkswagen America, Michigan
June 2013 EO for 2014 Class Vehicles based on application prepared with Warm-up Program installed and active.
CARB, California Volkswagen America, Michigan
May 2014 and June 2014
EOs for 2015 Class Vehicles based on application prepared with Warm-up Program installed and active.
CARB, California Volkswagen America, Michigan
January 2015 and July 2015
EOs for 2016 Class Vehicles based on application prepared with Warm-up Program installed and active.
158. Defendants (or their agents), for the purpose of executing the illegal scheme,
transmitted (or caused to be transmitted) in interstate commerce by means of wire communications,
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certain writings, signs, signals and sounds, including but not limited to those items described above
and alleged below:
From To Date Description
Bentley Motors, Ltd. EPA, Michigan and CARB, California
September 24, 2012 Certification Summary Information Report with fuel economy and emission certification test results submitted to EPA and CARB for 2013 Class Vehicles (6.0L Continental GT).
Porsche AG EPA, Michigan and CARB, California
January 03, 2013 Certification and Summary Information Report with fuel economy and emission certification test results submitted to EPA and CARB for 2014 Class Vehicles (2014 Porsche Cayenne Turbo S).
Bentley Motors, Ltd. EPA, Michigan and CARB, California
March 01, 2013 Certification Summary Information Report with fuel economy and emission certification test results submitted to EPA and CARB for 2014 Class Vehicles (6.0L Bentley GT).
VW America, Michigan
EPA, Michigan and CARB, California
May 14, 2013 Certification Summary Information Report with fuel economy and emission certification test results submitted to EPA and CARB for 2014 Class Vehicles (3.6L Touareg).
Porsche AG EPA, Michigan and CARB, California
May 21, 2013 Certification Summary Information Report with fuel economy and emission certification test results to EPA and CARB for 2014 Class Vehicles (3.6 L Porsche Cayenne).
Audi AG Audi America June 6, 2013 Email correspondence regarding Warm-up Mode functioning and concealment from the public and regulators.
Dr. Christian Pilath (Audi AG, Ingolstadt)
VW America, California
January 2014 Email describing challenges of complying with U.S. certification requirements and confirming Audi would not meet requirements without Warm-up Program
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From To Date Description
Porsche AG EPA, Michigan and CARB, California
January 27, 2015 Certification Summary Information report with fuel economy and emission certification test results to EPA and CARB for 2016 Class Vehicles (3.6L Porsche Cayenne and Cayenne GTS).
159. Defendants also used the internet and other electronic facilities to carry out the
scheme and conceal the ongoing fraudulent activities. Specifically, the American Volkswagen
Defendants, under the direction and control of the Foreign Volkswagen Defendants, made
misrepresentations about the Class Vehicles on their websites and through ads online, all of which
were intended to misrepresent the Class Vehicles’ actual fuel efficiency, emissions standards, and
other performance metrics.
160. Defendants also communicated by U.S. mail, by interstate facsimile, and by
interstate electronic mail with various other affiliates, regional offices, divisions, dealerships and
other third-party entities in furtherance of the scheme.
161. The mail and wire transmissions described herein were made in furtherance of
Defendants’ scheme and common course of conduct to misrepresent the Class Vehicles’ fuel
efficiency and emissions levels and lure consumers into purchasing or leasing the Class Vehicles,
which Defendants knew or recklessly disregarded as attaining worse fuel economy than
represented, despite their advertisements to the contrary.
162. Defendants have not undertaken the practices described herein in isolation, but as
part of a common scheme and conspiracy. In violation of 18 U.S.C. § 1962(d), Defendants
conspired to violate 18 U.S.C. § 1962(c), as described herein. Various other persons, firms and
corporations, including third-party entities and individuals not named as defendants in this
Complaint, have participated as co-conspirators with Defendants in these offenses and have
performed acts in furtherance of the conspiracy to increase or maintain revenues, increase market
share, and/or minimize losses for Defendants and their unnamed co-conspirators throughout the
illegal scheme and common course of conduct.
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163. Defendants aided and abetted others in the violations of the above laws, thereby
rendering them indictable as principals in the 18 U.S.C. §§ 1341 and 1343 offenses.
164. To achieve their common goals, Defendants hid from the general public the
unlawfulness and emission dangers of the Class Vehicles and obfuscated the true nature of the
defect even after regulators and media reports raised concerns. Defendants suppressed and/or
ignored warnings from third parties, whistleblowers, and governmental entities about the potential
discrepancies in emissions testing and the Warm-up Program present in the Class Vehicles.
165. Defendants and each member of the conspiracy, with knowledge and intent, have
agreed to the overall objectives of the conspiracy and participated in the common course of conduct
to commit acts of fraud and indecency in designing, manufacturing, distributing, marketing,
testing, and/or selling the Class Vehicles (and the Warm-up Programs contained therein).
166. Indeed, for the conspiracy to succeed each of Defendants and their co-conspirators
had to agree to implement and use the similar devices and fraudulent tactics, including the defined
entry and exit conditions for the Program tied directly to testing conditions, and to maintain
complete secrecy about the Warm-up Program in the Class Vehicles.
167. Defendants knew and intended that government regulators, as well as Plaintiffs and
Class members, would rely on the material misrepresentations and omissions they made about the
Class Vehicles. Defendants knew and intended that consumers would purchase or lease their
Vehicles and incur costs as a result. As fully alleged herein, Plaintiffs, along with tens of thousands
of other consumers, relied upon Defendants’ representations and omissions that were made or
caused to be made by them. Plaintiffs’ reliance is made obvious by the fact that they purchased and
leased vehicles that did not accurately disclose their fuel economy and never should have been
introduced into the U.S. stream of commerce. In addition, the EPA, CARB, and other regulators
relied on the misrepresentations and material omissions made or caused to be made by Defendants;
otherwise Defendants could not have obtained valid COCs and EOs to sell the Class Vehicles.
168. As described herein, Defendants engaged in a pattern of related and continuous
predicate acts for years. The predicate acts constituted a variety of unlawful activities, each
conducted with the common purpose of obtaining significant monies and revenues from Plaintiffs
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and Class members based on their misrepresentations and omissions, while providing Class
Vehicles that were worth significantly less than the purchase price paid. The predicate acts also had
the same or similar results, participants, victims, and methods of commission. The predicate acts
were related and not isolated events.
169. The predicate acts all had the purpose of generating significant revenue and profits
for Defendants and their RICO co-conspirators at the expense of Plaintiffs and Class members.
The predicate acts were committed or caused to be committed by Defendants through their
participation in the Warm-up RICO Enterprise and in furtherance of its fraudulent scheme, and
were interrelated in that they involved obtaining Plaintiffs’ and Class members’ funds and avoiding
the expenses associated with remediating the Class Vehicles.
170. During the design, manufacture, testing, marketing and sale of the Class Vehicles,
Defendants shared technical, marketing, and financial information that revealed the existence of the
Warm-up Program contained therein. Nevertheless, the Defendants shared and disseminated
information that deliberately misrepresented the Class Vehicles’ actual fuel economy and emission
profiles, and portrayed the Vehicles as legal, environmentally friendly, and fuel efficient.
171. By reason of, and as a result of the conduct of Defendants, and in particular, their
pattern of racketeering activity, Plaintiffs and Class members have been injured in their business
and/or property in multiple ways, including but not limited to:
a. Purchase or lease of a defective Class Vehicle;
b. Overpayment for a Class Vehicle, in that Plaintiffs and Class members
believed they were paying for a vehicle that met certain emission and fuel efficiency standards and
obtained a vehicle that did not perform as promised;
c. The value of the Class Vehicles has diminished, thus reducing their resale
value;
d. Additional and more frequent trips to refill the Vehicles’ gas tanks due to
reduced fuel efficiency from that represented at the time of purchase or lease;
e. Other out-of-pocket and loss-of-use expenses; and
f. Payment for alternative transportation.
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172. Defendants’ violations of 18 U.S.C. § 1962(c) and (d) have directly and proximately
caused injuries and damages to Plaintiffs and Class members, and Plaintiffs and Class members are
entitled to bring this action for three times their actual damages, as well as injunctive/equitable
relief, costs, and reasonable attorneys’ fees pursuant to 18 U.S.C. § 1964(c).
NATIONWIDE COUNT II: FRAUD BY CONCEALMENT
(Common Law)
173. Plaintiffs reallege and incorporate by reference all paragraphs as though fully set
forth herein.
174. Plaintiffs bring this claim on behalf of themselves and the Nationwide Class or, in
the alternative, on behalf of the State Subclasses, against all Defendants.
175. Each Defendant committed fraud by installing and calibrating Warm-up Program
software in the Class Vehicles, which were concealed from regulators and consumers alike. In
uniform advertising and materials provided with each Class Vehicle, Defendants concealed from
Plaintiffs and the Class that the Warm-up Program circumvented federal and state vehicle
emissions standards by lowering emissions of pollutants during emissions certification testing.
176. Defendants intentionally concealed, suppressed, and failed to disclose the facts that
the Class Vehicles contained the Warm-up Program. Defendants knew or should have known the
true facts, due to their involvement in the design, installment, and calibration of the Warm-up
Program software in the Class Vehicles. And yet, at no time did any of the Defendants reveal the
truth to Plaintiffs or the Class. To the contrary, each Defendant concealed the truth, intending for
Plaintiffs and the Class to rely on their omissions—which they did by purchasing and leasing the
Class Vehicles.
177. A reasonable consumer would not have expected that the Class Vehicles contained
software designed to misrepresent the Class Vehicles’ true emissions and fuel economy. Plaintiffs
and the Class did not know of the facts Defendants concealed from them. Moreover, as consumers,
Plaintiffs and the Class did not, and could not, unravel the deception on their own.
178. Defendants had a duty to disclose the Warm-up Program and that the Class Vehicles
consumed more fuel and emitted higher levels of CO2 during normal driving operation. Defendants
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had such a duty because the true facts were known and/or accessible only to them and because they
knew these facts were not known to or reasonably discoverable by Plaintiffs and the Class.
179. Defendants also had a duty to disclose the true nature of the Class Vehicles in light
of their statements about the qualities and characteristics of the Class Vehicles with respect to
emissions standards, fuel efficiency and performance, which were misleading, deceptive, and
incomplete without the disclosure of the additional facts set forth above regarding the existence of
the Warm-up Program software and actual emissions levels.
180. Having volunteered to provide information to Plaintiffs and the Class, Defendants
had the duty to disclose the whole truth, and did not.
181. Had the truth been revealed, Plaintiffs and the Class would not have purchased the
Class Vehicles, or would have paid less for them. Plaintiffs and the Class have sustained damage
because they own or lease Class Vehicles that should never have been placed in the stream of
commerce and are diminished in value as a result of Defendants’ fraud. Accordingly, Defendants
are liable to Plaintiffs and the Class for damages in an amount to be proven at trial.
182. Defendants’ acts were done wantonly, maliciously, oppressively, deliberately, with
intent to defraud; in reckless disregard of the rights of Plaintiffs and the Class; and to enrich
themselves. Their misconduct warrants an assessment of punitive damages in an amount sufficient
to deter such conduct in the future, which amount shall be determined according to proof at trial.
COUNT III: IMPLIED AND WRITTEN WARRANTY
Magnuson - Moss Warranty Act (15 U.S.C. §§ 2301, et seq.)
183. Plaintiffs reallege and incorporate by reference all paragraphs as though fully set
forth herein.
184. Plaintiffs bring this claim on behalf of themselves and the Nationwide Class against
all Defendants.
185. This Court has jurisdiction to decide claims brought under 15 U.S.C. § 2301 by
virtue of 28 U.S.C. § 1332 (a)-(d).
186. Plaintiffs and Class members are “consumers” within the meaning of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3).
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187. Defendants are “supplier[s]” and “warrantor[s]” within the meaning of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(4)-(5).
188. The Class Vehicles are “consumer products” within the meaning of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(1).
189. 15 U.S.C. § 2310(d)(1) provides a cause of action for any consumer who is damaged
by the failure of a warrantor to comply with a written or implied warranty.
190. Defendants’ provided Plaintiffs and the Nationwide Class with the following two
express warranties, which are covered under 15 U.S.C. § 2301(6):
a. Manufacturer’s Warranty—This written warranty provides
“bumper-to-bumper” limited express warranty coverage for a minimum of 4 years or 50,000 miles,
whichever comes first. The warranty covers emissions related repairs.
b. Federal Emissions Warranty—Consistent with federal law, the
Defendants provided a “performance warranty” and a “design and defect warranty.” In the event
that a vehicle fails an emissions test, these warranties cover the repair and replacement of: all
emission control and emission-related parts for two years or 24,000 miles (whichever comes first);
and specified major emission control components, including catalytic converters, electronic
emissions control unit or computer and on–board emissions diagnostic device or computer for 8
years or 80,000 miles (whichever comes first).
191. The Class Vehicles’ implied warranties are covered under 15 U.S.C. § 2301(7).
192. The terms of these warranties became part of the basis of the bargain when Plaintiffs
and each Class member purchased or leased their Class Vehicles.
193. Defendants breached these written and implied warranties as described in detail
above. Without limitation, the Class Vehicles share a common design defect in that they emit more
pollutants than disclosed to regulators, consumers, and the driving public.
194. Plaintiffs and each Class member have had sufficient direct dealings with either
Defendants or their agents (including dealerships) to establish privity of contract between
Defendants, on the one hand, and Plaintiffs and each Class member, on the other hand.
Nonetheless, privity is not required here because Plaintiffs and each Class member are intended
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third-party beneficiaries of contracts between Defendants and their dealers, and of their implied
warranties. The dealers were not intended to be the ultimate consumers of the Class Vehicles and
have no rights under the warranty agreements provided with the Class Vehicles; the warranty
agreements were designed for and intended to benefit consumers only.
195. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile. At the time of sale or lease of each Class Vehicle,
Defendants knew, or should have known, of their misrepresentations and/or material omissions
concerning the Class Vehicles’ inability to perform as warranted, but nonetheless failed to rectify
the situation and/or disclose the design defect. Under the circumstances, the remedies available
under any informal settlement procedure would be inadequate and any requirement that Plaintiffs
or members of the Class resort to an informal dispute resolution procedure and/or afford
Defendants a reasonable opportunity to cure their breach of warranties is excused and thereby
deemed satisfied.
196. In addition, given the conduct described herein, any attempts by Defendants, in their
capacity as warrantors, to limit the implied warranties in a manner that would exclude coverage of
the defect is unconscionable and any such effort to disclaim, or otherwise limit, liability for the
defect is null and void.
197. Plaintiffs and the other Class members would suffer economic hardship if they
returned their Class Vehicles, but did not receive the return of all payments made by them to
Defendants. Because Defendants are refusing to acknowledge any revocation of acceptance and
have not immediately returned any payments made, Plaintiffs and the Class have not re-accepted
their Class Vehicles by retaining them.
198. The amount in controversy of Plaintiffs’ individual claims meets or exceeds the sum
of $25. The amount in controversy of this action exceeds the sum of $50,000, exclusive of interest
and costs, computed on the basis of all claims to be determined in this lawsuit.
199. As a direct and proximate result of the Defendants’ breach of the written and
implied warranties, Plaintiffs and each Class member have suffered damages.
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200. Plaintiffs, individually and on behalf of the Class, seek all damages permitted by
law, including compensation for the monetary difference between the Class Vehicles as warranted
and as sold or leased; compensation for the reduction in resale value; the cost of purchasing,
leasing, or renting replacement vehicles, along with all other incidental and consequential damages,
statutory attorney fees, and all other relief allowed by law.
E. State-Specific Claims
ALABAMA COUNT I: Violations of the Alabama Deceptive Trade Practices Act
Ala. Code § 8-19-1, et seq. (On Behalf of the Alabama State Class)
201. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
202. This count is brought on behalf of the Alabama State Class against all Defendants.
203. Plaintiffs and the Alabama State Class members are “consumers” within the
meaning of Ala. Code § 8-19-3(2).
204. Plaintiffs, the Alabama State Class members, and Defendants are “persons” within
the meaning of Ala. Code § 8-19-3(5).
205. The Class Vehicles are “goods” within the meaning of Ala. Code § 8-19-3(3).
206. Defendants were and are engaged in “trade or commerce” within the meaning of
Ala. Code § 8-19-3(8).
207. The Alabama Deceptive Trade Practices Act (“Alabama DTPA”) declares several
specific actions to be unlawful, including: “(5) Representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not
have,” “(7) Representing that goods or services are of a particular standard, quality, or grade, or that
goods are of a particular style or model, if they are of another,” and “(27) Engaging in any other
unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or
commerce.” Ala. Code § 8-19-5.
208. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
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the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
209. Plaintiffs and Alabama State Class members had no way of discerning that
Defendants’ representations were false and misleading because Defendants’ Warm-up Program
software was extremely sophisticated technology. Plaintiffs and Alabama State Class members did
not and could not unravel Defendants’ deception on their own.
210. Defendants thus violated the Alabama DTPA by, at minimum: representing that
Class Vehicles have characteristics, uses, benefits, and qualities which they do not have;
representing that Class Vehicles are of a particular standard, quality, and grade when they are not;
advertising Class Vehicles with the intent not to sell or lease them as advertised; and representing
that the subject of a transaction involving Class Vehicles has been supplied in accordance with a
previous representation when it has not.
211. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Alabama State Class.
212. Defendants knew or should have known that their conduct violated the Alabama
DTPA.
213. Defendants owed Plaintiffs and the Alabama State Class a duty to disclose the
illegality and public health risks, and the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Alabama State Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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214. Defendants’ concealment of the true characteristics of the Class Vehicles’ fuel
consumption and CO2 emissions were material to Plaintiffs and the Alabama State Class.
215. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and fuel efficiency of the Class Vehicles, the quality of Defendants’ brands, and the true
value of the Class Vehicles.
216. Plaintiffs and the Alabama State Class suffered ascertainable loss and actual
damages as a direct and proximate result of Defendants’ misrepresentations and its concealment of
and failure to disclose material information, including but not limited to payment for additional fuel
costs required by the lower fuel economy performance in their vehicles.
217. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Ala. Code § 8-19-10(e). Additionally, all Defendants are on notice of the
issues raised in this count and this Complaint by way of, among other things, the governmental
investigations, the numerous complaints filed against them, and the many individual notice letters
sent by Plaintiffs within a reasonable amount of time after the allegations of Class Vehicle defects
became public. Because Defendants failed to remedy their unlawful conduct within the requisite
time period, Plaintiffs seek all damages and relief to which Plaintiffs and the Alabama State Class
are entitled.
ALABAMA COUNT II: Breach of Express Warranty
Ala. Code §§ 7-2-313 and 7-2A-210 (On Behalf of the Alabama State Class)
218. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
219. This count is brought on behalf of the Alabama State Class against all Defendants.
220. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ala. Code §§ 7-2-104(1) and 7-2A-103(3), and a “seller” of motor vehicles under §
7-2-103(1)(d).
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221. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ala. Code. § 7-2A-103(1)(p).
222. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ala. Code §§ 7-2-105(1) and 7-2A-103(1)(h).
223. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
224. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Alabama State Class members regarding the performance and emission controls of
their vehicles.
225. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
226. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
227. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
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228. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
229. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
230. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
231. Despite the existence of warranties, Defendants failed to inform Alabama State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more CO2 and achieve worse fuel
economy on the road than what was disclosed to regulators and represented to consumers who
purchased or leased them, and failed to fix the defective emission components free of charge.
232. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
233. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
234. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Alabama State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
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235. Accordingly, recovery by the Alabama State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
236. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Alabama State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
237. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship, as many incidental and consequential damages have already been suffered because
of Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Alabama
State Class members’ remedies would be insufficient to make them whole.
238. Finally, because of Defendants’ breach of warranty as set forth herein, Alabama
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
239. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
240. As a direct and proximate result of Defendants’ breach of express warranties,
Alabama State Class members have been damaged in an amount to be determined at trial.
ALABAMA COUNT III: Breach of Implied Warranty of Merchantability
Ala. Code §§ 7-2-314 and 7-2A-212 (On Behalf of the Alabama State Class)
241. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
242. This count is brought on behalf of the Alabama State Class against all Defendants.
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243. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ala. Code §§ 7-2-104(1) and 7-2A-103(3), and a “seller” of motor vehicles under §
7-2-103(1)(d).
244. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ala. Code. § 7-2A-103(1)(p).
245. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ala. Code §§ 7-2-105(1) and 7-2A-103(1)(h).
246. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ala. Code §§ 7-2-314
and 7-2A-212.
247. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
248. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
249. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Alabama State Class members have been damaged in an amount to be proven at
trial.
ALASKA COUNT I: Violations of the Alaska Unfair Trade Practices and Consumer Protection Act
Alaska Stat. Ann. § 45.50.471 et seq. (On Behalf of the Alaska State Class)
250. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
251. This count is brought on behalf of the Alaska State Class against all Defendants.
252. The Alaska Unfair Trade Practices And Consumer Protection Act (“Alaska CPA”)
declares unfair methods of competition and unfair or deceptive acts or practices in the conduct of
trade or commerce unlawful, including: “(4) representing that goods or services have sponsorship,
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approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a
person has a sponsorship, approval, status, affiliation, or connection that the person does not have;”
“(6) representing that goods or services are of a particular standard, quality, or grade, or that goods
are of a particular style or model, if they are of another;” “(8) advertising goods or services with
intent not to sell them as advertised;” or “(12) using or employing deception, fraud, false pretense,
false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact
with intent that others rely upon the concealment, suppression or omission in connection with the
sale or advertisement of goods or services whether or not a person has in fact been misled, deceived
or damaged.” Alaska Stat. § 45.50.471.
253. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
254. Alaska State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Alaska State Class members did not and could
not unravel Defendants’ deception on their own.
255. Defendants thus violated the Alaska CPA by, at minimum: representing that Class
Vehicles have characteristics, uses, benefits, and qualities which they do not have; representing that
Class Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
256. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Alaska State Class.
257. Defendants knew or should have known that their conduct violated the Alaska CPA.
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258. Defendants owed Plaintiffs and the Alaska State Class a duty to disclose the
illegality and public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
259. Defendants’ fraudulent use of the “Warm-up Program” and its concealment of the
true characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Alaska State Class.
260. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
261. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
262. As a direct and proximate result of Defendants’ violations of the Alaska CPA,
Plaintiffs and the Alaska State Class have suffered injury-in-fact and/or actual damage.
263. Pursuant to Alaska Stat. § 45.50. 531, Plaintiffs and the Alaska State Class seek
monetary relief against Defendants measured as the greater of (a) three times the actual damages in
an amount to be determined at trial or (b) $500 for each Plaintiffs and each Alaska State Class
member.
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264. Plaintiffs also seek an order enjoining Defendants’ unfair, unlawful, and/or
deceptive practices pursuant to Alaska Stat. § 45.50. 535, attorneys’ fees, and any other just and
proper relief available under the Alaska CPA.
265. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Alaska Stat. § 45.50.535. Additionally, all Defendants were provided notice
of the issues raised in this count and this Complaint by the governmental investigations, the
numerous complaints filed against them, and the many individual notice letters sent by consumers
within a reasonable amount of time after the allegations of Class Vehicle defects became public.
Moreover, Plaintiffs sent a second notice letter pursuant to Alaska Stat. § 45.50.535 to all
Defendants on October 11, 2017. Because Defendants failed to remedy their unlawful conduct
within the requisite time period, Plaintiffs seek all damages and relief to which Plaintiffs and the
Alaska State Class are entitled.
ALASKA COUNT II: Breach of Express Warranty
Alaska Stat. §§ 45.02.313 and 45.12.210 (On Behalf of the Alaska State Class)
266. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
267. This count is brought on behalf of the Alaska State Class against all Defendants.
268. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Alaska Stat. §§ 45.02.104(a) and 45.12.103(c)(11), and a “seller” of motor vehicles
under Alaska Stat. § 45.02.103(a)(4).
269. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Alaska Stat. § 45.12.103(a)(16).
270. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Alaska Stat. §§ 45.02.105(a) and 45.12.103(a)(8).
271. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
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warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
272. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Alaska State Class members regarding the performance and emission controls of
their vehicles.
273. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
274. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
275. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
276. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
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first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
277. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
278. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
279. Despite the existence of warranties, Defendants failed to inform Alaska State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
280. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
281. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
282. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Alaska State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
283. Accordingly, recovery by the Alaska State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
284. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
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material facts regarding the Class Vehicles. Alaska State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
285. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship fails in its essential purpose as many incidental and consequential damages have
already been suffered because of Defendants’ fraudulent conduct as alleged herein, and because of
its failure and/or continued failure to provide such limited remedy within a reasonable time, and
any limitation on the Alaska State Class members’ remedies would be insufficient to make them
whole.
286. Finally, because of Defendants’ breach of warranty as set forth herein, Alaska State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
287. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
288. As a direct and proximate result of Defendants’ breach of express warranties,
Alaska State Class members have been damaged in an amount to be determined at trial.
ALASKA COUNT III: Breach of Implied Warranty of Merchantability
Alaska Stat. §§ 45.02.314 and 45.12.212 (On Behalf of the Alaska State Class)
289. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
290. This count is brought on behalf of the Alaska State Class against all Defendants.
291. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Alaska Stat. §§ 45.02.104(a) and 45.12.103(c)(11), and a “seller” of motor vehicles
under Alaska Stat. § 45.02.103(a)(4).
292. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Alaska Stat. § 45.12.103(a)(16).
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293. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Alaska Stat. §§ 45.02.105(a) and 45.12.103(a)(8).
294. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Alaska Stat. §§
45.02.314 and 45.12.212.
295. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
296. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
297. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Alaska State Class members have been damaged in an amount to be proven at
trial.
ARIZONA COUNT I: Violations of the Arizona Consumer Fraud Act
Ariz. Rev. Stat. § 44-1521, et seq. (On Behalf of the Arizona State Class)
298. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
299. This count is brought on behalf of the Arizona State Class against all Defendants.
300. Defendants and the Arizona State Class members are “persons” within the meaning
of the Arizona Consumer Fraud Act (“Arizona CFA”), Ariz. Rev. Stat. § 44-1521(6).
301. The Class Vehicles are “merchandise” within the meaning of Ariz. Rev. Stat. §
44-1521(5).
302. The Arizona CFA provides that “[t]he act, use or employment by any person of any
deception, deceptive act or practice, fraud, … misrepresentation, or concealment, suppression or
omission of any material fact with intent that others rely upon such concealment, suppression or
omission, in connection with the sale … of any merchandise whether or not any person has in fact
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been misled, deceived or damaged thereby, is declared to be an unlawful practice.” Ariz. Rev. Stat.
§ 44-1522(A).
303. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
304. Arizona State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Arizona State Class members did not and could not unravel
Defendants’ deception on their own.
305. Defendants thus violated the Arizona CFA by, at minimum: employing deception,
deceptive acts or practices, fraud, misrepresentations, or concealment, suppression or omission of
any material fact with intent that others rely upon such concealment, suppression or omission, in
connection with the sale of Class Vehicles.
306. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Arizona State Class.
307. Defendants knew or should have known that their conduct violated the Arizona
CFA.
308. Defendants owed the Arizona State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and
Arizona State Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Arizona State Class members that contradicted these representations.
309. Defendants’ fraudulent use of the “Warm-up Program” and its concealment of the
true characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Arizona State Class.
310. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers about the true environmental cleanliness and
efficiency of the Class Vehicles, the quality of the Defendants’ brands, the devaluing of
environmental cleanliness and integrity at Defendant companies, and the true value of the Class
Vehicles.
311. The Arizona State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information.
312. The Arizona State Class seeks monetary relief against Defendants in an amount to
be determined at trial. The Arizona State Class also seeks punitive damages because Defendants
engaged in aggravated and outrageous conduct.
313. The Arizona State Class also seeks an order enjoining Defendants’ unfair, unlawful,
and/or deceptive practices, attorneys’ fees, and any other just and proper relief available under the
Arizona CFA.
ARIZONA COUNT II: Breach of Express Warranty
Ariz. Rev. Stat. §§ 47-2313 and 47-2A210 (On Behalf of the Arizona State Class)
314. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
315. This count is brought on behalf of the Arizona State Class against all Defendants.
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316. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ariz. Rev. Stat. §§ 47-2104(A) and 47-2a103(c); and is a “seller” of motor vehicles
under Ariz. Rev. Stat. § 47-2103(A)(4).
317. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ariz. Rev. Stat. § 47-2a103(A)(16).
318. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ariz. Rev. Stat. §§ 47-2105(A) and 47-2a103(A)(8).
319. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
320. Defendants also made numerous representations, descriptions, and promises to
Arizona State Class members regarding the performance and emission controls of their vehicles.
321. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
322. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
323. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
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converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
324. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
325. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
326. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
327. Despite the existence of warranties, Defendants failed to inform Arizona State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
328. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
329. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
330. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
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insufficient to make Arizona State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
331. Accordingly, recovery by the Arizona State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
332. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Arizona State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
333. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Arizona
State Class members’ remedies would be insufficient to make them whole.
334. Finally, because of Defendants’ breach of warranty as set forth herein, Arizona State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
335. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
336. As a direct and proximate result of Defendants’ breach of express warranties,
Arizona State Class members have been damaged in an amount to be determined at trial.
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ARIZONA COUNT III: Breach of Implied Warranty of Merchantability
Ariz. Rev. Stat. §§ 47-2314 and 47-2A212 (On Behalf of the Arizona State Class)
337. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
338. This count is brought on behalf of the Arizona State Class against all Defendants.
339. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ariz. Rev. Stat. §§ 47-2104(A) and 47-2a103(c); and is a “seller” of motor vehicles
under Ariz. Rev. Stat. § 47-2103(A)(4).
340. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ariz. Rev. Stat. § 47-2a103(A)(16).
341. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ariz. Rev. Stat. §§ 47-2105(A) and 47-2a103(A)(8).
342. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ariz. Rev. Stat. §§
47-2314 and 47-2a212.
343. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
344. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
345. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Arizona State Class members have been damaged in an amount to be proven at
trial.
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ARKANSAS COUNT I: Violations of the Deceptive Trade Practices Act
Ark. Code Ann. § 4-88-101 et seq. (On Behalf of the Arkansas State Class)
346. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
347. This count is brought on behalf of the Arkansas State Class against all Defendants.
348. Defendants and the members of the Arkansas State Class are “persons” within the
meaning of Arkansas Deceptive Trade Practices Act (“Arkansas DTPA”), Ark. Code Ann. §
4-88-102(5).
349. The Class Vehicles are “goods” within the meaning of Ark. Code Ann. §
4-88-102(4).
350. The Arkansas DTPA prohibits “[d]eceptive and unconscionable trade practices,”
which include, but are not limited to, a list of enumerated items, including “[e]ngaging in any other
unconscionable, false, or deceptive act or practice in business, commerce, or trade[.]” Ark. Code
Ann. § 4-88-107(a)(10). The Arkansas DTPA also prohibits the following when utilized in
connection with the sale or advertisement of any goods: “(1) The act, use, or employment by any
person of any deception, fraud, or false pretense; or (2) The concealment, suppression, or omission
of any material fact with intent that others rely upon the concealment, suppression, or omission.”
Ark. Code Ann. § 4-88-108.
351. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
352. Arkansas State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
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extremely sophisticated technology. Arkansas State Class members did not and could not unravel
Defendants’ deception on their own.
353. Defendants thus violated the Arkansas DTPA by, at minimum: representing that
Class Vehicles have characteristics, uses, benefits, and qualities which they do not have;
representing that Class Vehicles are of a particular standard, quality, and grade when they are not;
advertising Class Vehicles with the intent not to sell or lease them as advertised; and representing
that the subject of a transaction involving Class Vehicles has been supplied in accordance with a
previous representation when it has not.
354. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Arkansas State Class. Defendants knew or should have
known that their conduct violated the Arkansas DTPA.
355. Defendants owed the Arkansas State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, and/or Class
members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Arkansas State Class members that contradicted these representations.
356. Defendants’ fraudulent use of the “Warm-up Program” and its concealment of the
true characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Arkansas State Class.
357. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers about the true environmental cleanliness and
efficiency of the Class Vehicles, the quality of the Defendants’ brands, the devaluing of
environmental cleanliness and integrity at Defendant companies, and the true value of the Class
Vehicles.
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358. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
359. The Arkansas State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Arkansas DTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
360. As a direct and proximate result of Defendants’ violations of the Arkansas DTPA,
the members of the Arkansas State Class have suffered injury-in-fact and/or actual damage.
361. The Arkansas State Class seeks monetary relief against Defendants in an amount to
be determined at trial. The Arkansas State Class also seeks punitive damages because Defendants
acted wantonly in causing the injury or with conscious indifference to the consequences.
362. Plaintiffs also seek an order enjoining Defendants’ unfair, unlawful, and/or
deceptive practices, attorneys’ fees, and any other just and proper relief available under the
Arkansas DTPA.
ARKANSAS COUNT II: Breach of Express Warranty
Ark Code Ann. §§ 4-2-313 and 4-2A-210 (On Behalf of the Arkansas State Class)
363. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
364. This count is brought on behalf of the Arkansas State Class against all Defendants.
365. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ark. Code §§ 4-2-104(1) and 4-2A-103(3), and “seller[s]” of motor vehicles under §
4-2-103(1)(d).
366. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ark. Code § 4-2A-103(1)(p).
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367. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ark. Code §§ 4-2-105(1) and 4-2A-103(1)(h).
368. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
369. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Arkansas State Class members regarding the performance and emission controls of
their vehicles.
370. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
371. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
372. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
373. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
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Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
374. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
375. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
376. Despite the existence of warranties, Defendants failed to inform Arkansas State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
377. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
378. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
379. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Arkansas State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
380. Accordingly, recovery by the Arkansas State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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381. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Arkansas State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
382. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Arkansas
State Class members’ remedies would be insufficient to make them whole.
383. Finally, because of Defendants’ breach of warranty as set forth herein, Arkansas
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
384. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
385. As a direct and proximate result of Defendants’ breach of express warranties,
Arkansas State Class members have been damaged in an amount to be determined at trial.
ARKANSAS COUNT III: Breach of Implied Warranty of Merchantability
Ark. Code Ann. §§ 4-2-314 and 4-2A-212 (On Behalf of the Arkansas State Class)
386. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
387. This count is brought on behalf of the Arkansas State Class against all Defendants.
388. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ark. Code §§ 4-2-104(1) and 4-2A-103(3), and “seller[s]” of motor vehicles under §
4-2-103(1)(d).
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389. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ark. Code § 4-2A-103(1)(p).
390. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ark. Code §§ 4-2-105(1) and 4-2A-103(1)(h).
391. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ark. Code §§ 4-2-314
and 4-2A-212.
392. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
393. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
394. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Arkansas State Class members have been damaged in an amount to be proven at
trial.
CALIFORNIA COUNT I: Violation of California Consumers Legal Remedies Act
Cal Bus. & Prof. Code § 1750, et seq. (On Behalf of the California State Class)
395. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
396. This count is brought on behalf of the California State Class against all Defendants.
397. Members of the California State Class were deceived by Defendants’ failure to
disclose that the Class Vehicles are equipped with a software program designed to secretly limit
emissions and increase fuel efficiency when the vehicles are being subject to regulatory emissions
and fuel efficiency testing. However, when the Class Vehicles are in regular use on the road, they
emit a substantially increased amount of CO2.
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398. Defendants engaged in unfair or deceptive acts or practices when, in the course of
their business they, among other acts and practices, knowingly made materially incomplete
representations as to the characteristics, uses and benefits of the Class Vehicles.
399. In the various channels of information through which Defendants sold Class
Vehicles, Defendants failed to disclose material information concerning the Class Vehicles, which
it had a duty to disclose. Defendants had a duty to disclose the defect because, as detailed above, (a)
Defendants knew about the Warm-up Program installed in the Class Vehicles; (b) Defendants had
exclusive knowledge of material facts not known to the general public or the other California State
Class members; and (c) Defendants actively concealed material facts concerning the software
program from the general public and the California State Class members. As detailed above,
Defendants knew the information concerning the defect at the time of advertising and selling the
Class Vehicles, all of which was intended to induce consumers to purchase the Class Vehicles.
400. Defendants intended for the California State Class members to rely on it to provide
adequately designed, and adequately manufactured automobiles and to honestly and accurately
reveal the problems described throughout this Complaint.
401. Defendants intentionally failed or refused to disclose the defect to consumers.
402. Defendants’ conduct and deceptive omissions were intended to induce the
California State Class members to believe that the Class Vehicles were adequately designed and
adequately manufactured automobiles.
403. Defendants’ conduct constitutes unfair acts or practices as defined by the California
Consumers Legal Remedies Act (the “CLRA”).
404. Plaintiffs and the other California State Class members have suffered injury in fact
and actual damages resulting from Defendants’ material omissions.
405. The California State Class seeks an order enjoining Defendants’ unfair or deceptive
acts or practices, equitable relief, an award of attorneys’ fees and costs under Cal. Civ. Code §
1780(e), and any other just and proper relief available under the CLRA.
406. Defendants were provided notice of the issues raised in this count and this
Complaint by the governmental investigations, the numerous complaints filed against them, and the
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many individual notice letters sent by consumers within a reasonable amount of time after the
allegations of Class Vehicle defects became public. Because Defendants failed to remedy their
unlawful conduct within the requisite time period, the California State Class seeks all damages and
relief to which they are entitled.
CALIFORNIA COUNT II:
Violations of the California Unfair Competition Law Cal. Bus. & Prof. Code § 17200 et seq.
(On Behalf of the California State Class)
407. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
408. This count is brought on behalf of the California State Class against all Defendants.
409. California Business and Professions Code § 17200 prohibits any “unlawful, unfair,
or fraudulent business act or practices.” Defendants have engaged in unlawful, fraudulent, and
unfair business acts and practices in violation of the UCL.
410. Defendants’ conduct, as described herein, was and is in violation of the UCL.
Defendants’ conduct violates the UCL in at least the following ways:
a. by knowingly and intentionally concealing from the California State Class
members that the Class Vehicles suffer from a design defect while obtaining money from the
California State Class members;
b. by marketing Class Vehicles as possessing functional and defect-free,
EPA-compliant engine systems; and
c. by purposefully installing the Warm-up Program in the Class Vehicles to
fraudulently cause Class Vehicles to emit more CO2 and achieve worse fuel economy on the road
than what was disclosed to regulators and represented to consumers who purchased or leased them,
and failed to fix the defective emission component free of charge.
411. Defendants’ misrepresentations and omissions alleged herein caused Plaintiffs and
the California State Class members to make their purchases or leases of their Class Vehicles.
Absent those misrepresentations and omissions, the California State Class members would not
have purchased or leased these vehicles, would not have purchased or leased these Class Vehicles
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at the prices they paid, and/or would have purchased or leased less expensive alternative vehicles
that did not contain a Warm-up Program that led to inflated and misleading fuel economy values.
412. Accordingly, the California State Class members have suffered ascertainable loss
and actual damages as a direct and proximate result of Defendants’ misrepresentations and their
concealment of and failure to disclose material information.
413. Plaintiffs requests that this Court enter such orders or judgments as may be
necessary to enjoin Defendants from continuing its unfair, unlawful, and/or deceptive practices and
to restore to members of the California State Class any money it acquired by unfair competition,
including restitution and/or restitutionary disgorgement, as provided in Cal. Bus. & Prof. Code §
17203 and Cal. Bus. & Prof. Code § 3345; and for such other relief set forth below.
CALIFORNIA COUNT III: Violations of the California False Advertising Law
Cal. Civ. Code § 17500 et seq. (On Behalf of the California State Class)
414. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
415. This count is brought on behalf of the California State Class against all Defendants.
416. California Bus. & Prof. Code § 17500 states: “It is unlawful for any ... corporation ...
with intent directly or indirectly to dispose of real or personal property ... to induce the public to
enter into any obligation relating thereto, to make or disseminate or cause to be made or
disseminated ... from this state before the public in any state, in any newspaper or other
publication, or any advertising device, ... or in any other manner or means whatever, including
over the Internet, any statement ... which is untrue or misleading, and which is known, or which by
the exercise of reasonable care should be known, to be untrue or misleading.”
417. Defendants caused to be made or disseminated through California and the United
States, through advertising, marketing and other publications, statements that were untrue or
misleading, and which were known, or which by the exercise of reasonable care should have been
known to Defendants, to be untrue and misleading to consumers, including the California State
Class members.
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418. Defendants have violated § 17500 because the misrepresentations and omissions
regarding the reliability and functionality of Class Vehicles as set forth in this Complaint were
material and likely to deceive a reasonable consumer.
419. Plaintiffs and the other California State Class members have suffered an injury in
fact, including the loss of money or property, as a result of Defendants’ unfair, unlawful, and/or
deceptive practices. In purchasing or leasing their Class Vehicles, the California State Class
relied on the misrepresentations and/or omissions of Defendants with respect to theperformance
and reliability of the Class Vehicles. Defendants’ representations turned out not to be true because
the Class Vehicles are distributed with faulty and defective engine systems, rendering certain
emissions functions inoperative.
420. All of the wrongful conduct alleged herein occurred, and continues to occur, in the
conduct of Defendants business. Defendants’ wrongful conduct is part of a pattern or generalized
course of conduct that is still perpetuated and repeated, both in the State of California and
nationwide.
421. The California State Class requests that this Court enter such orders or judgments as
may be necessary to enjoin Defendants from continuing their unfair, unlawful, and/or deceptive
practices and to restore to the California State Class any money Defendants acquired by unfair
competition, including restitution and/or restitutionary disgorgement, and for such other relief set
forth below.
CALIFORNIA COUNT IV: Breach of Express Warranty
Cal. Com. Code §§ 2313 and 10210 (On Behalf of the California State Class)
422. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
423. This count is brought on behalf of the California State Class against all Defendants.
424. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Cal. Com. Code §§ 2104(1) and 10103(c), and “sellers” of motor vehicles under §
2103(1)(d).
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425. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Cal. Com. Code § 10103(a)(16).
426. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Cal. Com. Code §§ 2105(1) and 10103(a)(8).
427. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
428. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and California State Class members regarding the performance and emission controls of
their vehicles.
429. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
430. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
431. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
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432. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
433. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
434. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
435. Despite the existence of warranties, Defendants failed to inform California State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
436. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
437. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
438. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make California State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
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439. Accordingly, recovery by the California State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
440. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. California State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
441. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
California State Class members’ remedies would be insufficient to make them whole.
442. Finally, because of Defendants’ breach of warranty as set forth herein, California
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
443. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
444. As a direct and proximate result of Defendants’ breach of express warranties,
California State Class members have been damaged in an amount to be determined at trial.
CALIFORNIA COUNT V: Breach of Implied Warranty of Merchantability
Cal. Com. Code §§ 2314 and 10212 (On Behalf of the California State Class)
445. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
446. This count is brought on behalf of the California State Class against all Defendants.
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447. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Cal. Com. Code §§ 2104(1) and 10103(c), and “sellers” of motor vehicles under §
2103(1)(d).
448. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Cal. Com. Code § 10103(a)(16).
449. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Cal. Com. Code §§ 2105(1) and 10103(a)(8).
450. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Cal. Com. Code §§ 2314
and 10212.
451. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
452. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
453. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, California State Class members have been damaged in an amount to be proven at
trial.
CALIFORNIA COUNT VI: Violation of Song-Beverly Consumer Warranty Act, Breach of Implied Warranty
Cal Civ. Code § 1790, et seq. (On Behalf of the California State Class)
454. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
455. This count is brought on behalf of the California State Class against all Defendants.
456. Members of the California State Class who purchased Class Vehicles in California
are “buyers” within the meaning of Cal. Civ. Code § 1791.
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457. The Class Vehicles are “consumer goods” within the meaning of Cal. Civ. Code §
1791(a).
458. Defendants are the “manufacturer[s]” of the Class Vehicles within the meaning of
Cal. Civ. Code § 1791(j).
459. Defendants impliedly warranted to Plaintiffs and the other members of the
California State Class that the Class Vehicles were “merchantable” within the meaning of Cal. Civ.
Code §§ 1791.1(a) & 1792; however, the Class Vehicles do not have the quality that a buyer would
reasonably expect.
460. Cal. Civ. Code § 1791.1(a) states: “Implied warranty of merchantability” or
“implied warranty that goods are merchantable” means that the consumer goods meet each of the
following:
a. Pass without objection in the trade under the contract description.
b. Are fit for the ordinary purposes for which such goods are used.
c. Are adequately contained, packaged, and labeled.
d. Conform to the promises or affirmations of fact made on the container or
label.
461. The Class Vehicles would not pass without objection in the automotive trade
because they share a common design defect in that they are equipped with the Warm-up Program,
which conceals the vehicles’ true emissions and overstates their fuel economy.
462. Class Vehicles are not adequately labeled because the labeling fails to disclose the
fact that they are defective.
463. In the various channels of information through which Defendants sold Class
Vehicles, Defendants failed to disclose material information concerning the Class Vehicles, which
it had a duty to disclose. Defendants had a duty to disclose the defect because, as detailed above: (a)
Defendants knew about the defect; (b) Defendants had exclusive knowledge of material facts not
known to the general public or the other California State Class members; and (c) Defendants
actively concealed material facts concerning the fact that the Class Vehicles were equipped with the
Warm-up Program from the general public and the California State Class members. As detailed
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above, Defendants knew the information concerning the defect at the time of advertising and
selling the Class Vehicles, all of which was intended to induce consumers to purchase the Class
Vehicles.
464. Defendants breached the implied warranty of merchantability by manufacturing and
selling Class Vehicles that are defective. Furthermore, this defect has caused members of the
California State Class to not receive the benefit of their bargain and have caused the Class Vehicles
to depreciate in value.
465. Members of the California State Class have been damaged as a result of the
diminished value of Defendants’ products.
466. Under Cal. Civ. Code §§ 1791.1(d) & 1794, Plaintiffs and other members of the
California State Class are entitled to damages and other legal and equitable relief including, at their
election, the purchase price of their Class Vehicles, or the overpayment or diminution in value of
their Class Vehicles.
467. Under Cal. Civ. Code § 1794, Plaintiffs and the other members of the California
State Class are entitled to costs and attorneys’ fees.
CALIFORNIA COUNT VII: Violation of the Song-Beverly Consumer Protection Act, Breach of Express Warranty
Cal Civ. Code § 1790, et seq. (On Behalf of the California State Class)
468. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
469. This count is brought on behalf of the California State Class against all Defendants.
470. Members of the California State Class who purchased or leased the Class Vehicles
in California are “buyers” within the meaning of California Civil Code § 1791(b).
471. The Class Vehicles are “consumer goods” within the meaning of California Civil
Code § 1791(a).
472. Defendants are “manufacturer[s]” of the Class Vehicles within the meaning of
California Civil Code § 1791(j).
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473. Defendants made express warranties to members of the California State Class
within the meaning of California Civil Code §§ 1791.2 and 1793.2, as described above.
474. As set forth above in detail, the Class Vehicles are inherently defective in that they
are equipped with a software program that led to inflated and misleading fuel economy values.
When the Class Vehicles are in regular use on the road, they emit a substantially increased amount
of CO2. The installation of such a program substantially impairs the use and value of the Class
Vehicles to reasonable consumers.
475. As a result of Defendants’ breach of their express warranties, members of the
California State Class received goods whose defect substantially impairs their value to Plaintiffs
and the other members of the California State Class. Members of the California State Class have
been damaged as a result of, inter alia, the diminished value of Defendants’ products.
476. Pursuant to California Civil Code §§ 1793.2 & 1794, members of the California
State Class are entitled to damages and other legal and equitable relief including, at their election,
the purchase price of their Class Vehicles, or the overpayment or diminution in value of their Class
Vehicles.
477. Pursuant to California Civil Code § 1794, the Class is entitled to costs and attorneys’
fees.
CALIFORNIA COUNT VIII: Breach of Express California Emissions Warranties
Cal. Civ. Code § 1793.2, et seq. (On Behalf of the California State Class)
478. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
479. This count is brought on behalf of the California State Class against all Defendants.
480. Each Class Vehicle is covered by express California Emissions Warranties as a
matter of law. See Cal. Health & Safety Code § 43205; Cal. Code Regs. tit. 13, § 2037.
481. The express California Emissions Warranties generally provide “that the vehicle or
engine is...[d]esigned, built, and equipped so as to conform with all applicable regulations adopted
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by the Air Resources Board.” Id. This provision applies without any time or mileage limitation. See
id.
482. The California Emissions Warranties also specifically warrant consumers against
any performance failure of the emissions control system for three years or 50,000 miles, whichever
occurs first, and against any defect in any emission-related part for seven years or 70,000 miles,
whichever occurs first. See id.
483. California law imposes express duties “on the manufacturer of consumer goods sold
in this state and for which the manufacturer has made an express warranty.” Cal. Civ. Code §
1793.2.
484. Among those duties, “[i]f the manufacturer or its representative in this state is
unable to service or repair a new motor vehicle...to conform to the applicable express warranties
after a reasonable number of attempts, the manufacturer shall either promptly replace the new
motor vehicle or promptly make restitution to the buyer” at the vehicle owner’s option. See Cal.
Civ. Code § 1793.2(d)(2).
485. Class members are excused from the requirement to “deliver nonconforming goods
to the manufacturer’s service and repair facility within this state” because Defendants are refusing
to accept them and delivery of the California Vehicles “cannot reasonably be accomplished.” Cal.
Civ. Code § 1793.2(c).
486. This complaint is written notice of nonconformity to Defendants and “shall
constitute return of the goods.” Id.
487. California State Class members are excused from any requirement that they allow a
“reasonable number of attempts” to bring California Vehicles into conformity with their California
Emissions Warranties based on futility because FCA has no ability to do so at this time.
488. In addition to all other damages and remedies, California State Class members are
entitled to “recover a civil penalty of up to two times the amount of damages” for the
aforementioned violation. See Cal. Civ. Code § 1794(e)(1).
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CALIFORNIA COUNT IX: Failure to Recall/Retrofit
(On Behalf of the California State Class)
489. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
490. This count is brought on behalf of the California State Class against all Defendants.
491. Defendants manufactured, marketed, distributed, sold, or otherwise placed into the
stream of U.S. commerce the Class Vehicles, as set forth above.
492. Defendants knew or reasonably should have known that the Class Vehicles emit a
substantially increased amount of CO2 and reasonably should have known that the Class Vehicles
were likely to be dangerous when used in a reasonably foreseeable manner.
493. Defendants failed to recall the Class Vehicles in a timely manner or warn of the
Class Vehicles’ heightened emissions.
494. A reasonable manufacturer in same or similar circumstances would have timely and
properly recalled the Class Vehicles.
495. The California State Class members were harmed by Defendants’ failure to recall
the Class Vehicles properly and in a timely manner and, as a result, have suffered damages, caused
by Defendants’ ongoing failure to properly recall, retrofit, and fully repair the Class Vehicles.
496. Defendants’ failure to timely recall the Class Vehicles was a substantial factor in
causing the harm to California State Class members as alleged herein.
COLORADO COUNT I: Violations of the Colorado Consumer Protection Act
Colo. Rev. Stat. § 6-1-101 et seq. (On Behalf of the Colorado State Class)
497. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
498. This count is brought on behalf of the Colorado State Class against all Defendants.
499. Defendants are “person[s]” under § 6-1-102(6) of the Colorado Consumer
Protection Act “Colorado CPA”), Col. Rev. Stat. § 6-1-101, et seq.
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500. Colorado State Class members are “consumers” for purposes of Col. Rev. Stat §
6-1-113(1)(a) who purchased or leased one or more Class Vehicles.
501. The Colorado CPA prohibits deceptive trade practices in the course of a person’s
business. Defendants engaged in deceptive trade practices prohibited by the Colorado CPA,
including: (1) knowingly making a false representation as to the characteristics, uses, and benefits
of the Class Vehicles that had the capacity or tendency to deceive Colorado State Class members;
(2) representing that the Class Vehicles are of a particular standard, quality, and grade even though
Defendants knew or should have known they are not; (3) advertising the Class Vehicles with the
intent not to sell them as advertised; and (4) failing to disclose material information concerning the
Class Vehicles that was known to Defendants at the time of advertisement or sale with the intent to
induce Colorado State Class members to purchase, lease or retain the Class Vehicles.
502. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
503. Colorado State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Colorado State Class members did not and could
not unravel Defendants’ deception on their own.
504. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
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505. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Colorado State Class.
506. Defendants knew or should have known that their conduct violated the Colorado
CPA.
507. Defendants owed the Colorado State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, while
purposefully withholding material facts from Plaintiffs and/or Class members that contradicted
these representations.
508. Defendants’ fraudulent use of the Warm-up Program software and its concealment
of the true characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material
to Plaintiffs and the Colorado State Class.
509. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
510. Defendants’ violations present a continuing risk to Plaintiffs, Class members, as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
511. The Colorado State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Colorado CPA. All owners of Class Vehicles
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suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
COLORADO COUNT II: Breach of Express Warranty
Colo. Rev. Stat. §§ 4-2-313 and 4-2.5-210 (On Behalf of the Colorado State Class)
512. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
513. This count is brought on behalf of the Colorado State Class against all Defendants.
514. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Colo. Rev. Stat. §§ 4-2-104(1) and 4-2.5-103(3), and “sellers” of motor vehicles
under § 4-2-103(1)(d).
515. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Colo. Rev. Stat. § 4-2.5-103(1)(p).
516. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Colo. Rev. Stat. §§ 4-2-105(1) and 4-2.5-103(1)(h).
517. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
518. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Colorado State Class members regarding the performance and emission controls of
their vehicles.
519. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
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520. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
521. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
522. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
523. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
524. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
525. Despite the existence of warranties, Defendants failed to inform Colorado State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
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worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
526. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
527. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
528. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Colorado State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
529. Accordingly, recovery by the Colorado State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
530. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Colorado State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
531. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Colorado
State Class members’ remedies would be insufficient to make them whole.
532. Finally, because of Defendants’ breach of warranty as set forth herein, Colorado
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
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of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
533. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
534. As a direct and proximate result of Defendants’ breach of express warranties,
Colorado State Class members have been damaged in an amount to be determined at trial.
COLORADO COUNT III: Breach of Implied Warranty of Merchantability
Colo. Rev. Stat. §§ 4-2-314 and 4-2.5-212 (On Behalf of the Colorado State Class)
535. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
536. This count is brought on behalf of the Colorado State Class against all Defendants.
537. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Colo. Rev. Stat. §§ 4-2-104(1) and 4-2.5-103(3), and “sellers” of motor vehicles
under § 4-2-103(1)(d).
538. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Colo. Rev. Stat. § 4-2.5-103(1)(p).
539. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Colo. Rev. Stat. §§ 4-2-105(1) and 4-2.5-103(1)(h).
540. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Colo. Rev. Stat. §§
4-2-313 and 4-2.5-212.
541. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
542. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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543. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Colorado State Class members have been damaged in an amount to be proven at
trial.
CONNECTICUT COUNT I: Violations of Connecticut Unlawful Trade Practice Act
Conn. Gen. Stat. § 42-110a, et seq. (On Behalf of the Connecticut State Class)
544. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
545. This count is brought on behalf of the Connecticut State Class against all
Defendants.
546. The Connecticut Unfair Trade Practices Act (“Connecticut UTPA”) provides: “No
person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.” Conn. Gen. Stat. § 42-110b(a).
547. Defendants are “person[s]” within the meaning of Conn. Gen. Stat. § 42-110a(3).
548. Defendants engaged in “trade” or “commerce” within the meaning of Conn. Gen.
Stat. § 42-110a(4).
549. Defendants participated in deceptive trade practices that violated the Connecticut
UTPA as described herein.
550. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
551. The Connecticut State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. The Connecticut State Class members did not and could not
unravel Defendants’ deception on their own.
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552. Defendants thus violated the Connecticut UTPA by, at minimum: employing
deception, deceptive acts or practices, fraud, misrepresentations, or concealment, suppression or
omission of any material fact with intent that others rely upon such concealment, suppression or
omission, in connection with the sale of Class Vehicles.
553. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Connecticut State Class.
554. Defendants knew or should have known that their conduct violated the Connecticut
UTPA.
555. Defendants owed the Connecticut State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Connecticut State Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
556. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Connecticut State Class.
557. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
558. The Connecticut State Class suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information.
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559. The Connecticut State Class seek monetary relief against Defendants in an amount
to be determined at trial. The Connecticut State Class also seek punitive damages because
Defendants engaged in aggravated and outrageous conduct.
560. Plaintiffs also seek an order enjoining Defendants’ unfair, unlawful, and/or
deceptive practices, attorneys’ fees, and any other just and proper relief available under the
Connecticut CFA.
561. Defendants had an ongoing duty to all their customers to refrain from unfair and
deceptive practices under the Connecticut UTPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
562. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
563. As a direct and proximate result of Defendants’ violations of the Connecticut
UTPA, Plaintiffs and the Connecticut State Class have suffered injury-in-fact and/or actual
damage.
564. Class members are entitled to recover their actual damages, punitive damages, and
attorneys’ fees pursuant to Conn. Gen. Stat. § 42-110g. Defendants acted with a reckless
indifference to another’s rights or wanton or intentional violation to another’s rights and otherwise
engaged in conduct amounting to a particularly aggravated, deliberate disregard of the rights of
others.
CONNECTICUT COUNT II: Breach of Express Warranty
Conn. Gen. Stat. Ann. § 42A-2-313 (On Behalf of the Connecticut State Class)
565. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
566. This count is brought on behalf of the Connecticut State Class against all
Defendants.
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567. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Conn. Gen. Stat. Ann. § 42a-2-104(1).
568. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
569. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Connecticut State Class members regarding the performance and emission controls
of their vehicles.
570. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
571. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
572. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
573. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
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Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
574. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
575. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
576. Despite the existence of warranties, Defendants failed to inform Connecticut State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
577. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
578. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
579. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Connecticut State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
580. Accordingly, recovery by the Connecticut State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
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581. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Connecticut State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
582. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Connecticut State Class members’ remedies would be insufficient to make them whole.
583. Finally, because of Defendants’ breach of warranty as set forth herein, Connecticut
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
584. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
585. As a direct and proximate result of Defendants’ breach of express warranties,
Connecticut State Class members have been damaged in an amount to be determined at trial.
CONNECTICUT COUNT III: Breach of Implied Warranty of Merchantability
Conn. Gen. Stat. Ann. § 42A-2-314 (On Behalf of the Connecticut State Class)
586. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
587. This count is brought on behalf of the Connecticut State Class against all
Defendants.
588. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Conn. Gen. Stat. Ann. § 42a-2-104(1).
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589. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Conn. Gen. Stat. Ann. §
42a-2-314.
590. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
591. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
592. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Connecticut State Class members have been damaged in an amount to be proven
at trial.
DELAWARE COUNT I: Violations of the Delaware Consumer Fraud Act
6 Del. Code § 2513 et seq. (On Behalf of the Delaware State Class)
593. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
594. This count is brought on behalf of the Delaware State Class against all Defendants.
595. Defendants are “person[s]” within the meaning of 6 Del. Code § 2511(7).
596. The Delaware Consumer Fraud Act (“Delaware CFA”) prohibits the “act, use or
employment by any person of any deception, fraud, false pretense, false promise,
misrepresentation, or the concealment, suppression, or omission of any material fact with intent
that others rely upon such concealment, suppression or omission, in connection with the sale, lease
or advertisement of any merchandise, whether or not any person has in fact been misled, deceived
or damaged thereby.” 6 Del. Code § 2513(a).
597. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
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emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
598. Delaware State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Delaware State Class members did not and could not unravel
Defendants’ deception on their own.
599. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
600. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Delaware State Class.
601. Defendants knew or should have known that their conduct violated the Delaware
CFA.
602. Defendants owed the Delaware State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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603. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Delaware State Class.
604. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
605. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
606. The Delaware State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Delaware CFA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
607. As a direct and proximate result of Defendants’ violations of the Delaware CFA, the
Delaware State Class have suffered injury-in-fact and/or actual damage.
608. The Delaware State Class seeks damages under the Delaware CFA for injury
resulting from the direct and natural consequences of Defendants’ unlawful conduct. See, e.g.,
Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1077 (Del. 1983). The Delaware State Class also
seeks an order enjoining Defendants’ unfair, unlawful, and/or deceptive practices, declaratory
relief, attorneys’ fees, and any other just and proper relief available under the Delaware CFA.
609. Defendants engaged in gross, oppressive or aggravated conduct justifying the
imposition of punitive damages.
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DELAWARE COUNT II: Breach of Express Warranty
6 Del. Code §§ 2-313 and 2A-210 (On Behalf of the Delaware State Class)
610. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
611. This count is brought on behalf of the Delaware State Class against all Defendants.
612. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 6 Del. C. §§ 2-104(1) and 2A-103(3), and “sellers” of motor vehicles under §
2-103(1)(d).
613. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 6 Del. C. § 2A-103(1)(p).
614. The Class Vehicles are and were at all relevant times “goods” within the meaning of
6 Del. C. §§ 2-105(1) and 2A-103(1)(h).
615. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
616. Defendants also made numerous representations, descriptions, and promises to
Delaware State Class members regarding the performance and emission controls of their vehicles.
617. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
618. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
619. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
620. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
621. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
622. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
623. Despite the existence of warranties, Defendants failed to inform Delaware State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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624. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
625. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
626. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Delaware State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
627. Accordingly, recovery by the Delaware State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
628. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Delaware State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
629. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Delaware
State Class members’ remedies would be insufficient to make them whole.
630. Finally, because of Defendants’ breach of warranty as set forth herein, Delaware
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
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631. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
632. As a direct and proximate result of Defendants’ breach of express warranties,
Delaware State Class members have been damaged in an amount to be determined at trial.
DELAWARE COUNT III: Breach of Implied Warranty of Merchantability
6. Del. Code §§ 2-314 and 7-2A-212 (On Behalf of the Delaware State Class)
633. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
634. This count is brought on behalf of the Delaware State Class against all Defendants.
635. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 6 Del. C. §§ 2-104(1) and 2A-103(3), and “sellers” of motor vehicles under §
2-103(1)(d).
636. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 6 Del. C. § 2A-103(1)(p).
637. The Class Vehicles are and were at all relevant times “goods” within the meaning of
6 Del. C. §§ 2-105(1) and 2A-103(1)(h).
638. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to 6 Del. C. §§ 2-314 and
2A-212.
639. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
640. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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641. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Delaware State Class members have been damaged in an amount to be proven at
trial.
DISTRICT OF COLUMBIA COUNT I: Violations of the Consumer Protection Procedures Act
D.C. Code § 28-3901 et seq. (On Behalf of the District of Columbia Class)
642. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
643. This count is brought on behalf of the District of Columbia Class against all
Defendants.
644. Defendants are “person[s]” under the Consumer Protection Procedures Act
(“District of Columbia CPPA”), D.C. Code § 28-3901(a)(1).
645. Class members are “consumers,” as defined by D.C. Code § 28-3901(1)(2), who
purchased or leased one or more Class Vehicles.
646. Defendants’ actions as set forth herein constitute “trade practices” under D.C. Code
§ 28-3901.
647. Defendants participated in unfair or deceptive acts or practices that violated the
District of Columbia CPPA. By willfully failing to disclose and actively concealing the Warm-up
Program, Defendants engaged in unfair or deceptive practices prohibited by the District of
Columbia CPPA, D.C. Code § 28-3901, et seq., including: (1) representing that the Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; (2) representing that the
Class Vehicles are of a particular standard, quality, and grade when they are not; (3) advertising the
Class Vehicles with the intent not to sell them as advertised; (4) representing that the subject of a
transaction involving the Class Vehicles has been supplied in accordance with a previous
representation when it has not; (5) misrepresenting as to a material fact which has a tendency to
mislead; and (6) failing to state a material fact when such failure tends to mislead.
648. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
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the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
649. District of Columbia Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and District of Columbia Class members did not and
could not unravel Defendants’ deception on their own.
650. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
651. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the District of Columbia Class.
652. Defendants knew or should have known that their conduct violated the District of
Columbia CPPA.
653. Defendants the District of Columbia Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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654. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the District of Columbia Class.
655. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the District of Columbia Class, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
656. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
657. The District of Columbia Class suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the District of Columbia CPPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
658. As a direct and proximate result of Defendants’ violations of the District of
Columbia CPPA, the District of Columbia Class have suffered injury-in-fact and/or actual damage.
659. The District of Columbia Class are entitled to recover treble damages or $1,500,
whichever is greater, punitive damages, reasonable attorneys’ fees, and any other relief the Court
deems proper, under D.C. Code § 28-3901.
660. The District of Columbia Class seeks punitive damages against Defendants because
their conduct evidences egregious conduct. Defendants egregiously misrepresented the fuel
economy of the Class Vehicles and concealed material facts that only they knew. Defendants’
unlawful conduct warrants punitive damages.
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DISTRICT OF COLUMBIA COUNT II: Breach of Express Warranty
D.C. Code §§ 28:2-313 and 28:2A-210 (On Behalf of the District of Columbia Class)
661. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
662. This count is brought on behalf of the District of Columbia Class against all
Defendants.
663. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under D.C. Code §§ 28:2-104(1) and 28:2A-103(a)(20), and “sellers” of motor vehicles
under § 28:2-103(1)(d).
664. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under D.C. Code § 28:2A-103(a)(16).
665. The Class Vehicles are and were at all relevant times “goods” within the meaning of
D.C. Code §§ 28:2-105(1) and 28:2A-103(a)(8).
666. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
667. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and District of Columbia Class members regarding the performance and emission
controls of their vehicles.
668. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
669. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
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670. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
671. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
672. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
673. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
674. Despite the existence of warranties, Defendants failed to inform District of
Columbia Class members that the Class Vehicles were intentionally designed and manufactured to
contain a Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and
achieve worse fuel and achieve worse fuel economy on the road than what was disclosed to
regulators and represented to consumers who purchased or leased them, and failed to fix the
defective emission components free of charge.
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675. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
676. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
677. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make District of Columbia Class members whole and because Defendants have
failed and/or have refused to adequately provide the promised remedies within a reasonable time.
678. Accordingly, recovery by the District of Columbia Class members is not restricted
to the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
679. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. District of Columbia Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
680. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the District
of Columbia Class members’ remedies would be insufficient to make them whole.
681. Finally, because of Defendants’ breach of warranty as set forth herein, District of
Columbia Class members assert, as additional and/or alternative remedies, the revocation of
acceptance of the goods and the return to them the purchase or lease price of all Class Vehicles
currently owned or leased, and for such other incidental and consequential damages as allowed.
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682. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
683. As a direct and proximate result of Defendants’ breach of express warranties,
District of Columbia Class members have been damaged in an amount to be determined at trial.
DISTRICT OF COLUMBIA COUNT III: Breach of Implied Warranty of Merchantability
D.C. Code §§ 28:2-314 and 28:2A-212 (On Behalf of the District of Columbia Class)
684. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
685. This count is brought on behalf of the District of Columbia Class against all
Defendants.
686. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under D.C. Code §§ 28:2-104(1) and 28:2A-103(a)(20), and “sellers” of motor vehicles
under § 28:2-103(1)(d).
687. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under D.C. Code § 28:2A-103(a)(16).
688. The Class Vehicles are and were at all relevant times “goods” within the meaning of
D.C. Code §§ 28:2-105(1) and 28:2A-103(a)(8).
689. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to D.C. Code §§ 28:2-314
and 28:2A-212.
690. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
691. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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692. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, District of Columbia Class members have been damaged in an amount to be
proven at trial.
FLORIDA COUNT I: Violations of the Florida Unfair & Deceptive Trade Practices Act
Fla. Stat. § 501.201, et seq. (On Behalf of the Florida State Class)
693. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein
694. This count is brought on behalf of the Florida State Class against all Defendants.
695. Members of the Florida State Class are “consumers” within the meaning of the
Florida Unfair and Deceptive Trade Practices Act (“FUDTPA”), Fla. Stat. § 501.203(7).
696. Defendants engaged in “trade or commerce” within the meaning of Fla. Stat. §
501.203(8).
697. FUDTPA prohibits “[u]nfair methods of competition, unconscionable acts or
practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce …” Fla.
Stat. § 501.204(1). Defendants participated in unfair and deceptive trade practices that violated the
FUDTPA as described herein.
698. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
699. Florida State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Florida State Class members did not and could
not unravel Defendants’ deception on their own.
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700. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
701. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Florida State Class.
702. Defendants knew or should have known that their conduct violated the FUDTPA.
703. Defendants owed the Florida State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
704. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Florida State Class.
705. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Florida State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
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706. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
707. The Florida State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the FUDTPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
708. As a direct and proximate result of Defendants’ violations of the FUDTPA,
members of the Florida State Class have suffered injury-in-fact and/or actual damage.
709. The Florida State Class is entitled to recover their actual damages under Fla. Stat. §
501.211(2) and attorneys’ fees under Fla. Stat. § 501.2105(1).
710. The Florida State Class also seeks an order enjoining Defendants’ unfair, unlawful,
and/or deceptive practices, declaratory relief, attorneys’ fees, and any other just and proper relief
available under the FUDTPA.
FLORIDA COUNT II: Breach of Express Warranty F.S.A. §§ 672.313 and 680.21
(On Behalf of the Florida State Class)
711. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
712. This count is brought on behalf of the Florida State Class against all Defendants.
713. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under F.S.A. §§ 672.104(1) and 680.1031(3)(k), and a “seller” of motor vehicles under §
672.103(1)(d).
714. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under F.S.A. § 680.1031(1)(p).
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715. The Class Vehicles are and were at all relevant times “goods” within the meaning of
F.S.A. §§ 672.105(1) and 680.1031(1)(h).
716. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
717. Defendants also made numerous representations, descriptions, and promises to
Florida State Class members regarding the performance and emission controls of their vehicles.
718. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
719. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
720. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
721. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
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related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
722. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
723. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
724. Despite the existence of warranties, Defendants failed to inform Florida State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
725. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
726. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
727. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Florida State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
728. Accordingly, recovery by the Florida State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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729. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Florida State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
730. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Florida
State Class members’ remedies would be insufficient to make them whole.
731. Finally, because of Defendants’ breach of warranty as set forth herein, Florida State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
732. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
733. As a direct and proximate result of Defendants’ breach of express warranties,
Florida State Class members have been damaged in an amount to be determined at trial.
FLORIDA COUNT III: Breach of Implied Warranty of Merchantability
F.S.A. §§ 672.314 and 680.212 (On Behalf of the Florida State Class)
734. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
735. This count is brought on behalf of the Florida State Class against all Defendants.
736. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under F.S.A. §§ 672.104(1) and 680.1031(3)(k), and a “seller” of motor vehicles under §
672.103(1)(d).
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737. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under F.S.A. § 680.1031(1)(p).
738. The Class Vehicles are and were at all relevant times “goods” within the meaning of
F.S.A. §§ 672.105(1) and 680.1031(1)(h).
739. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to F.S.A. §§ 672.314 and
680.212.
740. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
741. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
742. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Florida State Class members have been damaged in an amount to be proven at
trial.
GEORGIA COUNT I: Violations of Georgia’s Fair Business Practices Act
Ga. Code Ann. § 10-1-390 et seq. (On Behalf of the Georgia State Class)
743. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
744. This count is brought on behalf of the Georgia State Class against all Defendants.
745. The Georgia Fair Business Practices Act (“Georgia FBPA”) declares “[u]nfair or
deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices
in trade or commerce” to be unlawful, Ga. Code. Ann. § 10-1-393(a), including but not limited to
“representing that goods or services have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities that they do not have,” “[r]epresenting that goods or services are of a
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particular standard, quality, or grade … if they are of another,” and “[a]dvertising goods or services
with intent not to sell them as advertised,” Ga. Code. Ann. § 10-1-393(b).
746. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
747. Georgia State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Georgia State Class members did not and could
not unravel Defendants’ deception on their own.
748. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
749. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Georgia State Class.
750. Defendants knew or should have known that their conduct violated the Georgia
FBPA.
751. Defendants owed the Georgia State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
752. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Georgia State Class.
753. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
754. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
755. The Georgia State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Georgia FBPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
756. As a direct and proximate result of Defendants’ violations of the Georgia FBPA, the
Georgia State Class has suffered injury-in-fact and/or actual damage.
757. The Georgia State Class is entitled to recover damages and exemplary damages (for
intentional violations) per Ga. Code. Ann. § 10-1-399(a).
758. The Georgia State Class also seeks an order enjoining Defendants’ unfair, unlawful,
and/or deceptive practices, attorneys’ fees, and any other just and proper relief available under the
Georgia FBPA per Ga. Code. Ann. § 10-1-399.
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759. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Ga. Code Ann. § 10-1-399. Additionally, all Defendants were provided
notice of the issues raised in this count and this Complaint by the governmental investigations, the
numerous complaints filed against them, and the many individual notice letters sent by consumers
within a reasonable amount of time after the allegations of Class Vehicle defects became public.
Moreover, Plaintiffs sent a second notice letter pursuant to Ga. Code Ann. § 10-1-399 to all
Defendants on October 11, 2017. Because Defendants failed to remedy their unlawful conduct
within the requisite time period, Plaintiffs seek all damages and relief to which the Georgia State
Class is entitled.
GEORGIA COUNT II: Violations of Georgia’s Uniform Deceptive Trade Practices Act
Ga. Code Ann. § 10-1-370 et seq. (On Behalf of the Georgia State Class)
760. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
761. This count is brought on behalf of the Georgia State Class against all Defendants.
762. Defendants and the Georgia State Class are “persons” within the meaning of
Georgia Uniform Deceptive Trade Practices Act (“Georgia UDTPA”), Ga. Code. Ann. §
10-1-371(5).
763. The Georgia UDTPA prohibits “deceptive trade practices,” which include the
“misrepresentation of standard or quality of goods or services,” and “engaging in any other conduct
which similarly creates a likelihood of confusion or of misunderstanding.” Ga. Code. Ann. §
10-1-372(a).
764. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
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765. Georgia State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Georgia State Class members did not and could not unravel
Defendants’ deception on their own.
766. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
767. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Georgia State Class.
768. Defendants knew or should have known that their conduct violated the Georgia
UDTPA.
769. Defendants owed the Georgia State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
770. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Georgia State Class.
771. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
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cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
772. Defendants’ violations present a continuing risk to the Georgia State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
773. The Georgia State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Georgia UDTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
774. As a direct and proximate result of Defendants’ violations of the Georgia UDTPA,
the Georgia State Class have suffered injury-in-fact and/or actual damage.
775. The Georgia State Class seeks an order enjoining Defendants’ unfair, unlawful,
and/or deceptive practices, attorneys’ fees, and any other just and proper relief available under the
Georgia UDTPA per Ga. Code. Ann § 10-1-373.
GEORGIA COUNT III: Breach of Express Warranty
Ga. Code Ann. §§ 11-2-313 and 11-2A-210 (On Behalf of the Georgia State Class)
776. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
777. This count is brought on behalf of the Georgia State Class against all Defendants.
778. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ga. Code Ann. §§ 11-2-104(1) and 11-2A-103(3), and a “seller” of motor vehicles
under § 11-2-103(1)(d).
779. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ga. Code Ann. § 11-2A-103(1)(p).
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780. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ga. Code Ann. §§ 11-2-105(1) and 11-2A-103(1)(h).
781. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
782. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Georgia State Class members regarding the performance and emission controls of
their vehicles.
783. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
784. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
785. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
786. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
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Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
787. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
788. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
789. Despite the existence of warranties, Defendants failed to inform Georgia State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
790. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
791. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
792. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Georgia State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
793. Accordingly, recovery by the Georgia State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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794. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Georgia State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
795. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Georgia
State Class members’ remedies would be insufficient to make them whole.
796. Finally, because of Defendants’ breach of warranty as set forth herein, Georgia State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
797. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
798. As a direct and proximate result of Defendants’ breach of express warranties,
Georgia State Class members have been damaged in an amount to be determined at trial.
GEORGIA COUNT IV: Breach of Implied Warranty of Merchantability
Ga. Code Ann. §§ 11-2-314 and 11-2A-212 (On Behalf of the Georgia State Class)
799. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
800. This count is brought on behalf of the Georgia State Class against all Defendants.
801. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ga. Code Ann. §§ 11-2-104(1) and 11-2A-103(3), and a “seller” of motor vehicles
under § 11-2-103(1)(d).
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802. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ga. Code Ann. § 11-2A-103(1)(p).
803. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ga. Code Ann. §§ 11-2-105(1) and 11-2A-103(1)(h).
804. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ga. Code Ann. §§
11-2-314 and 11-2A-212.
805. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
806. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
807. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Georgia State Class members have been damaged in an amount to be proven at
trial.
HAWAII COUNT I: Unfair and Deceptive Acts in Violation of Hawaii Law
Haw. Rev. Stat. § 480 et seq. (On Behalf of the Hawaii State Class)
808. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
809. This count is brought on behalf of the Hawaii State Class against all Defendants.
810. Defendants are “person[s]” under Haw. Rev. Stat. § 480-1.
811. Hawaii State Class members are “consumer[s]” as defined by Haw. Rev. Stat. §
480-1, who purchased or leased one or more Class Vehicles.
812. Defendants’ acts or practices as set forth above occurred in the conduct of trade or
commerce.
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813. The Hawaii Act § 480-2(a) prohibits “unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce.…”
814. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
815. Hawaii State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Hawaii State Class members did not and could
not unravel Defendants’ deception on their own.
816. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
817. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Hawaii State Class.
818. Defendants knew or should have known that their conduct violated Hawaii law.
819. Defendants owed the Hawaii State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
820. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Hawaii State Class.
821. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Hawaii State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
822. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
823. The Hawaii State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under Hawaii law. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
HAWAII COUNT II: Breach of Express Warranty
Haw. Rev. Stat. §§ 490:2-313 and 490:2A-210 (On Behalf of the Hawaii State Class)
824. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
825. This count is brought on behalf of the Hawaii State Class against all Defendants.
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826. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Haw. Rev. Stat. §§ 490:2-104(1) and 490:2A-103(b), and a “seller” of motor
vehicles under § 490:2-103(1)(d).
827. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Haw. Rev. Stat. § 490:2A-103(a)(16).
828. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Haw. Rev. Stat. §§ 490:2-105(1) and 490:2A-103(a)(8).
829. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
830. Defendants also made numerous representations, descriptions, and promises to the
Hawaii State Class members regarding the performance and emission controls of their vehicles.
831. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
832. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
833. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
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converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
834. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
835. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
836. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
837. Despite the existence of warranties, Defendants failed to inform Hawaii State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
838. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
839. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
840. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
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insufficient to make Hawaii State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
841. Accordingly, recovery by the Hawaii State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
842. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Hawaii State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
843. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Hawaii
State Class members’ remedies would be insufficient to make them whole.
844. Finally, because of Defendants’ breach of warranty as set forth herein, Hawaii State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
845. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
846. As a direct and proximate result of Defendants’ breach of express warranties,
Hawaii State Class members have been damaged in an amount to be determined at trial.
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HAWAII COUNT III: Breach of Implied Warranty of Merchantability
Haw. Rev. Stat. §§ 490:2-314 and 490:2A-212 (On Behalf of the Hawaii State Class)
847. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
848. This count is brought on behalf of the Hawaii State Class against all Defendants.
849. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Haw. Rev. Stat. §§ 490:2-104(1) and 490:2A-103(b), and a “seller” of motor
vehicles under § 490:2-103(1)(d).
850. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Haw. Rev. Stat. § 490:2A-103(a)(16).
851. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Haw. Rev. Stat. §§ 490:2-105(1) and 490:2A-103(a)(8).
852. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Haw. Rev. Stat. §§
490:2-314 and 490:2A-212.
853. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
854. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
855. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Hawaii State Class members have been damaged in an amount to be proven at
trial.
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IDAHO COUNT I: Violations of the Idaho Consumer Protection Act
Idaho Code § 48-601 et seq. (On Behalf of the Idaho State Class)
856. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
857. This count is brought on behalf of the Idaho State Class against all Defendants.
858. Defendants are “person[s]” under the Idaho Consumer Protection Act (“Idaho
CPA”), Idaho Code § 48-602(1).
859. Defendants’ acts or practices as set forth above occurred in the conduct of “trade” or
“commerce” under Idaho Code § 48-602(2).
860. Defendants participated in misleading, false, or deceptive acts that violated the
Idaho CPA.
861. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
862. Idaho State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Idaho State Class members did not and could not unravel
Defendants’ deception on their own.
863. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
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864. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Idaho State Class.
865. Defendants knew or should have known that their conduct violated the Idaho CPA.
866. Defendants owed Plaintiffs and the Idaho State Class a duty to disclose the illegality
and public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
867. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Idaho State Class.
868. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
869. Defendants’ violations present a continuing risk to Idaho State Class members, as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
870. The Idaho State Class suffered ascertainable loss and actual damages as a direct and
proximate result of Defendants’ misrepresentations and its concealment of and failure to disclose
material information. Defendants had an ongoing duty to all their customers to refrain from unfair
and deceptive practices under the Idaho CPA. All owners of Class Vehicles suffered ascertainable
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loss as a result of Defendants’ deceptive and unfair acts and practices made in the course of
Defendants’ business.
871. As a direct and proximate result of Defendants’ violations of the Idaho CPA, the
Idaho State Class has suffered injury-in-fact and/or actual damage.
872. Pursuant to Idaho Code § 48-608, the Idaho State Class seeks monetary relief
against Defendants measured as the greater of (a) actual damages in an amount to be determined at
trial and (b) statutory damages in the amount of $1,000 for each Idaho State Class member.
873. The Idaho State Class also seeks an order enjoining Defendants’ unfair, unlawful,
and/or deceptive practices, attorneys’ fees, and any other just and proper relief available under the
Idaho CPA.
874. The Idaho State Class also seeks punitive damages against Defendants because
Defendants conduct evidences an extreme deviation from reasonable standards. Defendants
flagrantly and fraudulently misrepresented the reliability of the Class Vehicles, deceived Class
members, and concealed material facts that only they knew—all to avoid the expense and public
relations nightmare of correcting a flaw in the Class Vehicles. Defendants’ unlawful conduct
constitutes oppression and fraud warranting punitive damages.
IDAHO COUNT II: Breach of Express Warranty
Idaho Code §§ 28-2-313 and 28-12-210 (On Behalf of the Idaho State Class)
875. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
876. This count is brought on behalf of the Idaho State Class against all Defendants.
877. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Idaho Code §§ 28-2-104(1) and 28-12-103(3), and “sellers” of motor vehicles under
§ 28-2-103(1)(d).
878. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Idaho Code § 28-12-103(1)(p).
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879. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Idaho Code §§ 28-2-105(1) and 28-12-103(1)(h).
880. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
881. Defendants also made numerous representations, descriptions, and promises to the
Idaho State Class members regarding the performance and emission controls of their vehicles.
882. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
883. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
884. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
885. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
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related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
886. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
887. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
888. Despite the existence of warranties, Defendants failed to inform Idaho State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
889. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
890. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
891. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Idaho State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
892. Accordingly, recovery by the Idaho State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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893. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Idaho State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
894. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Idaho
State Class members’ remedies would be insufficient to make them whole.
895. Finally, because of Defendants’ breach of warranty as set forth herein, Idaho State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
896. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
897. As a direct and proximate result of Defendants’ breach of express warranties, Idaho
State Class members have been damaged in an amount to be determined at trial.
IDAHO COUNT III: Breach of Implied Warranty of Merchantability
Idaho Code §§ 28-2-314 and 28-12-212 (On Behalf of the Idaho State Class)
898. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
899. This count is brought on behalf of the Idaho State Class against all Defendants.
900. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Idaho Code §§ 28-2-104(1) and 28-12-103(3), and “sellers” of motor vehicles under
§ 28-2-103(1)(d).
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901. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Idaho Code § 28-12-103(1)(p).
902. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Idaho Code §§ 28-2-105(1) and 28-12-103(1)(h).
903. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Idaho Code §§ 28-2-314
and 28-12-212.
904. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
905. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
906. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Idaho State Class members have been damaged in an amount to be proven at trial.
ILLINOIS COUNT I: Violations of the Illinois Consumer Fraud and Deceptive Business Practices Act
815 ILCS 505/1, et seq. and 720 ILCS 295/1a (On Behalf of the Illinois State Class)
907. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
908. This count is brought on behalf of the Illinois State Class against all Defendants.
909. Defendants are “person[s]” as that term is defined in 815 ILCS 505/1(c).
910. Members of the Illinois State Class are “consumers” as that term is defined in 815
ILCS 505/1(e).
911. The Illinois Consumer Fraud and Deceptive Business Practices Act (“Illinois CFA”)
prohibits “unfair or deceptive acts or practices, including but not limited to the use or employment
of any deception, fraud, false pretense, false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with intent that others rely upon the concealment,
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suppression or omission of such material fact … in the conduct of trade or commerce … whether
any person has in fact been misled, deceived or damaged thereby.” 815 ILCS 505/2.
912. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
913. Illinois State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Illinois State Class members did not and could
not unravel Defendants’ deception on their own.
914. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
915. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Illinois State Class.
916. Defendants knew or should have known that their conduct violated the Illinois CFA.
917. Defendants owed the Illinois State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
918. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Illinois State Class.
919. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
920. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
921. The Illinois State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Illinois CFA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
922. As a direct and proximate result of Defendants’ violations of the Illinois CFA,
members of the Illinois State Class have suffered injury-in-fact and/or actual damage.
923. Pursuant to 815 ILCS 505/10a(a), the Illinois State Class seek monetary relief
against Defendants in the amount of actual damages, as well as punitive damages because
Defendants acted with fraud and/or malice and/or was grossly negligent.
924. The Illinois State Class also seeks an order enjoining Defendants’ unfair and/or
deceptive acts or practices, punitive damages, and attorneys’ fees, and any other just and proper
relief available under 815 ILCS § 505/1 et seq.
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ILLINOIS COUNT II: Breach of Express Warranty
810 Ill. Comp. Stat. §§ 5/2-313 and 5/2A-210 (On Behalf of the Illinois State Class)
925. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
926. This count is brought on behalf of the Illinois State Class against all Defendants.
927. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 810 Ill. Comp. Stat. §§ 5/2-104(1) and 5/2A-103(3), and “sellers” of motor vehicles
under § 5/2-103(1)(d).
928. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 810 Ill. Comp. Stat. § 5/2A-103(1)(p).
929. The Class Vehicles are and were at all relevant times “goods” within the meaning of
810 Ill. Comp. Stat. §§ 5/2-105(1) and 5/2A-103(1)(h).
930. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
931. Defendants also made numerous representations, descriptions, and promises to
Illinois State Class members regarding the performance and emission controls of their vehicles.
932. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
933. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
934. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
935. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
936. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
937. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
938. Despite the existence of warranties, Defendants failed to inform Illinois State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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939. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
940. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
941. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Illinois State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
942. Accordingly, recovery by the Illinois State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
943. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Illinois State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
944. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Illinois
State Class members’ remedies would be insufficient to make them whole.
945. Finally, because of Defendants’ breach of warranty as set forth herein, Illinois State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
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946. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
947. As a direct and proximate result of Defendants’ breach of express warranties,
Illinois State Class members have been damaged in an amount to be determined at trial.
ILLINOIS COUNT III: Breach of Implied Warranty of Merchantability
810 Ill. Comp. Stat. §§ 5/2-314 and 5/2A-212 (On Behalf of the Illinois State Class)
948. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
949. This count is brought on behalf of the Illinois State Class against all Defendants.
950. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 810 Ill. Comp. Stat. §§ 5/2-104(1) and 5/2A-103(3), and “sellers” of motor vehicles
under § 5/2-103(1)(d).
951. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 810 Ill. Comp. Stat. § 5/2A-103(1)(p).
952. The Class Vehicles are and were at all relevant times “goods” within the meaning of
810 Ill. Comp. Stat. §§ 5/2-105(1) and 5/2A-103(1)(h).
953. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to 810 Ill. Comp. Stat. §§
28-2-314 and 28-12-212.
954. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
955. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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956. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Illinois State Class members have been damaged in an amount to be proven at
trial.
INDIANA COUNT I: Violations of the Indiana Deceptive Consumer Sales Act
Ind. Code § 24-5-0.5-3 (On Behalf of the Indiana State Class)
957. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
958. This count is brought on behalf of the Indiana State Class against all Defendants.
959. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
960. Indiana State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Indiana State Class members did not and could
not unravel Defendants’ deception on their own.
961. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
962. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Indiana State Class.
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963. Defendants knew or should have known that their conduct violated the Indiana
DCSA.
964. Defendants owed Plaintiffs and the Indiana State Class a duty to disclose the
illegality and public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
965. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Indiana State Class.
966. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
967. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
968. The Indiana State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Indiana DCSA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
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969. As a direct and proximate result of Defendants’ violations of the Indiana DCSA,
members of the Indiana State Class have suffered injury-in-fact and/or actual damage.
970. Pursuant to Ind. Code § 24-5-0.5-4, the Indiana State Class seeks monetary relief
against Defendants measured as the greater of (a) actual damages in an amount to be determined at
trial and (b) statutory damages in the amount of $500 for each Indiana State Class member,
including treble damages up to $1,000 for Defendants’ willfully deceptive acts.
971. The Indiana State Class also seeks punitive damages based on the outrageousness
and recklessness of the Defendants’ conduct and Defendants’ high net worth.
972. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Ind. Code § 24-5-0.5-5(a). Additionally, all Defendants were provided notice
of the issues raised in this count and this Complaint by the governmental investigations, the
numerous complaints filed against them, and the many individual notice letters sent by consumers
within a reasonable amount of time after the allegations of Class Vehicle defects became public.
Moreover, Plaintiffs sent a second notice letter pursuant to Ind. Code § 24-5-0.5-5(a) to all
Defendants on October 11, 2017. Because Defendants failed to remedy their unlawful conduct
within the requisite time period, Plaintiffs seek all damages and relief to which Plaintiffs and the
Indiana State Class are entitled.
INDIANA COUNT II: Breach of Express Warranty
Ind. Code §§ 26-1-3-313 and 26-1-2.1-210 (On Behalf of the Indiana State Class)
973. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
974. This count is brought on behalf of the Indiana State Class against all Defendants.
975. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ind. Code §§ 26-1-2-104(1) and 26-1-2.1-103(3), and “sellers” of motor vehicles
under § 26-1-2-103(1)(d).
976. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ind. Code § 26-1-2.1-103(1)(p).
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977. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ind. Code §§ 26-1-2-105(1) and 26-1-2.1-103(1)(h).
978. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
979. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Indiana State Class members regarding the performance and emission controls of
their vehicles.
980. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
981. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
982. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
983. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
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Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
984. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
985. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
986. Despite the existence of warranties, Defendants failed to inform Indiana State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
987. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
988. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
989. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Indiana State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
990. Accordingly, recovery by the Indiana State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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991. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Indiana State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
992. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Indiana
State Class members’ remedies would be insufficient to make them whole.
993. Finally, because of Defendants’ breach of warranty as set forth herein, Indiana State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
994. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
995. As a direct and proximate result of Defendants’ breach of express warranties,
Indiana State Class members have been damaged in an amount to be determined at trial.
INDIANA COUNT III: Breach of Implied Warranty of Merchantability
Ind. Code §§ 26-1-3-314 and 26-1-2.1-212 (On Behalf of the Indiana State Class)
996. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
997. This count is brought on behalf of the Indiana State Class against all Defendants.
998. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ind. Code §§ 26-1-2-104(1) and 26-1-2.1-103(3), and “sellers” of motor vehicles
under § 26-1-2-103(1)(d).
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999. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ind. Code § 26-1-2.1-103(1)(p).
1000. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ind. Code §§ 26-1-2-105(1) and 26-1-2.1-103(1)(h).
1001. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ind. Code §§ 26-1-2-314
and 26-1-2.1-212.
1002. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1003. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1004. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Indiana State Class members have been damaged in an amount to be proven at
trial.
IOWA COUNT I: Violations of the Private Right of Action For Consumer Frauds Act
Iowa Code § 714h.1, et seq. (On Behalf of the Iowa State Class)
1005. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1006. This count is brought on behalf of the Iowa State Class against all Defendants.
1007. Defendants are “person[s]” under Iowa Code § 714H.2(7).
1008. Iowa State Class members are “consumers,” as defined by Iowa Code § 14H.2(3),
who purchased or leased one or more Class Vehicles.
1009. The Iowa Private Right of Action for Consumer Frauds Act (“Iowa CFA”) prohibits
any “practice or act the person knows or reasonably should know is an unfair practice, deception,
fraud, false pretense, or false promise, or the misrepresentation, concealment, suppression, or
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omission of a material fact, with the intent that others rely upon the unfair practice, deception,
fraud, false pretense, false promise, misrepresentation, concealment, suppression, or omission in
connection with the advertisement, sale, or lease of consumer merchandise.” Iowa Code § 714H.3.
1010. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1011. Iowa State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Iowa State Class members did not and could not
unravel Defendants’ deception on their own.
1012. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1013. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Iowa State Class.
1014. Defendants knew or should have known that their conduct violated the Iowa CFA.
1015. Defendants owed the Iowa State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1016. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Iowa State Class.
1017. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Iowa State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1018. Defendants’ violations present a continuing risk to the Iowa State Class as well as to
the general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
1019. The Iowa State Class suffered ascertainable loss and actual damages as a direct and
proximate result of Defendants’ misrepresentations and its concealment of and failure to disclose
material information. Defendants had an ongoing duty to all their customers to refrain from unfair
and deceptive practices under the Iowa CFA. All owners of Class Vehicles suffered ascertainable
loss as a result of Defendants’ deceptive and unfair acts and practices made in the course of
Defendants’ business.
1020. As a direct and proximate result of Defendants’ violations of the Iowa CFA,
members of the Iowa State Class have suffered injury-in-fact and/or actual damage.
1021. Pursuant to Iowa Code § 714H.5, the Iowa State Class seeks an order enjoining
Defendants’ unfair and/or deceptive acts or practices; actual damages; in addition to an award of
actual damages, statutory damages up to three times the amount of actual damages awarded as a
result of Defendants’ willful and wanton disregard for the rights of others; attorneys’ fees; and such
other equitable relief as the Court deems necessary to protect the public from further violations of
the Iowa CFA.
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IOWA COUNT II: Breach of Express Warranty
Iowa Code §§ 554.2313 and 554.13210 (On Behalf of the Iowa State Class)
1022. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1023. This count is brought on behalf of the Iowa State Class against all Defendants.
1024. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Iowa Code §§ 554.2104(1) and 554.13103(3), and “sellers” of motor vehicles under
§ 554.2103(1)(d).
1025. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Iowa Code § 554.13103(1)(p).
1026. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Iowa Code §§ 554.2105(1) and 554.13103(1)(h).
1027. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1028. Defendants also made numerous representations, descriptions, and promises to Iowa
State Class members regarding the performance and emission controls of their vehicles.
1029. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1030. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1031. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1032. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1033. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1034. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1035. Despite the existence of warranties, Defendants failed to inform Iowa State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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1036. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1037. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1038. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Iowa State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
1039. Accordingly, recovery by the Iowa State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1040. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Iowa State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1041. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Iowa
State Class members’ remedies would be insufficient to make them whole.
1042. Finally, because of Defendants’ breach of warranty as set forth herein, Iowa State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
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1043. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1044. As a direct and proximate result of Defendants’ breach of express warranties, Iowa
State Class members have been damaged in an amount to be determined at trial.
IOWA COUNT III: Breach of Implied Warranty of Merchantability
Iowa Code §§ 554.2314 and 554.13212 (On Behalf of the Iowa State Class)
1045. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1046. This count is brought on behalf of the Iowa State Class against all Defendants.
1047. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Iowa Code §§ 554.2104(1) and 554.13103(3), and “sellers” of motor vehicles under
§ 554.2103(1)(d).
1048. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Iowa Code § 554.13103(1)(p).
1049. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Iowa Code §§ 554.2105(1) and 554.13103(1)(h).
1050. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Iowa Code §§ 554.2314
and 554.13212.
1051. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1052. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1053. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Iowa State Class members have been damaged in an amount to be proven at trial.
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KANSAS COUNT I: Violations of the Kansas Consumer Protection Act
Kan. Stat. Ann. § 50-623 et seq. (On Behalf of the Kansas State Class)
1054. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1055. This count is brought on behalf of the Kansas State Class against all Defendants.
1056. Each Defendant is a “supplier” under the Kansas Consumer Protection Act
(“Kansas CPA”), Kan. Stat. Ann. § 50-624(l).
1057. Kansas State Class members are “consumers,” within the meaning of Kan. Stat.
Ann. § 50-624(b), who purchased or leased one or more Class Vehicles.
1058. The sale of the Class Vehicles to the Kansas State Class members was a “consumer
transaction” within the meaning of Kan. Stat. Ann. § 50-624(c).
1059. The Kansas CPA states “[n]o supplier shall engage in any deceptive act or practice
in connection with a consumer transaction,” Kan. Stat. Ann. § 50-626(a), and that deceptive acts or
practices include: (1) knowingly making representations or with reason to know that “(A) Property
or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or
quantities that they do not have;” and “(D) property or services are of particular standard, quality,
grade, style or model, if they are of another which differs materially from the representation;” “(2)
the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or
ambiguity as to a material fact;” and “(3) the willful failure to state a material fact, or the willful
concealment, suppression or omission of a material fact.” The Kansas CPA also provides that “[n]o
supplier shall engage in any unconscionable act or practice in connection with a consumer
transaction.” Kan. Stat. Ann. § 50-627(a).
1060. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
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CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1061. Kansas State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Kansas State Class members did not and could not unravel
Defendants’ deception on their own.
1062. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1063. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Kansas State Class.
1064. Defendants knew or should have known that their conduct violated the Kansas CPA.
1065. Defendants owed the Kansas State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1066. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Kansas State Class.
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1067. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Kansas State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1068. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
1069. Members of the Kansas State Class suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the Kansas CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1070. As a direct and proximate result of Defendants’ violations of the Kansas CPA, the
Kansas State Class have suffered injury-in-fact and/or actual damage.
1071. Pursuant to Kan. Stat. Ann. § 50-634, the Kansas State Class seeks monetary relief
against Defendants measured as the greater of (a) actual damages in an amount to be determined at
trial and (b) statutory damages in the amount of $10,000 for each Kansas State Class member.
1072. Plaintiffs also seeks an order enjoining Defendants’ unfair, unlawful, and/or
deceptive practices, declaratory relief, attorneys’ fees, and any other just and proper relief available
under Kan. Stat. Ann § 50-623, et seq.
KANSAS COUNT II: Breach of Express Warranty
Kan. Stat. §§ 84-2-313 and 84-2A-210 (On Behalf of the Kansas State Class)
1073. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1074. This count is brought on behalf of the Kansas State Class against all Defendants.
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1075. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Kan. Stat. §§ 84-2-104(1) and 84-2A-103(3), and “sellers” of motor vehicles under
§ 84-2-103(1)(d).
1076. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Kan. Stat. § 84-2A-103(1)(p).
1077. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Kan. Stat. §§ 84-2-105(1) and 84-2A-103(1)(h).
1078. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1079. Defendants also made numerous representations, descriptions, and promises to
Kansas State Class members regarding the performance and emission controls of their vehicles.
1080. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1081. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1082. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
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converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1083. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1084. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1085. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1086. Despite the existence of warranties, Defendants failed to inform Kansas State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1087. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1088. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1089. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
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insufficient to make Kansas State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
1090. Accordingly, recovery by the Kansas State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1091. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Kansas State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1092. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Kansas
State Class members’ remedies would be insufficient to make them whole.
1093. Finally, because of Defendants’ breach of warranty as set forth herein, Kansas State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
1094. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1095. As a direct and proximate result of Defendants’ breach of express warranties,
Kansas State Class members have been damaged in an amount to be determined at trial.
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KANSAS COUNT III: Breach of Implied Warranty of Merchantability
Kan. Stat. §§ 84-2-314 and 84-2A-212 (On Behalf of the Kansas State Class)
1096. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1097. This count is brought on behalf of the Kansas State Class against all Defendants.
1098. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Kan. Stat. §§ 84-2-104(1) and 84-2A-103(3), and “sellers” of motor vehicles under
§ 84-2-103(1)(d).
1099. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Kan. Stat. § 84-2A-103(1)(p).
1100. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Kan. Stat. §§ 84-2-105(1) and 84-2A-103(1)(h).
1101. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Kan. Stat. §§ 84-2-314
and 84-2A-212.
1102. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1103. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1104. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Kansas State Class members have been damaged in an amount to be proven at
trial.
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KENTUCKY COUNT I: Violations of the Kentucky Consumer Protection Act
Ky. Rev. Stat. Ann. § 367.110 et seq. (On Behalf of the Kentucky State Class)
1105. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1106. This count is brought on behalf of the Kentucky State Class against all Defendants.
1107. Defendants, Plaintiffs, and the Kentucky State Class are “persons” within the
meaning of the Ky. Rev. Stat. § 367.110(1).
1108. Defendants engaged in “trade” or “commerce” within the meaning of Ky. Rev. Stat.
§ 367.110(2).
1109. The Kentucky Consumer Protection Act (“Kentucky CPA”) makes unlawful
“[u]nfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce
….” Ky. Rev. Stat. § 367.170(1). Defendants participated in misleading, false, or deceptive acts
that violated the Kentucky CPA. By failing to disclose and by actively concealing the Warm-up
software program that led to inflated and misleading fuel economy values, marketing their vehicles
as reliable, efficient, and of high quality, and by presenting themselves as reputable manufacturers
that valued environmental cleanliness and fuel efficiency, and stood behind their vehicles after they
were sold, Defendants engaged in deceptive business practices prohibited by the Kentucky CPA.
1110. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1111. Kentucky State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Kentucky State Class members did not and could not unravel
Defendants’ deception on their own.
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1112. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1113. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Kentucky State Class.
1114. Defendants knew or should have known that their conduct violated the Kentucky
CPA.
1115. Defendants owed the Kentucky State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1116. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Kentucky State Class.
1117. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
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1118. Defendants’ violations present a continuing risk to the Kentucky State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
1119. Members of the Kentucky State Class suffered ascertainable loss and actual
damages as a direct and proximate result of Defendants’ misrepresentations and its concealment of
and failure to disclose material information. Defendants had an ongoing duty to all their customers
to refrain from unfair and deceptive practices under the Kentucky CPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
1120. As a direct and proximate result of Defendants’ violations of the Kentucky CPA, the
Kentucky State Class members have suffered injury-in-fact and/or actual damage.
1121. Pursuant to Ky. Rev. Stat. Ann. § 367.220, the Kentucky State Class seek to recover
actual damages in an amount to be determined at trial; an order enjoining Defendants’ unfair,
unlawful, and/or deceptive practices; declaratory relief; attorneys’ fees; and any other just and
proper relief available under Ky. Rev. Stat. Ann. § 367.220.
KENTUCKY COUNT II: Breach of Express Warranty
Ky. Rev. Stat. §§ 335.2-313 and 355.2A-210 (On Behalf of the Kentucky State Class)
1122. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1123. This count is brought on behalf of the Kentucky State Class against all Defendants.
1124. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ky. Rev. Stat. §§ 355.2-104(1) and 355.2A-103(3), and “sellers” of motor vehicles
under § 355.2-103(1)(d).
1125. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ky. Rev. Stat. § 355.2A-103(1)(p).
1126. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ky. Rev. Stat. §§ 355.2-105(1) and 355.2A-103(1)(h).
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1127. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1128. Defendants also made numerous representations, descriptions, and promises to
Kentucky State Class members regarding the performance and emission controls of their vehicles.
1129. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1130. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1131. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1132. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
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first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1133. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1134. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1135. Despite the existence of warranties, Defendants failed to inform Kentucky State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1136. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1137. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1138. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Kentucky State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1139. Accordingly, recovery by the Kentucky State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1140. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
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material facts regarding the Class Vehicles. Kentucky State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1141. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Kentucky State Class members’ remedies would be insufficient to make them whole.
1142. Finally, because of Defendants’ breach of warranty as set forth herein, Kentucky
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1143. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1144. As a direct and proximate result of Defendants’ breach of express warranties,
Kentucky State Class members have been damaged in an amount to be determined at trial.
KENTUCKY COUNT III: Breach of Implied Warranty of Merchantability
Ky. Rev. Stat. §§ 335.2-314 and 355.2A-212 (On Behalf of the Kentucky State Class)
1145. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1146. This count is brought on behalf of the Kentucky State Class against all Defendants.
1147. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ky. Rev. Stat. §§ 355.2-104(1) and 355.2A-103(3), and “sellers” of motor vehicles
under § 355.2-103(1)(d).
1148. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ky. Rev. Stat. § 355.2A-103(1)(p).
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1149. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ky. Rev. Stat. §§ 355.2-105(1) and 355.2A-103(1)(h).
1150. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ky. Rev. Stat. §§
335.2-314 and 355.2A-212.
1151. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1152. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1153. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Kentucky State Class members have been damaged in an amount to be proven at
trial.
LOUISIANA COUNT I: Violations of the Louisiana Unfair Trade Practices and Consumer Protection Law
La. Stat. Ann. § 51:1401 et seq. (On Behalf of the Louisiana State Class)
1154. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1155. This count is brought on behalf of the Louisiana State Class against all Defendants.
1156. Defendants, Plaintiffs, and the Louisiana State Class are “persons” within the
meaning of the La. Rev. Stat. § 51:1402(8)
1157. Louisiana State Class members are “consumers” within the meaning of La. Rev.
Stat. § 51:1402(1).
1158. Defendants engaged in “trade” or “commerce” within the meaning of La. Rev. Stat.
§ 51:1402(10).
1159. The Louisiana Unfair Trade Practices and Consumer Protection Law (“Louisiana
CPL”) makes unlawful “deceptive acts or practices in the conduct of any trade or commerce.” La.
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Rev. Stat. § 51:1405(A). Defendants participated in misleading, false, or deceptive acts that
violated the Louisiana CPL.
1160. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1161. Louisiana State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Louisiana State Class members did not and could not unravel
Defendants’ deception on their own.
1162. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1163. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Louisiana State Class.
1164. Defendants knew or should have known that their conduct violated the Louisiana
CPL.
1165. Defendants owed the Louisiana State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1166. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Louisiana State Class.
1167. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
1168. Defendants’ violations present a continuing risk to Louisiana State Class members
as well as to the general public. Defendants’ unlawful acts and practices complained of herein
affect the public interest.
1169. The Louisiana State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Louisiana CPL. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1170. As a direct and proximate result of Defendants’ violations of the Louisiana CPL, the
Louisiana State Class has suffered injury-in-fact and/or actual damage.
1171. Pursuant to La. Rev. Stat. § 51:1409, the Louisiana State Class seeks to recover
actual damages in an amount to be determined at trial; treble damages for Defendants’ knowing
violations of the Louisiana CPL; an order enjoining Defendants’ unfair, unlawful, and/or deceptive
practices; declaratory relief; attorneys’ fees; and any other just and proper relief available under La.
Rev. Stat. § 51:1409.
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LOUISIANA COUNT II: Breach of Implied Warranty of Merchantability/Warranty Against Redhibitory Defects
La. Civ. Code Art. 2520, 2524 (On Behalf of the Louisiana State Class)
1172. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
1173. This count is brought on behalf of the Louisiana State Class against all Defendants.
1174. Defendants are and were at all relevant times merchants with respect to motor
vehicles.
1175. A warranty that the Class Vehicles were in merchantable condition is implied by
law in the instant transactions. These Class Vehicles, when sold and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1176. Defendants were provided notice of these issues by the investigations of the EPA
and individual state regulators, and by numerous complaints filed against it including the instant
complaint, before or within a reasonable amount of time after the allegations of Class Vehicle
defects became public.
1177. As a direct and proximate result of Defendants’ breach of the warranties of
merchantability, Louisiana State Class members have been damaged in an amount to be proven at
trial.
MAINE COUNT I: Violations of the Maine Unfair Trade Practices Act
Me. Rev. Stat. Ann. Tit. 5, § 205-A et seq. (On Behalf of the Maine State Class)
1178. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1179. This count is brought on behalf of the Maine State Class against all Defendants.
1180. Defendants, Plaintiffs, and the Maine State Class are “persons” within the meaning
of Me. Rev. Stat. Ann. Tit. 5, § 206(2).
1181. Defendants engaged in “trade” or “commerce” within the meaning of Me. Rev. Stat.
Ann. Tit. 5, § 206(3).
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1182. The Maine Unfair Trade Practices Act (“Maine UTPA”) makes unlawful “[u]nfair
methods of competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce….” Me. Rev. Stat. Ann. Tit. 5 § 207.
1183. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1184. Maine State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Maine State Class members did not and could not unravel
Defendants’ deception on their own.
1185. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1186. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Maine State Class.
1187. Defendants knew or should have known that their conduct violated the Maine
UTPA.
1188. Defendants owed the Maine State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
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b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1189. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Maine State Class.
1190. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Maine State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1191. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
1192. The Maine State Class suffered ascertainable loss and actual damages as a direct and
proximate result of Defendants’ misrepresentations and its concealment of and failure to disclose
material information. Defendants had an ongoing duty to all their customers to refrain from unfair
and deceptive practices under the Maine UTPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
1193. As a direct and proximate result of Defendants’ violations of the Maine UTPA, the
Maine State Class has suffered injury-in-fact and/or actual damage.
1194. Pursuant to Me. Rev. Stat. Ann. Tit. 5 § 213, the Maine State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages, and
attorneys’ fees, costs, and any other just and proper relief available under the Maine UTPA.
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1195. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Me. Rev. Stat. Ann. Title 5, § 50-634(g). Additionally, all Defendants were
provided notice of the issues raised in this count and this Complaint by the governmental
investigations, the numerous complaints filed against them, and the many individual notice letters
sent by consumers within a reasonable amount of time after the allegations of Class Vehicle defects
became public. Moreover, Plaintiffs sent a second notice letter pursuant to Me. Rev. Stat. Ann.
Title 5, § 50-634(g) to all Defendants on October 11, 2017. Because Defendants failed to remedy
their unlawful conduct within the requisite time period, Plaintiffs seek all damages and relief to
which Plaintiffs and the Maine State Class are entitled.
MAINE COUNT II: Breach of Express Warranty
Me. Rev. Stat. Tit. 11 §§ 2-313 and 2-1210 (On Behalf of the Maine State Class)
1196. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1197. This count is brought on behalf of the Maine State Class against all Defendants.
1198. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Me. Rev. Stat. Ann. Tit. 11,§§ 2-104(1), and 2-1103(3), and is a “seller” of motor
vehicles under § 2-103(1)(d).
1199. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Me. Rev. Stat. Ann. Tit. 11,§ 2-1103(1)(p).
1200. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Me. Rev. Stat. Ann. Tit. 11,§§ 2-105(1), and 2-1103(1)(h).
1201. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1202. Defendants also made numerous representations, descriptions, and promises to
Maine State Class members regarding the performance and emission controls of their vehicles.
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1203. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1204. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1205. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1206. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1207. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
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1208. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1209. Despite the existence of warranties, Defendants failed to inform Maine State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1210. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1211. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1212. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Maine State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
1213. Accordingly, recovery by the Maine State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1214. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Maine State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1215. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
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workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Maine
State Class members’ remedies would be insufficient to make them whole.
1216. Finally, because of Defendants’ breach of warranty as set forth herein, Maine State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
1217. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1218. As a direct and proximate result of Defendants’ breach of express warranties, Maine
State Class members have been damaged in an amount to be determined at trial.
MAINE COUNT III: Breach of Implied Warranty of Merchantability
Me. Rev. Stat. Tit. 11 §§ 2-314 and 2-1212 (On Behalf of the Maine State Class)
1219. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1220. This count is brought on behalf of the Maine State Class against all Defendants.
1221. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Me. Rev. Stat. Ann. Tit. 11,§§ 2-104(1), and 2-1103(3), and is a “seller” of motor
vehicles under § 2-103(1)(d).
1222. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Me. Rev. Stat. Ann. Tit. 11,§ 2-1103(1)(p).
1223. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Me. Rev. Stat. Ann. Tit. 11,§§ 2-105(1), and 2-1103(1)(h).
1224. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Me. Rev. Stat. Ann. Tit.
11,§§ 2-314, and 2-1212.
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1225. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1226. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1227. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Maine State Class members have been damaged in an amount to be proven at trial.
MARYLAND COUNT I: Violations of the Maryland Consumer Protection Act
Md. Code Com. Law § 13-101 et seq. (On Behalf of the Maryland State Class)
1228. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1229. This count is brought on behalf of the Maryland State Class against all Defendants.
1230. Defendants and the Maryland State Class are “persons” within the meaning of Md.
Code Com. Law § 13-101(h).
1231. The Maryland Consumer Protection Act (“Maryland CPA”) provides that a person
may not engage in any unfair or deceptive trade practice in the sale of any consumer good. Md.
Code Com. Law § 13-303. Defendants participated in misleading, false, or deceptive acts that
violated the Maryland CPA.
1232. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
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1233. Maryland State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology.
1234. Maryland State Class members did not and could not unravel Defendants’ deception
on their own.
1235. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1236. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Maryland State Class.
1237. Defendants knew or should have known that their conduct violated the Maryland
CPA.
1238. Defendants owed the Maryland State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
1239. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Maryland State Class.
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1240. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
1241. Defendants’ violations present a continuing risk to the Maryland State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
1242. The Maryland State Class suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Maryland CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1243. As a direct and proximate result of Defendants’ violations of the Maryland CPA, the
Maryland State Class has suffered injury-in-fact and/or actual damage.
1244. Pursuant to Md. Code Com. Law § 13-408, the Maryland State Class seek actual
damages, attorneys’ fees, and any other just and proper relief available under the Maryland CPA.
MARYLAND COUNT II: Maryland Lemon Law
Md. Code Com. Law § 14-1501 et seq. (On Behalf of the Maryland State Class)
1245. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth.
1246. This count is brought on behalf of the Maryland State Class against all Defendants.
1247. The Maryland State Class own or lease “motor vehicles” within the meaning of Md.
Code, Com. Law § 14-1501(f), because these vehicles were registered in the state and fall within
the categories of vehicles manufactured, assembled, or distributed by Defendants. These vehicles
are not auto homes.
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1248. Defendants are “manufacturer[s]” of the Class Vehicles within the meaning of Md.
Code, Com. Law § 14-1501(d).
1249. The Maryland State Class are “consumers” within the meaning of Md. Code Com.
Law § 14-1501(b) because they: purchased the Class Vehicles, were transferred the Class Vehicles
during the warranty period, or are otherwise entitled to the attendant terms of warranty.
1250. The Class Vehicles did not conform to their “warranties” under Md. Code Com.
Law § 14-1501(g) during the warranty period because they included software that led to inflated
and misleading fuel economy values, and were therefore not fit for the ordinary purpose for which
vehicles are used.
1251. Defendants had actual knowledge of the conformities during the “warranty period”
within the meaning of Md. Code, Com. Law § 14-1501(e). But the nonconformities continued to
exist throughout this term, as they have not been fixed. The Maryland State Class members are
excused from notifying Defendants of the nonconformities because it was already fully aware of
the problem—it intentionally created it—and any repair attempt is futile.
1252. Defendants have had a reasonable opportunity to cure the nonconformities during
the warranty period because of its actual knowledge of, creation of, and attempt to conceal the
nonconformities, but has not done so as required under Md. Code, Com. Law § 14-1502.
1253. The Maryland State Class demand a full refund of the purchase price, including all
license fees, registration fees, and any similar governmental charges. Md. Code Com. Law §
14-1502(c). Once payment has been tendered, the Maryland State Class members will return their
vehicles.
MARYLAND COUNT III: Breach of Express Warranty
Md. Code Com. Law §§ 2-313 and 2a-210 (On Behalf of the Maryland State Class)
1254. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1255. This count is brought on behalf of the Maryland State Class against all Defendants.
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1256. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Md. Code Com. Law § 2-104(1) and “sellers” of motor vehicles under §
2-103(1)(d).
1257. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Md. Code Com. Law § 2A-103(1)(p).
1258. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Md. Code Com. Law §§ 2-105(1) and 2a-103(1)(h).
1259. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1260. Defendants also made numerous representations, descriptions, and promises to the
Maryland State Class members regarding the performance and emission controls of their vehicles.
1261. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1262. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1263. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
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converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1264. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1265. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1266. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1267. Despite the existence of warranties, Defendants failed to inform Maryland State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1268. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1269. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1270. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
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insufficient to make Maryland State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1271. Accordingly, recovery by the Maryland State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1272. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Maryland State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1273. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Maryland State Class members’ remedies would be insufficient to make them whole.
1274. Finally, because of Defendants’ breach of warranty as set forth herein, Maryland
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1275. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1276. As a direct and proximate result of Defendants’ breach of express warranties,
Maryland State Class members have been damaged in an amount to be determined at trial.
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MARYLAND COUNT IV: Breach of Implied Warranty of Merchantability
Md. Code Com. Law §§ 2-314 and 2a-212 (On Behalf of the Maryland State Class)
1277. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1278. This count is brought on behalf of the Maryland State Class against all Defendants.
1279. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Md. Code Com. Law § 2-104(1) and “sellers” of motor vehicles under §
2-103(1)(d).
1280. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Md. Code Com. Law § 2A-103(1)(p).
1281. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Md. Code Com. Law §§ 2-105(1) and 2a-103(1)(h).
1282. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Md. Code Com. Law §§
2-314, and 2a-212.
1283. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1284. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1285. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Maryland State Class members have been damaged in an amount to be proven at
trial.
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MASSACHUSETTS COUNT I: Deceptive Acts or Practices Prohibited by Massachusetts Law
Mass. Gen. Laws Ch. 93a, § 1, et seq. (On Behalf of the Massachusetts State Class)
1286. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1287. This count is brought on behalf of the Massachusetts State Class against all
Defendants.
1288. Defendants, Plaintiffs, and the Massachusetts State Class are “persons” within the
meaning of Mass. Gen. Laws ch. 93A, § 1(a).
1289. Defendants engaged in “trade” or “commerce” within the meaning of Mass. Gen.
Laws ch. 93A, § 1(b).
1290. Massachusetts law (the “Massachusetts Act”) prohibits “unfair or deceptive acts or
practices in the conduct of any trade or commerce.” Mass. Gen. Laws ch. 93A, § 2. Defendants
participated in misleading, false, or deceptive acts that violated the Massachusetts Act.
1291. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1292. Massachusetts State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Massachusetts State Class members did not and could not
unravel Defendants’ deception on their own.
1293. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
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transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1294. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Massachusetts State Class.
1295. Defendants knew or should have known that their conduct violated the
Massachusetts Act.
1296. Defendants owed the Massachusetts State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
1297. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Massachusetts State Class.
1298. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Massachusetts State Class members, about
the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles.
1299. Defendants’ violations present a continuing risk to the Massachusetts State Class as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
1300. The Massachusetts State Class suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
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disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Massachusetts Act. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1301. As a direct and proximate result of Defendants’ violations of the Massachusetts Act,
the Massachusetts State Class have suffered injury-in-fact and/or actual damage.
1302. Pursuant to Mass. Gen. Laws ch. 93A, § 9, Plaintiffs and the Massachusetts State
Class seek monetary relief against Defendants measured as the greater of (a) actual damages in an
amount to be determined at trial and (b) statutory damages in the amount of $25 for each
Massachusetts State Class member. Because Defendants’ conduct was committed willfully and
knowingly, each Massachusetts State Class member is entitled to recover up to three times actual
damages, but no less than two times actual damages.
1303. The Massachusetts State Class also seeks an order enjoining Defendants’ unfair
and/or deceptive acts or practices, punitive damages, and attorneys’ fees, costs, and any other just
and proper relief available under the Massachusetts Act.
1304. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Mass. Gen. Laws ch. 93A, § 9(3). Additionally, all Defendants were
provided notice of the issues raised in this count and this Complaint by the governmental
investigations, the numerous complaints filed against them, and the many individual notice letters
sent by consumers within a reasonable amount of time after the allegations of Class Vehicle defects
became public. Moreover, Plaintiffs sent a second notice letter pursuant to Mass. Gen. Laws ch.
93A, § 9(3) to all Defendants on October 11, 2017. Because Defendants failed to remedy their
unlawful conduct within the requisite time period, Plaintiffs seek all damages and relief to which
Plaintiffs and the Massachusetts State Class are entitled.
1305. As a result of Defendants’ conduct, the amount of its unjust enrichment should be
disgorged, in an amount according to proof.
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MASSACHUSETTS COUNT II: Massachusetts Lemon Law
Mass. Gen. Laws Ch. 90, § 7N1/2(1) (On Behalf of the Massachusetts State Class)
1306. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1307. This count is brought on behalf of the Massachusetts State Class against all
Defendants.
1308. Massachusetts State Class members own or lease “motor vehicles” within the
meaning of Mass. Gen. Laws Ch. 90, § 7N1/2(1), because these vehicles were constructed or
designed for propulsion by power and were sold, leased, or replaced by Defendants. These vehicles
are not: (1) auto homes, (2) vehicles built primarily for off-read use, and (3) used primarily for
business purposes.
1309. Defendants are “manufacturer[s]” of the Class Vehicles within the meaning of
Mass. Gen. Laws Ch. 90, § 7N1/2(1).
1310. The Massachusetts State Class are “consumers” within the meaning of Mass. Gen.
Laws Ch. 90, § 7N1/2(1) because they bought or leased the Class Vehicles or are otherwise entitled
to the attendant terms of warranty.
1311. The Class Vehicles did not conform to their express and implied warranties because
they included software that led to inflated and misleading fuel economy values, and were therefore
not fit for the ordinary purpose for which vehicles are used.
1312. Defendants had actual knowledge of the conformities during the “term of
protection” within the meaning of Mass. Gen. Laws Ch. 90, §§ 7N1/2(1)–7N1/2(2). But the
nonconformities continued to exist throughout this term, as they have not been fixed.
Massachusetts State Class members are excused from notifying Defendants of the nonconformities
because it was already fully aware of the problem—it intentionally created it—and any repair
attempt is futile.
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1313. Defendants have had a reasonable opportunity to cure the nonconformities because
of its actual knowledge of, creation of, and attempt to conceal the nonconformities, but has not done
so as required under Mass. Gen. Laws Ch. 90, § 7N1/2(3).
1314. For vehicles purchased, the Massachusetts State Class demand a full refund of the
contract price. For vehicles leased, the Massachusetts State Class demand a full refund of all
payments made under the lease agreement. The Massachusetts State Class exercise their
“unqualified right” to reject an offer of replacement and will retain their vehicles until payment is
tendered under Mass. Gen. Laws Ch. 90, § 7N1/2(3).
MASSACHUSETTS COUNT III: Breach of Express Warranty
Mass. Gen. Laws c. 106 §§ 2-313 and 2A-210 (On Behalf of the Massachusetts State Class)
1315. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1316. This count is brought on behalf of the Massachusetts State Class against all
Defendants.
1317. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under M.G.L. c. 106 § 2-104(1) and is a “seller” of motor vehicles under § 2-103(1)(d).
1318. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under M.G.L. c. 106 § 2A-103(1)(p).
1319. The Class Vehicles are and were at all relevant times “goods” within the meaning of
M.G.L. c. 106 §§ 2-105(1) and 2A-103(1)(h).
1320. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1321. Defendants also made numerous representations, descriptions, and promises to
Massachusetts State Class members regarding the performance and emission controls of their
vehicles.
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1322. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1323. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1324. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1325. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1326. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
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1327. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1328. Despite the existence of warranties, Defendants failed to inform Massachusetts
State Class members that the Class Vehicles were intentionally designed and manufactured to
contain a Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and
achieve worse fuel and achieve worse fuel economy on the road than what was disclosed to
regulators and represented to consumers who purchased or leased them, and failed to fix the
defective emission components free of charge.
1329. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1330. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1331. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Massachusetts State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1332. Accordingly, recovery by the Massachusetts State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1333. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Massachusetts State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1334. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
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workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Massachusetts State Class members’ remedies would be insufficient to make them whole.
1335. Finally, because of Defendants’ breach of warranty as set forth herein,
Massachusetts State Class members assert, as additional and/or alternative remedies, the revocation
of acceptance of the goods and the return to them the purchase or lease price of all Class Vehicles
currently owned or leased, and for such other incidental and consequential damages as allowed.
1336. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1337. As a direct and proximate result of Defendants’ breach of express warranties,
Massachusetts State Class members have been damaged in an amount to be determined at trial.
MASSACHUSETTS COUNT IV: Breach of Implied Warranty of Merchantability
Mass. Gen. Laws c. 106 §§ 2-314 and 2A-212 (On Behalf of the Massachusetts State Class)
1338. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1339. This count is brought on behalf of the Massachusetts State Class against all
Defendants.
1340. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under M.G.L. c. 106 § 2-104(1) and is a “seller” of motor vehicles under § 2-103(1)(d).
1341. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under M.G.L. c. 106 § 2A-103(1)(p).
1342. The Class Vehicles are and were at all relevant times “goods” within the meaning of
M.G.L. c. 106 §§ 2-105(1) and 2A-103(1)(h).
1343. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to M.G.L. c. 106 §§ 2-314
and 2A-212.
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1344. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1345. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1346. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Massachusetts State Class members have been damaged in an amount to be
proven at trial.
MICHIGAN COUNT I: Violations of the Michigan Consumer Protection Act
Mich. Comp. Laws § 445.903 et seq. (On Behalf of the Michigan State Class)
1347. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1348. This count is brought on behalf of the Michigan State Class against all Defendants.
1349. The Michigan State Class members are “person[s]” within the meaning of the Mich.
Comp. Laws § 445.902(1)(d).
1350. Defendants are “person[s]” engaged in “trade or commerce” within the meaning of
the Mich. Comp. Laws § 445.902(1)(d) and (g).
1351. The Michigan Consumer Protection Act (“Michigan CPA”) prohibits “[u]nfair,
unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce ….”
Mich. Comp. Laws § 445.903(1). Defendants engaged in unfair, unconscionable, or deceptive
methods, acts or practices prohibited by the Michigan CPA, including: “(c) Representing that
goods or services have … characteristics … that they do not have ….;” “(e) Representing that
goods or services are of a particular standard … if they are of another;” “(i) Making false or
misleading statements of fact concerning the reasons for, existence of, or amounts of price
reductions;” “(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive
the consumer, and which fact could not reasonably be known by the consumer;” “(bb) Making a
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representation of fact or statement of fact material to the transaction such that a person reasonably
believes the represented or suggested state of affairs to be other than it actually is;” and “(cc)
Failing to reveal facts that are material to the transaction in light of representations of fact made in
a positive manner.” Mich. Comp. Laws § 445.903(1).
1352. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1353. Michigan State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Michigan State Class members did not and could not unravel
Defendants’ deception on their own.
1354. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1355. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Michigan State Class.
1356. Defendants knew or should have known that their conduct violated the Michigan
CPA.
1357. Defendants owed the Michigan State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
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b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and the Michigan State Class that contradicted these representations.
1358. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Michigan State Class.
1359. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Michigan State Class Members, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1360. Defendants’ violations present a continuing risk to Plaintiffs, the Michigan State
Class, as well as to the general public. Defendants’ unlawful acts and practices complained of
herein affect the public interest.
1361. Michigan State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Michigan CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1362. As a direct and proximate result of Defendants’ violations of the Michigan CPA,
Michigan State Class members have suffered injury-in-fact and/or actual damage.
1363. The Michigan State Class seeks injunctive relief to enjoin Defendants from
continuing its unfair and deceptive acts; monetary relief against Defendants measured as the greater
of (a) actual damages in an amount to be determined at trial and (b) statutory damages in the
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amount of $250 for each Michigan State Class member; reasonable attorneys’ fees; and any other
just and proper relief available under Mich. Comp. Laws § 445.911.
1364. The Michigan State Class also seeks punitive damages against Defendants because
it carried out despicable conduct with willful and conscious disregard of the rights of others.
Defendants intentionally and willfully misrepresented the reliability of the Class Vehicles and
concealed material facts that only they knew—all to avoid the expense and public relations
nightmare of correcting a flaw in the Class Vehicles. Defendants’ unlawful conduct constitutes
oppression and fraud warranting punitive damages.
MICHIGAN COUNT II: Breach of Express Warranty
Mich. Comp. Laws §§ 440.2313 and 440.2860 (On Behalf of the Michigan State Class)
1365. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1366. This count is brought on behalf of the Michigan State Class against all Defendants.
1367. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Mich. Comp. Laws § 440.2104(1) and “sellers” of motor vehicles under §
440.2103(1)(d).
1368. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Mich. Comp. Laws § 440.2803(1)(p).
1369. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Mich. Comp. Laws §§ 440.2105(1) and 440.2803(1)(h).
1370. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1371. Defendants also made numerous representations, descriptions, and promises to
Michigan State Class members regarding the performance and emission controls of their vehicles.
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1372. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1373. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1374. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1375. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1376. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
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1377. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1378. Despite the existence of warranties, Defendants failed to inform Michigan State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1379. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1380. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1381. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Michigan State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1382. Accordingly, recovery by the Michigan State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1383. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Michigan State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1384. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
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workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Michigan
State Class members’ remedies would be insufficient to make them whole.
1385. Finally, because of Defendants’ breach of warranty as set forth herein, Michigan
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1386. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1387. As a direct and proximate result of Defendants’ breach of express warranties,
Michigan State Class members have been damaged in an amount to be determined at trial.
MICHIGAN COUNT III: Breach of Implied Warranty of Merchantability
Mich. Comp. Laws §§ 440.2314 and 440.2860 (On Behalf of the Michigan State Class)
1388. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1389. This count is brought on behalf of the Michigan State Class against all Defendants.
1390. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Mich. Comp. Laws § 440.2104(1) and “sellers” of motor vehicles under §
440.2103(1)(d).
1391. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Mich. Comp. Laws § 440.2803(1)(p).
1392. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Mich. Comp. Laws §§ 440.2105(1) and 440.2803(1)(h).
1393. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Mich. Comp. Laws §§
440.2314 and 440.2862.
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1394. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1395. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1396. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Michigan State Class members have been damaged in an amount to be proven at
trial.
MINNESOTA COUNT I: Violations of the Minnesota Prevention of Consumer Fraud Act
Minn. Stat. § 325F.68 et seq. (On Behalf of the Minnesota State Class)
1397. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1398. This count is brought on behalf of the Minnesota State Class against all Defendants.
1399. The Class Vehicles constitute “merchandise” within the meaning of Minn. Stat. §
325F.68(2).
1400. The Minnesota Prevention of Consumer Fraud Act (“Minnesota CFA”) prohibits
“[t]he act, use, or employment by any person of any fraud, false pretense, false promise,
misrepresentation, misleading statement or deceptive practice, with the intent that others rely
thereon in connection with the sale of any merchandise, whether or not any person has in fact been
misled, deceived, or damaged thereby ….” Minn. Stat. § 325F.69(1). Defendants participated in
misleading, false, or deceptive acts that violated the Minnesota CFA.
1401. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
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CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1402. Minnesota State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Minnesota State Class members did not and could not unravel
Defendants’ deception on their own.
1403. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1404. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Minnesota State Class.
1405. Defendants knew or should have known that their conduct violated the Minnesota
CFA.
1406. Defendants owed the Minnesota State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and the Minnesota State Class that contradicted these representations.
1407. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Minnesota State Class.
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1408. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Minnesota State Class members, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1409. Defendants’ violations present a continuing risk to the Minnesota State Class, as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
1410. Minnesota State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Minnesota CFA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1411. As a direct and proximate result of Defendants’ violations of the Minnesota CFA,
Minnesota State Class members have suffered injury-in-fact and/or actual damage.
1412. Pursuant to Minn. Stat. § 8.31(3a), Minnesota State Class members seek actual
damages, attorneys’ fees, and any other just and proper relief available under the Minnesota CFA.
1413. Minnesota State Class members also seek punitive damages under Minn. Stat. §
549.20(1)(a) given the clear and convincing evidence that Defendants’ acts show deliberate
disregard for the rights of others.
MINNESOTA COUNT II: Violations of the Minnesota Uniform Deceptive Trade Practices Act
Minn. Stat. § 325D.43-48 et seq. (On Behalf of the Minnesota State Class)
1414. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1415. This count is brought on behalf the Minnesota State Class against all Defendants.
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1416. The Minnesota Deceptive Trade Practices Act (“Minnesota DTPA”) prohibits
deceptive trade practices, which occur when a person “(5) represents that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not
have or that a person has a sponsorship, approval, status, affiliation, or connection that the person
does not have;” “(7) represents that goods or services are of a particular standard, quality, or grade,
or that goods are of a particular style or model, if they are of another;” and “(9) advertises goods or
services with intent not to sell them as advertised.” Minn. Stat. § 325D.44. In the course of the
Defendants’ business, it engaged in deceptive practices by representing that Class Vehicles have
sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have;
representing that Class Vehicles are of a particular standard, quality, or grade, or that goods are of a
particular style or model, if they are of another; and advertising Class Vehicles with intent not to
sell them as advertised. Defendants participated in misleading, false, or deceptive acts that violated
the Minnesota DTPA.
1417. By failing to disclose and by actively concealing Warm-up Program software that
led to inflated and misleading fuel economy values, by marketing its vehicles as reliable,
environmentally clean, efficient, and of high quality, and by presenting itself as a reputable
manufacturer that valued environmental cleanliness and efficiency, and stood behind its vehicles
after they were sold, Defendants engaged in deceptive business practices prohibited by the
Minnesota DTPA
1418. Defendants’ actions as set forth above occurred in the conduct of trade or
commerce.
1419. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
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1420. Minnesota State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Minnesota State Class members did not and could not unravel
Defendants’ deception on their own.
1421. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1422. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Minnesota State Class.
1423. Defendants knew or should have known that their conduct violated the Minnesota
DTPA.
1424. Defendants owed the Minnesota State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
1425. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Minnesota State Class.
1426. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Minnesota State Class, about the true
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environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1427. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
1428. Minnesota State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Minnesota DTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1429. As a direct and proximate result of Defendants’ violations of the Minnesota DTPA,
Minnesota State Class members have suffered injury-in-fact and/or actual damage.
1430. Pursuant Minn. Stat. §§ 8.31(3a) and 325D.45, the Minnesota State Class seek
actual damages, attorneys’ fees, and any other just and proper relief available under the Minnesota
DTPA.
MINNESOTA COUNT III: Breach of Express Warranty
Minn. Stat. §§ 336.2-313 and 336.2A-210 (On Behalf of the Minnesota State Class)
1431. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1432. This count is brought on behalf of the Minnesota State Class against all Defendants.
1433. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Minn. Stat. § 336.2-104(1) and “sellers” of motor vehicles under § 336.2-103(1)(d).
1434. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Minn. Stat. § 336.2A-103(1)(p).
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1435. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Minn. Stat. §§ 336.2-105(1) and 336.2A-103(1)(h).
1436. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1437. Defendants also made numerous representations, descriptions, and promises to
Minnesota State Class members regarding the performance and emission controls of their vehicles.
1438. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1439. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1440. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1441. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
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related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1442. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1443. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1444. Despite the existence of warranties, Defendants failed to inform Minnesota State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1445. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1446. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1447. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Minnesota State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1448. Accordingly, recovery by the Minnesota State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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1449. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Minnesota State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1450. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Minnesota State Class members’ remedies would be insufficient to make them whole.
1451. Finally, because of Defendants’ breach of warranty as set forth herein, Minnesota
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1452. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1453. As a direct and proximate result of Defendants’ breach of express warranties,
Minnesota State Class members have been damaged in an amount to be determined at trial.
MINNESOTA COUNT IV: Breach of Implied Warranty of Merchantability
Minn. Stat. §§ 336.2-314 and 336.2A-212 (On Behalf of the Minnesota State Class)
1454. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1455. This count is brought on behalf of the Minnesota State Class against all Defendants.
1456. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Minn. Stat. § 336.2-104(1) and “sellers” of motor vehicles under § 336.2-103(1)(d).
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1457. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Minn. Stat. § 336.2A-103(1)(p).
1458. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Minn. Stat. §§ 336.2-105(1) and 336.2A-103(1)(h).
1459. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Minn. Stat. §§
336.2-314 and 336.2A-212.
1460. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1461. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1462. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Minnesota State Class members have been damaged in an amount to be proven at
trial.
MISSISSIPPI COUNT I: Violations of Mississippi Consumer Protection Act
Miss. Code. Ann. § 75-24-1, et seq. (On Behalf of the Mississippi State Class)
1463. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1464. This count is brought on behalf of the Mississippi State Class against all Defendants.
1465. The Mississippi Consumer Protection Act (“Mississippi CPA”) prohibits “unfair or
deceptive trade practices in or affecting commerce.” Miss. Code. Ann. § 75-24-5(1). Unfair or
deceptive practices include, but are not limited to, “(e) Representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not
have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not
have;” “(g) Representing that goods or services are of a particular standard, quality, or grade, or that
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goods are of a particular style or model, if they are of another;” and “(i) Advertising goods or
services with intent not to sell them as advertised.” Miss. Code. Ann. § 75-24-5. Defendants
participated in deceptive trade practices that violated the Mississippi CPA as described herein,
including representing that Class Vehicles have characteristics, uses, benefits, and qualities which
they do not have; representing that Class Vehicles are of a particular standard and quality when
they are not; and advertising Class Vehicles with the intent not to sell them as advertised.
1466. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1467. Mississippi State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Mississippi State Class members did not and could not unravel
Defendants’ deception on their own.
1468. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1469. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Mississippi State Class.
1470. Defendants knew or should have known that their conduct violated the Mississippi
CPA.
1471. Defendants owed Plaintiffs and the Mississippi State Class a duty to disclose the
illegality and public health risks, the true nature of the Class Vehicles, because Defendants:
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a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1472. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Mississippi State Class.
1473. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Mississippi State Class Members,
about the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles.
1474. Defendants’ violations present a continuing risk to the Mississippi Class as well as
to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
1475. Mississippi State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Mississippi CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1476. As a direct and proximate result of Defendants’ violations of the Mississippi CPA,
Mississippi State Class members have suffered injury-in-fact and/or actual damage.
1477. Plaintiffs’ seek actual damages in an amount to be determined at trial any other just
and proper relief available under the Mississippi CPA.
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MISSISSIPPI COUNT II: Breach of Express Warranty
Miss. Code §§ 75-2-313 and 75-2A-210 (On Behalf of the Mississippi State Class)
1478. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1479. This count is brought on behalf of the Mississippi State Class against all Defendants.
1480. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Miss. Code § 75-2-104(1) and “sellers” of motor vehicles under § 75-2-103(1)(d).
1481. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Miss. Code § 75-2A-103(1)(p).
1482. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Miss. Code §§ 75-2-105(1) and 75-2A-103(1)(h).
1483. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1484. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Mississippi State Class members regarding the performance and emission controls of
their vehicles.
1485. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1486. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1487. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1488. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1489. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1490. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1491. Despite the existence of warranties, Defendants failed to inform Mississippi State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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1492. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1493. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1494. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Mississippi State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1495. Accordingly, recovery by the Mississippi State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1496. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Mississippi State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1497. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Mississippi State Class members’ remedies would be insufficient to make them whole.
1498. Finally, because of Defendants’ breach of warranty as set forth herein, Mississippi
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
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1499. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1500. As a direct and proximate result of Defendants’ breach of express warranties,
Mississippi State Class members have been damaged in an amount to be determined at trial.
MISSISSIPPI COUNT III: Breach of Implied Warranty of Merchantability
Miss. Code §§ 75-2-314 and 75-2A-212 (On Behalf of the Mississippi State Class)
1501. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1502. This count is brought on behalf of the Mississippi State Class against all Defendants.
1503. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Miss. Code § 75-2-104(1) and “sellers” of motor vehicles under § 75-2-103(1)(d).
1504. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Miss. Code § 75-2A-103(1)(p).
1505. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Miss. Code §§ 75-2-105(1) and 75-2A-103(1)(h).
1506. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Miss. Code §§ 75-2-314
and 75-2A-212.
1507. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1508. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1509. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Mississippi State Class members have been damaged in an amount to be proven at
trial.
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MISSOURI COUNT I: Violations of the Missouri Merchandising Practices Act
Mo. Rev. Stat. § 407.010 et seq. (On Behalf of the Missouri State Class)
1510. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1511. This count is brought on behalf of the Missouri State Class against all Defendants.
1512. Defendants and the Missouri State Class are “persons” within the meaning of Mo.
Rev. Stat. § 407.010(5).
1513. Defendants engaged in “trade” or “commerce” in the State of Missouri within the
meaning of Mo. Rev. Stat. § 407.010(7).
1514. The Missouri Merchandising Practices Act (“Missouri MPA”) makes unlawful the
“act, use or employment by any person of any deception, fraud, false pretense, misrepresentation,
unfair practice, or the concealment, suppression, or omission of any material fact in connection
with the sale or advertisement of any merchandise Mo. Rev. Stat. § 407.020.
1515. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1516. Missouri State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Missouri State Class members did not and could not unravel
Defendants’ deception on their own.
1517. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
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transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1518. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Missouri State Class.
1519. Defendants knew or should have known that their conduct violated the Missouri
MPA.
1520. Defendants owed the Missouri State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
1521. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Missouri State Class.
1522. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including Plaintiffs, about the true environmental
cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’ brands, the
devaluing of environmental cleanliness and integrity at Defendant companies, and the true value of
the Class Vehicles.
1523. Defendants’ violations present a continuing risk to Plaintiffs, the Missouri State
Class, as well as to the general public. Defendants’ unlawful acts and practices complained of
herein affect the public interest.
1524. Missouri State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
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disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Missouri MPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1525. As a direct and proximate result of Defendants’ violations of the Missouri MPA,
Missouri State Class members have suffered injury-in-fact and/or actual damage.
1526. Defendants are liable to the Missouri State Class for damages in amounts to be
proven at trial, including attorneys’ fees, costs, and punitive damages, as well as injunctive relief
enjoining Defendants’ unfair and deceptive practices, and any other just and proper relief under
Mo. Rev. Stat. § 407.025.
MISSOURI COUNT II: Breach of Express Warranty
Mo. Stat. §§ 400.2-313 and 400.2A-210 (On Behalf of the Missouri State Class)
1527. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1528. This count is brought on behalf of the Missouri State Class against all Defendants.
1529. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Mo. Stat. § 400.2-104(1) and “sellers” of motor vehicles under § 400.2-103(1)(d).
1530. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Mo. Stat. § 400.2A-103(1)(p).
1531. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Mo. Stat. § 400.2-105(1) and Mo. Stat. § 400.2A-103(1)(h).
1532. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1533. Defendants also made numerous representations, descriptions, and promises to
Missouri State Class members regarding the performance and emission controls of their vehicles.
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1534. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1535. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1536. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1537. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1538. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
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1539. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1540. Despite the existence of warranties, Defendants failed to inform Missouri State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1541. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1542. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1543. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Missouri State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1544. Accordingly, recovery by the Missouri State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1545. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Missouri State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1546. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
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workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Missouri
State Class members’ remedies would be insufficient to make them whole.
1547. Finally, because of Defendants’ breach of warranty as set forth herein, Missouri
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1548. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1549. As a direct and proximate result of Defendants’ breach of express warranties,
Missouri State Class members have been damaged in an amount to be determined at trial.
MISSOURI COUNT III: Breach of Implied Warranty of Merchantability
Mo. Stat. §§ 400.2-314 and 400.2A-212 (On Behalf of the Missouri State Class)
1550. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1551. This count is brought on behalf of the Missouri State Class against all Defendants.
1552. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Mo. Stat. § 400.2-104(1) and “sellers” of motor vehicles under § 400.2-103(1)(d).
1553. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Mo. Stat. § 400.2A-103(1)(p).
1554. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Mo. Stat. § 400.2-105(1) and Mo. Stat. § 400.2A-103(1)(h).
1555. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Mo. Stat. § 400.2-314
and Mo. Stat. § 400.2A-212.
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1556. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1557. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1558. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Missouri State Class members have been damaged in an amount to be proven at
trial.
MONTANA COUNT I: Violations of the Montana Unfair Trade Practices and Consumer Protection Act of 1973
Mont. Code Ann. § 30-14-101 et seq. (On Behalf of the Montana State Class)
1559. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1560. This count is brought on behalf of the Montana State Class against all Defendants.
1561. Defendants and the Montana State Class are “persons” within the meaning of Mont.
Code Ann. § 30-14-102(6).
1562. Montana State Class members are “consumer[s]” under MONT. CODE ANN. §
30-14-102(1).
1563. The sale or lease of the Class Vehicles to Montana State Class members occurred
within “trade and commerce” within the meaning of Mont. Code Ann. § 30-14-102(8), and
Defendants committed deceptive and unfair acts in the conduct of “trade and commerce” as defined
in that statutory section.
1564. The Montana Unfair Trade Practices and Consumer Protection Act (“Montana
CPA”) makes unlawful any “unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce.” Mont. Code Ann. § 30-14-103.
1565. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
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the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1566. Montana State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Montana State Class members did not and could not unravel
Defendants’ deception on their own.
1567. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1568. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Montana State Class.
1569. Defendants knew or should have known that their conduct violated the Montana
CPA.
1570. Defendants owed the Montana State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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1571. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Montana State Class.
1572. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Montana State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1573. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
1574. Montana State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Montana CPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
1575. As a direct and proximate result of Defendants’ violations of the Montana CPA,
Montana State Class members have suffered injury-in-fact and/or actual damage.
1576. Because Defendants’ unlawful methods, acts, and practices have caused Montana
State Class members to suffer an ascertainable loss of money and property, the Montana State Class
seeks from Defendants actual damages or $500, whichever is greater, discretionary treble damages,
reasonable attorneys’ fees, an order enjoining Defendants’ unfair, unlawful, and/or deceptive
practices, and any other relief the Court considers necessary or proper, under Mont. Code Ann. §
30-14-133.
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MONTANA COUNT II: Breach of Express Warranty
Mont. Code §§ 30-2-313 and 30-2A-210 (On Behalf of the Montana State Class)
1577. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1578. This count is brought on behalf of the Montana State Class against all Defendants.
1579. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Mont. Code § 30-2-104(1) and “sellers” of motor vehicles under § 30-2-103(1)(d).
1580. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Mont. Code § 30-2A-103(1)(p).
1581. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Mont. Code §§ 30-2-105(1) and 30-2A-103(1)(h).
1582. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1583. Defendants also made numerous representations, descriptions, and promises to
Montana State Class members regarding the performance and emission controls of their vehicles.
1584. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1585. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1586. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
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by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1587. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1588. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1589. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1590. Despite the existence of warranties, Defendants failed to inform Montana State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1591. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
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1592. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1593. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Montana State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1594. Accordingly, recovery by the Montana State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1595. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Montana State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1596. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Montana
State Class members’ remedies would be insufficient to make them whole.
1597. Finally, because of Defendants’ breach of warranty as set forth herein, Montana
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1598. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1599. As a direct and proximate result of Defendants’ breach of express warranties,
Montana State Class members have been damaged in an amount to be determined at trial.
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MONTANA COUNT III: Breach of Implied Warranty of Merchantability
Mont. Code §§ 30-2-314 and 30-2A-212 (On Behalf of the Montana State Class)
1600. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1601. This count is brought on behalf of the Montana State Class against all Defendants.
1602. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Mont. Code § 30-2-104(1) and “sellers” of motor vehicles under § 30-2-103(1)(d).
1603. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Mont. Code § 30-2A-103(1)(p).
1604. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Mont. Code §§ 30-2-105(1) and 30-2A-103(1)(h).
1605. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Mont. Code §§ 30-2-314
and 30-2A-212.
1606. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1607. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1608. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Montana State Class members have been damaged in an amount to be proven at
trial.
NEBRASKA COUNT I: Violations of the Nebraska Consumer Protection Act
Neb. Rev. Stat. § 59-1601 et seq. (On Behalf of the Nebraska State Class)
1609. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
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1610. This count is brought on behalf of the Nebraska State Class against all Defendants.
1611. Defendants and Nebraska State Class members are “person[s]” under the Nebraska
Consumer Protection Act (“Nebraska CPA”), Neb. Rev. Stat. § 59-1601(1).
1612. Defendants’ actions as set forth herein occurred in the conduct of trade or commerce
as defined under Neb. Rev. Stat. § 59-1601(2).
1613. The Nebraska CPA prohibits “unfair or deceptive acts or practices in the conduct of
any trade or commerce.” Neb. Rev. Stat. § 59-1602. The conduct Defendants engaged in as set forth
herein constitutes unfair or deceptive acts or practices.
1614. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1615. Nebraska State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Nebraska State Class members did not and could not unravel
Defendants’ deception on their own.
1616. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1617. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Nebraska State Class.
1618. Defendants knew or should have known that their conduct violated the Nebraska
CPA.
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1619. Defendants owed the Nebraska State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1620. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Nebraska State Class.
1621. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Nebraska State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1622. Defendants’ violations present a continuing risk to the Nebraska State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
1623. Nebraska State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Nebraska CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1624. As a direct and proximate result of Defendants’ violations of the Nebraska CPA,
Nebraska State Class members have suffered injury-in-fact and/or actual damage.
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1625. Because Defendants’ conduct caused injury to Nebraska State Class members’
property through violations of the Nebraska CPA, the Nebraska State Class seeks recovery of
actual damages, as well as enhanced damages up to $1,000, an order enjoining Defendants’ unfair
or deceptive acts and practices, costs of Court, reasonable attorneys’ fees, and any other just and
proper relief available under Neb. Rev. Stat. § 59-1609.
NEBRASKA COUNT II: Breach of Express Warranty
Neb. Rev. St. U.C.C. §§ 2-313 and 2A-210 (On Behalf of the Nebraska State Class)
1626. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1627. This count is brought on behalf of the Nebraska State Class against all Defendants.
1628. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Neb. Rev. St. U.C.C. § 2-104(1) and “sellers” of motor vehicles under §
2-103(1)(d).
1629. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Neb. Rev. St. U.C.C. § 2A-103(1)(p).
1630. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Neb. Rev. St. U.C.C. §§ 2-105(1) and 2A-103(1)(h).
1631. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1632. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Nebraska State Class members regarding the performance and emission controls of
their vehicles.
1633. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
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the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1634. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1635. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1636. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1637. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1638. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
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1639. Despite the existence of warranties, Defendants failed to inform Nebraska State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1640. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1641. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1642. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Nebraska State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1643. Accordingly, recovery by the Nebraska State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1644. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Nebraska State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1645. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
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failure to provide such limited remedy within a reasonable time, and any limitation on the Nebraska
State Class members’ remedies would be insufficient to make them whole.
1646. Finally, because of Defendants’ breach of warranty as set forth herein, Nebraska
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1647. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1648. As a direct and proximate result of Defendants’ breach of express warranties,
Nebraska State Class members have been damaged in an amount to be determined at trial.
NEBRASKA COUNT III: Breach of Implied Warranty of Merchantability
Neb. Rev. St. U.C.C. §§ 2-314 and 2A-212 (On Behalf of the Nebraska State Class)
1649. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1650. This count is brought on behalf of the Nebraska State Class against all Defendants.
1651. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Neb. Rev. St. U.C.C. § 2-104(1) and “sellers” of motor vehicles under §
2-103(1)(d).
1652. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Neb. Rev. St. U.C.C. § 2A-103(1)(p).
1653. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Neb. Rev. St. U.C.C. §§ 2-105(1) and 2A-103(1)(h).
1654. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Neb. Rev. St. U.C.C.§§
2-314 and 2A-212.
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1655. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1656. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1657. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Nebraska State Class members have been damaged in an amount to be proven at
trial.
NEVADA COUNT I: Violations of the Nevada Deceptive Trade Practices Act
Nev. Rev. Stat. § 598.0903 et seq. (On Behalf of the Nevada State Class)
1658. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1659. This count is brought on behalf of the Nevada State Class against all Defendants.
1660. The Nevada Deceptive Trade Practices Act (“Nevada DTPA”), Nev. Rev. Stat. §
598.0903, et seq. prohibits deceptive trade practices. Nev. Rev. Stat. § 598.0915 provides that a
person engages in a “deceptive trade practice” if, in the course of business or occupation, the
person: “5. Knowingly makes a false representation as to the characteristics, ingredients, uses,
benefits, alterations or quantities of goods or services for sale or lease or a false representation as to
the sponsorship, approval, status, affiliation or connection of a person therewith”; “7. Represents
that goods or services for sale or lease are of a particular standard, quality or grade, or that such
goods are of a particular style or model, if he or she knows or should know that they are of another
standard, quality, grade, style or model”; “9. Advertises goods or services with intent not to sell or
lease them as advertised”; or “15. Knowingly makes any other false representation in a
transaction.”
1661. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
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the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1662. Nevada State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Nevada State Class members did not and could
not unravel Defendants’ deception on their own.
1663. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1664. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Nevada State Class.
1665. Defendants knew or should have known that their conduct violated the Nevada
DTPA.
1666. Defendants owed the Nevada State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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1667. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Nevada State Class.
1668. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Nevada State Class about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
1669. Defendants’ violations present a continuing risk to the Nevada State Class as well as
to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
1670. Nevada State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Nevada DTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
NEVADA COUNT II: Breach of Express Warranty
N.R.S. §§ 104.2313 and 104A.2210 (On Behalf of the Nevada State Class)
1671. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1672. This count is brought on behalf of the Nevada State Class against all Defendants.
1673. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.R.S. § 104.2104(1) and “sellers” of motor vehicles under § 104.2103(1)(c).
1674. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.R.S. § 104A.2103(1)(p).
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1675. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.R.S. §§ 104.2105(1) and 104A.2103(1)(h).
1676. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1677. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Nevada State Class members regarding the performance and emission controls of
their vehicles.
1678. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1679. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1680. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1681. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
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Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1682. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1683. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1684. Despite the existence of warranties, Defendants failed to inform Nevada State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1685. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1686. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1687. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Nevada State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1688. Accordingly, recovery by the Nevada State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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1689. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Nevada State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1690. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Nevada
State Class members’ remedies would be insufficient to make them whole.
1691. Finally, because of Defendants’ breach of warranty as set forth herein, Nevada State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
1692. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1693. As a direct and proximate result of Defendants’ breach of express warranties,
Nevada State Class members have been damaged in an amount to be determined at trial.
NEVADA COUNT III: Breach of Implied Warranty of Merchantability
N.R.S. §§ 104.2314 and 104A.2212 (On Behalf of the Nevada State Class)
1694. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1695. This count is brought on behalf of the Nevada State Class against all Defendants.
1696. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.R.S. § 104.2104(1) and “sellers” of motor vehicles under § 104.2103(1)(c).
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1697. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.R.S. § 104A.2103(1)(p).
1698. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.R.S. §§ 104.2105(1) and 104A.2103(1)(h).
1699. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.R.S. §§ 104.2314 and
104A.2212.
1700. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1701. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1702. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Nevada State Class members have been damaged in an amount to be proven at
trial.
NEW HAMPSHIRE COUNT I: Violations of the New Hampshire Consumer Protection Act
N.H. Rev. Stat. § 358-A:1 et seq. (On Behalf of the New Hampshire State Class)
1703. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1704. This count is brought on behalf of the New Hampshire State Class against all
Defendants.
1705. The New Hampshire State Class and Defendants are “persons” under the New
Hampshire Consumer Protection Act (“New Hampshire CPA”), N.H. Rev. Stat. § 358-A:1.
1706. Defendants’ actions as set forth herein occurred in the conduct of trade or commerce
as defined under N.H. Rev. Stat. § 358-A:1.
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1707. The New Hampshire CPA prohibits a person, in the conduct of any trade or
commerce, from using “any unfair or deceptive act or practice,” including “but … not limited to,
the following: … (V) Representing that goods or services have … characteristics, … uses, benefits,
or quantities that they do not have;” “(VII) Representing that goods or services are of a particular
standard, quality, or grade, … if they are of another;” and “(IX) Advertising goods or services with
intent not to sell them as advertised.” N.H. Rev. Stat. § 358-A:2.
1708. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1709. New Hampshire State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. New Hampshire State Class members did not and could not
unravel Defendants’ deception on their own.
1710. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1711. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the New Hampshire State Class.
1712. Defendants knew or should have known that their conduct violated the New
Hampshire CPA.
1713. Defendants owed the New Hampshire State Class a duty to disclose the illegality
and public health risks, the true nature of the Class Vehicles, because Defendants:
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a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1714. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the New Hampshire State Class.
1715. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the New Hampshire State Class Members,
about the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles.
1716. Defendants’ violations present a continuing risk to the New Hampshire State Class
as well as to the general public. Defendants’ unlawful acts and practices complained of herein
affect the public interest.
1717. New Hampshire State Class members suffered ascertainable loss and actual
damages as a direct and proximate result of Defendants’ misrepresentations and its concealment of
and failure to disclose material information. Defendants had an ongoing duty to all their customers
to refrain from unfair and deceptive practices under the New Hampshire CPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
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NEW HAMPSHIRE COUNT II: Breach of Express Warranty
N.H. Rev. Stat. §§ 382-A:2-313 and 382-A:2A-210 (On Behalf of the New Hampshire State Class)
1718. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1719. This count is brought on behalf of the New Hampshire State Class against all
Defendants.
1720. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.H. Rev. Stat. § 382-A:2-104(1) and “sellers” of motor vehicles under §
382-A:2-103(1)(d).
1721. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.H. Rev. Stat. § 382-A:2A-103(1)(p).
1722. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.H. Rev. Stat. §§ 382-A:2-105(1) and 382-A:2A-103(1)(h).
1723. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1724. Defendants also made numerous representations, descriptions, and promises to New
Hampshire State Class members regarding the performance and emission controls of their vehicles.
1725. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1726. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
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1727. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1728. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1729. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1730. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1731. Despite the existence of warranties, Defendants failed to inform New Hampshire
State Class members that the Class Vehicles were intentionally designed and manufactured to
contain a Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and
achieve worse fuel and achieve worse fuel economy on the road than what was disclosed to
regulators and represented to consumers who purchased or leased them, and failed to fix the
defective emission components free of charge.
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1732. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1733. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1734. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make New Hampshire State Class members whole and because Defendants have
failed and/or have refused to adequately provide the promised remedies within a reasonable time.
1735. Accordingly, recovery by the New Hampshire State Class members is not restricted
to the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1736. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. New Hampshire State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1737. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the New
Hampshire State Class members’ remedies would be insufficient to make them whole.
1738. Finally, because of Defendants’ breach of warranty as set forth herein, New
Hampshire State Class members assert, as additional and/or alternative remedies, the revocation of
acceptance of the goods and the return to them the purchase or lease price of all Class Vehicles
currently owned or leased, and for such other incidental and consequential damages as allowed.
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1739. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1740. As a direct and proximate result of Defendants’ breach of express warranties, New
Hampshire State Class members have been damaged in an amount to be determined at trial.
NEW HAMPSHIRE COUNT III: Breach of Implied Warranty of Merchantability
N.H. Rev. Stat. §§ 382-A:2-314 and 382-A:2A-212 (On Behalf of the New Hampshire State Class)
1741. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1742. This count is brought on behalf of the New Hampshire State Class against all
Defendants.
1743. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.H. Rev. Stat. § 382-A:2-104(1) and “sellers” of motor vehicles under §
382-A:2-103(1)(d).
1744. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.H. Rev. Stat. § 382-A:2A-103(1)(p).
1745. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.H. Rev. Stat. §§ 382-A:2-105(1) and 382-A:2A-103(1)(h).
1746. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.H. Rev. Stat. §§
382-A:2-314 and 382-A:2A-212.
1747. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1748. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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1749. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, New Hampshire State Class members have been damaged in an amount to be
proven at trial.
NEW JERSEY COUNT I: Violations of the New Jersey Consumer Fraud Act
N.J. Stat. Ann. § 56:8-1 et seq. (On Behalf of the New Jersey State Class)
1750. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
1751. This count is brought on behalf of the New Jersey State Class against all
Defendants.
1752. The New Jersey State Class members and Defendants are “persons” under the New
Jersey Consumer Fraud Act (“New Jersey CFA”), N.J. Stat. § 56:8-1(d).
1753. Defendants engaged in “sales” of “merchandise” within the meaning of N.J. Stat.
§56:8-1(c), (e). Defendants’ actions as set forth herein occurred in the conduct of trade or
commerce.
1754. The New Jersey CFA makes unlawful “[t]he act, use or employment by any person
of any unconscionable commercial practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing concealment, suppression, or omission of any material fact with
the intent that others rely upon such concealment, suppression or omission, in connection with the
sale or advertisement of any merchandise or real estate, or with the subsequent performance of such
person as aforesaid, whether or not any person has in fact been misled, deceived or damaged
thereby.” N.J. Stat. § 56:8-2.
1755. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
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1756. New Jersey State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and the New Jersey State Class members did not and
could not unravel Defendants’ deception on their own.
1757. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1758. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the New Jersey State Class.
1759. Defendants knew or should have known that their conduct violated the New Jersey
CFA.
1760. Defendants owed the New Jersey State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
1761. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the New Jersey State Class.
1762. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the New Jersey State Class Members,
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about the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles.
1763. Defendants’ violations present a continuing risk to Plaintiffs, the New Jersey State
Class, as well as to the general public. Defendants’ unlawful acts and practices complained of
herein affect the public interest.
1764. New Jersey State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the New Jersey CFA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1765. As a direct and proximate result of Defendants’ violations of the New Jersey CFA,
the New Jersey State Class have suffered injury-in-fact and/or actual damage in an amount to be
proven at trial, and seek all just and proper remedies, including, but not limited to, actual and
statutory damages, treble damages, an order enjoining Defendants’ deceptive and unfair conduct,
costs and reasonable attorneys’ fees under N.J. Stat. § 56:8-19, and all other just and appropriate
relief.
NEW JERSEY COUNT II: Breach of Express Warranty N.J.S. 12A:2-313 and 2A-210
(On Behalf of the New Jersey State Class)
1766. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1767. This count is brought on behalf of the New Jersey State Class against all
Defendants.
1768. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.J.S. 12A:2-104(1) and “sellers” of motor vehicles under 2-103(1)(d).
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1769. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.J.S. 12A:2A-103(1)(p).
1770. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.J.S. 12A:2-105(1) and 2A-103(1)(h).
1771. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1772. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and New Jersey State Class members regarding the performance and emission controls of
their vehicles.
1773. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1774. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1775. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
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1776. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1777. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1778. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1779. Despite the existence of warranties, Defendants failed to inform New Jersey State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1780. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1781. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1782. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make New Jersey State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
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1783. Accordingly, recovery by the New Jersey State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1784. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. New Jersey State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1785. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the New
Jersey State Class members’ remedies would be insufficient to make them whole.
1786. Finally, because of Defendants’ breach of warranty as set forth herein, New Jersey
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1787. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1788. As a direct and proximate result of Defendants’ breach of express warranties, New
Jersey State Class members have been damaged in an amount to be determined at trial.
NEW JERSEY COUNT III: Breach of Implied Warranty of Merchantability
N.J.S. 12A:2-314 and 2A-212 (On Behalf of the New Jersey State Class)
1789. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
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1790. This count is brought on behalf of the New Jersey State Class against all
Defendants.
1791. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.J.S. 12A:2-104(1) and “sellers” of motor vehicles under 2-103(1)(d).
1792. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.J.S. 12A:2A-103(1)(p).
1793. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.J.S. 12A:2-105(1) and 2A-103(1)(h).
1794. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.J.S. 12A:2-314 and
2A-212.
1795. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1796. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1797. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, New Jersey State Class members have been damaged in an amount to be proven at
trial.
NEW MEXICO COUNT I: Violations of the New Mexico Unfair Trade Practices Act
N.M. Stat. Ann. § 57-12-1 et seq. (On Behalf of the New Mexico State Class)
1798. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
1799. This count is brought on behalf of the New Mexico State Class against all
Defendants.
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1800. Defendants and New Mexico State Class members are “person[s]” under the New
Mexico Unfair Trade Practices Act (“New Mexico UTPA”), N.M. Stat. Ann. § 57-12-2.
1801. Defendants’ actions as set forth herein occurred in the conduct of trade or commerce
as defined under N.M. Stat. Ann. § 57-12-2.
1802. The New Mexico UTPA makes unlawful “a false or misleading oral or written
statement, visual description or other representation of any kind knowingly made in connection
with the sale, lease, rental or loan of goods or services . . . by a person in the regular course of the
person’s trade or commerce, that may, tends to or does deceive or mislead any person,” including
but not limited to “failing to state a material fact if doing so deceives or tends to deceive.” N.M.
Stat. Ann. § 57-12-2(D). Defendants’ acts and omissions described herein constitute unfair or
deceptive acts or practices under N.M. Stat. Ann. § 57-12-2(D). In addition, Defendants’ actions
constitute unconscionable actions under N.M. Stat. Ann. § 57-12-2(E), since they took advantage
of the lack of knowledge, ability, experience, and capacity of the New Mexico State Class members
to a grossly unfair degree.
1803. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1804. New Mexico State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. New Mexico State Class members did not and could not
unravel Defendants’ deception on their own.
1805. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
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transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1806. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the New Mexico State Class.
1807. Defendants knew or should have known that their conduct violated the New Mexico
UTPA.
1808. Defendants owed the New Mexico State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
1809. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
New Mexico State Class.
1810. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the New Mexico State Class Members,
about the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles.
1811. Defendants’ violations present a continuing risk to the New Mexico State Class as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
1812. New Mexico State Class members suffered ascertainable loss and actual damages as
a direct and proximate result of Defendants’ misrepresentations and its concealment of and failure
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to disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the New Mexico UTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1813. As a direct and proximate result of Defendants’ violations of the New Mexico
UTPA, New Mexico State Class members have suffered injury-in-fact and/or actual damage.
1814. Because Defendants’ unconscionable, willful conduct caused actual harm to New
Mexico State Class members, the New Mexico State Class seeks recovery of actual damages or
$100, whichever is greater, discretionary treble damages, punitive damages, and reasonable
attorneys’ fees and costs, as well as all other proper and just relief available under N.M. Stat. Ann.
§ 57-12-10.
1815. New Mexico State Class members also seek punitive damages against Defendants
because Defendants’ conduct was malicious, willful, reckless, wanton, fraudulent and in bad faith.
NEW MEXICO COUNT II: Breach of Express Warranty
N.M. Stat. §§ 55-2-313 and 55-2A-210 (On Behalf of the New Mexico State Class)
1816. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1817. This count is brought on behalf of the New Mexico State Class against all
Defendants.
1818. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.M. Stat. § 55-2-104(1) and “sellers” of motor vehicles under § 55-2-103(1)(d).
1819. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.M. Stat. § 55-2A-103(1)(p).
1820. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.M. Stat. §§ 55-2-105(1) and 55-2A-103(1)(h).
1821. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
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warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1822. Defendants also made numerous representations, descriptions, and promises to New
Mexico State Class members regarding the performance and emission controls of their vehicles.
1823. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1824. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1825. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1826. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
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1827. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1828. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1829. Despite the existence of warranties, Defendants failed to inform New Mexico State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1830. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1831. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1832. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make New Mexico State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1833. Accordingly, recovery by the New Mexico State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1834. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. New Mexico State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
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1835. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the New
Mexico State Class members’ remedies would be insufficient to make them whole.
1836. Finally, because of Defendants’ breach of warranty as set forth herein, New Mexico
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1837. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1838. As a direct and proximate result of Defendants’ breach of express warranties, New
Mexico State Class members have been damaged in an amount to be determined at trial.
NEW MEXICO COUNT III: Breach of Implied Warranty of Merchantability
N.M. Stat. §§ 55-2-314 and 55-2A-212 (On Behalf of the New Mexico State Class)
1839. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1840. This count is brought on behalf of the New Mexico State Class against all
Defendants.
1841. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.M. Stat. § 55-2-104(1) and “sellers” of motor vehicles under § 55-2-103(1)(d).
1842. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.M. Stat. § 55-2A-103(1)(p).
1843. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.M. Stat. §§ 55-2-105(1) and 55-2A-103(1)(h).
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1844. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.M. Stat. §§ 55-2-314
and 55-2A-212.
1845. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1846. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1847. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, New Mexico State Class members have been damaged in an amount to be proven
at trial.
NEW YORK COUNT I: Violations of the New York General Business Law § 349
N.Y. Gen. Bus. Law § 349 (On Behalf of the New York State Class)
1848. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
1849. This count is brought on behalf of the New York State Class against all Defendants.
1850. The New York State Class members and Defendants are “persons” under N.Y. Gen.
Bus. Law § 349(h), the New York Deceptive Acts and Practices Act (“NY DAPA”).
1851. Defendants’ actions as set forth herein occurred in the conduct of trade or commerce
under the NY DAPA.
1852. The NY DAPA makes unlawful “[d]eceptive acts or practices in the conduct of any
business, trade or commerce.” N.Y. Gen. Bus. Law § 349. Defendants’ conduct, as set forth herein,
constitutes deceptive acts or practices under this section.
1853. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
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emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1854. New York State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. New York State Class members did not and could not unravel
Defendants’ deception on their own.
1855. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1856. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the New York State Class.
1857. Defendants knew or should have known that their conduct violated the NY DAPA.
1858. Defendants owed the New York State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1859. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
New York State Class.
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1860. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the New York State Class Members, about
the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles.
1861. Defendants’ violations present a continuing risk to the New York State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
1862. New York State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the NY DAPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
1863. As a direct and proximate result of Defendants’ violations of the NY DAPA, New
York State Class members have suffered injury-in-fact and/or actual damage.
1864. As a result of the foregoing willful, knowing, and wrongful conduct of Defendants,
New York State Class members have been damaged in an amount to be proven at trial, and seek all
just and proper remedies, including but not limited to actual damages or $50, whichever is greater,
treble damages up to $1,000, punitive damages to the extent available under the law, reasonable
attorneys’ fees and costs, an order enjoining Defendants’ deceptive and unfair conduct, and all
other just and appropriate relief available under the NY DAPA.
NEW YORK COUNT II: Violations of the New York General Business Law § 350
N.Y. Gen. Bus. Law § 350 (On Behalf of the New York State Class)
1865. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
1866. This count is brought on behalf of the New York State Class against all Defendants.
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1867. Defendants were engaged in the “conduct of business, trade or commerce,” within
the meaning of N.Y. Gen. Bus. Law § 350, the New York False Advertising Act (“NY FAA”)
1868. The NY FAA makes unlawful “[f]alse advertising in the conduct of any business,
trade or commerce.” N.Y. Gen. Bus. Law § 350. False advertising includes “advertising, including
labeling, of a commodity . . . if such advertising is misleading in a material respect,” taking into
account “the extent to which the advertising fails to reveal facts material in light of …
representations [made] with respect to the commodity ….” N.Y. Gen. Bus. Law § 350-a.
1869. Defendants caused to be made or disseminated through New York, through
advertising, marketing, and other publications, statements and omissions that were untrue or
misleading, and that were known by Defendants, or that through the exercise of reasonable care
should have been known by Defendants, to be untrue and misleading to the New York State Class.
1870. Defendants made numerous material misrepresentations and omissions of fact with
intent to mislead and deceive concerning the Class Vehicles, particularly concerning the illegality,
efficacy and functioning of the emissions systems on the Class Vehicles. Specifically, Defendants
intentionally concealed and suppressed material facts concerning the legality and quality of the
Class Vehicles to intentionally and grossly defraud and mislead the New York State Class
concerning the true emissions produced by the Class Vehicles.
1871. The misrepresentations and omissions regarding set forth above were material and
likely to deceive a reasonable consumer. Specifically, the Class Vehicles are equipped with a
software program that led to inflated and misleading fuel economy values.
1872. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the New York State Class.
1873. Defendants false advertising was likely to and did in fact deceive regulators and
reasonable consumers, including New York State Class members, about the illegality and true
characteristics of the Class Vehicles, the quality of Defendants brand and the true value of the Class
Vehicles.
1874. Defendants violations of the NY FAA present a continuing risk to Plaintiffs and to
the general public. Defendants’ deceptive acts and practices affect the public interest.
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1875. The Class Vehicles do not perform as advertised and are not compliant with EPA
regulations, making them far less valuable than advertised.
1876. New York State Class members have suffered injury-in-fact and/or actual damages
and ascertainable loss as a direct and proximate result of the Defendant’s false advertising in
violation of the NY FAA.
1877. The New York State Class seeks monetary relief against Defendants measured as
the greater of (a) actual damages in an amount to be determined at trial, and (b) statutory damages
in the amount of $500 each for New York State Class members. Because Defendants’ conduct was
committed willingly and knowingly, New York State Class members are entitled to recover three
times actual damages, up to $10,000.
1878. The New York State Class also seeks an order enjoining Defendants’ false
advertising, attorneys’ fees, and any other just and proper relief under N.Y. Gen. Bus. Law § 350.
NEW YORK COUNT III: Breach of Express Warranty
N.Y. U.C.C. Law §§ 2-313 and 2A-210 (On Behalf of the New York State Class)
1879. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1880. This count is brought on behalf of the New York State Class against all Defendants.
1881. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.Y. UCC Law § 2-104(1) and “sellers” of motor vehicles under § 2-103(1)(d).
1882. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.Y. UCC Law § 2A-103(1)(p).
1883. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.Y. UCC Law §§ 2-105(1) and 2A-103(1)(h).
1884. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
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1885. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and New York State Class members regarding the performance and emission controls of
their vehicles.
1886. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1887. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1888. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1889. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
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1890. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1891. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1892. Despite the existence of warranties, Defendants failed to inform New York State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1893. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1894. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1895. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make New York State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1896. Accordingly, recovery by the New York State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
1897. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. New York State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
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1898. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the New
York State Class members’ remedies would be insufficient to make them whole.
1899. Finally, because of Defendants’ breach of warranty as set forth herein, New York
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1900. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1901. As a direct and proximate result of Defendants’ breach of express warranties, New
York State Class members have been damaged in an amount to be determined at trial.
NEW YORK COUNT IV: Breach of Implied Warranty of Merchantability
N.Y. U.C.C. Law §§ 2-314 and 2A-212 (On Behalf of the New York State Class)
1902. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1903. This count is brought on behalf of the New York State Class against all Defendants.
1904. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.Y. UCC Law § 2-104(1) and “sellers” of motor vehicles under § 2-103(1)(d).
1905. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.Y. UCC Law § 2A-103(1)(p).
1906. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.Y. UCC Law §§ 2-105(1) and 2A-103(1)(h).
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1907. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.Y. UCC Law §§
2-314 and 2A-212.
1908. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1909. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1910. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, New York State Class members have been damaged in an amount to be proven at
trial.
NORTH CAROLINA COUNT I: Violations of the North Carolina Unfair and Deceptive Acts and Practices Act
N.C. Gen. Stat. § 75-1.1 et seq. (On Behalf of the North Carolina State Class)
1911. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1912. This count is brought on behalf of the North Carolina State Class against all
Defendants.
1913. North Carolina State Class members are persons under the North Carolina Unfair
and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1, et seq. (“NCUDTPA”).
1914. Defendants’ acts and practices complained of herein were performed in the course
of Defendants’ trade or business and thus occurred in or affected “commerce,” as defined in N.C.
Gen. Stat. § 75-1.1(b).
1915. The NCUDTPA makes unlawful “[u]nfair methods of competition in or affecting
commerce, and unfair or deceptive acts or practices in or affecting commerce[.]” The NCUDTPA
provides a private right of action for any person injured “by reason of any act or thing done by any
other person, firm or corporation in violation of” the NCUDTPA. N.C. Gen. Stat. § 75-16.
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1916. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1917. North Carolina State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. North Carolina State Class members did not and could not
unravel Defendants’ deception on their own.
1918. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1919. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the North Carolina State Class.
1920. Defendants knew or should have known that their conduct violated the NCUDTPA.
1921. Defendants owed the North Carolina State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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1922. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the North Carolina State Class.
1923. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the North Carolina State Class Members,
about the true environmental cleanliness and efficiency of the Class Vehicles, the quality of the
Defendants’ brands, the devaluing of environmental cleanliness and integrity at Defendant
companies, and the true value of the Class Vehicles..
1924. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
1925. North Carolina State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the NCUDTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
1926. As a result of the foregoing wrongful conduct of Defendants, the North Carolina
State Class has been damaged in an amount to be proven at trial, and seek all just and proper
remedies, including but not limited to treble damages, an order enjoining Defendants’ deceptive
and unfair conduct, court costs and reasonable attorneys’ fees, and any other just and proper relief
available under N.C. Gen. Stat. § 75-16.
NORTH CAROLINA COUNT II: Breach of Express Warranty
N.C.G.S.A. §§ 25-2-313 and 252A-210 (On Behalf of the North Carolina State Class)
1927. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
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1928. This count is brought on behalf of the North Carolina State Class against all
Defendants.
1929. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.C.G.S.A. § 25-2-104(1) and “sellers” of motor vehicles under § 25-2-103(1)(d).
1930. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.C.G.S.A. § 25-2A-103(1)(p).
1931. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.C.G.S.A. § 25-2-105(1) and N.C.G.S.A. § 25-2A-103(1)(h).
1932. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1933. Defendants also made numerous representations, descriptions, and promises to
North Carolina State Class members regarding the performance and emission controls of their
vehicles.
1934. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1935. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1936. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
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These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1937. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1938. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1939. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1940. Despite the existence of warranties, Defendants failed to inform North Carolina
State Class members that the Class Vehicles were intentionally designed and manufactured to
contain a Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and
achieve worse fuel and achieve worse fuel economy on the road than what was disclosed to
regulators and represented to consumers who purchased or leased them, and failed to fix the
defective emission components free of charge.
1941. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1942. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
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1943. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make North Carolina State Class members whole and because Defendants have
failed and/or have refused to adequately provide the promised remedies within a reasonable time.
1944. Accordingly, recovery by the North Carolina State Class members is not restricted
to the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1945. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. North Carolina State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1946. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the North
Carolina State Class members’ remedies would be insufficient to make them whole.
1947. Finally, because of Defendants’ breach of warranty as set forth herein, North
Carolina State Class members assert, as additional and/or alternative remedies, the revocation of
acceptance of the goods and the return to them the purchase or lease price of all Class Vehicles
currently owned or leased, and for such other incidental and consequential damages as allowed.
1948. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1949. As a direct and proximate result of Defendants’ breach of express warranties, North
Carolina State Class members have been damaged in an amount to be determined at trial.
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NORTH CAROLINA COUNT III: Breach of Implied Warranty of Merchantability
N.C.G.S.A. §§ 25-2-314 and 252A-212 (On Behalf of the North Carolina State Class)
1950. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
1951. This count is brought on behalf of the North Carolina State Class against all
Defendants.
1952. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.C.G.S.A. § 25-2-104(1) and “sellers” of motor vehicles under § 25-2-103(1)(d).
1953. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.C.G.S.A. § 25-2A-103(1)(p).
1954. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.C.G.S.A. § 25-2-105(1) and N.C.G.S.A. § 25-2A-103(1)(h).
1955. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.C.G.S.A. § 25-2-314
and N.C.G.S.A. § 25-2A-212.
1956. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
1957. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
1958. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, North Carolina State Class members have been damaged in an amount to be
proven at trial.
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NORTH DAKOTA COUNT I: Violations of the North Dakota Consumer Fraud Act
N.D. Cent. Code § 51-15-02 (On Behalf of the North Dakota State Class)
1959. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
1960. This count is brought on behalf of the North Dakota State Class against all
Defendants.
1961. North Dakota State Class members and Defendants are “persons” within the
meaning of N.D. Cent. Code § 51-15-02(4).
1962. Defendants engaged in the “sale” of “merchandise” within the meaning of N.D.
Cent Code § 51-15-02(3), (5).
1963. The North Dakota Consumer Fraud Act (“North Dakota CFA”) makes unlawful
“[t]he act, use, or employment by any person of any deceptive act or practice, fraud, false pretense,
false promise, or misrepresentation, with the intent that others rely thereon in connection with the
sale or advertisement of any merchandise….” N.D. Cent. Code § 51-15-02. As set forth above and
below, Defendants committed deceptive acts or practices, with the intent that North Dakota State
Class members rely thereon in connection with their purchase or lease of the Class Vehicles.
1964. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
1965. North Dakota State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. North Dakota State Class members did not and could not
unravel Defendants’ deception on their own.
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1966. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
1967. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the North Dakota State Class.
1968. Defendants knew or should have known that their conduct violated the North
Dakota CFA.
1969. Defendants owed the North Dakota State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
1970. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
North Dakota State Class.
1971. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the North Dakota State Class, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
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1972. Defendants’ violations present a continuing risk to the North Dakota State Class as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
1973. North Dakota State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the North Dakota CFA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
1974. As a direct and proximate result of Defendants’ violations of the North Dakota CFA,
North Dakota State Class members have suffered injury-in-fact and/or actual damage.
1975. North Dakota State Class members seek punitive damages against Defendants
because Defendants’ conduct was egregious. Defendants’ egregious conduct warrants punitive
damages.
1976. Further, Defendants knowingly committed the conduct described above, and thus,
under N.D. Cent. Code § 51-15-09, Defendants are liable to the North Dakota State Class for treble
damages in amounts to be proven at trial, as well as attorneys’ fees, costs, and disbursements.
Plaintiffs further seek an order enjoining Defendants’ unfair and/or deceptive acts or practices, and
other just and proper available relief under the North Dakota CFA.
NORTH DAKOTA COUNT II: Breach of Express Warranty
N.D. Cent. Code §§ 41-02-30 and 41-02.1-19 (On Behalf of the North Dakota State Class)
1977. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
1978. This count is brought on behalf of the North Dakota State Class against all
Defendants.
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1979. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.D. Cent. Code § 41-02.04(3) and “sellers” of motor vehicles under §
41-02-03(1)(d).
1980. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.D. Cent. Code § 41-02.1-03(1)(p).
1981. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.D. Cent. Code § 41-02-05(2) and N.D. Cent. Code § 41-02.1-03(1)(h).
1982. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
1983. Defendants also made numerous representations, descriptions, and promises to
North Dakota State Class members regarding the performance and emission controls of their
vehicles.
1984. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
1985. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
1986. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
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converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
1987. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
1988. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
1989. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
1990. Despite the existence of warranties, Defendants failed to inform North Dakota State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
1991. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
1992. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
1993. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
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insufficient to make North Dakota State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
1994. Accordingly, recovery by the North Dakota State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
1995. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. North Dakota State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
1996. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the North
Dakota State Class members’ remedies would be insufficient to make them whole.
1997. Finally, because of Defendants’ breach of warranty as set forth herein, North Dakota
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
1998. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
1999. As a direct and proximate result of Defendants’ breach of express warranties, North
Dakota State Class members have been damaged in an amount to be determined at trial.
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NORTH DAKOTA COUNT III: Breach of Implied Warranty of Merchantability
N.D. Cent. Code §§ 41-02-31 and 41-02.1-21 (On Behalf of the North Dakota State Class)
2000. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2001. This count is brought on behalf of the North Dakota State Class against all
Defendants.
2002. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under N.D. Cent. Code § 41-02.04(3) and “sellers” of motor vehicles under §
41-02-03(1)(d).
2003. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under N.D. Cent. Code § 41-02.1-03(1)(p).
2004. The Class Vehicles are and were at all relevant times “goods” within the meaning of
N.D. Cent. Code § 41-02-05(2) and N.D. Cent. Code § 41-02.1-03(1)(h).
2005. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to N.D. Cent. Code §
41-02-31 and N.D. Cent. Code § 41-02.1-21.
2006. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2007. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2008. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, North Dakota State Class members have been damaged in an amount to be proven
at trial.
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OHIO COUNT I: Violations of the Ohio Consumer Sales Practices Act
Ohio Rev. Code § 1345.01 et seq. (On Behalf of the Ohio State Class)
2009. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2010. This count is brought on behalf of the Ohio State Class against all Defendants.
2011. Defendants and the Ohio State Class members are “persons” within the meaning of
Ohio Rev. Code § 1345.01(B). Defendants are a “supplier” as defined by Ohio Rev. Code §
1345.01(C).
2012. The Ohio State Class are “consumers” as that term is defined in Ohio Rev. Code §
1345.01(D), and their purchase and leases of the Class Vehicles with the Defect Devices installed
in them are “consumer transactions” within the meaning of Ohio Rev. Code § 1345.01(A).
2013. Ohio Rev. Code § 1345.02, prohibits unfair or deceptive acts or practices in
connection with a consumer transaction. Ohio CSPA prohibits a supplier from (i) representing that
goods have characteristics, uses or benefits which the goods do not have; (ii) representing that their
goods are of a particular quality or grade that the product is not; and (iii) representing that the
subject of a consumer transaction has been supplied in accordance with a previous representation, if
it has not.
2014. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2015. Ohio State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Ohio State Class members did not and could not unravel
Defendants’ deception on their own.
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2016. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2017. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Ohio State Class.
2018. Defendants knew or should have known that their conduct violated the Ohio CSPA.
2019. The Ohio Attorney General has made available for public inspection prior state
court decisions which have held that the acts and omissions of Defendants in this Complaint,
including, but not limited to, the failure to honor both implied warranties and express warranties,
the making and distribution of false, deceptive, and/or misleading representations, and the
concealment and/or non-disclosure of a substantial defect, constitute deceptive sales practices in
violation of the CSPA. These cases include, but are not limited to, the following:
a. Mason v. Mercedes Benz USA, LLC (OPIF #10002382);
b. State ex rel. Betty D. Montgomery v. Ford Motor Co. (OPIF #10002123);
c. State ex rel. Betty D. Montgomery v. Bridgestone/Firestone, Inc. (OPIF
#10002025);
d. Bellinger v. Hewlett-Packard Co., No. 20744, 2002 Ohio App. LEXIS 1573
(Ohio Ct. App. Apr. 10, 2002) (OPIF #10002077);
e. Borror v. MarineMax of Ohio, No. OT-06-010, 2007 Ohio App. LEXIS 525
(Ohio Ct. App. Feb. 9, 2007) (OPIF #10002388);
f. State ex rel. Jim Petro v. Craftmatic Organization, Inc. (OPIF #10002347);
g. Cranford v. Joseph Airport Toyota, Inc. (OPIF #10001586);
h. Brown v. Spears (OPIF #10000403);
i. Brinkman v. Mazda Motor of America, Inc. (OPIF #10001427);
j. Mosley v. Performance Mitsubishi aka Automanage (OPIF #10001326); and
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k. Walls v. Harry Williams dba Butch’s Auto Sales (OPIF #10001524).
2020. Defendants owed the Ohio State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2021. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Ohio State Class.
2022. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Ohio State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at the Defendant companies, and
the true value of the Class Vehicles.
2023. Defendants’ violations present a continuing risk to the Ohio State Class as well as to
the general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2024. Ohio State Class members suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Ohio CSPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
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2025. Pursuant to Ohio Rev. Code § 1345.09, the Ohio State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, actual damages - trebled, and
attorneys’ fees, costs, and any other just and proper relief, to the extend available under the Ohio
CSPA.
OHIO COUNT II: Violations of the Ohio Deceptive Trade Practices Act
Ohio Rev. Code § 4165.01 et seq. (On Behalf of the Ohio State Class)
2026. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2027. This count is brought on behalf of the Ohio State Class against all Defendants.
2028. Defendants and the Ohio State Class are “persons” within the meaning of Ohio Rev.
Code § 4165.01(D).
2029. Defendants engaged in “the course of [its] business” within the meaning of Ohio
Rev. Code § 4165.02(A) with respect to the acts alleged herein.
2030. The Ohio Deceptive Trade Practices Act, Ohio Rev. Code § 4165.02(A) (“Ohio
DTPA”) provides that a “person engages in a deceptive trade practice when, in the course of the
person’s business, vocation, or occupation,” the person does any of the following: “(2) Causes
likelihood of confusion or misunderstanding as to the source, sponsorship, approval, or
certification of goods or services; … (7) Represents that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a
person has a sponsorship, approval, status, affiliation, or connection that the person does not have;
… (9) Represents that goods or services are of a particular standard, quality, or grade, or that goods
are of a particular style or model, if they are of another; … [or] (11) Advertises goods or services
with intent not to sell them as advertised.”
2031. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
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CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2032. Ohio State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Ohio State Class members did not and could not unravel
Defendants’ deception on their own.
2033. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2034. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Ohio State Class.
2035. Defendants knew or should have known that their conduct violated the Ohio DTPA.
2036. Defendants owed the Ohio State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2037. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Ohio State Class.
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2038. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Ohio State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2039. Defendants’ violations present a continuing risk to the Ohio State Class as well as to
the general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2040. Ohio State Class members suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Ohio DTPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
2041. Pursuant to Ohio Rev. Code § 4165.03, the Ohio State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages, and
attorneys’ fees, costs, and any other just and proper relief available under the Ohio DTPA.
OHIO COUNT III: Breach of Express Warranty
Ohio. Rev. Code § 1302.26, et seq. / U.C.C. § 2-313 (On Behalf of the Ohio State Class)
2042. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2043. This count is brought on behalf of the Ohio State Class against all Defendants.
2044. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ohio Rev. Code §§ 1302.01(5) and 1310.01(A)(20), and “sellers” of motor vehicles
under § 1302.01(4).
2045. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ohio Rev. Code § 1310.01(A)(20).
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2046. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ohio Rev. Code §§ 1302.01(8), and 1310.01(A)(8).
2047. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2048. Defendants also made numerous representations, descriptions, and promises to Ohio
State Class members regarding the performance and emission controls of their vehicles.
2049. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2050. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2051. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2052. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
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related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2053. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2054. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2055. Despite the existence of warranties, Defendants failed to inform Ohio State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2056. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2057. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2058. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Ohio State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
2059. Accordingly, recovery by the Ohio State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
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2060. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Ohio State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2061. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Ohio
State Class members’ remedies would be insufficient to make them whole.
2062. Finally, because of Defendants’ breach of warranty as set forth herein, Ohio State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
2063. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2064. As a direct and proximate result of Defendants’ breach of express warranties, Ohio
State Class members have been damaged in an amount to be determined at trial.
OHIO COUNT IV: Breach of Implied Warranty of Merchantability
Ohio Rev. Code Ann. §§ 1302.27 and 1310.19 (On Behalf of the Ohio State Class)
2065. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2066. This count is brought on behalf of the Ohio State Class against all Defendants.
2067. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Ohio Rev. Code §§ 1302.01(5) and 1310.01(A)(20), and “sellers” of motor vehicles
under § 1302.01(4).
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2068. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Ohio Rev. Code § 1310.01(A)(20).
2069. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Ohio Rev. Code §§ 1302.01(8), and 1310.01(A)(8).
2070. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Ohio Rev. Code §§
1302.27 and 1310.19.
2071. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2072. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2073. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Ohio State Class members have been damaged in an amount to be proven at trial.
OKLAHOMA COUNT I: Violations of the Oklahoma Consumer Protection Act
Okla. Stat. Tit. 15 § 751 et seq. (On Behalf of the Oklahoma State Class)
2074. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2075. This count is brought on behalf of the Oklahoma State Class against all Defendants.
2076. Defendants and the Oklahoma State Class are “persons” within the meaning of
Okla. Stat. Tit. 15 § 752.1.
2077. Defendants engaged in “the course of [its] business” within the meaning of Okla.
Stat. Tit. 15 § 752.3 with respect to the acts alleged herein.
2078. The Oklahoma Consumer Protection Act (“Oklahoma CPA”) prohibits, in the
course of business: “mak[ing] a false or misleading representation, knowingly or with reason to
know, as to the characteristics …, uses, [or] benefits, of the subject of a consumer transaction,” or
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making a false representation, “knowingly or with reason to know, that the subject of a consumer
transaction is of a particular standard, style or model, if it is of another or “[a]dvertis[ing],
knowingly or with reason to know, the subject of a consumer transaction with intent not to sell it as
advertised;” and otherwise committing “an unfair or deceptive trade practice.” Okla. Stat. Tit. 753.
2079. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2080. Oklahoma State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Oklahoma State Class members did not and could not unravel
Defendants’ deception on their own.
2081. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2082. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Oklahoma State Class.
2083. Defendants knew or should have known that their conduct violated the Oklahoma
CPA.
2084. Defendants owed the Oklahoma State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
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b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2085. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Oklahoma State Class.
2086. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Oklahoma State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2087. Defendants’ violations present a continuing risk to the Oklahoma State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
2088. Oklahoma State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Oklahoma CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
2089. Pursuant to Okla. Stat. Tit. 15 § 761.1, the Oklahoma State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages, and
attorneys’ fees, costs, and any other just and proper relief available under the Oklahoma CPA.
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OKLAHOMA COUNT II: Breach of Express Warranty
Okla. Stat. Tit. 12 §§ 2-313 and 2A-210 (On Behalf of the Oklahoma State Class)
2090. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2091. This count is brought on behalf of the Oklahoma State Class against all Defendants.
2092. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Okla. Stat. Tit. 12A §§ 2-104(1) and 2-1103(3), and “sellers” of motor vehicles
under § 2A-103(1)(t).
2093. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Okla. Stat. Tit. 12A § 2A-103(1)(p).
2094. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Okla. Stat. Tit. 12A §§ 2-105(1) and 2A-103(1)(h).
2095. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2096. Defendants also made numerous representations, descriptions, and promises to
Oklahoma State Class members regarding the performance and emission controls of their vehicles.
2097. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2098. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2099. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2100. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2101. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2102. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2103. Despite the existence of warranties, Defendants failed to inform Oklahoma State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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2104. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2105. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2106. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Oklahoma State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2107. Accordingly, recovery by the Oklahoma State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2108. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Oklahoma State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2109. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Oklahoma State Class members’ remedies would be insufficient to make them whole.
2110. Finally, because of Defendants’ breach of warranty as set forth herein, Oklahoma
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
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2111. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2112. As a direct and proximate result of Defendants’ breach of express warranties,
Oklahoma State Class members have been damaged in an amount to be determined at trial.
OKLAHOMA COUNT III: Breach of Implied Warranty of Merchantability
Okla. Stat. Tit. 12A §§ 2-314 and 2A-212 (On Behalf of the Oklahoma State Class)
2113. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2114. This count is brought on behalf of the Oklahoma State Class against all Defendants.
2115. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Okla. Stat. Tit. 12A §§ 2-104(1) and 2-1103(3), and “sellers” of motor vehicles
under § 2A-103(1)(t).
2116. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Okla. Stat. Tit. 12A § 2A-103(1)(p).
2117. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Okla. Stat. Tit. 12A §§ 2-105(1) and 2A-103(1)(h).
2118. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Okla. Stat. Tit. 12A §§
2-314 and 2A-212.
2119. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2120. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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2121. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Oklahoma State Class members have been damaged in an amount to be proven at
trial.
OREGON COUNT I: Violations of the Oregon Unlawful Trade Practices Act
Or. Rev. Stat. § 646.605, et seq. (On Behalf of the Oregon State Class)
2122. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2123. This count is brought on behalf of the Oregon State Class against all Defendants.
2124. Defendants, Plaintiffs and the Oregon State Class are “persons” within the meaning
of Or. Rev. Stat. § 646.605(4).
2125. Defendants are engaged in “trade” or “commerce” within the meaning of Or. Rev.
Stat. § 646.605(8).
2126. The Oregon Unfair Trade Practices Act (“Oregon UTPA”) prohibits “unfair or
deceptive acts conduct in trade or commerce ….” Or. Rev. Stat. § 646.608(1).
2127. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2128. Oregon State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Oregon State Class members did not and could not unravel
Defendants’ deception on their own.
2129. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
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Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2130. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Oregon State Class.
2131. Defendants knew or should have known that their conduct violated the Oregon
UTPA.
2132. Defendants owed the Oregon State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2133. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Oregon State Class.
2134. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Oregon State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2135. Defendants’ violations present a continuing risk to the Oregon State Class as well as
to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
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2136. Oregon State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Oregon UTPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
2137. Pursuant to Or. Rev. Stat. § 646.638, the Oregon State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages, and
attorneys’ fees, costs, and any other just and proper relief available under the Oregon UTPA.
OREGON COUNT II: Breach of Express Warranty
Or. Rev. Stat. §§ 72.3130 and 72A.2100 (On Behalf of the Oregon State Class)
2138. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2139. This count is brought on behalf of the Oregon State Class against all Defendants.
2140. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Or. Rev. Stat. §§ 72.1040(1) and 72A.1030(1)(t), and “sellers” of motor vehicles
under § 72.1030(1)(d).
2141. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Or. Rev. Stat. § 72A.1030(1)(p).
2142. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Or. Rev. Stat. §§ 72.1050(1) and 72A.1030(1)(h).
2143. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2144. Defendants also made numerous representations, descriptions, and promises to
Oregon State Class members regarding the performance and emission controls of their vehicles.
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2145. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2146. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2147. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2148. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2149. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
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2150. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2151. Despite the existence of warranties, Defendants failed to inform Oregon State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2152. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2153. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2154. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Oregon State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
2155. Accordingly, recovery by the Oregon State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2156. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Oregon State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2157. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
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workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Oregon
State Class members’ remedies would be insufficient to make them whole.
2158. Finally, because of Defendants’ breach of warranty as set forth herein, Oregon State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
2159. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2160. As a direct and proximate result of Defendants’ breach of express warranties,
Oregon State Class members have been damaged in an amount to be determined at trial.
OREGON COUNT III: Breach of Implied Warranty of Merchantability
Or. Rev. Stat. §§ 72.3140 and 72A.2120 (On Behalf of the Oregon State Class)
2161. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2162. This count is brought on behalf of the Oregon State Class against all Defendants.
2163. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Or. Rev. Stat. §§ 72.1040(1) and 72A.1030(1)(t), and “sellers” of motor vehicles
under § 72.1030(1)(d).
2164. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Or. Rev. Stat. § 72A.1030(1)(p).
2165. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Or. Rev. Stat. §§ 72.1050(1) and 72A.1030(1)(h).
2166. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Or. Rev. Stat. §§
72.3140 and 72A-2120.
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2167. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2168. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2169. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Oregon State Class members have been damaged in an amount to be proven at
trial.
PENNSYLVANIA COUNT I: Violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
73 P.S. § 201-1 et seq. (On Behalf of the Pennsylvania State Class)
2170. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
2171. This count is brought on behalf of the Pennsylvania State Class against all
Defendants.
2172. Defendants and the Pennsylvania State Class are “persons” within the meaning of
73 P.S. § 201-2(2).
2173. Defendants engaged in “trade” or “commerce” within the meaning of 73 P.S. §
201-2(3).
2174. The Pennsylvania Unfair Trade Practices Act (“Pennsylvania UTPA”) prohibits
“unfair or deceptive acts or practices in the conduct of any trade or commerce.” 73 P.S. § 201 3.
2175. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
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2176. Pennsylvania State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Pennsylvania State Class members did not and
could not unravel Defendants’ deception on their own.
2177. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2178. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Pennsylvania State Class.
2179. Defendants knew or should have known that their conduct violated the
Pennsylvania UTPA.
2180. Defendants owed the Pennsylvania State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2181. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Pennsylvania State Class.
2182. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Pennsylvania State Class, about the
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true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2183. Defendants’ violations present a continuing risk to the Pennsylvania State Class as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
2184. Pennsylvania State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the Pennsylvania UTPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
2185. As a direct and proximate result of Defendants’ violations of the Pennsylvania
UTPA, the Pennsylvania State Class members have suffered injury-in-fact and/or actual damage.
2186. Pursuant to 73 P.S. § 201-9.2(a), the Pennsylvania State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages, and
attorneys’ fees, costs, and any other just and proper relief available under the Pennsylvania UTPA.
PENNSYLVANIA COUNT II: Breach of Express Warranty
13. Pa. Cons. Stat. §§ 2313 and 2A210 (On Behalf of the Pennsylvania State Class)
2187. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2188. This count is brought on behalf of the Pennsylvania State Class against all
Defendants.
2189. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 13 Pa. Cons. Stat. §§ 2104 and 2A103(a), and “sellers” of motor vehicles under §
2103(a).
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2190. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 13 Pa. Cons. Stat. § 2A103(a).
2191. The Class Vehicles are and were at all relevant times “goods” within the meaning of
13 Pa. Cons. Stat. §§ 2105(a) and 2A103(a).
2192. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2193. Defendants also made numerous representations, descriptions, and promises to
Pennsylvania State Class members regarding the performance and emission controls of their
vehicles.
2194. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2195. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2196. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
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2197. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2198. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2199. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2200. Despite the existence of warranties, Defendants failed to inform Pennsylvania State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2201. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2202. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2203. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Pennsylvania State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
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2204. Accordingly, recovery by the Pennsylvania State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
2205. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Pennsylvania State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2206. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Pennsylvania State Class members’ remedies would be insufficient to make them whole.
2207. Finally, because of Defendants’ breach of warranty as set forth herein, Pennsylvania
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
2208. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2209. As a direct and proximate result of Defendants’ breach of express warranties,
Pennsylvania State Class members have been damaged in an amount to be determined at trial.
PENNSYLVANIA COUNT III: Breach of Implied Warranty of Merchantability
13. Pa. Cons. Stat. §§ 2314 and 2A212 (On Behalf of the Pennsylvania State Class)
2210. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
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2211. This count is brought on behalf of the Pennsylvania State Class against all
Defendants.
2212. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 13 Pa. Cons. Stat. §§ 2104 and 2A103(a), and “sellers” of motor vehicles under §
2103(a).
2213. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 13 Pa. Cons. Stat. § 2A103(a).
2214. The Class Vehicles are and were at all relevant times “goods” within the meaning of
13 Pa. Cons. Stat. §§ 2105(a) and 2A103(a).
2215. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to 13 Pa. Cons. Stat. §§
2314 and 2A212.
2216. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2217. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2218. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Pennsylvania State Class members have been damaged in an amount to be proven
at trial.
RHODE ISLAND COUNT I: Violations of the Rhode Island Deceptive Trade Practices and Consumer Protection Law
R.I. Gen. Laws § 6-13.1 et seq. (On Behalf of the Rhode Island State Class)
2219. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2220. This count is brought on behalf of the Rhode Island State Class against all
Defendants.
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2221. Defendants, Plaintiffs and the Rhode Island State Class are “persons” within the
meaning of R.I. Gen. Laws § 6-13.1-1(3).
2222. Defendants are engaged in “trade” or “commerce” within the meaning of R.I. Gen.
Laws § 6-13.1-1(5).
2223. The Rhode Island Deceptive Trade Practices Act (“Rhode Island DTPA”) prohibits
“unfair or deceptive acts or practices in the conduct of any trade or commerce” including: (v)
[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities that they do not have”; “(vii) [r]epresenting that goods or services are of a
particular standard, quality, or grade …, if they are of another”; (ix) [a]dvertising goods or services
with intent not to sell them as advertised”; “(xiii) [u]sing any other methods, acts or practices which
mislead or deceive members of the public in a material respect.” R.I. Gen. Laws § 6-13.1-1(6).
2224. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2225. Rhode Island State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Rhode Island State Class members did not and
could not unravel Defendants’ deception on their own.
2226. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
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2227. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Rhode Island State Class.
2228. Defendants knew or should have known that their conduct violated the Rhode Island
DTPA.
2229. Defendants owed the Rhode Island State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2230. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Rhode Island State Class.
2231. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Rhode Island State Class, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2232. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2233. Rhode Island State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the Rhode Island DTPA. All owners of Class
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Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
2234. The Rhode Island State Class is entitled to recover the greater of actual damages or
$200 pursuant to R.I. Gen. Laws § 6-13.1-5.2(a). The Rhode Island State Class is also entitled to
punitive damages because Defendants engaged in conduct amounting to a particularly aggravated,
deliberate disregard of the rights of others.
RHODE ISLAND COUNT II: Breach of Express Warranty
6A R.I. Gen. Laws §§ 6A-2-313 and 6A-2.1-210 (On Behalf of the Rhode Island State Class)
2235. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2236. This count is brought on behalf of the Rhode Island State Class against all
Defendants.
2237. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 6A R.I. Gen. Laws §§ 6A-2-104(1) and 6A-2.1-103(1)(t), and “sellers” of motor
vehicles under § 6A-2-103(a)(4).
2238. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 6A R.I. Gen. Laws § 6A-2.1-103(1)(p).
2239. The Class Vehicles are and were at all relevant times “goods” within the meaning of
6A R.I. Gen. Laws §§ 6A-2-105(1) and 6A-2.1-103(1)(h).
2240. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2241. Defendants also made numerous representations, descriptions, and promises to
Rhode Island State Class members regarding the performance and emission controls of their
vehicles.
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2242. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2243. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2244. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2245. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2246. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
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2247. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2248. Despite the existence of warranties, Defendants failed to inform Rhode Island State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2249. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2250. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2251. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Rhode Island State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2252. Accordingly, recovery by the Rhode Island State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
2253. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Rhode Island State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2254. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
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workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Rhode
Island State Class members’ remedies would be insufficient to make them whole.
2255. Finally, because of Defendants’ breach of warranty as set forth herein, Rhode Island
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
2256. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2257. As a direct and proximate result of Defendants’ breach of express warranties, Rhode
Island State Class members have been damaged in an amount to be determined at trial.
RHODE ISLAND COUNT III: Breach of Implied Warranty of Merchantability 6A R.I. Gen. Laws §§ 6A-2-314 and 6A-2.1-212
(On Behalf of the Rhode Island State Class)
2258. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2259. This count is brought on behalf of the Rhode Island State Class against all
Defendants.
2260. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under 6A R.I. Gen. Laws §§ 6A-2-104(1) and 6A-2.1-103(1)(t), and “sellers” of motor
vehicles under § 6A-2-103(a)(4).
2261. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under 6A R.I. Gen. Laws § 6A-2.1-103(1)(p).
2262. The Class Vehicles are and were at all relevant times “goods” within the meaning of
6A R.I. Gen. Laws §§ 6A-2-105(1) and 6A-2.1-103(1)(h).
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2263. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to 6A R.I. Gen. Laws §§
6A-2-314 and 6A-2.1-212.
2264. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2265. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2266. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Rhode Island State Class members have been damaged in an amount to be proven
at trial.
SOUTH CAROLINA COUNT I: Violations of the South Carolina Unfair Trade Practices Act
S.C. Code Ann. § 39-5-10 et seq. (On Behalf of the South Carolina State Class)
2267. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2268. This count is brought on behalf of the South Carolina State Class against all
Defendants.
2269. Defendants, Plaintiffs and the South Carolina State Class are “persons” within the
meaning of S.C. Code § 39-5-10(a).
2270. Defendants are engaged in “trade” or “commerce” within the meaning of S.C. Code
§ 39-5-10(b).
2271. The South Carolina Unfair Trade Practices Act (“South Carolina UTPA”) prohibits
“unfair or deceptive acts or practices in the conduct of any trade or commerce.” S.C. Code §
39-5-20(a).
2272. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
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the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2273. South Carolina State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. South Carolina State Class members did not and could not
unravel Defendants’ deception on their own.
2274. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2275. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the South Carolina State Class.
2276. Defendants knew or should have known that their conduct violated the South
Carolina UTPA.
2277. Defendants owed the South Carolina State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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2278. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the South Carolina State Class.
2279. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the South Carolina State Class, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2280. Defendants’ violations present a continuing risk to the South Carolina Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
2281. South Carolina State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the South Carolina UTPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
2282. Pursuant to S.C. Code § 39-5-140(a), Plaintiffs and the South Carolina State Class
seek an order enjoining Defendants’ unfair and/or deceptive acts or practices, damages, treble
damages for willful and knowing violations, punitive damages, and attorneys’ fees, costs, and any
other just and proper relief available under the South Carolina UTPA.
SOUTH CAROLINA COUNT II: Violations of the South Carolina Regulation of Manufacturers, Distributors, & Dealers Act
S.C. Code Ann. § 56-15-10 et seq. (On Behalf of the South Carolina State Class)
2283. Plaintiffs re-allege and incorporate by reference all paragraphs as though fully set
forth herein.
2284. This count is brought on behalf of the South Carolina State Class against all
Defendants.
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2285. Defendants are “manufacturer[s]” as set forth in S.C. Code Ann. § 56-15-10, as it is
engaged in the business of manufacturing or assembling new and unused motor vehicles.
2286. Defendants committed unfair or deceptive acts or practices that violated the South
Carolina Regulation of Manufacturers, Distributors, and Dealers Act (“Dealers Act”), S.C. Code
Ann. § 56-15-30.
2287. Defendants engaged in actions which were arbitrary, in bad faith, unconscionable,
and which caused damage to the South Carolina State Class and to the public.
2288. Defendants’ bad faith and unconscionable actions include, but are not limited to: (1)
representing that Class Vehicles have characteristics, uses, benefits, and qualities which they do not
have, (2) representing that Class Vehicles are of a particular standard, quality, and grade when they
are not, (3) advertising Class Vehicles with the intent not to sell them as advertised, (4) representing
that a transaction involving Class Vehicles confers or involves rights, remedies, and obligations
which it does not, and (5) representing that the subject of a transaction involving Class Vehicles has
been supplied in accordance with a previous representation when it has not.
2289. Defendants resorted to and used false and misleading advertisements in connection
with their business. As alleged above, Defendants made numerous material statements about the
efficiency and reliability of the Class Vehicles that were either false or misleading. Each of these
statements contributed to the deceptive context of Defendants’ unlawful advertising and
representations as a whole.
2290. Pursuant to S.C. Code Ann. § 56-15-110(2), Plaintiffs bring this action on behalf of
themselves and the South Carolina State Class, as the action is one of common or general interest to
many persons and the parties are too numerous to bring them all before the court.
2291. The South Carolina State Class is entitled to double their actual damages, the cost of
the suit, attorney’s fees pursuant to S.C. Code Ann. § 56-15-110. Plaintiffs also seek injunctive
relief under S.C. Code Ann. § 56-15-110.
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SOUTH CAROLINA COUNT III: Breach of Express Warranty
S.C. Code §§ 36-2-313 and 36-2A-210 (On Behalf of the South Carolina State Class)
2292. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2293. This count is brought on behalf of the South Carolina State Class against all
Defendants.
2294. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under S.C. Code §§ 36-2-104(1) and 36-2A-103(1)(t), and “sellers” of motor vehicles
under § 36-2-103(1)(d).
2295. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under S.C. Code § 36-2A-103(1)(p).
2296. The Class Vehicles are and were at all relevant times “goods” within the meaning of
S.C. Code §§ 36-2-105(1) and 36-2A-103(1)(h).
2297. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2298. Defendants also made numerous representations, descriptions, and promises to
South Carolina State Class members regarding the performance and emission controls of their
vehicles.
2299. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2300. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
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2301. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2302. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2303. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2304. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2305. Despite the existence of warranties, Defendants failed to inform South Carolina
State Class members that the Class Vehicles were intentionally designed and manufactured to
contain a Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and
achieve worse fuel and achieve worse fuel economy on the road than what was disclosed to
regulators and represented to consumers who purchased or leased them, and failed to fix the
defective emission components free of charge.
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2306. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2307. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2308. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make South Carolina State Class members whole and because Defendants have
failed and/or have refused to adequately provide the promised remedies within a reasonable time.
2309. Accordingly, recovery by the South Carolina State Class members is not restricted
to the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
2310. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. South Carolina State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2311. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the South
Carolina State Class members’ remedies would be insufficient to make them whole.
2312. Finally, because of Defendants’ breach of warranty as set forth herein, South
Carolina State Class members assert, as additional and/or alternative remedies, the revocation of
acceptance of the goods and the return to them the purchase or lease price of all Class Vehicles
currently owned or leased, and for such other incidental and consequential damages as allowed.
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2313. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2314. As a direct and proximate result of Defendants’ breach of express warranties, South
Carolina State Class members have been damaged in an amount to be determined at trial.
SOUTH CAROLINA COUNT IV: Breach of Implied Warranty of Merchantability
S.C. Code §§ 36-2-314 and 36-2A-212 (On Behalf of the South Carolina State Class)
2315. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2316. This count is brought on behalf of the South Carolina State Class against all
Defendants.
2317. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under S.C. Code §§ 36-2-104(1) and 36-2A-103(1)(t), and “sellers” of motor vehicles
under § 36-2-103(1)(d).
2318. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under S.C. Code § 36-2A-103(1)(p).
2319. The Class Vehicles are and were at all relevant times “goods” within the meaning of
S.C. Code §§ 36-2-105(1) and 36-2A-103(1)(h).
2320. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to S.C. Code §§ 36-2-314
and 36-2A-212.
2321. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2322. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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2323. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, South Carolina State Class members have been damaged in an amount to be
proven at trial.
SOUTH DAKOTA COUNT I: Violations of the South Dakota Deceptive Trade Practices and Consumer Protection Law
S.D. Codified Laws § 37-24-6 (On Behalf of the South Dakota State Class)
2324. Plaintiffs re-allege incorporate by reference each preceding paragraph as though
fully set forth herein.
2325. This count is brought on behalf of the South Dakota State Class against all
Defendants.
2326. Defendants and the South Dakota State Class are “persons” within the meaning of
S.D. Codified Laws § 37-24-1(8).
2327. Defendants are engaged in “trade” or “commerce” within the meaning of S.D.
Codified Laws § 37-24-1(13).
2328. The South Dakota Deceptive Trade Practices and Consumer Protection (“South
Dakota CPA”) prohibits “deceptive acts or practices, which are defined to include “[k]knowingly
and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false
promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with
the sale or advertisement of any merchandise, regardless of whether any person has in fact been
misled, deceived, or damaged thereby.” S.D. Codified Laws § 37-24-6(1).
2329. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2330. South Dakota State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
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extremely sophisticated technology. South Dakota State Class members did not and could not
unravel Defendants’ deception on their own.
2331. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2332. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the South Dakota State Class.
2333. Defendants knew or should have known that their conduct violated the South
Dakota CPA.
2334. Defendants owed the South Dakota State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2335. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the South Dakota State Class.
2336. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the South Dakota State Class, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
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brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2337. Defendants’ violations present a continuing risk to the South Dakota Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
2338. South Dakota State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the South Dakota CPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
2339. Pursuant to S.D. Codified Laws § 37-24-31, Plaintiffs and the South Dakota State
Class seek an order enjoining Defendants’ unfair and/or deceptive acts or practices, damages,
punitive damages, and attorneys’ fees, costs, and any other just and proper relief to the extent
available under the South Dakota CPA.
SOUTH DAKOTA COUNT II: Breach of Express Warranty
S.D. Codified Laws §§ 57A-2-313 and 57-2A-210 (On Behalf of the South Dakota State Class)
2340. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2341. This count is brought on behalf of the South Dakota State Class against all
Defendants.
2342. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under S.D. Codified Laws §§ 57A-104(1) and 57A-2A-103(1)(t), and “sellers” of motor
vehicles under § 57A-104(1)(d).
2343. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under S.D. Codified Laws § 57A-2A-103(1)(p).
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2344. The Class Vehicles are and were at all relevant times “goods” within the meaning of
S.D. Codified Laws §§ 57A-2-105(1) and 57A-2A-103(1)(h).
2345. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2346. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and South Dakota State Class members regarding the performance and emission controls
of their vehicles.
2347. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2348. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2349. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2350. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
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Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2351. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2352. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2353. Despite the existence of warranties, Defendants failed to inform South Dakota State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2354. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2355. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2356. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make South Dakota State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2357. Accordingly, recovery by the South Dakota State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
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2358. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. South Dakota State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2359. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the South
Dakota State Class members’ remedies would be insufficient to make them whole.
2360. Finally, because of Defendants’ breach of warranty as set forth herein, South Dakota
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
2361. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2362. As a direct and proximate result of Defendants’ breach of express warranties, South
Dakota State Class members have been damaged in an amount to be determined at trial.
SOUTH DAKOTA COUNT III: Breach of Implied Warranty of Merchantability S.D. Codified Laws §§ 57A-2-314 and 57-2A-212
(On Behalf of the South Dakota State Class)
2363. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2364. This count is brought on behalf of the South Dakota State Class against all
Defendants.
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2365. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under S.D. Codified Laws §§ 57A-104(1) and 57A-2A-103(1)(t), and “sellers” of motor
vehicles under § 57A-104(1)(d).
2366. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under S.D. Codified Laws § 57A-2A-103(1)(p).
2367. The Class Vehicles are and were at all relevant times “goods” within the meaning of
S.D. Codified Laws §§ 57A-2-105(1) and 57A-2A-103(1)(h).
2368. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to S.D. Codified Laws §§
57A-2-314 and 57A-2A-212.
2369. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2370. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2371. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, South Dakota State Class members have been damaged in an amount to be proven
at trial.
TENNESSEE COUNT I: Violations of the Tennessee Consumer Protection Act
Tenn. Code Ann. § 47-18-101 et seq. (On Behalf of the Tennessee State Class)
2372. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2373. This count is brought on behalf of the Tennessee State Class against all Defendants.
2374. Tennessee State Class members are “natural persons” and “consumers” within the
meaning of Tenn. Code § 47-18-103(2). Defendants are “person[s]” within the meaning of Tenn.
Code § 47-18-103(9).
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2375. Defendants are engaged in “trade” or “commerce” or “consumer transactions”
within the meaning Tenn. Code § 47-18-103(9).
2376. The Tennessee Consumer Protection Act (“Tennessee CPA”) prohibits “unfair or
deceptive acts or practices affecting the conduct of any trade or commerce.” Tenn. Code §
47-18-104.
2377. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2378. Tennessee State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Tennessee State Class members did not and
could not unravel Defendants’ deception on their own.
2379. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2380. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Tennessee State Class.
2381. Defendants knew or should have known that their conduct violated the Tennessee
CPA.
2382. Defendants owed the Tennessee State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
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a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2383. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Tennessee State Class.
2384. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Tennessee State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2385. Defendants’ violations present a continuing risk to the Tennessee State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
2386. Tennessee State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Tennessee CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
2387. Pursuant to Tenn. Code § 47-18-109, the Tennessee State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, treble damages for
willful and knowing violations, pursuant to § 47-18-109(a)(3), punitive damages, and attorneys’
fees, costs, and any other just and proper relief to the extent available under the Tennessee CPA.
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TENNESSEE COUNT II: Breach of Express Warranty
Tenn. Code Ann. §§ 47-2-313 and 47-2A-210 (On Behalf of the Tennessee State Class)
2388. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2389. This count is brought on behalf of the Tennessee State Class against all Defendants.
2390. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Tenn. Code §§ 47-2-104(1) and 47-2A-103(1)(t), and “sellers” of motor vehicles
under § 47-2-103(1)(d).
2391. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Tenn. Code § 47-2A-103(1)(p).
2392. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Tenn. Code §§ 47-2-105(1) and 47-2A-103(1)(h).
2393. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2394. Defendants also made numerous representations, descriptions, and promises to
Tennessee State Class members regarding the performance and emission controls of their vehicles.
2395. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2396. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2397. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2398. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2399. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2400. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2401. Despite the existence of warranties, Defendants failed to inform Tennessee State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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2402. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2403. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2404. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Tennessee State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2405. Accordingly, recovery by the Tennessee State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2406. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Tennessee State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2407. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Tennessee State Class members’ remedies would be insufficient to make them whole.
2408. Finally, because of Defendants’ breach of warranty as set forth herein, Tennessee
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
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2409. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2410. As a direct and proximate result of Defendants’ breach of express warranties,
Tennessee State Class members have been damaged in an amount to be determined at trial.
TENNESSEE COUNT III: Breach of Implied Warranty of Merchantability
Tenn. Code Ann. §§ 47-2-314 and 47-2A-212 (On Behalf of the Tennessee State Class)
2411. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2412. This count is brought on behalf of the Tennessee State Class against all Defendants.
2413. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Tenn. Code §§ 47-2-104(1) and 47-2A-103(1)(t), and “sellers” of motor vehicles
under § 47-2-103(1)(d).
2414. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Tenn. Code § 47-2A-103(1)(p).
2415. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Tenn. Code §§ 47-2-105(1) and 47-2A-103(1)(h).
2416. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Tenn. Code §§ 47-2-314
and 47-2A-212.
2417. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2418. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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2419. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Tennessee State Class members have been damaged in an amount to be proven at
trial.
TEXAS COUNT I: Violations of the Deceptive Trade Practices Act
Tex. Bus. & Com. Code § 17.41 et seq. (On Behalf of the Texas State Class)
2420. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2421. This count is brought on behalf of the Texas State Class against all Defendants.
2422. Plaintiffs and the Texas State Class are individuals, partnerships or corporations
with assets of less than $25 million (or are controlled by corporations or entities with less than $25
million in assets), see Tex. Bus. & Com. Code § 17.41, and are therefore “consumers” pursuant to
Tex. Bus. & Com. Code § 17.45(4).Defendants are “person[s]” within the meaning of Tex. Bus. &
Com. Code § 17.45(3).
2423. Defendants engaged in “trade” or “commerce” or “consumer transactions” within
the meaning Tex. Bus. & Com. Code § 17.46(a).
2424. The Texas Deceptive Trade Practices – Consumer Protection Act (“Texas DTPA”)
prohibits “false, misleading, or deceptive acts or practices in the conduct of any trade or
commerce,” Tex. Bus. & Com. Code § 17.46(a), and an “unconscionable action or course of
action,” which means “an act or practice which, to a consumer’s detriment, takes advantage of the
lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.” Tex.
Bus. & Com. Code §§ 17.45(5) and 17.50(a)(3).
2425. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
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2426. Texas State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Plaintiffs and Texas State Class members did not and could
not unravel Defendants’ deception on their own.
2427. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2428. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Texas State Class.
2429. Defendants knew or should have known that their conduct violated the Texas
DTPA.
2430. Defendants owed the Texas State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2431. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Texas State Class.
2432. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Texas State Class, about the true
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environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2433. Defendants’ violations present a continuing risk to the Texas State Class as well as
to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
2434. Texas State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Texas DTPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
2435. Pursuant to Tex. Bus. & Com. Code § 17.50, the Texas State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, damages, multiple damages for
knowing and intentional violations, pursuant to § 17.50(b)(1), punitive damages, and attorneys’
fees, costs, and any other just and proper relief available under the Texas DTPA.
2436. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Tex. Bus. & Com. Code Ann. § 17.505. Additionally, all Defendants were
provided notice of the issues raised in this count and this Complaint by the governmental
investigations, the numerous complaints filed against them, and the many individual notice letters
sent by consumers within a reasonable amount of time after the allegations of Class Vehicle defects
became public. Moreover, Plaintiffs sent a second notice letter pursuant to Tex. Bus. & Com. Code
Ann. § 17.505 to all Defendants on October 11, 2017. Because Defendants failed to remedy their
unlawful conduct within the requisite time period, Plaintiffs seek all damages and relief to which
Plaintiffs and the Texas State Class are entitled.
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TEXAS COUNT II: Breach of Express Warranty
Tex. Bus. & Com. Code §§ 2.313 and 2A.210 (On Behalf of the Texas State Class)
2437. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2438. This count is brought on behalf of the Texas State Class against all Defendants.
2439. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Tex. Bus. & Com. Code §§ 2.104(1) and 2A.103(a)(20), and “sellers” of motor
vehicles under § 2.103(a)(4)
2440. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Tex. Bus. & Com. Code § 2A.103(a)(16).
2441. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Tex. Bus. & Com. Code §§ 2.105(a) and 2A.103(a)(8).
2442. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2443. Defendants also made numerous representations, descriptions, and promises to
Texas State Class members regarding the performance and emission controls of their vehicles.
2444. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2445. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2446. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
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vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2447. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2448. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2449. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2450. Despite the existence of warranties, Defendants failed to inform Texas State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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2451. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2452. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2453. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Texas State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
2454. Accordingly, recovery by the Texas State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2455. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Texas State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2456. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Texas
State Class members’ remedies would be insufficient to make them whole.
2457. Finally, because of Defendants’ breach of warranty as set forth herein, Texas State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
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2458. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2459. As a direct and proximate result of Defendants’ breach of express warranties, Texas
State Class members have been damaged in an amount to be determined at trial.
TEXAS COUNT III: Breach of Implied Warranty of Merchantability
Tex. Bus. & Com. Code §§ 2.314 and 2A.212 (On Behalf of the Texas State Class)
2460. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2461. This count is brought on behalf of the Texas State Class against all Defendants.
2462. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Tex. Bus. & Com. Code §§ 2.104(1) and 2A.103(a)(20), and “sellers” of motor
vehicles under § 2.103(a)(4)
2463. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Tex. Bus. & Com. Code § 2A.103(a)(16).
2464. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Tex. Bus. & Com. Code §§ 2.105(a) and 2A.103(a)(8).
2465. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Tex. Bus. & Com. Code
§§ 2.314 and 2A.212.
2466. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2467. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2468. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Texas State Class members have been damaged in an amount to be proven at trial.
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UTAH COUNT I: Violations of the Utah Consumer Sales Practices Act
Utah Code Ann. § 13-11-1 et seq. (On Behalf of the Utah State Class)
2469. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2470. This count is brought on behalf of the Utah State Class against all Defendants.
2471. Plaintiffs and Utah State Class members are “persons” under the Utah Consumer
Sales Practices Act (“Utah CSPA”), Utah Code § 13-11-3(5). The sales and leases of the Class
Vehicles to the Plaintiffs and Utah State Class members were “consumer transactions” within the
meaning of Utah Code § 13-11-3(2).
2472. Defendants are “supplier[s]” within the meaning of Utah Code § 13-11-3(6).
2473. The Utah CSPA makes unlawful any “deceptive act or practice by a supplier in
connection with a consumer transaction.” Specifically, “a supplier commits a deceptive act or
practice if the supplier knowingly or intentionally: (a) indicates that the subject of a consumer
transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits, if
it has not” or “(b) indicates that the subject of a consumer transaction is of a particular standard,
quality, grade, style, or model, if it is not.” Utah Code § 13-11-4. “An unconscionable act or
practice by a supplier in connection with a consumer transaction” also violates the Utah CSPA.
Utah Code § 13-11-5.
2474. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2475. Utah State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
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extremely sophisticated technology. Utah State Class members did not and could not unravel
Defendants’ deception on their own.
2476. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2477. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Utah State Class.
2478. Defendants knew or should have known that their conduct violated the Utah CSPA.
2479. Defendants owed the Utah State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2480. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Utah State Class.
2481. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Utah State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
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2482. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2483. Utah State Class members suffered ascertainable loss and actual damages as a direct
and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Utah CSPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
2484. Pursuant to Utah Code Ann. § 13-11-4, Plaintiffs and the Utah State Class seek
monetary relief against Defendants measured as the greater of (a) actual damages in an amount to
be determined at trial and (b) statutory damages in the amount of $2,000 for each Plaintiffs and
each Utah State Class member, reasonable attorneys’ fees, and any other just and proper relief
available under the Utah CSPA.
UTAH COUNT II: Breach of Express Warranty
Utah Code §§ 70A-2-313 and 70-2A-210 (On Behalf of the Utah State Class)
2485. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2486. This count is brought on behalf of the Utah State Class against all Defendants.
2487. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Utah Code § 70A-2-104(1) and 70A-2a-103(1)(t), and “sellers” of motor vehicles
under § 70A-2-103(1)(d).
2488. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Utah Code § 70A-2a-103(1)(p).
2489. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Utah Code §§ 70A-2-105(1) and 70A-2a-103(1)(h).
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2490. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2491. Defendants also made numerous representations, descriptions, and promises to Utah
State Class members regarding the performance and emission controls of their vehicles.
2492. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2493. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2494. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2495. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
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first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2496. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2497. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2498. Despite the existence of warranties, Defendants failed to inform Utah State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2499. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2500. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2501. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Utah State Class members whole and because Defendants have failed and/or
have refused to adequately provide the promised remedies within a reasonable time.
2502. Accordingly, recovery by the Utah State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2503. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
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material facts regarding the Class Vehicles. Utah State Class members were therefore induced to
purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2504. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Utah
State Class members’ remedies would be insufficient to make them whole.
2505. Finally, because of Defendants’ breach of warranty as set forth herein, Utah State
Class members assert, as additional and/or alternative remedies, the revocation of acceptance of the
goods and the return to them the purchase or lease price of all Class Vehicles currently owned or
leased, and for such other incidental and consequential damages as allowed.
2506. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2507. As a direct and proximate result of Defendants’ breach of express warranties, Utah
State Class members have been damaged in an amount to be determined at trial.
UTAH COUNT III: Breach of Implied Warranty of Merchantability
Utah Code §§ 70A-2-314 and 70-2A-212 (On Behalf of the Utah State Class)
2508. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2509. This count is brought on behalf of the Utah State Class against all Defendants.
2510. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Utah Code §§ 70A-2-104(1) and 70A-2a-103(1)(t), and “sellers” of motor vehicles
under § 70A-2-103(1)(d).
2511. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Utah Code § 70A-2a-103(1)(p).
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2512. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Utah Code §§ 70A-2-105(1) and 70A-2a-103(1)(h).
2513. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Utah Code §§
70A-2-314 and 70A-2a-212.
2514. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2515. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2516. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Utah State Class members have been damaged in an amount to be proven at trial.
VERMONT COUNT I: Violations of the Vermont Consumer Fraud Act
Vt. Stat. Ann. Tit. 9, § 2451 et seq. (On Behalf of the Vermont State Class)
2517. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2518. This count is brought on behalf of the Vermont State Class against all Defendants.
2519. Plaintiffs and the Vermont State Class are “consumers” within the meaning of Vt.
Stat. Tit. 9, § 451a(a).
2520. Defendants are “person[s]” within the meaning of Vt. Code R. § 100(3) (citing Vt.
Stat. Tit. 9, § 2453).
2521. Defendants are engaged in “commerce” within the meaning of Vt. Stat. Tit. 9, §
2453(a).
2522. The Vermont Consumer Protection Act (“Vermont CPA”) prohibits “[u]nfair
methods of competition in commerce and unfair or deceptive acts or practices in commerce….” Vt.
Stat. Tit. 9, § 2453(a).
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2523. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2524. Vermont State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Vermont State Class members did not and could not unravel
Defendants’ deception on their own.
2525. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2526. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Vermont State Class.
2527. Defendants knew or should have known that their conduct violated the Vermont
UTPA.
2528. Defendants owed the Vermont State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
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c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2529. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Vermont State Class.
2530. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Vermont State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2531. Defendants’ violations present a continuing risk to the Vermont State Class as well
as to the general public. Defendants’ unlawful acts and practices complained of herein affect the
public interest.
2532. Vermont State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Vermont UTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
2533. Pursuant to Vt. Stat. Tit. 9, § 2461(b), the Vermont State Class seeks an order
enjoining Defendants’ unfair and/or deceptive acts or practices, actual damages, damages up to
three times the consideration provided, punitive damages, attorneys’ fees, costs, and any other just
and proper relief available under the Vermont UTPA.
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VERMONT COUNT II: Vermont Lemon Law
Vt. Stat. Tit. 9, § 4170 et seq. (On Behalf of the Vermont State Class)
2534. Plaintiffs re-allege incorporate by reference each preceding paragraph as though
fully set forth herein.
2535. This count is brought on behalf of the Vermont State Class against all Defendants.
2536. The Vermont State Class own or lease “motor vehicles” within the meaning of Vt.
Stat. tit. 9, § 4171(6), because these vehicles were purchased, leased, or registered in Vermont by
Defendants and were registered in Vermont within 15 days of the date of purchase or lease. These
vehicles are not: (1) tractors, (2) motorized highway building equipment, (3) roadmaking
appliances, (4) snowmobiles, (5) motorcycles, (5) mopeds, (6) the living portion of recreation
vehicles, or (7) trucks with a gross vehicle weight over 10,000 pounds.
2537. Defendants are “manufacturer[s]” of the Class Vehicles within the meaning of Vt.
Stat. Tit. 9, § 4171(7) because it manufactures and assembles new motor vehicles or imports for
distribution through distributors of motor vehicles. It is also a “manufacturer” within the definition
of “distributor” and “factory branch.” Id.
2538. The Vermont State Class are “consumers” within the meaning of Vt. Stat. Tit. 9, §
4171(2) because they bought or leased the Class Vehicles, were transferred their vehicles during
the duration the applicable warranty, or are otherwise entitled to the attendant terms of warranty.
They are not governmental entities or a business or commercial enterprise that registers or leases
three or more motor vehicles.
2539. The Class Vehicles did not conform to their express warranties during the term of
warranty because they included hidden software that led to inflated and misleading fuel economy
values.
2540. Defendants had actual knowledge of the conformities during the term of warranty.
But the nonconformities continued to exist throughout this term, as they have not been fixed.
Vermont State Class members are excused from notifying Defendants of the nonconformities
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because it was already fully aware of the problem—as it intentionally created it—and any repair
attempt is futile.
2541. Defendants have had a reasonable opportunity to cure the nonconformities during
the relevant period because of its actual knowledge of, creation of, and attempt to conceal the
nonconformities, but has not done so as required under Vt. Stat. Tit. 9, § 4173.
2542. For vehicles purchased, the Vermont State Class demand a full refund of the
contract price and all credits and allowances for any trade-in or down payment, license fees, finance
charges, credit charges, registration fees and any similar charges and incidental and consequential
damages. Vt. Stat. Tit. 9, § 4173(e). For vehicles leased, the Vermont State Class demand the
aggregate deposit and rental payments previously paid, and any incidental and consequential
damages incurred. Vt. Stat. Tit. 9, § 4173(e), (i). The Vermont State Class reject an offer of
replacement and will retain their vehicles until payment is tendered.
VERMONT COUNT III: Breach of Express Warranty
Vt. Stat. Tit. 9, §§ 2-313 and 2A-210 (On Behalf of the Vermont State Class)
2543. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2544. This count is brought on behalf of the Vermont State Class against all Defendants.
2545. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Vt. Stat. Tit. 9A, §§ 2-104(1) and 2A-103(1)(t), and “sellers” of motor vehicles
under § 2-103(1)(d).
2546. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Vt. Stat. Tit. 9A, § 2A-103(1)(p).
2547. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Vt. Stat. Tit. 9A, §§ 2-105(1) and 2A-103(1)(h).
2548. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
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warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2549. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Vermont State Class members regarding the performance and emission controls of
their vehicles.
2550. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2551. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2552. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2553. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
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first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2554. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2555. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2556. Despite the existence of warranties, Defendants failed to inform Vermont State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2557. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2558. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2559. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Vermont State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2560. Accordingly, recovery by the Vermont State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2561. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
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material facts regarding the Class Vehicles. Vermont State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2562. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Vermont
State Class members’ remedies would be insufficient to make them whole.
2563. Finally, because of Defendants’ breach of warranty as set forth herein, Vermont
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
2564. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2565. As a direct and proximate result of Defendants’ breach of express warranties,
Vermont State Class members have been damaged in an amount to be determined at trial.
VERMONT COUNT IV: Breach of Implied Warranty of Merchantability
Vt. Stat. Tit. 9, §§ 2-314 and 2A-212 (On Behalf of the Vermont State Class)
2566. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2567. This count is brought on behalf of the Vermont State Class against all Defendants.
2568. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Vt. Stat. Tit. 9A, § 2-104(1) and 2A-103(1)(t), and “sellers” of motor vehicles under
§ 2-103(1)(d).
2569. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Vt. Stat. Tit. 9A, § 2A-103(1)(p).
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2570. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Vt. Stat. Tit. 9A, §§ 2-105(1) and 2A-103(1)(h).
2571. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Vt. Stat. Tit. 9A, §§
2-314 and 2A-212.
2572. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2573. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2574. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Vermont State Class members have been damaged in an amount to be proven at
trial.
VIRGINIA COUNT I: Violations of the Virginia Consumer Protection Act
Va. Code Ann. § 59.1-196 et seq. (On Behalf of the Virginia State Class)
2575. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2576. This count is brought on behalf of the Virginia State Class against all Defendants.
2577. Defendants and the Virginia State Class are “persons” within the meaning of Va.
Code § 59.1-198.
2578. Defendants are “supplier[s]” within the meaning of Va. Code § 59.1-198.
2579. The Virginia Consumer Protection Act (“Virginia CPA”) makes unlawful
“fraudulent acts or practices.” Va. Code § 59.1-200(A).
2580. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
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emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2581. Virginia State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Virginia State Class members did not and could not unravel
Defendants’ deception on their own.
2582. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2583. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Virginia State Class.
2584. Defendants knew or should have known that their conduct violated the Virginia
CPA.
2585. Defendants owed the Virginia State Class a duty to disclose the illegality and public
health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
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2586. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Virginia State Class.
2587. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Virginia State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2588. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2589. Virginia State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Virginia CPA. All owners of Class Vehicles suffered
ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made in the
course of Defendants’ business.
2590. Pursuant to Va. Code § 59.1-204(A)–(B), the Virginia State Class is entitled to the
greater of actual damages or $500 for each Virginia State Class member, attorneys’ fees, and costs.
Because Defendants’ actions were willful, Virginia State Class members should each receive the
greater of treble damages or $1,000. Id.
VIRGINIA COUNT II: Breach of Express Warranty
Va. Code §§ 8.2-313 and 8.2A-210 (On Behalf of the Virginia State Class)
2591. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2592. This count is brought on behalf of the Virginia State Class against all Defendants.
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2593. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Va. Code §§ 8.2-104(1) and 8.2A-103(1)(t), and “sellers” of motor vehicles under §
8.2-103(1)(d).
2594. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Va. Code § 8.2A-103(1)(p).
2595. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Va. Code §§ 8.2-105(1) and 8.2A-103(1)(h).
2596. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2597. Defendants also made numerous representations, descriptions, and promises to
Virginia State Class members regarding the performance and emission controls of their vehicles.
2598. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2599. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2600. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
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converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2601. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2602. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2603. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2604. Despite the existence of warranties, Defendants failed to inform Virginia State Class
members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2605. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2606. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2607. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
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insufficient to make Virginia State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2608. Accordingly, recovery by the Virginia State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2609. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Virginia State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2610. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the Virginia
State Class members’ remedies would be insufficient to make them whole.
2611. Finally, because of Defendants’ breach of warranty as set forth herein, Virginia
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
2612. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2613. As a direct and proximate result of Defendants’ breach of express warranties,
Virginia State Class members have been damaged in an amount to be determined at trial.
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VIRGINIA COUNT III: Breach of Implied Warranty of Merchantability
Va. Code §§ 8.2-314 and 8.2A-212 (On Behalf of the Virginia State Class)
2614. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2615. This count is brought on behalf of the Virginia State Class against all Defendants.
2616. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Va. Code §§ 8.2-104(1) and 8.2A-103(1)(t), and “sellers” of motor vehicles under §
8.2-103(1)(d).
2617. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Va. Code § 8.2A-103(1)(p).
2618. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Va. Code §§ 8.2-105(1) and 8.2A-103(1)(h).
2619. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Va. Code §§ 8.2-314
and 8.2A-212.
2620. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2621. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2622. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Virginia State Class members have been damaged in an amount to be proven at
trial.
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WASHINGTON STATE COUNT I: Violations of the Washington Consumer Protection Act
Wash. Rev. Code Ann. § 19.86.010 et seq. (On Behalf of the Washington State Class)
2623. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2624. This count is brought on behalf of the Washington State Class against all
Defendants.
2625. Defendants and the Washington State Class are “persons” within the meaning of
Wash. Rev. Code § 19.86.010(2).
2626. Defendants engaged in “trade” or “commerce” within the meaning of Wash. Rev.
Code § 19.86.010(2).
2627. The Washington Consumer Protection Act (“Washington CPA”) makes unlawful
“[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any
trade or commerce.” Wash. Rev. Code § 19.86.020.
2628. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2629. Washington State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Washington State Class members did not and could not
unravel Defendants’ deception on their own.
2630. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
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transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2631. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Washington State Class.
2632. Defendants knew or should have known that their conduct violated the Washington
CPA.
2633. Defendants owed the Washington State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2634. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to
Plaintiffs and the Washington State Class.
2635. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Washington State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2636. Defendants’ violations present a continuing risk to the Washington State Class as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
2637. Washington State Class members suffered ascertainable loss and actual damages as
a direct and proximate result of Defendants’ misrepresentations and its concealment of and failure
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to disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Washington CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
2638. Pursuant to Wash. Rev. Code § 19.86.090, the Washington State Class seeks an
order enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages,
and attorneys’ fees, costs, and any other just and proper relief available under the Washington CPA.
Because Defendants’ actions were willful and knowing, Plaintiffs’ damages should be trebled.
WASHINGTON STATE COUNT II: Washington Lemon Law
Wash. Rev. Code § 19.118.005 et seq. (On Behalf of the Washington State Class)
2639. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2640. This count is brought on behalf of the Washington State Class against all
Defendants.
2641. The Washington State Class own or lease “new motor vehicles” within the meaning
of Wash. Rev. Code § 19.118.021(12), because these vehicles are self-propelled primarily designed
for the transportation of persons or property over the public highways and were originally
purchased or leased at retail from a new motor vehicle dealer or leasing company in Washington.
These vehicles do not include vehicles purchased or leased by a business as part of a fleet of ten or
more vehicles at one time or under a single purchase or lease agreement or those portions of a motor
home designated, used, or maintained primarily as a mobile dwelling, office, or commercial space.
2642. Defendants are “manufacturer[s]” of the Class Vehicles within the meaning of
Wash. Rev. Code § 19.118.021(8) because it is in the business of constructing or assembling new
motor vehicles or is engaged in the business of importing new motor vehicles into the United States
for the purpose of selling or distributing new motor vehicles to new motor vehicle dealers.
2643. The Washington State Class are “consumers” within the meaning of Wash. Rev.
Code § 19.118.021(4) because they entered into an agreement or contract for the transfer, lease, or
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purchase of a new motor vehicle, other than for purposes of resale or sublease, during the eligibility
period as defined by Wash. Rev. Code § 19.118.021(6).
2644. The Class Vehicles did not conform to their warranties as defined by Wash. Rev.
Code § 19.118.021(22), during the “eligibility period,” defined by Wash. Rev. Code §
19.118.021(6), or the coverage period under the applicable written warranty because they
contained a software program designed to circumvent state and federal emissions standards and
inflate the fuel economy thereon. Wash. Rev. Code § 19.118.031. This program did in fact
circumvent emissions standards and overstate fuel economy and substantially impaired the use and
market value of their motor vehicles.
2645. Defendants had actual knowledge of the conformities during warranty periods. But
the nonconformities continued to exist throughout this term, as they have not been fixed.
Washington State Class members are excused from notifying Defendants of the nonconformities
because it was already fully aware of the problem—as it intentionally created it—and any repair
attempt is futile.
2646. Defendants have had a reasonable opportunity to cure the nonconformities because
of its actual knowledge of, creation of, and attempt to conceal the nonconformities, but has not done
so as required under Wash. Rev. Code § 19.118.031.
2647. For vehicles purchased, the Washington State Class demand a full refund of the
contract price, all collateral charges, and incidental costs. Wash. Rev. Code § 19.118.041(1)(b). For
vehicles leased, the Washington State Class demand all payments made under the lease including
but not limited to all lease payments, trade-in value or inception payment, security deposit, and all
collateral charges and incidental costs. The consumer is also relieved of any future obligation to the
lessor or lienholder. The Washington State Class rejects an offer of replacement and will retain
their vehicles until payment is tendered.
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WASHINGTON STATE COUNT III: Breach of Express Warranty
Wash Rev. Code §§ 62A.2-313 and 62A.2A-210 (On Behalf of the Washington State Class)
2648. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2649. This count is brought on behalf of the Washington State Class against all
Defendants.
2650. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Wash. Rev. Code §§ 62A.2-104(1) and 62A.2A-103(1)(t), and “sellers” of motor
vehicles under § 2.103(a)(4).
2651. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Wash. Rev. Code § 62A.2A-103(1)(p).
2652. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Wash. Rev. Code §§ 62A.2-105(1) and 62A.2A-103(1)(h).
2653. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2654. Defendants also made numerous representations, descriptions, and promises to
Washington State Class members regarding the performance and emission controls of their
vehicles.
2655. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2656. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
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2657. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2658. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2659. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2660. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2661. Despite the existence of warranties, Defendants failed to inform Washington State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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2662. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2663. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2664. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Washington State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2665. Accordingly, recovery by the Washington State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
2666. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Washington State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2667. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Washington State Class members’ remedies would be insufficient to make them whole.
2668. Finally, because of Defendants’ breach of warranty as set forth herein, Washington
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
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2669. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2670. As a direct and proximate result of Defendants’ breach of express warranties,
Washington State Class members have been damaged in an amount to be determined at trial.
WASHINGTON STATE COUNT IV: Breach of Implied Warranty of Merchantability Wash Rev. Code §§ 62A.2-314 and 62A.2A-212
(On Behalf of the Washington State Class)
2671. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2672. This count is brought on behalf of the Washington State Class against all
Defendants.
2673. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Wash. Rev. Code § 62A.2-104(1) and 62A.2A-103(1)(t), and “sellers” of motor
vehicles under § 2.103(a)(4).
2674. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Wash. Rev. Code § 62A.2A-103(1)(p).
2675. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Wash. Rev. Code §§ 62A.2-105(1) and 62A.2A-103(1)(h).
2676. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Wash. Rev. Code §§
62A.2-314 and 62A.2A-212.
2677. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2678. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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2679. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Washington State Class members have been damaged in an amount to be proven
at trial.
WEST VIRGINIA COUNT I: Violations of the West Virginia Consumer Credit and Protection Act
W. Va. Code § 46A-1-101 et seq. (On Behalf of the West Virginia State Class)
2680. Plaintiffs re-allege and incorporate by reference each preceding paragraph as though
fully set forth herein.
2681. This count is brought on behalf of the West Virginia State Class against all
Defendants.
2682. Defendants and the West Virginia State Class are “persons” within the meaning of
W. Va. Code § 46A-1-102(31). Plaintiffs and the West Virginia State Class members are
“consumers” within the meaning of W. Va. Code §§ 46A-1-102(2) and 46A-1-102(12).
2683. Defendants are engaged in “trade” or “commerce” within the meaning of W. Va.
Code § 46A-6-102(6).
2684. The West Virginia Consumer Credit and Protection Act (“West Virginia CCPA”)
makes unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.” W. Va. Code § 46A-6-104.
2685. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2686. West Virginia State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. West Virginia State Class members did not and could not
unravel Defendants’ deception on their own.
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2687. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2688. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the West Virginia State Class.
2689. Defendants knew or should have known that their conduct violated the West
Virginia CCPA.
2690. Defendants owed the West Virginia State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs and/or Class members that contradicted these representations.
2691. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
West Virginia State Class.
2692. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the West Virginia State Class, about the
true environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
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2693. Defendants’ violations present a continuing risk to the West Virginia State Class as
well as to the general public. Defendants’ unlawful acts and practices complained of herein affect
the public interest.
2694. West Virginia State Class members suffered ascertainable loss and actual damages
as a direct and proximate result of Defendants’ misrepresentations and its concealment of and
failure to disclose material information. Defendants had an ongoing duty to all their customers to
refrain from unfair and deceptive practices under the West Virginia CCPA. All owners of Class
Vehicles suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and
practices made in the course of Defendants’ business.
2695. Pursuant to W. Va. Code § 46A-6-106(a), the West Virginia State Class seek an
order enjoining Defendants’ unfair and/or deceptive acts or practices, damages, punitive damages,
and any other just and proper relief available under the West Virginia CCPA.
2696. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with W. Va. Code § 46A-6-106(b). Additionally, all Defendants were provided
notice of the issues raised in this count and this Complaint by the governmental investigations, the
numerous complaints filed against them, and the many individual notice letters sent by consumers
within a reasonable amount of time after the allegations of Class Vehicle defects became public.
Moreover, Plaintiffs sent a second notice letter pursuant to W. Va. Code § 46A-6-106(b) to all
Defendants on October 11, 2017. Because Defendants failed to remedy their unlawful conduct
within the requisite time period, the West Virginia State Class seeks all damages and relief to which
it is entitled.
WEST VIRGINIA COUNT II: West Virginia Lemon Law
W. Va. Code § 46A-6A-1 et seq. (On Behalf of the West Virginia State Class)
2697. Plaintiffs re-allege and incorporate by reference all paragraphs as though fully set
forth herein.
2698. This count is brought on behalf of the West Virginia State Class against all
Defendants.
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2699. The West Virginia State Class members who purchased or leased the Class Vehicles
in West Virginia are “consumers” within the meaning of W. Va. Code § 46A-6A-2(1).
2700. Defendants are “manufacturer[s]” of the Class Vehicles within the meaning of W.
Va. Code § 46A-6A-2(2).
2701. The Class Vehicles are “motor vehicles” as defined by W. Va. Code § 46A-6A-2(4).
2702. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2703. Defendants also made numerous representations, descriptions, and promises to
West Virginia State Class members regarding the performance and emission controls of their
vehicles.
2704. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2705. The Clean Air Act requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2706. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emissions systems. Thus, Defendants also provide an express warranty for
its vehicles through a Federal Emissions Performance Warranty. The Performance Warranty
required by the EPA applies to repairs that are required during the first two years or 24,000 miles,
whichever occurs first, when a vehicle fails an emissions test. Under this warranty, certain major
emission control components are covered for the first eight years or 80,000 miles (whichever
comes first). These major emission control components subject to the longer warranty include the
catalytic converters, the electronic emissions control unit (ECU), and the onboard emissions
diagnostic device or computer.
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2707. The EPA requires vehicle manufacturers to issue Defect Warranties with respect to
their vehicles’ emissions systems. Thus, Defendants also provide an express warranty to its
vehicles through a Federal Emissions Control System Defect Warranty. The Design and Defect
Warranty required by the EPA covers repair of emission control or emission related parts, which
fail to function or function improperly due to a defect in materials or workmanship. This warranty
provides protection for two years or 24,000 miles, whichever comes first, or, for the major
emissions control components, for eight years or 80,000 miles, whichever comes first.
2708. As a manufacturer of light-duty vehicles, Defendants were required to provide these
warranties to West Virginia State Class members. Defendants’ warranties formed a basis of the
bargain that was reached when consumers purchased or leased Class Vehicles that are equipped
with the Warm-up Program and overstated fuel economy.
2709. The emissions defect in the Class Vehicles existed from the date of the original sale
of the new vehicle to the consumer but could not be detected by a reasonable consumer exercising
reasonable care and diligence. Therefore, applicable express warranties for the Class Vehicles
containing the hidden Warm-up Program software would be extended. Further extension of the
express warranty period is now required because of the difficulties the Defendants may have in
executing a massive recall Class Vehicles in the United States.
2710. On December 22, 2016, at least one West Virginia Class member sent a letter to
Defendants to provide opportunity to cure pursuant to W.Va. Code §§ 46A-6A-3(a) and 5(c).
Defendants failed to offer to cure within the requisite statutory time period. Plaintiffs and the West
Virginia State Class members therefore seek all damages and relief available against Defendants
under the West Virginia Lemon Law.
2711. As a direct and proximate result of the Defendants’ breaches of their duties under
West Virginia’s Lemon Law, the West Virginia State Class members received goods whose defect
substantially impairs their value. The West Virginia State Class has been damaged by the
diminished market value of the vehicles along with the compromised functioning and/or non-use of
their Class Vehicles.
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2712. Defendants have a duty under § 46A-6A-3 to make all repairs necessary to correct
the defect herein described to bring the Class Vehicles into conformity with all written warranties.
In the event that Defendants cannot affect such repairs, they have a duty to replace each Class
Vehicle with a comparable new motor vehicle that conforms to the warranty.
2713. As a result of Defendants’ breaches, Plaintiffs and the West Virginia State Class are
entitled to the following:
a. Revocation of acceptance and refund of the purchase price, including, but
not limited to, sales tax, license and registration fees, and other reasonable expenses incurred for the
purchase of the new motor vehicle, or if there be no such revocation of acceptance, damages for
diminished value of the motor vehicle;
b. Damages for the cost of repairs reasonably required to conform the motor
vehicle to the express warranty;
c. Damages for the loss of use, annoyance or inconvenience resulting from the
nonconformity, including, but not limited to, reasonable expenses incurred for replacement
transportation during any period when the vehicle is out of service by reason of the nonconformity
or by reason of repair; and
d. Reasonable attorney fees.
WEST VIRGINIA COUNT III: Breach of Express Warranty
W. Va. Code §§ 46-2-313 and 46-2A-210 (On Behalf of the West Virginia State Class)
2714. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2715. This count is brought on behalf of the West Virginia State Class against all
Defendants.
2716. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under W. Va. Code § 46-2-104(1) and 46-2A-103(1)(t), and “sellers” of motor vehicles
under § 46-2-103(1)(d).
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2717. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under W. Va. Code § 46-2A-103(1)(p).
2718. The Class Vehicles are and were at all relevant times “goods” within the meaning of
W. Va. Code §§ 46-2-105(1) and 46-2A-103(1)(h).
2719. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2720. Defendants also made numerous representations, descriptions, and promises to
West Virginia State Class members regarding the performance and emission controls of their
vehicles.
2721. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2722. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2723. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
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2724. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2725. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2726. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2727. Despite the existence of warranties, Defendants failed to inform West Virginia State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2728. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2729. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2730. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make West Virginia State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
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2731. Accordingly, recovery by the West Virginia State Class members is not restricted to
the limited warranty promising to repair and correct Defendants’ defect in materials and
workmanship, and they seek all remedies as allowed by law.
2732. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. West Virginia State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2733. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the West
Virginia State Class members’ remedies would be insufficient to make them whole.
2734. Finally, because of Defendants’ breach of warranty as set forth herein, West
Virginia State Class members assert, as additional and/or alternative remedies, the revocation of
acceptance of the goods and the return to them the purchase or lease price of all Class Vehicles
currently owned or leased, and for such other incidental and consequential damages as allowed.
2735. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2736. As a direct and proximate result of Defendants’ breach of express warranties, West
Virginia State Class members have been damaged in an amount to be determined at trial.
WEST VIRGINIA COUNT IV: Breach of Implied Warranty of Merchantability
W. Va. Code §§ 46-2-314 and 46-2A-212 (On Behalf of the West Virginia State Class)
2737. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
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2738. This count is brought on behalf of the West Virginia State Class against all
Defendants.
2739. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under W. Va. Code §§ 46-2-104(1) and 46-2A-103(1)(t), and “sellers” of motor vehicles
under § 46-2-103(1)(d).
2740. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under W. Va. Code § 46-2A-103(1)(p).
2741. The Class Vehicles are and were at all relevant times “goods” within the meaning of
W. Va. Code §§ 46-2-105(1) and 46-2A-103(1)(h).
2742. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to W. Va. Code §§
46-2-314 and 46-2A-212.
2743. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2744. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
2745. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, West Virginia State Class members have been damaged in an amount to be proven
at trial.
WISCONSIN COUNT I: Violations of the Wisconsin Deceptive Trade Practices Act
Wis. Stat. § 100.18 et seq. (On Behalf of the Wisconsin State Class)
2746. Plaintiffs incorporate by reference all allegations in this Complaint as though fully
set forth herein.
2747. This count is brought on behalf of the Wisconsin State Class against all Defendants.
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2748. Wisconsin State Class members are “persons” and members of “the public” under
the Wisconsin Deceptive Trade Practices Act (“Wisconsin DTPA”), Wis. Stat. § 100.18(1).
Wisconsin State Class members purchased or leased one or more Class Vehicles.
2749. Defendants are “person[s], firm[s], corporation[s] or association[s]” within the
meaning of Wis. Stat. § 100.18(1).
2750. The Wisconsin DTPA makes unlawful any “representation or statement of fact
which is untrue, deceptive or misleading.” Wis. Stat. § 100.18(1).
2751. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2752. Wisconsin State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Wisconsin State Class members did not and could not unravel
Defendants’ deception on their own.
2753. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2754. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead Plaintiffs and the Wisconsin State Class.
2755. Defendants knew or should have known that their conduct violated the Wisconsin
DTPA.
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2756. Defendants owed the Wisconsin State Class a duty to disclose the illegality and
public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2757. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Wisconsin State Class.
2758. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Washington State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of the Defendants’
brands, the devaluing of environmental cleanliness and integrity at Defendant companies, and the
true value of the Class Vehicles.
2759. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2760. Wisconsin State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Wisconsin DTPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
2761. As a direct and proximate result of Defendants’ violations of the Wisconsin DTPA,
Plaintiffs and the Wisconsin State Class have suffered injury-in-fact and/or actual damage.
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2762. The Wisconsin State Class seeks damages, court costs and attorneys’ fees under
Wis. Stat. § 100.18(11)(b)(2), and any other just and proper relief available under the Wisconsin
DTPA.
WISCONSIN COUNT II: Breach of Express Warranty
Wis. Stat. §§ 402.313 and 411.210 (On Behalf of the Wisconsin State Class)
2763. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2764. This count is brought on behalf of the Wisconsin State Class against all Defendants.
2765. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Wis. Stat. §§ 402.104(3) and 411.103(1)(t), and “sellers” of motor vehicles under §
402.103(1)(d).
2766. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Wis. Stat. § 411.103(1)(p).
2767. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Wis. Stat. §§ 402.105(1)(c) and 411.103(1)(h).
2768. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2769. Defendants also made numerous representations, descriptions, and promises to
Wisconsin State Class members regarding the performance and emission controls of their vehicles.
2770. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
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2771. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
2772. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2773. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2774. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2775. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2776. Despite the existence of warranties, Defendants failed to inform Wisconsin State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
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worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
2777. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2778. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2779. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Wisconsin State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2780. Accordingly, recovery by the Wisconsin State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2781. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Wisconsin State Class members were therefore
induced to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2782. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Wisconsin State Class members’ remedies would be insufficient to make them whole.
2783. Finally, because of Defendants’ breach of warranty as set forth herein, Wisconsin
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
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of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
2784. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2785. As a direct and proximate result of Defendants’ breach of express warranties,
Wisconsin State Class members have been damaged in an amount to be determined at trial.
WISCONSIN COUNT III: Breach of Implied Warranty of Merchantability
Wis. Stat. §§ 402.314 and 411.212 (On Behalf of the Wisconsin State Class)
2786. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2787. This count is brought on behalf of the Wisconsin State Class against all Defendants.
2788. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Wis. Stat. §§ 402.104(3) and 411.103(1)(t), and “sellers” of motor vehicles under §
402.103(1)(d).
2789. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Wis. Stat. § 411.103(1)(p).
2790. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Wis. Stat. §§ 402.105(1)(c) and 411.103(1)(h).
2791. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Wis. Stat. §§ 402.314
and 411.212.
2792. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2793. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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2794. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Wisconsin State Class members have been damaged in an amount to be proven at
trial.
WYOMING COUNT I: Violations of the Wyoming Consumer Protection Act,
Wyo. Stat. § 40-12-101, et seq. (On Behalf of the Wyoming State Class)
2795. Plaintiffs incorporate by reference each preceding paragraph as though fully set
forth herein.
2796. This count is brought on behalf of the Wyoming State Class against all Defendants.
2797. Plaintiffs, the Wyoming State Class and Defendants are “persons” within the
meaning of Wyo. Stat. § 40-12-102(a)(i).
2798. The Class Vehicles are “merchandise” pursuant to Wyo. Stat. § 40-12-102(a)(vi).
2799. Each sale or lease of an Class Vehicle to a Plaintiffs or Wyoming State Class
member was a “consumer transaction” as defined by Wyo. Stat. § 40-12-102(a)(ii). These
consumer transactions occurred “in the course of [Defendants’] business” under Wyo. Stat. §
40-12-105(a). Plaintiffs and Wyoming State Class members purchased or leased one or more Class
Vehicles.
2800. The Wyoming Consumer Protection Act (“Wyoming CPA”) prohibits lists unlawful
deceptive trade practices, including when a seller: “(i) Represents that merchandise has a source,
origin, sponsorship, approval, accessories, or uses it does not have;” “(iii) Represents that
merchandise is of a particular standard, grade, style or model, if it is not;” “(x) Advertises
merchandise with intent not to sell it as advertised;” “(xv) Engages in unfair or deceptive acts or
practices.” Wyo. Stat. § 40-12-105(a).
2801. In the course of their business, Defendants concealed and suppressed material facts
concerning the Class Vehicles. Defendants accomplished this by installing a Warm-up Program in
the Class Vehicles that caused the vehicles to operate in a low emission test mode only during
emissions testing. During normal operations, the Class Vehicles would emit larger quantities of
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CO2 and consume more fuel. The result was what Defendants intended—the Class Vehicles had
overstated fuel economy.
2802. Wyoming State Class members had no way of discerning that Defendants’
representations were false and misleading because Defendants’ Warm-up Program software was
extremely sophisticated technology. Wyoming State Class members did not and could not unravel
Defendants’ deception on their own.
2803. Defendants thus violated the Act by, at minimum: representing that Class Vehicles
have characteristics, uses, benefits, and qualities which they do not have; representing that Class
Vehicles are of a particular standard, quality, and grade when they are not; advertising Class
Vehicles with the intent not to sell or lease them as advertised; and representing that the subject of a
transaction involving Class Vehicles has been supplied in accordance with a previous
representation when it has not.
2804. Defendants intentionally and knowingly misrepresented material facts regarding the
Class Vehicles with intent to mislead the Wyoming State Class.
2805. Defendants knew or should have known that their conduct violated the Wyoming
CPA.
2806. Defendants owed Plaintiffs and the Wyoming State Class a duty to disclose the
illegality and public health risks, the true nature of the Class Vehicles, because Defendants:
a. possessed exclusive knowledge that they were manufacturing, selling, and
distributing vehicles throughout the United States that did not perform as advertised;
b. intentionally concealed the foregoing from regulators, Plaintiffs, and/or
Class members; and/or
c. made incomplete representations about the Class Vehicles generally, and the
use of the Warm-up Program in particular, while purposefully withholding material facts from
Plaintiffs that contradicted these representations.
2807. Defendants’ fraudulent use of the Warm-up Program and its concealment of the true
characteristics of the Class Vehicles’ fuel consumption and CO2 emissions were material to the
Wyoming State Class.
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2808. Defendants’ unfair or deceptive acts or practices were likely to and did in fact
deceive regulators and reasonable consumers, including the Wyoming State Class, about the true
environmental cleanliness and efficiency of the Class Vehicles, the quality of Defendants’ brands,
the devaluing of environmental cleanliness and integrity at Defendant companies, and the true
value of the Class Vehicles.
2809. Defendants’ violations present a continuing risk to Plaintiffs as well as to the
general public. Defendants’ unlawful acts and practices complained of herein affect the public
interest.
2810. Wyoming State Class members suffered ascertainable loss and actual damages as a
direct and proximate result of Defendants’ misrepresentations and its concealment of and failure to
disclose material information. Defendants had an ongoing duty to all their customers to refrain
from unfair and deceptive practices under the Wyoming CPA. All owners of Class Vehicles
suffered ascertainable loss as a result of Defendants’ deceptive and unfair acts and practices made
in the course of Defendants’ business.
2811. Pursuant to Wyo. Stat. § 40-12-108(a), the Wyoming State Class seek damages as
determined at trial, and any other just and proper relief available under the Wyoming CPA,
including but not limited to court costs and reasonable attorneys’ fees as provided in Wyo. Stat. §
40-12-108(b).
2812. On December 21, 2016, a notice letter was sent to Audi AG and Audi of America,
LLC complying with Wyo. Stat. Ann. § 40-12-109. Additionally, all Defendants were provided
notice of the issues raised in this count and this Complaint by the governmental investigations, the
numerous complaints filed against them, and the many individual notice letters sent by consumers
within a reasonable amount of time after the allegations of Class Vehicle defects became public.
Moreover, Plaintiffs sent a second notice letter pursuant to Wyo. Stat. Ann. § 40-12-109 to all
Defendants on October 11, 2017. Because Defendants failed to remedy their unlawful conduct
within the requisite time period, Plaintiffs seek all damages and relief to which Plaintiffs and the
Wyoming State Class are entitled.
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WYOMING COUNT II: Breach of Express Warranty
Wyo. Stat. §§ 34.1-2-313 and 34.1-.2A-210 (On Behalf of the Wyoming State Class)
2813. Plaintiffs re-allege and incorporate by reference all preceding allegations as though
fully set forth herein.
2814. This count is brought on behalf of the Wyoming State Class against all Defendants.
2815. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Wyo. Stat. §§ 34.1-2-104(a) and 34.1-2.A-103(a)(xx), and “sellers” of motor
vehicles under § 34.1-2-103(a)(iv).
2816. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Wyo. Stat. § 34.1-2.A-103(a)(xvi).
2817. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Wyo. Stat. §§ 34.1-2-105(a) and 34.1-2.A-103(a)(viii).
2818. In connection with the purchase or lease of each one of its new vehicles, Defendants
provide an express warranty for a period of four years or 50,000 miles, whichever occurs first. This
warranty exists to cover “any repair to correct a manufacturers defect in materials or
workmanship.”
2819. Defendants also made numerous representations, descriptions, and promises to
Plaintiffs and Wyoming State Class members regarding the performance and emission controls of
their vehicles.
2820. For example, Defendants included in the warranty booklets for some or all of the
Class Vehicles the warranty that its vehicles were “designed, built and equipped so as to conform at
the time of sale with all applicable regulations of the United States Environmental Protection
Agency.”
2821. The Clean Air Act also requires manufacturers of light-duty vehicles to provide two
federal emission control warranties: a “Performance Warranty” and a “Design and Defect
Warranty.”
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2822. The EPA requires vehicle manufacturers to provide a Performance Warranty with
respect to the vehicles’ emission systems. Thus, Defendants also provide an express warranty for its
vehicles through a Federal Emissions Performance Warranty. The Performance Warranty required
by the EPA applies to repairs that are required during the first two years or 24,000 miles, whichever
occurs first, when a vehicle fails an emissions test. Under this warranty, certain major emission
control components are covered for the first eight years or 80,000 miles (whichever comes first).
These major emission control components subject to the longer warranty include the catalytic
converters, the electronic emission control unit, and the onboard emission diagnostic device or
computer.
2823. The EPA requires vehicle manufacturers to issue Design and Defect Warranties
with respect to their vehicles’ emission systems. Thus, Defendants also provide an express
warranty for their vehicles through a Federal Emission Control System Defect Warranty. The
Design and Defect Warranty required by the EPA covers repair of emission control or emission
related parts, which fail to function or function improperly because of a defect in materials or
workmanship. This warranty provides protection for two years or 24,000 miles, whichever comes
first, or, for the major emission control components, for eight years or 80,000 miles, whichever
comes first.
2824. As manufacturers of light-duty vehicles, Defendants were required to provide these
warranties to purchasers or lessees of Class Vehicles.
2825. Defendants’ warranties formed a basis of the bargain that was reached when
consumers purchased or leased Class Vehicles that are equipped with the Warm-up Program and
overstated fuel economy.
2826. Despite the existence of warranties, Defendants failed to inform Wyoming State
Class members that the Class Vehicles were intentionally designed and manufactured to contain a
Warm-up Program that causes the Class Vehicles to emit more to emit more CO2 and achieve
worse fuel and achieve worse fuel economy on the road than what was disclosed to regulators and
represented to consumers who purchased or leased them, and failed to fix the defective emission
components free of charge.
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2827. Defendants breached the express warranty promising to repair and correct
Defendants’ defect in materials and workmanship. Defendants have not repaired or adjusted, and
have been unable to repair or adjust, the Class Vehicles’ materials and workmanship defects.
2828. Affording Defendants a reasonable opportunity to cure their breach of written
warranties would be unnecessary and futile here.
2829. Furthermore, the limited warranty promising to repair and correct Defendants’
defect in materials and workmanship fails in its essential purpose because the contractual remedy is
insufficient to make Wyoming State Class members whole and because Defendants have failed
and/or have refused to adequately provide the promised remedies within a reasonable time.
2830. Accordingly, recovery by the Wyoming State Class members is not restricted to the
limited warranty promising to repair and correct Defendants’ defect in materials and workmanship,
and they seek all remedies as allowed by law.
2831. Also, as alleged in more detail herein, at the time Defendants warranted and sold or
leased the Class Vehicles, they knew that the Class Vehicles were inherently defective and did not
conform to their warranties; further, Defendants had wrongfully and fraudulently concealed
material facts regarding the Class Vehicles. Wyoming State Class members were therefore induced
to purchase or lease the Class Vehicles under false and/or fraudulent pretenses.
2832. Moreover, many of the injuries flowing from the Class Vehicles cannot be resolved
through the limited remedy of repairing and correcting Defendants’ defect in materials and
workmanship as many incidental and consequential damages have already been suffered because of
Defendants’ fraudulent conduct as alleged herein, and because of its failure and/or continued
failure to provide such limited remedy within a reasonable time, and any limitation on the
Wyoming State Class members’ remedies would be insufficient to make them whole.
2833. Finally, because of Defendants’ breach of warranty as set forth herein, Wyoming
State Class members assert, as additional and/or alternative remedies, the revocation of acceptance
of the goods and the return to them the purchase or lease price of all Class Vehicles currently owned
or leased, and for such other incidental and consequential damages as allowed.
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2834. Defendants were provided notice of these issues by numerous complaints filed
against them, including the instant Complaint, within a reasonable amount of time.
2835. As a direct and proximate result of Defendants’ breach of express warranties,
Wyoming State Class members have been damaged in an amount to be determined at trial.
WYOMING COUNT III: Breach of Implied Warranty of Merchantability
Wyo. Stat. §§ 34.1-2-314 and 34.1-.2A-212 (On Behalf of the Wyoming State Class)
2836. Plaintiffs re-allege and incorporate by reference all allegations of the preceding
paragraphs as though fully set forth herein.
2837. This count is brought on behalf of the Wyoming State Class against all Defendants.
2838. Defendants are and were at all relevant times “merchant[s]” with respect to motor
vehicles under Wyo. Stat. §§ 34.1-2-104(a) and 34.1-2.A-103(a)(xx), and “sellers” of motor
vehicles under § 34.1-2-103(a)(iv).
2839. With respect to leases, Defendants are and were at all relevant times a “lessor[s]” of
motor vehicles under Wyo. Stat. § 34.1-2.A-103(a)(xvi).
2840. The Class Vehicles are and were at all relevant times “goods” within the meaning of
Wyo. Stat. §§ 34.1-2-105(a) and 34.1-2.A-103(a)(viii).
2841. A warranty that the Class Vehicles were in merchantable condition and fit for the
ordinary purpose for which vehicles are used is implied by law pursuant to Wyo. Stat.
§§ 34.1-2-314 and 34.1-2.A-212.
2842. These Class Vehicles, when sold or leased and at all times thereafter, included
software that led to inflated and misleading fuel economy values, and were therefore not fit for the
ordinary purpose for which vehicles are used.
2843. Defendants were provided notice of these issues by the investigations of the EPA
and California state regulators, and numerous complaints filed against it including the instant
complaint, within a reasonable amount of time.
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2844. As a direct and proximate result of Defendants’ breach of the implied warranty of
merchantability, Wyoming State Class members have been damaged in an amount to be proven at
trial.
I. REQUEST FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of members of the Nationwide Class
and all Subclasses, respectfully request that the Court enter judgment in their favor and against
Defendants, as follows:
A. An order temporarily and permanently enjoining Defendants from
continuing the unlawful, deceptive, fraudulent, harmful, and unfair business conduct and practices
alleged in this Complaint;
B. Relief in the form of a comprehensive program to fully reimburse and make
whole all Class members for all costs and economic losses resulted from the inaccurate fuel
economy disclosures, as well as any other consequential damages suffered as a result of the false
fuel economy statistics;
C. A declaration that Defendants are financially responsible for all Class notice
and the administration of Class relief;
D. Costs, restitution, compensatory damages for economic loss and
out-of-pocket costs, treble damages under Civil RICO, multiple damages under applicable states’
laws, punitive and exemplary damages under applicable law; and disgorgement, in an amount to be
determined at trial;
E. Rescission of all Class Vehicle purchases or leases, including
reimbursement and/or compensation of the full purchase price of all Class Vehicles, including
taxes, licenses, and other fees.
F. Any and applicable statutory and civil penalties;
G. An order requiring Defendants to pay both pre- and post-judgment interest
on any amounts awarded.
H. An award of costs and attorneys’ fees, as allowed by law;
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I. Leave to amend this Complaint to conform to the evidence produced at trial;
and
J. Such other or further relief as the Court may deem appropriate, just, and
equitable.
II. DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs demand a trial by jury of any
and all issues in this action so triable of right.
Dated: August 30, 2019
Respectfully submitted,
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
By: /s/ Elizabeth J. Cabraser Elizabeth J. Cabraser LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 Telephone: 415.956.1000 Facsimile: 415.956.1008 E-mail: [email protected] Plaintiffs’ Lead Counsel
Benjamin L. Bailey BAILEY GLASSER LLP 209 Capitol Street Charleston, WV 25301 Telephone: 304.345.6555 Facsimile: 304.342.1110 E-mail: [email protected]
Roland K. Tellis BARON & BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Telephone: 818.839.2320 Facsimile: 818.986.9698 E-mail: [email protected]
W. Daniel “Dee” Miles III BEASLEY ALLEN LAW FIRM 218 Commerce Street Montgomery, AL 36104 Telephone: 800.898.2034 Facsimile: 334.954.7555 E-mail: [email protected]
Lesley E. Weaver BLEICHMAR FONTI & AULD LLP 1999 Harrison Street, Suite 670 Oakland, CA 94612 Telephone: 415.455.4003 Facsimile: 415.445.4020 E-mail: [email protected]
David Boies BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, NY 10504 Telephone: 914.749.8200 Facsimile: 914.749.8300 E-mail: [email protected]
J. Gerard Stranch IV BRANSTETTER, STRANCH & JENNINGS, PLLC 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Telephone: 615.254.8801 Facsimile: 615.250.3937 E-mail: [email protected]
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James E. Cecchi CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO P.C. 5 Becker Farm Road Roseland, NJ 07068-1739 Telephone: 973.994.1700 Facsimile: 973.994.1744 E-mail: [email protected]
David Seabold Casey, Jr. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD, LLP 110 Laurel Street San Diego, CA 92101-1486 Telephone: 619.238.1811 Facsimile: 619.544.9232 E-mail: [email protected]
Frank Mario Pitre COTCHETT PITRE & McCARTHY LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: 650.697.6000 Facsimile: 650.697.0577 E-mail: [email protected]
Rosemary M. Rivas, Esq. LEVI & KORSINSKY LLP 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: 415.291.2420 Facsimile: 415.484.1294 E-mail: [email protected]
Adam J. Levitt DICELLO LEVITT & CASEY LLC Ten North Dearborn Street, Eleventh Floor Chicago, Illinois 60602 Telephone: 312.214.7900 E-mail: [email protected]
Steve W. Berman HAGENS BERMAN 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: 206.623.7292 Facsimile: 206.623.0594 E-mail: [email protected]
Michael D. Hausfeld HAUSFELD 1700 K Street, N.W., Suite 650 Washington, DC 20006 Telephone: 202.540.7200 Facsimile: 202.540.7201 E-mail: [email protected]
Michael Everett Heygood HEYGOOD, ORR & PEARSON 6363 North State Highway 161, Suite 450 Irving, TX 75038 Telephone: 214.237.9001 Facsimile: 214.237-9002 E-mail: [email protected]
Lynn Lincoln Sarko KELLER ROHRBACK L.L.P. 1201 3rd Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: 206.623.1900 Facsimile: 206.623.3384 E-mail: [email protected]
Joseph F. Rice MOTLEY RICE, LLC 28 Bridgeside Boulevard Mount Pleasant, SC 29464 Telephone: 843.216.9000 Facsimile: 843.216.9450 E-mail: [email protected]
Paul J. Geller ROBBINS GELLER RUDMAN & DOWD LLP 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: 561.750.3000 Facsimile: 561.750.3364 E-mail: [email protected]
Roxanne Barton Conlin ROXANNE CONLIN & ASSOCIATES, P.C. 319 Seventh Street, Suite 600 Des Moines, IA 50309 Telephone: 515.283.1111 Facsimile: 515.282.0477 E-mail: [email protected]
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Christopher A. Seeger SEEGER WEISS LLP 77 Water Street New York, NY 10005-4401 Telephone: 212.584.0700 Facsimile: 212.584.0799 E-mail: [email protected]
Jayne Conroy SIMMONS HANLY CONROY LLC 112 Madison Avenue New York, NY 10016-7416 Telephone: 212.784.6400 Facsimile: 212.213.5949 E-mail: [email protected]
Robin L. Greenwald WEITZ & LUXENBERG P.C. 700 Broadway New York, NY 10003 Telephone: 212.558.5500 Facsimile: 212.344.5461 E-mail: [email protected]
Plaintiffs’ Steering Committee
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