Professional Documents
Culture Documents
Ford Class Action
Ford Class Action
1
2
3
4
5
6
7
12
Russell D. Paul
[email protected]
Eric Lechtzin
[email protected]
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
13
8
9
10
11
14
15
16
17
18
19
20
21
22
23
24
25
26
v.
FORD MOTOR COMPANY, a
Delaware corporation,
Defendant.
(6)
(7)
(8)
27
28
(9)
10
11
1
2
3
4
5
6
7
8
9
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CLASS ACTION COMPLAINT
1
2
INTRODUCTION
1.
(Plaintiffs) bring this action for themselves and on behalf of all persons in the
10
11
12
2.
Plaintiffs are informed and believe, and based thereon, allege that
13
14
that, among other problems, the transmission slips, bucks, kicks, jerks and
15
16
17
18
3.
19
even exists. To the contrary, Ford actively concealed, and continues to conceal,
20
the Transmission Defect by, among other things, telling customers that the
21
22
23
dealers but never directly notified consumers of known problems with the
24
25
26
ineffectual repairs without disclosing the truth about the Transmission Defect.
27
28
1
2
Transmission Defect disclosed, fully or at all, the material facts known only to
Ford, including that the PowerShift Transmission had serious problems since its
early development that Ford simply was unable to fix and that rendered the Class
Ford that Ford rushed to the market without disclosing the problems described
above so that Plaintiffs and the Class could make informed purchasing decisions.
5.
10
11
knew the full truth about the Transmission Defect. It was Fords obligation to
12
13
6.
14
class members have complained of their vehicles lurching into or losing power in
15
traffic. See Paragraph 68, infra. The following 2011 Fiesta owners complaint
16
17
18
19
20
21
22
23
24
25
26
27
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
7.
18
TSBs to its dealerships in an effort to address it. But Ford never communicated
19
the TSBs, or the information they contained, directly to the class. Instead, Ford
20
21
to induce them into believing that their kicking, bucking, suddenly accelerating
22
23
8.
24
25
fact that, on information and belief, Ford has replaced thousands, if not tens of
26
27
28
9.
however, and even if they did, the replacement transmissions are likewise
defective. Typically, when Class Vehicle owners whose vehicles are exhibiting
dealerships to complain, Ford dealerships tell class members that their vehicles
are operating normally. Ford does not disclose, and has not disclosed, that the
Transmission is unsafe.
10.
to Class Vehicles that are exhibiting the Transmission Defect. However, these
10
software flashes are ineffective, and class members are forced to come back to
11
the dealerships, typically several times each year, complaining of the same
12
13
software flashes, and class members are told their Class Vehicles transmissions
14
15
11.
16
17
those repairs are likewise ineffective, and on information and belief, may require
18
waiting up to six months for replacement parts to become available, if not longer.
19
12.
20
21
22
23
apparent attempt to induce customers into believing the problems they were
24
25
26
13.
27
Program Number 14M01, telling Class Vehicle owners that their vehicles may
28
transmission seals. Significantly, Ford did not issue a recall and did not warn
drivers of the safety risks associated with these known problems. Further, this
campaign was only disseminated to owners and not prospective buyers. Ford
merely offered more ineffective repairs that do not actually fix the problem.
On information and belief, owners who have had this program performed on
14.
10
letter was highly selective. Despite Fords knowledge of the following, Ford did
11
not disclose that the PowerShift transmission was defective, and did not disclose
12
13
14
15
transmission failure.
16
15.
17
Program: Program Number 14M02, informing the class that their Class
18
19
20
the Transmission Control Module (TCM). Still, Ford did not issue a recall for
21
22
23
merely offered more ineffective repairs that do not actually fix the problem.
24
On information and belief, owners who have had this program performed on
25
26
27
28
16.
and belief, owners have complained of accidents and serious injuries as a result
Page 5
CLASS ACTION COMPLAINT
17.
Vehicles.
18.
transmission and offered it as the sole Automatic option in the Class Vehicles.
19.
10
pressing and releasing a foot pedal, the driver engages and disengages the engine
11
from the transmission, allowing the vehicle to travel smoothly while the driver
12
13
20.
14
operating the clutch through the use of a fluid-filled device called a torque
15
converter. The torque converter substitutes for the manual transmissions clutch,
16
transmitting power from the engine to the transmission through a fluid medium.
17
21.
18
they are generally less fuel-efficient and slower-shifting than their manual
19
20
efficiently than a clutch. As a result, Ford marketed and sold its PowerShift
21
22
23
24
22.
25
26
torque converter, instead using two dry clutches to directly engage and
27
disengage the engine with and from the transmission. Whereas similar
28
oil, Fords PowerShift Transmission clutches lack the oil pumps and other
23.
According to Fords own press release, dated March 10, 2010, PowerShift with
clutches and gear shifts saves weight, improves efficiency, increases smoothness,
adds durability and is sealed with low-friction gear lubricant for the life of the
10
11
12
13
14
15
16
virtually inoperable.
17
25.
18
not limited to, Class Vehicles suddenly lurching forward, sudden acceleration,
19
20
present a safety hazard because they severely affect the drivers ability to control
21
22
may make it difficult to safely merge into traffic. Even more troubling, the
23
Transmission Defect can cause the vehicle to fail to downshift and decelerate
24
25
26
27
28
Page 7
CLASS ACTION COMPLAINT
when the brakes are depressed. As a result, Plaintiffs and Class Members have
experienced their cars lurching forward into intersections at red lights due to the
26.
components.
9
10
Fords Knowledge
27.
11
that the Class Vehicles and the PowerShift Transmission was defective it its
12
design and/or manufacture and that adversely affect the drivability of the Class
13
14
28.
Plaintiffs are informed and believe and based thereon allege that
15
prior to the sale of the Class Vehicles, Defendant knew, or should have known,
16
17
internal data about the Transmission Defect, including: pre-release testing data;
18
19
who are their agents for vehicle repairs; warranty claim data related to the defect;
20
21
22
23
lessee complaints; TSBs applicable to the Class Vehicles; the existence of the
24
defect in the substantially identical European and Australian model vehicles; and
25
26
Defendant has actively concealed and failed to disclose this defect to Plaintiffs
27
28
29.
The Ford Fiesta and Ford Focus have the same or substantially
Page 8
CLASS ACTION COMPLAINT
same for both vehicles. In fact, the PowerShift Transmission in the Class
transmission.
30.
Before offering the vehicle for sale in the United States, Ford
acknowledged that the transmission offered for sale in the United States is
10
derivative of the design from the European and Australian models.2 European
11
12
13
31.
14
15
16
and clutch capacity as well as spending over $550 million to build a new
17
18
19
20
32.
21
issued several TSBs to its dealers in the United States, but not its customers3,
22
23
2
24
25
26
27
28
Page 9
CLASS ACTION COMPLAINT
TSB from September 2010, covering the 2011 Ford Fiesta, informed dealers of
Reverse when shifting from Park to Drive or Reverse, grinding noise during
33.
2011 Ford Fiesta with the PowerShift Transmission, informs dealers of problems
10
34.
11
the Ford Fiesta and Ford Focus vehicles which advised dealers of the continuing
12
13
14
owners complained about hesitation when accelerating from a low speed after
15
coast down, harsh or late 1-2 upshift, harsh shifting during low-speed tip-in or
16
17
35.
Because Ford will not notify Class Members that the PowerShift
18
19
the general public) are subjected to dangerous driving conditions that often occur
20
without warning.
21
36.
22
and Ford Focus PowerShift Transmission and was present in each Ford Fiesta
23
24
37.
25
every Class Vehicle, along with the attendant dangerous safety and driveability
26
problems, from Plaintiffs and Class Members, at the time of sale, lease, and
27
repair and thereafter. In fact, instead of repairing the defects in the PowerShift
28
performed ineffective software upgrades or other repairs that simply masked the
defect.
38.
If Plaintiffs and the Class Members had known about these defects
at the time of sale or lease, Plaintiffs and Class Members would not have
purchased or leased the Class Vehicles or would have paid less for them.
39.
including, but not limited to, the $1,095.00 cost of the optional PowerShift
10
11
12
and the Class Members were harmed and suffered actual damages in that the
13
14
fail before their expected useful life has run. Plaintiffs also seek injunctive relief
15
16
17
18
PARTIES
Plaintiff Maureen Cusick
40.
19
20
Ford Focus
21
41.
22
23
24
25
42.
26
27
28
43.
purchasing her Class Vehicle, Plaintiff researched the vehicle on Fords official
website and subsequently test drove the vehicle. Had Ford disclosed its
knowledge of the Transmission Defect, and the fact that it posed a safety
concern, when Plaintiff purchased her 2013 Ford Focus, Plaintiff would have
seen such disclosures and been aware of them. Indeed, Fords omissions were
material to Plaintiff. Like all members of the classes, Plaintiff would not have
purchased her 2013 Ford Focus, or would not have paid the purchase price
charged by Ford, had she known that the PowerShift Transmission is prone to
10
premature internal wear and failure, that it suffers from transmission slips,
11
12
13
44.
14
15
acceleration. Shortly after the problems arose, she brought the vehicle to Caruso
16
17
18
acceleration. The service technician inspected the vehicle and reprogrammed the
19
20
45.
21
stop, the vehicles transmission failed to accelerate and stalled in the middle of
22
oncoming traffic. Plaintiff continued to hold down the accelerator and was
23
24
46.
25
26
Caruso Ford Lincoln complaining that the vehicles transmission was shuddering
27
and hesitating to accelerate. The service technician informed Plaintiff that the
28
issues were related to the vehicles transmission and she needed to bring her
Page 12
CLASS ACTION COMPLAINT
1
2
7
8
9
48.
10
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
11
12
13
delay in downshifts.
14
50.
At all times, Plaintiff, like all Class Members, has driven her vehicle
15
16
17
18
51.
Arizona.
19
Ford Focus
20
52.
21
Focus from Jim Click Ford Lincoln, an authorized Ford dealer in Tucson,
22
23
24
53.
25
26
27
28
54.
purchasing her Class Vehicle, Plaintiff researched the vehicle on Fords official
website and subsequently test drove the vehicle. Had Ford disclosed its
knowledge of the Transmission Defect, and the fact that it posed a safety
concern, when Plaintiff purchased her 2014 Ford Focus, Plaintiff would have
seen such disclosures and been aware of them. Indeed, Fords omissions were
material to Plaintiff. Like all members of the classes, Plaintiff would not have
purchased her 2014 Ford Focus, or would not have paid the purchase price
charged by Ford, had she known that the PowerShift Transmission is prone to
premature internal wear and failure, that it suffers from transmission slips,
10
11
12
55.
13
14
acceleration.
15
56.
16
odometer, Plaintiff brought her vehicle to Jim Click Ford Lincoln complaining
17
that her vehicles transmission was failing to engage gears and causing delayed
18
19
20
Transmission Control Module per TSB 14-0047. After further testing, the
21
service technician noted that Plaintiffs vehicle runs same as like equipped
22
23
24
57.
25
miles on the odometer, Plaintiff brought her vehicle to Holmes Tuttle Ford
26
27
28
58.
12,960 miles on the odometer, Plaintiff brought her vehicle again to Holmes
accelerate. The Ford service technician inspected the vehicle, verified Plaintiffs
concerns; and performed repairs per TSB 14-0131 and replaced transmission
8
9
59.
miles on the odometer, Plaintiff returned her vehicle to Jim Click Ford Lincoln
10
11
12
13
60.
14
30,874 miles on the odometer, Plaintiff returned her vehicle to Jim Click Ford
15
Lincoln complaining that her vehicles transmission was shuddering, jerking, and
16
17
inspected Plaintiffs vehicle and verified her concerns. He performed repairs per
18
19
20
61.
21
on the odometer, Plaintiff brought her vehicle to Jim Click Ford Lincoln
22
23
jerking. The Ford service technician inspected Plaintiffs vehicle and determined
24
25
26
27
28
62.
33,000 miles on the odometer, Plaintiff brought her vehicle to Jim Click Ford
Page 15
CLASS ACTION COMPLAINT
Lincoln complaining that her vehicle continued to excessively shudder and jerk
during normal operation. The Ford service technician rode in Plaintiffs vehicle
while she drove and confirmed Plaintiffs concerns. The technician informed
Plaintiff that transmission repairs were required but that the parts were not
6
7
8
9
63.
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
10
11
12
delay in downshifts.
13
65.
At all times, Plaintiff, like all Class Members, has driven her vehicle
14
15
16
66.
17
Aurora, Colorado.
18
Ford Focus
19
67.
20
21
Her vehicle was equipped with an optional PowerShift Transmission that cost
22
her $1,095.00.
23
68.
24
25
26
69.
27
28
purchasing her Class Vehicle, Plaintiff researched the vehicle on Fords official
Page 16
CLASS ACTION COMPLAINT
website and subsequently test drove the vehicle. Had Ford disclosed its
knowledge of the Transmission Defect, and the fact that it posed a safety
concern, when Plaintiff purchased her 2013 Ford Focus, Plaintiff would have
seen such disclosures and been aware of them. Indeed, Fords omissions were
material to Plaintiff. Like all members of the classes, Plaintiff would not have
purchased her 2013 Ford Focus, or would not have paid the purchase price
charged by Ford, had she known that the PowerShift Transmission is prone to
premature internal wear and failure, that it suffers from transmission slips,
10
11
12
13
14
she was informed by the technicians that the symptoms were normal and that
15
she should drive the vehicle hard in order to reduce the shuddering and
16
17
18
71.
19
odometer, Plaintiff brought her vehicle to Groove Ford again complaining that
20
her vehicle was shuddering, jerking, and hesitating to accelerate. The service
21
22
23
24
72.
25
miles on the odometer, Plaintiff brought her vehicle to Groove Ford complaining
26
that her vehicles transmission exhibits harsh shifting and feels like its going to
27
28
73.
28,161 miles on the odometer, Plaintiff brought her vehicle Groove Ford
14M02.
8
9
10
74.
11
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
12
13
14
delay in downshifts.
15
76.
At all times, Plaintiff, like all Class Members, has driven her vehicle
16
17
18
77.
19
Elwood, Illinois.
20
Ford Focus
21
78.
22
Focus from Joe Rizza Ford Porsche, an authorized Ford dealer in Orland Park,
23
24
25
79.
26
27
28
80.
purchasing her Class Vehicle, Plaintiff researched the vehicle on Fords official
website and subsequently test drove the vehicle. Had Ford disclosed its
knowledge of the Transmission Defect, and the fact that it posed a safety
concern, when Plaintiff purchased her 2013 Ford Focus, Plaintiff would have
seen such disclosures and been aware of them. Indeed, Fords omissions were
material to Plaintiff. Like all members of the classes, Plaintiff would not have
purchased her 2013 Ford Focus, or would not have paid the purchase price
charged by Ford, had she known that the PowerShift Transmission is prone to
10
premature internal wear and failure, that it suffers from transmission slips,
11
12
13
81.
14
15
acceleration.
16
82.
17
miles on the odometer, Plaintiff brought her vehicle again to Joe Rizza Ford
18
19
20
The Ford service technician inspected the vehicle and verified that Plaintiffs
21
22
23
83.
24
the odometer, Plaintiff brought her vehicle again to Joe Rizza Ford Porsche
25
26
27
vehicle, verified her concerns, and determined that the clutch assembly needed to
28
1
2
miles on the odometer, Plaintiff brought her vehicle to Joe Rizza Ford Porsche
85.
10
miles on the odometer, Plaintiff brought her vehicle to Joe Rizza Ford Porsche
11
12
operation, most notably from complete stops. The Ford service technician
13
14
15
86.
16
the odometer, Plaintiff brought her vehicle back to Joe Rizza Ford Porsche
17
complaining that her vehicle died while driving, completely failed to start, and
18
19
20
operation. The Ford service technician inspected Plaintiffs vehicle, verified her
21
22
23
24
87.
25
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
26
27
28
delay in downshifts.
Page 20
CLASS ACTION COMPLAINT
89.
At all times, Plaintiff, like all Class Members, has driven her vehicle
90.
Ford Fiesta
91.
Jersey. His vehicle was equipped with an optional PowerShift Transmission that
10
11
12
13
14
93.
15
16
purchasing his Class Vehicle, Plaintiff reviewed Fords official website in order
17
to research Fiesta options and features. Had Ford disclosed its knowledge of the
18
Transmission Defect, and the fact that it posed a safety concern, when Plaintiff
19
purchased his 2011 Ford Fiesta, Plaintiff would have seen such disclosures and
20
been aware of them. Indeed, Fords omissions were material to Plaintiff. Like
21
all members of the classes, Plaintiff would not have purchased his 2011 Ford
22
Fiesta, or would not have paid the purchase price charged by Ford, had he known
23
that the PowerShift Transmission is prone to premature internal wear and failure,
24
25
26
27
28
94.
transmission was also erratically shifting in second and third gear. Oftentimes,
95.
Ford dealer in Turnersville, New Jersey, complaining that the vehicle made a
grinding noise when idling in park. The service advisor at Ford performed a
road test with Plaintiff in the vehicle and was unable to verify the concern, but
10
11
multipoint inspection, noted a clunk sound when the vehicle shifted from drive
12
to park, but concluded that the noise was a normal operating characteristic of
13
the vehicle.
14
15
16
96.
17
18
19
the vehicle was banging into gear when shifting and that when idle, the
20
vehicles RPM levels were exceedingly high. The service advisor verified the
21
concern and requested to keep the vehicle overnight. The service provider
22
23
and the TCM (Transmission Control Module), performed a pinpoint test, and
24
25
26
27
28
98.
complained that the vehicle revved when decelerating and was difficult to
start. The service advisor requested to keep the vehicle overnight and found on a
5
6
7
100. Within a couple of days of this dealership visit, all of the problems
Plaintiff had complained of had again returned.
101. On or about March 8, 2012, with approximately 17,436 miles on the
10
the vehicle was banging into gear when shifting and that when idle, the
11
vehicles RPMs raced exceedingly high. The service advisor could not duplicate
12
13
14
15
16
17
102. Within a couple of days of this dealership visit, all of the problems
Plaintiff had complained of had again returned.
103. On or about March 28, 2012, with approximately 17,523 miles on
18
19
20
21
light, and having to replace brake fluid more than once. The service advisor
22
could not duplicate the concerns and requested to keep the vehicle overnight.
23
The dealership removed the data recorder and found normal operations recorded.
24
The service advisor reported only normal PID readings; however, upon
25
inspection under the engine bay, the service advisor found brake fluid leaking
26
from the master cylinder into the brake booster. The master cylinder was
27
repaired, the brake booster assembly was removed and replaced, and new brake
28
fluid was added. The vehicle was in the dealerships possession for repair until
Page 23
CLASS ACTION COMPLAINT
1
2
3
4
complaining that the engine light and traction control uphill assist light were
both on, that the vehicle had no power, that there was a loss of power and
ability to accelerate, and that the radio would cut out. The service advisor
10
11
12
pinpoint test, and asked Plaintiff to return the vehicle for further diagnosis and
13
repair.
14
15
on the odometer, Plaintiff brought his vehicle back to Holman Automotive for
16
17
18
19
20
21
22
advisor performed TSB 11-10-13, replaced the transmission flexplate, found the
23
crand sensor was touching, found the check engine light on, replaced the fuel
24
injector assembly, replaced the flywheel, cleaned the ABS module connector,
25
added electrical grease, swapped No. 3 and No. 4 injectors, cleaned and secured
26
all wire connections to injectors, cleared powertrain tables, and relearned the
27
28
107. Within a couple of days of this dealership visit, all of the problems
Page 24
CLASS ACTION COMPLAINT
1
2
the odometer, Plaintiff brought his vehicle back to Holman Automotive, again
complaining that the traction control uphill assist light and engine lights were
both and that the vehicle was shifting hard, banging into gear, and accelerating
inconsistently. The service advisor verified the concern and requested to keep
found the vehicle shuddered on road tests, and proceeded to replace the clutch
10
electronic transmission diagnostic tests, checked for oil leaks at the clutch, and
11
performed a transmission relearn through road tests. The service provider also
12
13
14
15
109. Within a couple of days of this dealership visit, all of the problems
Plaintiff had complained of had again returned.
110. On or about June 11, 2014, with approximately 58,403 miles on the
16
17
complaining of a hard shift in low gears and a loud roaring noise at speeds 40
18
miles per hour and above that grew louder the faster the car went. The service
19
20
inspection, during which he found that the two rear tires and front brake pads and
21
rotors needed replacing. In addition, the service advisor noted that the vehicle
22
alignment required attention and replaced a ball bearing assembly in the front
23
24
25
26
111. Within a couple of days of this dealership visit, all of the problems
Plaintiff had complained of had again returned.
112. On or about February 2015, with approximately 69,000 miles on the
27
odometer, the Plaintiff brought his vehicle to Lilliston Ford complaining of the
28
gears shifting poorly and the check engine light appearing. The service provider
Page 25
CLASS ACTION COMPLAINT
determined that Plaintiffs clutch assembly needed to once more be replaced, but
as the parts were sold out, the repair was scheduled for an undetermined time in
the near future. The dealership stated the clutches and computer parts needed to
repair the car were nationally back ordered, and as soon as the parts arrived at
the dealership location, the Plaintiff would receive notification to have the car
repaired. Plaintiff was instructed to continue driving his vehicle with the
defective transmission. That dealership did not provide a work order as there
parts. At this point in time, Plaintiff received a letter from Ford informing
10
11
12
couple of days of this dealership visit, all of the problems Plaintiff had
13
14
15
16
driving his vehicle with the defective transmission. On April 18, 2015, with
17
approximately 72,000 on the odometer, Plaintiff crashed his vehicle into a road
18
sign due to the vehicles clutches not responding properly. Plaintiff reports that
19
his vehicle was refusing to accelerate due to the clutches not catching and
20
when they finally did, my car caught gravel as the tires spun faster than they
21
normally would have, and I hit a road sign. The police report reads D1 stated
22
that he was turning left and slid on gravel which caused him to go off the
23
roadway and strike the sign. Investigation showed that D1 accelerated at a high
24
rate of speed causing his tires to lose traction which caused him to slide to the
25
26
114. On or about May 26, 2015, with approximately 74,301 miles on the
27
odometer, the Plaintiff brought his vehicle back to Lilliston Ford to complete the
28
repaired under Ford Motor Company repair order 14M01 and 14M02. The
3
4
5
6
the odometer, the Plaintiff brought his vehicle back to Lilliston Ford to have his
programming was defective. The dealership reprogrammed the PCM and TCM
of the vehicle. This was done under repair order 15B22. A multipoint
10
11
otherwise.
117. Within a couple of days of this dealership visit, all of the
12
13
14
15
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
16
17
18
19
accelerate after coming to a complete stop. Further, the upshift continues to bog
20
21
22
23
used.
24
25
26
27
Ford Fiesta
28
121. On or about January 29, 2013, Plaintiff purchased a new 2013 Ford
Page 27
CLASS ACTION COMPLAINT
Brunswick, New Jersey. Her vehicle was equipped with an optional PowerShift
purchasing her Class Vehicle, Plaintiff test drove the vehicle. Had Ford
10
disclosed its knowledge of the Transmission Defect, and the fact that it posed a
11
safety concern, when Plaintiff purchased her 2013 Ford Fiesta, Plaintiff would
12
have seen such disclosures and been aware of them. Indeed, Fords omissions
13
were material to Plaintiff. Like all members of the classes, Plaintiff would not
14
have purchased her 2013 Ford Fiesta, or would not have paid the purchase price
15
charged by Ford, had she known that the PowerShift Transmission is prone to
16
premature internal wear and failure, that it suffers from transmission slips,
17
18
19
20
21
124. Within the first month after purchase, Plaintiffs transmission was
erratically and improperly shifting, most notably in low gears.
125. On or about February 18, 2013, with approximately 816 miles on
22
23
complaining that the transmission was improperly shifting and that following an
24
emergency stop, the RPMs shot up but the vehicle did not accelerate. The
25
26
27
28
an auto accident while driving her 2013 Ford Fiesta. Per the attending police
officers accident report, Plaintiff was attempting to make a left turn from stop
when her vehicle failed to accelerate while crossing the intersection and was
24,550 miles on the odometer, Plaintiff brought her vehicle to Malouf Ford-
Lincoln, Inc. complaining that the vehicles transmission shudders, jerks, and
hesitates to accelerate from a stop. The Ford service technician inspected the
10
transmission and noted that the clutch assembly had no oil. He subsequently
11
performed repairs including replacing the clutch and transmission seal assembly,
12
13
14
miles on the odometer, Plaintiff brought her vehicle to Malouf Ford-Lincoln, Inc.
15
16
17
18
multi-point inspection, and was able to verify Plaintiffs concerns and perform
19
20
21
22
129. Plaintiffs vehicle continues to exhibit all of the problems she had
previously complained about to authorized Ford dealer.
130. Fords authorized dealership has failed to adequately repair
23
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
24
25
26
27
complete stop.
28
131. At all times, Plaintiff, like all Class Members, has driven her vehicle
Page 29
CLASS ACTION COMPLAINT
3
4
132. Plaintiffs Jason and Jamie Porterfeld are Pennsylvania citizens who
reside in Ruffs Dale, Pennsylvania.
Ford Focus
133. On or about July 21, 2012, Plaintiffs purchased a new 2012 Ford
Focus from C. Harper Ford Kia Inc., an authorized Ford dealer in Belle Vernon,
10
11
12
13
14
15
16
order to research Focus options and features. Had Ford disclosed its knowledge
17
of the Transmission Defect, and the fact that it posed a safety concern, when
18
Plaintiffs purchased their 2012 Ford Focus, Plaintiffs would have seen such
19
disclosures and been aware of them. Indeed, Fords omissions were material to
20
Plaintiffs. Like all members of the classes, Plaintiffs would not have purchased
21
their 2012 Ford Focus, or would not have paid the purchase price charged by
22
Ford, had they known that the PowerShift Transmission is prone to premature
23
internal wear and failure, that it suffers from transmission slips, bucking,
24
25
26
136. Within the first month after purchase, Plaintiffs transmission was
27
28
complete stop. The transmission was also was erratically shifting in second and
third gear. On many occasions, Plaintiffs have been unable to accelerate from
the middle of an intersection when trying to make a left turn, with the vehicle
nearly stalling.
10
11
12
13
14
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
15
16
17
18
complete stop.
19
140. At all times, Plaintiffs, like all Class Members, have driven their
20
vehicles in a foreseeable manner and in the manner in which they were intended
21
to be used.
22
23
24
25
26
Focus from Orange Motors, an authorized Ford dealer in Albany, New York.
27
Her vehicle was equipped with an optional PowerShift Transmission that cost
28
her $1,095.00.
Page 31
CLASS ACTION COMPLAINT
purchasing her Class Vehicle, Plaintiff researched the vehicle on Fords official
website and subsequently test drove the vehicle. Had Ford disclosed its
knowledge of the Transmission Defect, and the fact that it posed a safety
concern, when Plaintiff purchased her 2012 Ford Focus, Plaintiff would have
10
seen such disclosures and been aware of them. Indeed, Fords omissions were
11
material to Plaintiff. Like all members of the classes, Plaintiff would not have
12
purchased her 2012 Ford Focus, or would not have paid the purchase price
13
charged by Ford, had she known that the PowerShift Transmission is prone to
14
premature internal wear and failure, that it suffers from transmission slips,
15
16
17
145. Within the first six months after purchase, Plaintiff experienced the
18
19
notably in low gears. In 2013, Plaintiff brought her vehicle to Orange Motors,
20
21
transmission hesitated to shift and would shudder. The Ford service technician
22
23
TCM and replaced the clutch assembly. Plaintiff continues to experience the
24
25
26
27
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
28
delay in downshifts.
147. At all times, Plaintiff, like all Class Members, has driven her vehicle
Allentown, Pennsylvania.
Ford Focus
10
11
12
13
14
15
16
17
18
purchasing her Class Vehicle, Plaintiff test drove the vehicle. Had Ford
19
disclosed its knowledge of the Transmission Defect, and the fact that it posed a
20
safety concern, when Plaintiff purchased her 2012 Ford Focus, Plaintiff would
21
have seen such disclosures and been aware of them. Indeed, Fords omissions
22
were material to Plaintiff. Like all members of the classes, Plaintiff would not
23
have purchased her 2012 Ford Focus, or would not have paid the purchase price
24
charged by Ford, had she known that the PowerShift Transmission is prone to
25
premature internal wear and failure, that it suffers from transmission slips,
26
27
28
2
3
accident while driving her 2012 Ford Focus. Per the attending police officers
accident report, Plaintiff was backing out of a parking spot when her 2012 Ford
Focus rapidly accelerated forward, striking two parked cars. The report
indicates that Plaintiff told the officer that she is not sure what happened with
acceleration of her Ford Focus, Plaintiff has paid thousands of dollars in repair
costs.
10
11
64,458 miles on the odometer, Plaintiffs transmission completely failed and she
12
had the vehicle towed to Nazareth Ford complaining that Plaintiffs vehicles
13
Check Engine light was illuminated and its transmission had failed following
14
RPMs flaring and gears hesitating to shift. The service technician confirmed
15
16
155. Plaintiffs vehicle continues to exhibit all of the problems she had
17
18
19
20
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
21
22
23
24
complete stop.
25
157. At all times, Plaintiff, like all Class Members, has driven her vehicle
26
27
28
Tillamook, Oregon.
Ford Fiesta
159. On or about March 26, 2013, Plaintiff purchased a new 2013 Ford
Her vehicle was equipped with an optional PowerShift Transmission that cost
her $1,095.00
10
11
12
purchasing her Class Vehicle, Plaintiff researched the vehicle on the Ford
13
official website and test drove the vehicle. Had Ford disclosed its knowledge of
14
the Transmission Defect, and the fact that it posed a safety concern, when
15
Plaintiff purchased her 2013 Ford Fiesta, Plaintiff would have seen such
16
disclosures and been aware of them. Indeed, Fords omissions were material to
17
Plaintiff. Like all members of the classes, Plaintiff would not have purchased
18
her 2013 Ford Fiesta, or would not have paid the purchase price charged by
19
Ford, had she known that the PowerShift Transmission is prone to premature
20
internal wear and failure, that it suffers from transmission slips, bucking,
21
22
23
24
25
26
27
turning and accelerating from stop and brought her vehicle to Damerow Ford.
28
The Ford service technician inspected the vehicle but was unable to duplicate
Page 35
CLASS ACTION COMPLAINT
the odometer, Plaintiff brought her vehicle to Damerow Ford again complaining
Again, the Ford service technician inspected the vehicle but was unable to
diagnose and repair the problem. Plaintiff continued to experience the problems
10
the odometer, Plaintiff brought her vehicle to Damerow Ford. The repair order
11
12
13
14
15
16
17
18
19
20
21
22
23
complaining that the ENGINE SEEMS TO LOSE POWER LIKE TRANS NOT
24
25
The Ford service technician inspected the vehicle and confirmed Plaintiffs
26
27
replacing TSM and input shaft seals, cleaning clutches, and reprogramming the
28
168. Further, on or about May 15, 2015, with approximately 46,599 miles
complaining that the vehicle would turn on but would not accelerate. Following
replacing flywheel.
169. Further, on or about May 22, 2015, with approximately 47,354 miles
10
11
and she brought vehicle to Tillamook Motor Company. The service technician
12
inspected the vehicle, leaving Plaintiff without her vehicle or a temporary loaner
13
vehicle for a month, and eventually reported that two fuel injector cylinders were
14
misfiring. The service report states that the technician replaced the ignition coils
15
16
17
the odometer, Plaintiff brought her vehicle to Damerow Ford following the
18
19
and failure to accelerate. The Ford service technician inspected the vehicle,
20
confirmed Plaintiffs concerns, and ordered parts for necessary repairs. The
21
service technician told Plaintiff that she would be notified when the parts arrived
22
because they are backordered. To date, Plaintiff has not been notified that parts
23
24
171. Plaintiffs vehicle continues to exhibit all of the problems she had
25
26
27
28
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
Page 37
CLASS ACTION COMPLAINT
complete stop.
173. At all times, Plaintiff, like all Class Members, has driven her vehicle
8
9
10
Ford Focus
11
12
13
14
15
16
17
18
19
20
purchasing his Class Vehicle, Plaintiff researched the vehicle on Fords official
21
website and subsequently test drove the vehicle. Had Ford disclosed its
22
knowledge of the Transmission Defect, and the fact that it posed a safety
23
concern, when Plaintiff purchased his 2014 Ford Focus, Plaintiff would have
24
seen such disclosures and been aware of them. Indeed, Fords omissions were
25
material to Plaintiff. Like all members of the classes, Plaintiff would not have
26
purchased his 2014 Ford Focus, or would not have paid the purchase price
27
28
premature internal wear and failure, that it suffers from transmission slips,
Page 38
CLASS ACTION COMPLAINT
3
4
5
178. Within the first six months after purchase, Plaintiffs transmission
was shuddering, jerking, and hesitating to accelerate.
179. On or about June 29, 2015, with approximately 14,829 miles on the
odometer, Plaintiff brought his vehicle to Mullinax Ford complaining that the
vehicle was jerking, lurching, and shuddering during normal operation and
would often fail to accelerate from complete stops. The service technician
10
11
12
13
18,350 miles on the odometer, Plaintiff brought his vehicle to Mullinax Ford
14
15
from stops. Additionally, Plaintiff complained that his vehicle would lurch
16
forward and nearly hit pedestrians. The service technician performed a multi-
17
18
19
20
21
22
Plaintiffs vehicle. Despite these repair attempts by Ford and its dealers,
23
24
25
delay in downshifts.
26
183. At all times, Plaintiff, like all Class Members, has driven his vehicle
27
28
Defendant
Page 39
CLASS ACTION COMPLAINT
existence under the laws of the State of Delaware and registered with the
motor vehicles, parts, and other products for sale in the United States and
throughout the world. Ford Motor Company is the warrantor and distributor of
the Class Vehicles in Arizona, California, Colorado, New Jersey, New York,
10
185. At all relevant times, Defendant was and is engaged in the business
11
12
13
14
15
186. This class action is brought pursuant to Rule 23 of the Federal Rules
16
of Civil Procedure. This Court has original jurisdiction over this action pursuant
17
18
187. Venue properly lies in the United States District Court for the
19
Central District of California pursuant to 28 U.S.C. 84(a), 1391(a) and (c) and
20
21
supplemental jurisdiction over the state law claims because all of the claims are
22
derived from a common nucleus of operative facts and are such that plaintiffs
23
24
25
California, within the Central District of California, and the acts, omissions, and
26
one of the two contractual performances alleged herein took place in the County
27
28
Cal. Civ. Code section 1780(d), which reflects that a substantial part of property
Page 40
CLASS ACTION COMPLAINT
that is the subject of this action is situated in Los Angeles County, and that
Exhibit 1.
4
5
FACTUAL ALLEGATIONS
189. Since 2010, Ford has designed, manufactured, distributed, sold, and
leased the Class Vehicles. Ford has sold, directly or indirectly, through dealers
and other retail outlets, hundreds of thousands of Class Vehicles equipped with
10
11
a torque converter, instead using two dry clutches to directly connect and
12
disconnect the engine to and from the transmission. Whereas other automated
13
manual transmissions on the market use wet clutches bathed in oil, Fords
14
PowerShift Transmission clutches lack the oil pumps and other components of a
15
16
17
option for both the Ford Fiesta and Ford Focus and is priced at $1,095.00. The
18
PowerShift Transmissions for both vehicles have the same design and
19
components.
20
21
22
23
24
automatic transmission without sacrificing the fuel efficiency and shift speed of a
25
26
has been plagued by numerous problems and safety hazards, rendering the
27
28
193. Dating back to at least 2010, Ford was aware of the defects of the
Page 41
CLASS ACTION COMPLAINT
Vehicles, including but not limited vehicles suddenly lurching forward, sudden
conditions present a safety hazard because they severely affect the drivers
ability to control the vehicles speed, acceleration, and deceleration. Even more
10
troubling, the Transmission Defect can cause the vehicle to fail to downshift and
11
decelerate when the brakes are depressed. As a result, Plaintiffs and Class
12
Members have experienced their cars lurching forward into intersections at red
13
lights due to the failure of their braking efforts to stop the car.
195. Hundreds, if not thousands, of purchasers and lessees of the Class
14
15
16
owners and lessees filed with the NHTSA demonstrate that the defect is
17
18
19
20
consumers. The following is just a small sampling of the over 500 safety-related
21
22
23
3, 2014), http://www-odi.nhtsa.dot.gov/complaints/):
24
25
26
27
///
28
///
Page 42
CLASS ACTION COMPLAINT
a.
b.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 43
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
c.
d.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 44
CLASS ACTION COMPLAINT
WAS TOLD THAT WAS THAT?S THE WAY THE CAR WAS
DESIGNED TO DRIVE. I WAS OFFERED A DISCOUNT THE
X PLAN TO TRADE IN MY CAR FOR ANOTHER BUT THAT
WOULD NOT HELP. WHEN DEALING WITH THE
DEALERSHIP THE SERVICE MANAGER SAID I AM
SORRY I CAN'T HELP YOU ANYMORE. WE GET AT
LEAST 6 CALLS A DAY ABOUT THE SAME PROBLEM
BUT UNTIL FORD DOES SOMETHING THERE IS NOTHING
WE CAN DO. I WORK WITH THREE OTHER WOMEN
THAT ALSO HAVE HAD THE SAME PROBLEM WITH
THEIR CARS. TWO OF US HAD TO TRADE OUR CARS
BECAUSE WE FELT SO UN-SAFE IN THE CARS. *TR
1
2
3
4
5
6
7
e.
f.
g.
(2011
Ford
Fiesta
03/21/2011)
TRANSMISSION
UNEXPECTEDLY CHANGING GEARS OR SELECTING
INCORRECT GEAR. SUDDEN LOSS OF POWER DUE TO
TRANSMISSION REMAINING IN TOO HIGH A GEAR FOR
ENGINE RPM'S. LAPSE IN GEAR SELECTION CAUSES
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 45
CLASS ACTION COMPLAINT
ERRATIC
AND
DANGEROUS
ACCELERATION.
DANGEROUS GEAR CHANGES CAUSE CAR TO BOTH
SURGE AND STALL - DEPENDING UPON ENGINE RPM'S
NOT CORRESPONDING TO CORRECT TRANSMISSION
GEAR. *TR
1
2
3
4
a.
b.
c.
d.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 46
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
8
a.
b.
c.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 47
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
8
9
10
d.
e.
f.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 48
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
g.
h.
i.
j.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 49
CLASS ACTION COMPLAINT
k.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
a.
23
24
25
26
27
28
b.
c.
d.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 51
CLASS ACTION COMPLAINT
1
2
3
4
e.
f.
g.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 52
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
b.
c.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 53
CLASS ACTION COMPLAINT
1
2
3
d.
e.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 54
CLASS ACTION COMPLAINT
f.
2
3
4
5
6
7
8
9
10
11
12
13
14
a.
b.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 55
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
c.
d.
20
21
22
23
24
25
26
27
28
Page 56
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
e.
8
9
10
11
12
13
14
15
16
a.
b.
17
18
19
20
21
22
23
24
25
26
27
28
Page 57
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
c.
d.
e.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 58
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
8
196. The Transmission Defect poses an unreasonable safety risk for Class
10
11
12
defect that causes one or more of these negative characteristics poses a safety
13
hazard to the general public and increases the risk of automobile accidents.
14
15
16
defect, and knew or should have known that the defect was not known or
17
18
19
198. Plaintiffs are informed and believe and based thereon allege that
20
before Plaintiffs purchased or leased their Class Vehicles, and since at least
21
2010, Ford knew about the Transmission Defect through sources not available to
22
23
the Transmission Defect to Defendants dealers who are their agents for vehicle
24
repairs; warranty claim data related to the defect; aggregate data from Fords
25
dealers; consumer complaints to the NHTSA and resulting notice from NHTSA;
26
27
complaints; TSBs applicable to the Class Vehicles; the existence of the defect in
28
the substantially identical European and Australian model vehicles; and other
Page 59
CLASS ACTION COMPLAINT
1
2
and other internal sources of aggregate information about the problem. Ford did
not make this information available to customers, and customers had no way to
access it.
200. Before offering the vehicle for sale in the United States, Ford
Europe and Australia. Although the United States version utilizes dry-clutches
10
11
acknowledged in its own press release that the transmission offered for sale in
12
the United States is a derivative of the design from the European and
13
14
15
16
the prior European and Australian dual-clutch design, Ford also acknowledged in
17
its own press releases the extensive pre-release testing and computer-aided
18
19
20
202. Ford was also aware of the Transmission Defect through the
21
22
23
24
25
26
27
28
Page 60
CLASS ACTION COMPLAINT
Transmission. Indeed, a July 15, 2011, New York Times review of the 2012 Ford
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
203. In that same article, Greg Burgess, a Ford engineer, admitted that
Ford made tradeoffs in terms of drivability in order to deliver something that
is very, very fuel-efficient.
204. The New York Times review by Christopher Jensen further
condemned the transmission, stating: [i]n its effort to give the car exceptional
fuel economy, Ford programmed the PowerShift dual-clutch transmission to
change gears in odd and infuriating ways and that the logical explanation is
that they [the Ford Engineers] were given a fuel economy target and no option
but to meet it. One might wonder why a top executive didnt step in to keep the
transmission from reaching market . . . .
205. The alleged Transmission Defect was inherent in each Class
Vehicles PowerShift Transmission and was present in each Class Vehicles
PowerShift Transmission at the time of sale.
6
28
Page 61
CLASS ACTION COMPLAINT
a vehicle that was equipped with a PowerShift transmission. Had Plaintiffs and
other Class Members known that the Class Vehicles were equipped with
defective transmissions, they would not have purchased or leased the Class
Vehicles equipped with the PowerShift Transmissions or would have paid less
for them.
8
9
10
11
prospective purchasers that there is a safety defect in the Class Vehicles. In fact,
12
Ford intentionally and actively concealed the existence of a safety defect in the
13
Class Vehicles.
14
15
vehicles transmission is safe, will function in a manner that will not pose a
16
safety hazard, and is free from defects. Plaintiffs and Class Members further
17
reasonably expect that Ford will not sell or lease vehicles with known safety
18
defects, such as the Transmission Defect, and will disclose any such defects to its
19
consumers when it learns of them. They did not expect Ford to fail to disclose
20
21
22
209. While Ford has been fully aware of the Transmission Defect in the
23
Class Vehicles, it actively concealed the existence and nature of the defect from
24
Plaintiffs and Class Members at the time of purchase, lease, or repair and
25
26
27
28
(a)
PowerShift Transmission;
1
2
(b)
defective, and were not fit for their intended purposes; and
(c)
210. Ford further actively concealed the material facts that the
10
PowerShift transmission was not safe, that it would function in a manner that
11
would pose a safety hazard, and that it was defective. Instead, Ford sold vehicles
12
with a known safety defect, and failed to disclose this defect to consumers when
13
14
15
211. In 2010, Ford knew of the Transmission Defect and began issuing
16
TSBs in an effort to address it. But Ford never communicated the TSBs, or the
17
18
Ford prepared a separate series of sanitized documents for its customers intended
19
to induce them into believing that their kicking, bucking, sling-shotting (etc.)
20
21
22
23
24
25
provided it to its dealers to give to customers whose vehicles were exhibiting the
26
27
28
defective, this document states that customers may experience a trailer hitching
feel (or a slight bumping fee) calling this a normal characteristic of the dry
clutch-equipped manual transmission design. Ford did not disclose in this letter
that the PowerShift transmission was defective, and did not disclose the
8
9
10
11
shifts. In addition, the vehicle may experience roll back when the driver is
12
transitioning from the brake pedal to the accelerator pedal while on a slight
13
incline. Significantly, Ford did not issue a recall and did not warn drivers of the
14
safety risks associated with these known problems. Fords letter was highly
15
selectivedespite Fords knowledge of the following, Ford did not disclose that
16
the PowerShift transmission was defective, and did not disclose the PowerShift
17
18
19
20
21
Program Number 14M01, telling the class that its vehicles may . . . exhibit
22
23
24
Significantly, Ford did not issue a recall and did not warn drivers of the safety
25
risks associated with these known problems. Further, this campaign was only
26
disseminated to owners and not prospective buyers. Ford merely offered more
27
ineffective repairs that do not actually fix the problem. On information and
28
belief, owners who have had this program performed on their vehicles continued
Page 64
CLASS ACTION COMPLAINT
1
2
letter was highly selective. Despite Fords knowledge of the following, Ford did
not disclose that the PowerShift transmission was defective, and did not disclose
transmission failure.
10
suspecting that their transmission might be defective, Ford wrote in the letter that
11
slight vibrations may be felt when accelerating the vehicle from low speeds.
12
13
Transmission.
14
15
Program: Program Number 14M02, informing the class that their Class
16
17
18
the Transmission Control Module (TCM). Still, Ford did not issue a recall for
19
20
21
merely offered more ineffective repairs that do not actually fix the problem.
22
On information and belief, owners who have had this program performed on
23
24
25
26
Service Bulletins
219. Despite Fords public insistence that these behavioral characteristics
27
28
Page 65
CLASS ACTION COMPLAINT
of the PowerShift Transmission were normal, in 2010 and 2011, Ford issued
several TSBs to only its dealers7 in the United States acknowledging problems in
the PowerShift Transmission. For example, Fords TSB from September 2010,
check engine light with transmission control module (TCM) diagnostic trouble
code
220. Also, Fords TSB released on January 1, 2011, covering the 2011
10
Fiesta with the PowerShift Transmission, informs dealers of problems with the
11
12
13
221. Additionally, Fords TSB from March 31, 2011, also covering the
14
15
16
222. Again, Ford issued two separate TSBs in May of 2011, both
17
covering the Ford Fiesta vehicle. These TSBs addressed problems with the
18
19
20
21
22
23
owners complained about hesitation when accelerating from a low speed after
24
coast down, harsh or late 1-2 upshift, harsh shifting during low-speed tip-in or
25
26
27
NHTSA makes some, but not all, service bulletins available online.
28
Page 66
CLASS ACTION COMPLAINT
224. Further, the 2012 Ford Focus was the subject of a Ford TSB issued
efforts by Ford a stealth upgrade and that while [t]heres no official recall or
10
11
12
13
14
dealer for repair of the transmission, rather than repair the problem under
15
warranty, Ford dealers either inform consumers that their vehicles are
16
17
delay the manifestation of defect in an attempt not to pay for it under warranty.
18
228. To this day, Ford still has not notified Plaintiffs and the Class
19
Members that the Class Vehicles suffer from a systemic defect that causes the
20
21
229. On information and belief, Ford has caused Plaintiffs and Class
22
23
24
25
230. On information and belief, Class Members have been selling their
26
27
28
and all others similarly situated as members of the proposed Plaintiff Classes
pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3). This action
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 68
CLASS ACTION COMPLAINT
1
2
3
4
5
6
7
8
233. Excluded from the Class and Sub-Classes are: (1) Defendant, any
10
entity or division in which Defendant has a controlling interest, and their legal
11
12
whom this case is assigned and the Judges staff; (3) any Judge sitting in the
13
presiding court system who may hear an appeal of any judgment entered; and (4)
14
those persons who have suffered personal injuries as a result of the facts alleged
15
herein. Plaintiff reserves the right to amend the Class and Sub-Class definitions
16
if discovery and further investigation reveal that the Class and Sub-Class should
17
18
19
20
21
uncertain and can only be ascertained through appropriate discovery, the number
22
is great enough such that joinder is impracticable. The disposition of the claims
23
of these Class Members in a single action will provide substantial benefits to all
24
parties and to the Court. The Class Members are readily identifiable from
25
26
27
28
236. Typicality: Plaintiffs claims are typical of the claims of the Class
in that Plaintiffs, like all Class Members, purchased or leased a Class Vehicle
Page 69
CLASS ACTION COMPLAINT
have been damaged by Defendants misconduct in that they have incurred or will
the factual bases of Fords misconduct are common to all Class Members and
common to Plaintiffs and the Class that predominate over any question affecting
only individual Class Members. These common legal and factual issues include
10
11
the following:
(a)
PowerShift Transmission;
12
13
(b)
14
15
(c)
16
17
18
(d)
19
20
(e)
21
22
Members;
23
(f)
24
25
26
(g)
27
28
Members;
1
2
(h)
Class Vehicles and for the costs and expenses of repairing and
(i)
and
10
(j)
11
12
13
14
protect the interests of the Class Members. Plaintiffs have retained attorneys
15
16
defect class actions, and Plaintiffs intend to prosecute this action vigorously.
17
18
have all suffered and will continue to suffer harm and damages as a result of
19
20
available methods for the fair and efficient adjudication of the controversy.
21
Absent a class action, most Class Members would likely find the cost of
22
litigating their claims prohibitively high and would therefore have no effective
23
remedy at law. Because of the relatively small size of the individual Class
24
Members claims, it is likely that only a few Class Members could afford to seek
25
legal redress for Defendants misconduct. Absent a class action, Class Members
26
27
without remedy. Class treatment of common questions of law and fact would
28
that class treatment will conserve the resources of the courts and the litigants,
3
4
Ford;
(b)
10
11
12
13
14
15
16
17
18
19
20
21
class-wide basis.
22
241. Plaintiffs are not aware of any difficulty which will be encountered
23
24
class action.
25
26
27
28
Class Members were not reasonably able to discover the problem until after
Page 72
CLASS ACTION COMPLAINT
1
2
244. Plaintiffs and the Class Members had no realistic ability to discern
the discovery rule is applicable to the claims asserted by Plaintiffs and the Class
Members.
10
245. Plaintiffs are informed and believe and based thereon allege that
11
Ford has known of the Transmission Defect since at least 2010 and has
12
concealed from or failed to alert owners of the Class Vehicles of the defective
13
14
15
16
17
18
19
20
21
22
23
24
25
26
249. Defendant knew of the Transmission Defect and the true nature of
27
its PowerShift transmission system when it sold the Vehicles, but concealed all
28
of that information from Arizona Plaintiff and other members of the Arizona
Page 73
CLASS ACTION COMPLAINT
Sub-Class.
Defect and the true nature of its PowerShift transmission system, by marketing
its vehicles as safe, reliable, easily operable, efficient, and of high quality, and by
performance and efficiency, and stood behind its vehicles after they were sold,
10
11
its advertisements of the Class Vehicles and in the purchase of the Class
12
Vehicles.
13
14
and material omissions in connection with the sale and advertisement of its
15
services, violates the Arizona Consumer Fraud Act, Ariz. Rev. Stat. 44-
16
1522(A).
17
18
known that the Class Vehicles would exhibit the Transmission Defect, they
19
would not have purchased the Class Vehicles or would have paid less for them.
20
21
22
conduct, Arizona Plaintiff and Arizona Sub-Class members were harmed and
23
suffered actual damages in the form of the diminished value of their vehicles.
24
25
26
27
28
as advertised.
Page 74
CLASS ACTION COMPLAINT
acts or practices, Arizona Plaintiff and other members of the Arizona Sub-Class
9
10
11
12
13
14
15
16
the meaning of California Civil Code 1761(d) because they purchased their
17
18
19
20
21
Vehicles and their transmissions had characteristics and benefits that they do not
22
have, and represented that the Class Vehicles and their transmissions were of a
23
particular standard, quality, or grade when they were of another. See Cal. Civ.
24
25
26
27
substantial portion of the purchasing public, and imposed a serious safety risk on
28
the public.
Page 75
CLASS ACTION COMPLAINT
263. Defendant knew that the Class Vehicles and their transmissions
4
5
Members were harmed and suffered actual damages in that the Class Vehicles
transmissions are substantially certain to fail before their expected useful life has
10
11
run.
265. Defendant was under a duty to Plaintiffs and the Class Members to
12
disclose the defective nature of the transmissions and/or the associated repair
13
costs because:
14
(a)
15
16
transmissions;
17
(b)
18
19
20
(c)
21
22
safety defect.
23
24
Defendant knowingly and intentionally concealed material facts and breached its
25
26
267. The facts Defendant concealed from or did not disclose to Plaintiffs
27
and the Class Members are material in that a reasonable consumer would have
28
Class Vehicles or pay less. Had Plaintiffs and other Class Members known that
the Class Vehicles transmissions were defective, they would not have purchased
or leased the Class Vehicles or would have paid less for them.
268. Plaintiffs and the Class Members are reasonable consumers who do
and/or difficulty in stopping the vehicle. This is the reasonable and objective
10
were harmed and suffered actual damages in that the Class Vehicles experienced
11
12
13
14
15
acts or practices, Plaintiffs and Class Members suffered and will continue to
16
17
18
19
20
appropriate relief for their violations of the CLRA. Therefore Plaintiffs now
21
22
23
24
25
(On Behalf of the Nationwide Class or, Alternatively, the California Sub-
26
Class)
27
28
1
2
3
4
Members were harmed and suffered actual damages in that the Class Vehicles
transmissions are substantially certain to fail before their expected useful life has
run.
10
11
12
13
277. Plaintiffs and the Class Members are reasonable consumers who do
14
15
16
17
278. Defendant knew the Class Vehicles and their transmissions suffered
18
19
20
21
has knowingly and intentionally concealed material facts and breached its duty
22
not to do so.
23
24
25
280. Defendant was under a duty to Plaintiffs and the Class Members to
disclose the defective nature of the Class Vehicles and their transmissions:
(a)
26
27
transmissions;
28
(b)
4
5
and the Class Members are material in that a reasonable person would have
Vehicles. Had Plaintiffs and other Class Members known that the Class
Vehicles transmissions were defective and posed a safety hazard, then Plaintiffs
10
and the other Class Members would not have purchased or leased Class Vehicles
11
12
13
Vehicles and their transmissions even after Class Members began to report
14
problems. Indeed, Defendant continues to cover up and conceal the true nature
15
of the problem.
16
17
284. Defendants acts, conduct and practices were unlawful, in that they
18
constituted:
19
(a)
20
(b)
21
(c)
22
23
24
25
26
27
28
practices, Plaintiffs and the Class have suffered and will continue to suffer actual
damages.
make restitution to Plaintiffs and the Class pursuant to 17203 and 17204 of
Consumer Warranty Act Cal. Civ. Code 1792 and 1791.1, et seq.
10
11
12
13
14
15
16
warrantor, and/or seller of the Class Vehicles. Defendant knew or had reason to
17
know of the specific use for which the Class Vehicles were purchased or leased.
18
19
warranty that the Class Vehicles and their components and parts are
20
merchantable and fit for the ordinary purposes for which they were sold.
21
However, the Class Vehicles are not fit for their ordinary purpose of providing
22
reasonably reliable and safe transportation because, inter alia, the Class Vehicles
23
and their transmissions suffered from an inherent defect at the time of sale and
24
thereafter are not fit for their particular purpose of providing safe and reliable
25
transportation.
26
27
merchantable quality and fit for such use. This implied warranty included,
28
among other things: (i) a warranty that the Class Vehicles and their
Page 80
CLASS ACTION COMPLAINT
were safe and reliable for providing transportation; and (ii) a warranty that the
Class Vehicles and their transmissions would be fit for their intended use while
and their transmissions at the time of sale and thereafter were not fit for their
ordinary and intended purpose of providing Plaintiffs and the Class Members
with reliable, durable, and safe transportation. Instead, the Class Vehicles are
defective, including, but not limited to, the defective design and manufacture of
10
11
their transmissions.
295. As a result of Defendants breach of the applicable implied
12
13
14
result of the Transmission Defect, Plaintiffs and the Class Members were harmed
15
and suffered actual damages in that the Class Vehicles transmissions are
16
substantially certain to fail before their expected useful life has run.
17
18
warranty that the Class Vehicles were of merchantable quality and fit for such
19
20
21
22
23
24
25
26
27
28
result of the Transmission Defect, Plaintiff and the Class Members were harmed
and suffered actual damages in that the Class Vehicles transmissions are
substantially certain to fail before their expected useful life has run.
300. Defendant provided all purchasers and lessees of the Class Vehicles
with the express warranty described herein, which became a material part of the
10
component parts in the Class Vehicles and the transmission and its component
11
12
302. Ford provided all purchasers and lessees of the Class Vehicles with
13
14
Limited Warranty with the purchase or lease of the Class Vehicles. In this
15
Bumper to Bumper Limited Warranty, Ford expressly warranted that its dealers
16
would without charge, repair, replace, or adjust all parts on your vehicle that
17
malfunction or fail during normal use during the applicable coverage period due
18
19
if the vehicle is properly operated and maintained and was taken to a Ford
20
dealership for a warranty repair during the warranty period. Under this Bumper
21
to Bumper Coverage, Ford promised to cover all parts on [the] vehicle for
22
three years unless you drive more than 36,000 miles before three years elapse.
23
24
25
expressly warranted that it would cover listed powertrain components under its
26
27
Transmission: all internal parts, clutch cover, seals and gaskets, torque
28
transmission mounts for five years or 60,000 miles, whichever occurs first.
304. On information and belief, Defendant breached the express warranty
2
3
4
by:
a.
10
b.
11
12
13
c.
14
15
16
17
d.
18
19
20
21
22
warranty period.
23
305. Plaintiff was not required to notify Ford of the breach because
24
25
would have been futile. Defendant was also on notice of the defect from the
26
complaints and service requests it received from Class Members, from repairs
27
28
1
2
the other Class Members suffered damages and continue to suffer damages,
and the other Class Members either have incurred or will incur economic
6
7
illusory repairs. Rather than repairing the vehicles pursuant to the express
warranty, Ford falsely informed class members that there was no problem with
10
11
12
308. Plaintiffs and the other Class Members are entitled to legal and
13
14
damages, specific performance, attorneys fees, costs of suit, and other relief as
15
appropriate.
16
17
18
101, et seq.
19
20
21
22
310. Plaintiff Patricia Soltesiz (the Colorado Plaintiff) brings this cause
23
of action on behalf of herself and on behalf of the members of the Colorado Sub-
24
Class.
25
26
27
28
he knows or should know that they are of another; and advertis[ing] goods,
services, or property with intent not to sell them as advertised. Colo. Rev. Stat.
Defendant violated the CCPA, as it represented that the Class Vehicles and their
10
transmissions had characteristics and benefits that they do not have; represented
11
that the Class Vehicles and their transmissions were of a particular standard,
12
quality, or grade when they were of another; advertised Class Vehicles with the
13
intent not to sell them as advertised; and otherwise engaged in conduct likely to
14
deceive.
15
16
17
substantial portion of the purchasing public, and imposed a serious safety risk on
18
the public.
19
315. Defendant knew that the Class Vehicles and their transmissions
20
21
22
23
24
25
of the Transmission Defect, Plaintiffs and the Class Members were harmed and
26
27
substantially certain to fail before their expected useful life has run.
28
2
3
Sub-Class Members were harmed and suffered actual damages in that the Class
10
11
12
13
14
of action on behalf of herself and on behalf of the members of the Illinois Sub-
15
Class.
321. Defendant is a person as defined by Illinois Compiled Statutes,
16
17
18
19
within the meaning of Illinois Compiled Statutes, 815 ILCS 505/1(e) because
20
they purchased their Class Vehicles primarily for personal, family or household
21
use.
22
323. The Illinois Consumer Fraud and Deceptive Business Practices Act
23
24
not limit to the use or employment of any deception, fraud, false pretense, false
25
26
material fact, with intent that other rely upon the concealment, suppression or
27
28
whether any person has in fact been misled, deceived or damaged thereby. 815
Page 86
CLASS ACTION COMPLAINT
ILCS 505/2.
324. By failing to disclose and concealing the defective nature of the
2
3
Defendant violated the Illinois CFA, as it represented that the Class Vehicles and
their transmissions had characteristics and benefits that they do not have,
represented that the Class Vehicles and their transmissions were of a particular
standard, quality, or grade when they were of another, and otherwise engaged in
10
11
substantial portion of the purchasing public, and imposed a serious safety risk on
12
the public.
326. Defendant intended for Illinois Plaintiff and other Illinois Sub-Class
13
14
Members to rely on its aforementioned unfair and deceptive acts and practices,
15
and such unfair and deceptive acts and practices occurred in the course of
16
17
327. Defendant knew that the Class Vehicles and their transmissions
18
19
20
21
22
23
24
Members were harmed and suffered actual damages in that the Class Vehicles
25
transmissions are substantially certain to fail before their expected useful life has
26
run.
27
28
329. Defendant was under a duty to Plaintiffs and the Class Members to
disclose the defective nature of the transmissions and/or the associated repair
Page 87
CLASS ACTION COMPLAINT
1
2
3
4
costs because:
330. Defendant was in a superior position to know the true state of facts
about the safety defect in the Class Vehicles transmissions;
331. Plaintiffs and the Class Members could not reasonably have been
7
8
332. Defendant knew that Plaintiffs and the Class Members could not
reasonably have been expected to learn of or discover the safety defect.
10
Defendant knowingly and intentionally concealed material facts and breached its
11
12
334. The facts Defendant concealed from or did not disclose to Illinois
13
Plaintiff and the Illinois Sub-Class Members are material in that a reasonable
14
15
purchase or lease the Class Vehicles or pay less. Had Illinois Plaintiff and other
16
Illinois Sub-Class Members known that the Class Vehicles transmissions were
17
defective, they would not have purchased or leased the Class Vehicles or would
18
19
335. Illinois Plaintiff and the Illinois Sub-Class members are reasonable
20
21
22
23
24
25
Sub-Class Members were harmed and suffered actual damages in that the Class
26
27
28
at trial, including, but not limited to, actual damages, and reasonable costs and
9
10
338. Plaintiffs repeat and re-allege every allegation above as if set forth
herein in full.
11
339. The New Jersey Consumer Fraud Act, N.J. STAT. ANN. 56:8-1,
12
13
14
15
16
17
18
19
340. Plaintiffs and members of the Class are consumers who purchased
and/or leased Vehicles for personal, family or household use.
341. In the course of Defendants business, it failed to disclose and
20
21
22
including representing that the Vehicles have characteristics, uses, benefits, and
23
qualities which they do not have; representing that the Vehicles are of a
24
particular standard and quality when they are not; advertising the Vehicles with
25
the intent to not sell them as advertised; and otherwise engaging in conduct
26
likely to deceive.
27
28
motorists, and pedestrians outweighs any benefit associated with such practices,
and because Defendant concealed the defective nature of the Vehicles from
consumers.
4
5
members have suffered an ascertainable loss by receiving less than what was
promised.
10
345. Plaintiffs and the other Class members were injured as a result of
11
Defendants conduct in that Plaintiff and the other Class members overpaid for
12
their Vehicles and did not receive the benefit of their bargain, and their Vehicles
13
14
15
and the ascertainable losses suffered by Plaintiffs and the Class. Had the
16
Transmission Defect in the Vehicles been disclosed, consumers would not have
17
purchased them or would have paid less for the vehicles had they decided to
18
purchase them.
19
20
347. Pursuant to N.J. STAT. ANN. 56:8-20, Plaintiffs will serve the
New Jersey Attorney General with a copy of this Complaint.
21
22
23
24
25
26
27
28
commerce.
351. New Yorks General Business Law 350 also makes unlawful
representations [made] with respect to the commodity. N.Y. Gen. Bus. Law
350-a.
10
11
12
conduct.
13
14
15
16
17
353. Defendants act and practices offended public policy and violate
numerous state and federal laws.
354. Defendants intentional deception of consumers was immoral,
unethical, oppressive, and unscrupulous.
355. Defendants conduct has caused and continues to cause substantial
18
19
20
21
That injury is not outweighed by any countervailing public policy that could
22
23
356. Because Plaintiff Schwennker and other members of the New York
24
25
26
27
28
consumers paid a premium for what they thought were efficient, smooth
Violation of the Oregon Unlawful Trade Practices Act Or. Rev. Stat.
646.605, et seq.
9
10
11
12
of action on behalf of herself and on behalf of the members of the Oregon Sub-
13
Class.
14
15
16
361. Defendant was at all relevant times a person within the meaning of
Or. Rev. Stat 646.605(4).
362. The Class Vehicles at issue are goods obtained primarily for
17
personal, family, or household purposes within the meaning of Or. Rev. Stat.
18
646.605(6).
19
20
prohibits a person from, in the course of the persons business, doing any of the
21
22
23
qualities that the real estate, goods or services do not have []; (g)
24
25
quality, or grade,[], if the real estate, goods or services are of another; (i)
26
Advertis[ing] real estate, goods or services with intent not to provide the real
27
28
1
2
violated the Oregon UTPA, as it represented that the Class Vehicles and their
transmissions had characteristics, benefits, and qualities that they do not have,
represented that the Class Vehicles and their transmissions were of a particular
standard, quality, or grade when they were of another, advertised Class Vehicles
with the intent not to sell them as advertised, and otherwise engaged in conduct
likely to deceive.
365. Defendants unlawful or deceptive acts or practices were likely to
9
10
and did in fact deceive reasonable consumers; including Plaintiff, about the true
11
12
13
14
15
commerce.
16
367. Defendant knew that the Class Vehicles and their transmissions
17
18
19
20
21
22
23
Members were harmed and suffered actual damages in that the Class Vehicles
24
transmissions are substantially certain to fail before their expected useful life has
25
run.
26
369. Defendant was under a duty to Oregon Plaintiff and the Oregon
27
28
1
2
370. Defendant was in a superior position to know the true state of facts
about the safety defect in the Class Vehicles transmissions;
371. Oregon Plaintiff and the Oregon Sub-Class Members could not
reasonably have been expected to learn or discover that their transmissions had a
372. Defendant knew that Oregon Plaintiff and the Oregon Sub-Class
Members could not reasonably have been expected to learn of or discover the
safety defect.
10
Defendant knowingly and intentionally concealed material facts and breached its
11
12
374. The facts Defendant concealed from or did not disclose to Oregon
13
Plaintiff and the Oregon Sub-Class Members are material in that a reasonable
14
15
purchase or lease the Class Vehicles or pay less. Had Oregon Plaintiff and other
16
Oregon Sub-Class Members known that the Class Vehicles transmissions were
17
defective, they would not have purchased or leased the Class Vehicles or would
18
19
375. Oregon Plaintiff and the Oregon Sub-Class Members are reasonable
20
21
22
23
24
25
Sub-Class Members were harmed and suffered actual damages in that the Class
26
27
28
other Oregon Sub-Class Members are entitled to recover the greater or actual
damages or $200 and reasonable attorneys fees and costs, pursuant to Or. Rev.
Stat. 646.638.
10
11
379. Plaintiffs Jason Porterfeld, Jamie Porterfeld, and Abigail Fisher (the
12
Pennsylvania Plaintiffs) assert this claim on behalf of themselves and the other
13
14
15
16
17
18
19
20
21
22
qualities that they do not have; (ii) Representing that goods or services are of a
23
24
goods or services with intent not to sell them as advertised; and (iv) Engaging
25
26
27
28
which they do not have; representing that Class Vehicles are of a particular
standard and quality when they are not; advertising Class Vehicles with the
intent not to sell them as advertised; and engaging in any other fraudulent or
misunderstanding.
10
concealment, suppression or omission of any material fact with intent that others
11
rely upon such concealment, suppression or omission, in connection with the sale
12
of Class Vehicles.
13
385. Defendant has known of the Transmission Defect and the true nature
14
of its PowerShift transmission system when it sold the Vehicles, but concealed
15
16
17
Defect and the true nature of its PowerShift transmission system, by marketing
18
its vehicles as safe, reliable, easily operable, efficient, and of high quality, and by
19
20
performance and efficiency, and stood behind its vehicles after they were sold,
21
22
UTPCPL.
23
24
25
26
27
facts regarding the Class Vehicles with intent to mislead the Pennsylvania
28
1
2
3
4
389. Defendant knew or should have known that its conduct violated the
UTPCPL.
390. Because Defendant fraudulently concealed the Transmission Defect,
the value of the Class Vehicles has greatly diminished.
Pennsylvania Sub-Class.
8
9
10
11
393. Defendant had an ongoing duty to all its customers to refrain from
12
unfair and deceptive acts or practices under the UTPCPL. All owners of Class
13
Vehicles suffered ascertainable loss in the form of the diminished value of their
14
vehicles as a result of Defendants deceptive and unfair acts and practices that
15
16
17
18
19
20
21
greater, and attorneys fees and costs. See 73 P.S. 201-9.2(a). The
22
23
24
25
others.
26
27
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 100 of 113 Page ID #:100
1
2
3
4
5
6
10
11
benefits, and qualities which they do not have; representing that Class Vehicles
12
are of a particular standard and quality when they are not; advertising Class
13
Vehicles with the intent not to sell them as advertised; and engaging in any other
14
15
misunderstanding.
16
17
18
19
20
concealment, suppression or omission of any material fact with intent that others
21
rely upon such concealment, suppression or omission, in connection with the sale
22
of Class Vehicles.
23
401. Defendant has known of the Transmission Defect and the true nature
24
of its PowerShift transmission system when it sold the Vehicles, but concealed
25
26
27
Defect and the true nature of its PowerShift transmission system, by marketing
28
its vehicles as safe, reliable, easily operable, efficient, and of high quality, and by
Page 98
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 101 of 113 Page ID #:101
performance and efficiency, and stood behind its vehicles after they were sold,
WCPA.
5
6
7
8
9
403. Defendant knew or should have known that its conduct violated the
WCPA.
404. Because Defendant fraudulently concealed the Transmission Defect,
the value of the Class Vehicles has greatly diminished.
405. The Washington Plaintiff and the Washington Sub-Class suffered
10
11
12
406. Defendant had an ongoing duty to all its customers to refrain from
13
unfair and deceptive acts or practices under the WCPA. All owners of Class
14
Vehicles suffered ascertainable loss in the form of the diminished value of their
15
vehicles as a result of Defendants deceptive and unfair acts and practices that
16
17
18
WCPA, the Washington Plaintiffs and the Washington Sub-Class have suffered
19
20
21
22
23
24
25
26
27
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 102 of 113 Page ID #:102
1
2
warrantor, and/or seller of the Class Vehicles. Defendant knew or had reason to
know of the specific use for which the Class Vehicles were purchased or leased.
an implied warranty that the Class Vehicles and their components and parts are
merchantable and fit for the ordinary purposes for which they were sold.
However, the Class Vehicles are not fit for their ordinary purpose of providing
reasonably reliable and safe transportation because, inter alia, the Class Vehicles
10
and their transmissions suffered from an inherent defect at the time of sale and
11
thereafter are not fit for their particular purpose of providing safe and reliable
12
transportation.
13
14
merchantable quality and fit for such use. This implied warranty included,
15
among other things: (i) a warranty that the Class Vehicles and their
16
17
were safe and reliable for providing transportation; and (ii) a warranty that the
18
Class Vehicles and their transmissions would be fit for their intended use while
19
20
21
and their transmissions at the time of sale and thereafter were not fit for their
22
ordinary and intended purpose of providing Plaintiffs and the Class Members
23
with reliable, durable, and safe transportation. Instead, the Class Vehicles are
24
defective, including, but not limited to, the defective design and manufacture of
25
their transmissions.
26
27
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 103 of 113 Page ID #:103
result of the Transmission Defect, Plaintiffs and the Class Members were harmed
and suffered actual damages in that the Class Vehicles transmissions are
substantially certain to fail before their expected useful life has run.
warranty that the Class Vehicles were of merchantable quality and fit for such
10
(On Behalf of the Nationwide Class, or, in the Alternative, the California Sub-
11
Class)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Limited Warranty with the purchase or lease of the Class Vehicles. In this
27
Bumper to Bumper Limited Warranty, Ford expressly warranted that its dealers
28
would without charge, repair, replace, or adjust all parts on your vehicle
Page 101
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 104 of 113 Page ID #:104
that malfunction or fail during normal use during the applicable coverage
workmanship if the vehicle is properly operated and maintained and was taken
to a Ford dealership for a warranty repair during the warranty period. Under this
vehicle for three years unless you drive more than 36,000 miles before three
expressly warranted that it would cover listed powertrain components under its
10
11
Transmission: all internal parts, clutch cover, seals and gaskets, torque
12
13
transmission mounts) for five years or 60,000 miles, whichever occurs first.
424. On information and belief, Defendant breached the express warranty
14
15
16
by:
(a)
17
18
19
20
21
22
(b)
23
24
25
(c)
26
27
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 105 of 113 Page ID #:105
(d)
warranty period.
were of merchantable quality and fit for such use. This implied warranty
included, among other things: (i) a warranty that the Class Vehicles and their
10
11
were safe and reliable for providing transportation; and (ii) a warranty that the
12
Class Vehicles and their transmissions would be fit for their intended use while
13
14
15
and their transmissions at the time of sale and thereafter were not fit for their
16
ordinary and intended purpose of providing Plaintiffs and Class Members with
17
reliable, durable, and safe transportation. Instead, the Class Vehicles are
18
defective, including, but not limited to, the defective design of their
19
transmissions.
20
21
22
23
24
meets or exceeds the sum or value of $50,000 (exclusive of interests and costs)
25
26
27
breach, including when Plaintiffs and Class Members brought their vehicles in
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 106 of 113 Page ID #:106
and implied warranties, Plaintiffs and Class Members sustained damages and
damaged Plaintiffs and Class Members, who are entitled to recover actual
illusory repairs. Rather than repairing the vehicles pursuant to the express
warranty, Ford falsely informed class members that there was no problem with
10
11
12
13
14
Warranty Act as alleged herein, Plaintiffs and Class Members have incurred
15
damages.
16
17
18
19
20
21
22
433. Plaintiffs repeat and re-allege every allegation above as if set forth
herein in full.
434. Plaintiffs bring this cause of action on behalf of themselves and on
23
behalf of the Nationwide Class, or, in the alternative, on behalf of each of the
24
25
26
27
expressly warranted that they would repair and/or replace defects in material
28
and/or workmanship free of charge that occurred during the new vehicle and
Page 104
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 107 of 113 Page ID #:107
1
2
3
4
Class members the Vehicles with known Transmission Defects, which are not of
high quality, and which are predisposed to fail prematurely and/or fail to
function properly.
8
9
10
loss of vehicle use, substantial loss in value and resale value of the vehicles, and
11
12
13
14
15
16
17
440. The time limits contained in Defendants warranty period were also
18
19
Among other things, Plaintiffs and Class members had no meaningful choice in
20
21
22
the Class members, and Defendant knew or should have known that the Vehicles
23
24
441. Plaintiffs and the Class members have complied with all obligations
25
under the warranty, or otherwise have been excused from performance of said
26
27
28
Page 105
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 108 of 113 Page ID #:108
5
6
7
442. Plaintiffs repeat and re-allege every allegation above as if set forth
herein in full.
443. Plaintiffs bring this cause of action on behalf of themselves and on
behalf of the Nationwide Class, or, in the alternative, on behalf of each of the
10
11
12
13
14
15
16
17
18
19
merchantable quality.
447. Defendant breached the implied warranty of merchantability, as the
Vehicles were not of a merchantable quality due to the Transmission Defect.
448. As a direct and proximate result of the breach of said warranties,
Plaintiffs and Class members were injured, and are entitled to damages.
449. Defendants attempt to disclaim or limit the implied warranty of
20
21
22
23
defect.
24
450. The time limits contained in Defendants warranty period were also
25
26
Among other things, Plaintiffs and members of the Class had no meaningful
27
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 109 of 113 Page ID #:109
Defendant and Class members, and Defendant knew or should have known that
3
4
under the warranty, or otherwise have been excused from performance of said
9
10
herein in full.
453. Plaintiffs bring this cause of action on behalf of themselves and on
11
12
behalf of the Nationwide Class, or, in the alternative, on behalf of each of the
13
14
15
faith and fair dealing. The implied covenant of good faith and fair dealing is an
16
17
express terms.
455. Defendant breached the covenant of good faith and fair dealing by,
18
19
inter alia, failing to notify Plaintiffs and Class members of the Transmission
20
Defect in the Vehicles, and failing to fully and properly repair this defect.
21
456. Defendant acted in bad faith and/or with a malicious motive to deny
22
Plaintiffs and the Class members some benefit of the bargain originally intended
23
24
trial.
25
26
27
28
Page 107
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 110 of 113 Page ID #:110
Unjust Enrichment
5
6
7
behalf of the Nationwide Class, or, in the alternative, on behalf of the California
10
11
12
Defendant has profited through the sale and lease of said vehicles. Although
13
these vehicles are purchased through Defendants agents, the money from the
14
15
16
17
defects in the Class Vehicles, Plaintiffs and Class Members have vehicles that
18
require high-cost repairs that can and therefore have conferred an unjust
19
20
461. Defendant has therefore been unjustly enriched due to the known
21
defects in the Class Vehicles through the use of funds that earned interest or
22
otherwise added to Defendants profits when said money should have remained
23
24
25
26
27
28
Page 108
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 111 of 113 Page ID #:111
1
2
3
4
RELIEF REQUESTED
463. Plaintiffs, on behalf of themselves, and all others similarly situated,
requests the Court to enter judgment against Defendant, as follows:
(a)
(b)
10
(c)
11
12
13
14
15
16
17
18
19
20
21
reformed;
22
(d)
23
24
25
disclosures;
26
(e)
27
28
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 112 of 113 Page ID #:112
1
(f)
3
(g)
(h)
(i)
10
(j)
11
12
(k)
13
14
(l)
15
16
(m)
17
18
19
20
21
22
23
24
25
26
27
///
28
///
Page 110
CLASS ACTION COMPLAINT
Case 2:15-cv-08831-AB-FFM Document 1 Filed 11/12/15 Page 113 of 113 Page ID #:113
1
2
so triable.
Respectfully submitted,
CAPSTONE LAW APC
6
7
8
9
10
11
15
Russell D. Paul
Eric Lechtzin
1622 Locust Street
Philadelphia, PA 19103
Tel: (215) 875-3000
Fax: (215) 875-4604
[email protected]
[email protected]
16
12
13
14
17
18
19
20
21
22
23
24
25
26
27
28
Page 111
CLASS ACTION COMPLAINT