Puhalla v. Mercedes-Benz USA, LLC (In re Takata Airbag Prods. Liab. Litig.)

Full title: IN RE TAKATA AIRBAG PRODUCTS LIABILITY LITIGATION Stephanie Puhalla, et…

Court: United States District Court, S.D. Florida, Miami Division.

Date published: May 27, 2020

462 F. Supp. 3d 1304 (S.D. Fla. 2020)

Opinion

MDL No. 2599 Master File No. 15-02599-MD-MORENOEconomic Loss No. 14-24009-CV-MORENO

2020-05-27

IN RE TAKATA AIRBAG PRODUCTS LIABILITY LITIGATION Stephanie Puhalla, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. Mercedes-Benz USA, LLC, Audi of America, LLC, and Volkswagen Group of America, Defendants.

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS BY MERCEDES-BENZ, AUDI, AND VOLKSWAGEN

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This multidistrict litigation consolidates allegations of economic loss and personal injury related to airbags manufactured by former-defendants Takata Corporation and TK Holdings (collectively, "Takata") and equipped in vehicles distributed by Defendants Mercedes-Benz USA, LLC, Audi of America, LLC, and Volkswagen Group of America, Inc. The allegations are that Defendants’ vehicles were equipped with Takata airbags containing the chemical ammonium nitrate, which creates a small explosion to inflate the airbags during a crash. Plaintiffs, who are consumers of Defendants’ vehicles, contend that when exposed to high heat and humidity, the explosion is much more forceful and can cause significant injuries and even death.

The crux of Plaintiffs’ legal claims is that Defendants knew or should have known of the Takata inflator defect prior to installing the Takata airbags in their vehicles, and that Defendants concealed from, or failed to notify, the Plaintiffs and the general public of the full and complete nature of the inflator defect. Plaintiffs allege that as a result of Defendants’ concealment, Plaintiffs would not have purchased their vehicles or would not have paid as much for them as they did.

Defendants vigorously contest the sufficiency of the allegations supporting a myriad of claims remaining in the 55-count Complaint. The Court has thoroughly reviewed the allegations in the Complaint and the arguments in the parties’ moving papers. This Order resolves all remaining claims asserted by the Consumer Plaintiffs against Mercedes, Audi, and Volkswagen.

For the reasons explained below, Defendants’ Motion to Dismiss (D.E. 2988) is GRANTED IN PART as follows:

• The nationwide-class Magnuson-Moss Warranty Act claim (Count 5) is DISMISSED in full;

• The statewide-class breach of implied warranty claims under the laws of Kentucky and South Carolina (Counts 26 and 48) are DISMISSED ;

• The statewide-class statutory consumer protection claims under the laws of Louisiana, Ohio, Pennsylvania, and South Carolina (Counts 28, 40, 43, 46, and 47) are DISMISSED ;

• The fraudulent concealment claims (Counts 6 and 9) are DISMISSED as to all named-Plaintiffs and all putative class members whose claims are governed under the laws of California, Kentucky, and South Carolina;

• The negligence claims (Counts 7 and 10) are DISMISSED as to all named-Plaintiffs and all putative class members whose claims are governed under the laws of Arizona, Connecticut, Georgia, Indiana, Iowa, Kentucky, Mississippi, New Jersey, New York, Ohio, Oregon, South Carolina, Tennessee, Texas, Virginia, Washington, and Wisconsin;

• The unjust enrichment claims (Counts 8 and 11) are DISMISSED as to all putative class members whose claims are governed under the laws of Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, New Jersey, South Carolina, Tennessee, and Virginia, and also DISMISSED as to these named-Plaintiffs: Loretta Collier and Omeko Pearson (Alabama); Diana Myers (Arizona); Paulette Calhoun (Georgia); Holly Stotler and Delola Nelson-Reynolds (Illinois); Malia Moore (Indiana); Jeffery Reeves (Louisiana); Ericka Black, Robert Cervelli, and Shanella Prentice (Massachusetts); Trevor MacLeod and Michael McBride (Michigan); Bettie Taylor (Mississippi); Darren Boyd, Maureen Dowds, Alexander Lonergan, and Branko Krmpotic (New Jersey); Jody Dorsey, Heidi Elliot, Jennifer Wilmoth, and Deloris A. Jones (New York); Aaron Patillo (Tennessee); and Michael Farriss (Virginia); and

• All claims asserted by Plaintiff Brett Alters are DISMISSED .

Furthermore, the Motion to Dismiss is DENIED as to the following claims, which will proceed to summary judgment:

• The statewide-class statutory consumer protection and breach of implied warranty claims in Counts 12–25, 27, 29–39, 41–42, 44–45, and 49–55;

• Claims for fraudulent concealment (Counts 6 and 9) asserted by all named-Plaintiffs whose claims arise under the laws of Alabama, Arizona, Arkansas, Connecticut, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island,

Tennessee, Texas, Virginia, Washington, and Wisconsin;

• Claims for negligence (Counts 7 and 10) asserted by these named-Plaintiffs: Chloe Crater (Arkansas); Jeffery Reeves (Louisiana); and Theresa Marie Fusco Radican (Rhode Island); and

• Claims for unjust enrichment (Counts 8 and 11) asserted by these named-Plaintiffs: Sandra Herrell (Alabama); Chloe Crater (Arkansas); David De King (Arizona); Pren Gjuraj and Christine Palmer (Connecticut); Cheryl Butler-Adams, Michael Cahill, Debrah Henry, Scott Lusby, Justin Maestri, Kristen Nevares, and Marcela Warmsley (California); George O'Connor (Florida); Diego DelaCruz, Mirsad Gacic, and Melinda M. Harms (Illinois); Susan Knapp (Iowa); Charles Hudson, Shanetha Livingston, and Bassam Makhoul (Michigan); Edward J. Burki and Annette Montanaro (New York); Daphne Bridges, Desiree Jones-Lassiter, and Kenneth Melde (North Carolina); Randy Brown (Ohio); John F. Phillips, Nancy D. Phillips, and Curtis Scott (Oregon); Dave Battinieri, Lillian Johnson, and Christopher Michael Knox (Pennsylvania); Theresa Marie Fusco Radican (Rhode Island); Tiffany Bolton, Sherri Cook, Vernettia Davis, Sam Fragale, Julius Fulmore, Celeste Lewis, Nikki Norvell, and Maria de Lourdes Viloria (Texas); William Goldberg (Washington); and April Rockstead Barker (Wisconsin).

II. LEGAL STANDARD

"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, the "complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

A claim has facial plausibility when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). Although legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. Id. at 679. Detailed factual allegations are not required, but the complaint must offer more than "labels and conclusions" or "a formulaic recitation of the elements of the cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). The factual allegations must be enough to "raise a right to relief above the speculative level." Id. (citations omitted).

Where a cause of action sounds in fraud, the allegations in the complaint must satisfy the particularity pleading requirement of Federal Rule of Civil Procedure 9(b). Under Rule 9(b), "a party must state with particularity the circumstances constituting fraud or mistake"; although "conditions of a person's mind," such as malice, intent, and knowledge may be alleged generally. Fed. R. Civ. P. 9(b). To comply with Rule 9(b), a plaintiff must allege: (1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the plaintiffs; and (4) what the defendants gained by the alleged fraud. Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1380–81 (11th Cir. 1997) (per curiam ) (citation omitted). In other words, a plaintiff is required to plead the "who, what, when, where, and how" pertaining to the underlying fraud. See Garfield v. NDC Health Corp. , 466 F.3d 1255, 1262 (11th Cir. 2006) (citation omitted). The purpose of particularity pleading is to alert the defendants to their precise misconduct and protect them against baseless charges of fraudulent behavior. See Durham v. Bus. Mgmt. Assocs. , 847 F.2d 1505, 1511 (11th Cir. 1988) (citation omitted).

Finally, at the motion to dismiss stage, the Court must view the allegations in the complaint in the light most favorable to the plaintiffs and accept well-pleaded facts as true. See St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am. , 795 F.2d 948, 954 (11th Cir. 1986).

III. DISCUSSION

In a previous order, the Court resolved standing and personal jurisdiction challenges, and ruled on the sufficiency of the allegations supporting the Racketeer Influenced and Corrupt Organizations Act claims. See In re Takata Airbag Products Liab. Litig. , 396 F. Supp. 3d 1101 (S.D. Fla. 2019). After thoroughly reviewing the Complaint and the moving papers, the Court dismissed: (1) both the Foreign Defendants (Daimler AG, Audi Aktiengesellschaft, and Volkswagen Aktiengesellschaft) and the "Direct-File Actions" for lack of personal jurisdiction; (2) the RICO claims (Counts 1–4); and (3) all claims asserted by Audi owners or lessees against Volkswagen (and vice versa).

The Court will now resolve Defendants’ challenges to the claims remaining in the 55-count Complaint, which includes: a nationwide-class claim under the Magnuson-Moss Warranty Act (Count 5); nationwide-class common-law claims for fraudulent concealment, negligence, and unjust enrichment (Counts 6–11); and statewide-class claims alleging breach of implied warranty and violations of various state consumer protection statutes (Counts 12–55). Before addressing the sufficiency of the allegations, the Court will determine the substantive law governing the claims of each Plaintiff.

A. APPLICABLE LAW

Questions of federal law in cases transferred under 28 U.S.C. Section 1407 are governed by the clearly settled law of the transferee district court's circuit. See In re Managed Care Litig. , 150 F. Supp. 2d 1330, 1336 (S.D. Fla. 2001) (citing Murphy v. F.D.I.C. , 208 F.3d 959, 966 (11th Cir. 2000) ("Since the federal courts are all interpreting the same federal law, uniformity does not require that transferee courts defer to the law of the transferor circuit.") (citing In re Korean Air Lines Disaster of September 1, 1983 , 829 F.2d 1171, 1176 (D.C. Cir. 1987) (ruling, in the context of a Section 1407(a) transfer, that "[b]inding precedent for all is set only by the Supreme Court, and for the district courts within a circuit, only by the court of appeals for that circuit"))).

Questions arising under state law are generally governed by the substantive state law dictated by the choice of law rules of the federal court's state. See Grupo Televisa, S.A. v. Telemundo Commc'ns Grp., Inc. , 485 F.3d 1233, 1240 (11th Cir. 2007). But in cases transferred under Section 1407, the transferee district court must apply the substantive state law dictated by the choice of law rules of the transferor court's state. See In re Takata Airbag Prods. Liab. Litig. , 193 F. Supp. 3d 1324, 1332 (S.D. Fla. 2016) (quoting In re Managed Care Litig. , 298 F. Supp. 2d 1259, 1296 (S.D. Fla. 2003) ).

B. CHOICE-OF-LAW ANALYSIS

The Complaint consolidates the Plaintiffs and the claims that were directly filed in this MDL proceeding with the Plaintiffs and the claims that were transferred to this Court by the Judicial Panel on Multidistrict Litigation (i.e. the Alters, Krmpotic, Maestri , and McBride Complaints). See In re Takata Airbag Products Liab. Litig. , 379 F. Supp. 3d 1333, 1336–37 (S.D. Fla. 2019) (summarizing procedural and substantive background of these "Transferor Complaints"). Based on these transfers, the Court applies choice of law rules as follows: Georgia rules apply to the named-Plaintiffs in the Maestri Complaint¹ ; Virginia rules apply to the named-Plaintiffs in the McBride Complaint² ; and New Jersey rules apply to the named-Plaintiffs in the Alters and Krmpotic Complaints.³ The claims asserted by the Direct-File Plaintiffs⁴ were previously dismissed in their entirety, thus obviating any choice of law analysis for them here. See In re Takata Airbag Products Liab. Litig. , 396 F. Supp. 3d at 1169 & n.17.

1 Maestri Plaintiffs (Georgia Choice of Law Rules): Ericka Black, Tiffany Bolton, Darren Boyd, Daphne Bridges, Randy Brown, Cheryl Butler-Adams, Michael Cahill, Paulette Calhoun, Robert Cervelli, Loretta Collier, Sherri Cook, Vernettia Davis, Diego DelaCruz, Jody Dorsey, Heidi Elliot, Sam Fragale, Julius Fulmore, Mirsad Gacic, Pren Gjuraj, William Goldberg, Melinda M. Harms, Debrah Henry, Charles Hudson, Lillian Johnson, Christopher Michael Knox, Celeste Lewis, Shanetha Livingston, Alexander Lonergan, Scott Lusby, Justin Maestri, Bassam Makhoul, Kenneth Melde, Diana Myers, Kristen Nevares, Aaron Patillo, Omeko Pearson, John F. Phillips, Nancy D. Phillips, Shanella Prentice, Theresa Marie Fusco Radican, Jeffery Reeves, Curtis Scott, Bettie Taylor, Maria de Lourdes Viloria, Marcela Warmsley, Jennifer Wilmoth, Susan Knapp, and Branko Krmpotic.

2 McBride Plaintiffs (Virginia Choice of Law Rules): Edward J. Burki, Maureen Dowds, Michael Farriss, Sandra Herrell, Desiree Jones-Lassiter, Trevor MacLeod, Michael McBride, Annette Montanaro, Nikki Norvell, and Holly Stotler.

3 Alters and Krmpotic Plaintiffs (New Jersey Choice of Law Rules): April Rockstead Barker, Dave Battinieri, Chloe Crater, David De King, Deloris A. Jones, Malia Moore, Delola Nelson-Reynolds, George O'Connor, and Christine Palmer (Alters Complaint); and Branko Krmpotic and Susan Knapp (Krmpotic Complaint).

4 Direct-File Plaintiffs: Efrain Ferrer and Sean McGinity (California); Linda Dean (Kentucky); Pattie Byrd (New Jersey); Glenn Miller (New York); Christopher Allen Cobb and Michael Riddick (North Carolina); Angela Cook (Ohio); Angela Dickie and Antonia Dowling (South Carolina); Alandrix Harris, Latecia J. Jackson, and Chloe Wallace (Texas) (all Volkswagen owners or lessees); Bladimir Busto, Jr., Ramoncito Ignacio, Silvia Gil, Stephanie Puhalla, Charles Sakolsky, Jacqueline Carrillo, Steven Levin, and Harper Tucker (all Florida Audi owners or lessees); and Michael C. Kaufman and Mary Jackson Robinson (all Florida Mercedes owners or lessees).

1. Georgia and Virginia

Georgia and Virginia apply the doctrine of lex loci delicti in tort cases; under this doctrine, a tort action is governed by the substantive law of the state where the tort occurred. See Bullard v. MRA Holding, LLC , 292 Ga. 748, 740 S.E. 2d 622, 625 (2013) ; Jones v. R.S. Jones and Assocs., Inc. , 246 Va. 3, 431 S.E. 2d 33, 34 (1993).

Here, the alleged torts occurred in the state where the vehicles were purchased or leased. And based on where the Maestri and McBride Plaintiffs purchased or leased their vehicles, substantive law applies as follows: Alabama law to Sandra Herrell, Loretta Collier, and Omeko Pearson; Arizona law to Diana Myers; California law to Cheryl Butler-Adams, Michael Cahill, Debrah Henry, Scott Lusby, Justin Maestri, Kristen Nevares, and Marcela Warmsley; Connecticut law to Pren Gjuraj; Georgia law to Paulette Calhoun; Illinois law to Diego DelaCruz, Mirsad Gacic, Melinda M. Harms, and Holly Stotler; Louisiana law to Jeffery Reeves; Massachusetts law to Ericka Black, Robert Cervelli, and Shanella Prentice; Michigan law to Charles Hudson, Shanetha Livingston, Trevor MacLeod, Bassam Makhoul, and Michael McBride; Mississippi law to Bettie Taylor; New Jersey law to Darren Boyd, Maureen Dowds, and Alexander Lonergan; New York law to Edward J. Burki, Jody Dorsey, Heidi Elliot, Annette Montanaro, and Jennifer Wilmoth; North Carolina law to Daphne Bridges, Desiree Jones-Lassiter, and Kenneth Melde; Ohio law to Randy Brown; Oregon law to John F. Phillips, Nancy D. Phillips, and Curtis Scott; Pennsylvania law to Lillian Johnson and Christopher Michael Knox; Rhode Island law to Theresa Marie Fusco Radican; Tennessee law to Aaron Patillo; Texas law to Tiffany Bolton, Sherri Cook, Vernettia Davis, Sam Fragale, Julius Fulmore, Celeste Lewis, Nikki Norvell, and Maria de Lourdes Viloria; Virginia law to Michael Farriss; and Washington law to William Goldberg.

Notably, two plaintiffs do not appear in this list: Susan Knapp and Branko Krmpotic. These Plaintiffs appear in both the Maestri and Krmpotic Complaints. Given that Knapp and Krmpotic are the only named-Plaintiffs in the Krmpotic Complaint, that the Krmpotic Complaint was filed more than six months before the Maestri Complaint, and that the Krmpotic Complaint was transferred to this Court from New Jersey separately from the Maestri Complaint, the Court applies New Jersey's choice of law rules to Knapp's and Krmpotic's claims.

2. New Jersey

New Jersey applies the "most significant relationship" standard in tort cases; under this standard, a tort action is governed by the substantive law of the state where the injury occurred, unless another state has a more significant relationship to the parties and issues. See P.V. ex rel. T.V. v. Camp Jaycee , 197 N.J. 132, 962 A.2d 453, 460 (2008).

Here, because the alleged torts occurred in the state where the vehicles were purchased or leased, substantive law applies as follows: Arkansas law to Chloe Crater; Arizona law to David De King; Connecticut law to Christine Palmer; Florida law to George O'Connor; Illinois law to Delola Nelson-Reynolds; Indiana law to Malia Moore; Iowa law to Susan Knapp; New Jersey law to Branko Krmpotic; New York law to Deloris A. Jones; Pennsylvania law to Dave Battinieri; and Wisconsin law to April Rockstead Barker.

3. Conclusion

Certain claims must be dismissed under this choice-of-law analysis. First, Plaintiff Brett Alters is the only named-Plaintiff from the Transferor Complaints that is not named in the Complaint. Accordingly, Alters's claims are DISMISSED. And second, because the substantive laws of Kentucky and South Carolina do not apply to any named-Plaintiffs, the statutory claims under Kentucky and South Carolina law (Counts 26, 46, 47, and 48) are DISMISSED in full; as are the common law claims (Counts 6–11) to the extent they are asserted under Kentucky and South Carolina law. By extension, all these claims are also DISMISSED as to all putative class members with claims under Kentucky and South Carolina law. See Wooden v. Bd. of Regents of Univ. Sys. of Georgia , 247 F.3d 1262, 1288 (11th Cir. 2001) ("[A] claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.") (quoting Prado-Steiman ex rel. Prado v. Bush , 221 F.3d 1266, 1280 (11th Cir. 2000) ).

Even though Defendants attack these claims with several arguments, for sake of brevity and clarity, the Court will not specifically reference these claims or Defendants’ corresponding arguments elsewhere in this Order. For the same reasons, the Court also will not reference these claims in the conclusion sections of each heading. Where applicable, however, the Court refers to these dismissals as the "choice-of-law dismissals."

Having determined the substantive law that governs the claims of each Plaintiff, the Court will now address the sufficiency of Plaintiffs’ allegations. The Court will begin by reviewing the fraud-based claims (common law and statutory), and then evaluate the remaining common law claims (negligence and unjust enrichment). Finally, the Court will assess the nationwide-class Magnuson-Moss Warranty Act claim and the statewide-class breach of implied warranty claims.

C. NATIONWIDE-CLASS COMMON-LAW FRAUDULENT CONCEALMENT AND STATEWIDE-CLASS STATUTORY CONSUMER PROTECTION CLAIMS

Plaintiffs assert nationwide-class common-law fraudulent concealment claims (Counts 6 and 9) and numerous statewide-class statutory consumer protection claims (Counts 12–13, 15, 17–22, 24–25, 28, 30, 32, 35, 37–41, 43, 45, 49, 51–52, and 54–55). Defendants level numerous arguments for dismissing several of these claims. The Court will first address the arguments common to all "fraud-based" claims, and then address claim-specific arguments. For ease of reference, the Court refers to the common-law fraudulent concealment and statutory consumer protection claims as "fraud-based" claims; this term is both consistent with Defendants’ moving papers and accurately describes the claims.

1. Common Challenges

Defendants argue that all fraud-based claims should dismissed because Plaintiffs fail to adequately allege: (1) that Defendants had actual knowledge of the Takata inflator defect; (2) that Defendants made material misrepresentations or omissions; and (3) that Plaintiffs relied on any of Defendants’ material misrepresentations or omissions. Defendants also urge that several of the fraud-based claims are barred by the economic loss rule of certain states. The Court addresses each argument in turn.

a) Knowledge of Inflator Defect

First, Defendants argue that all fraud-based claims must be dismissed because Plaintiffs fail to allege that Defendants had actual knowledge of the Takata inflator defect. Notably, "knowledge may be alleged generally." In re Takata Airbag Products Liab. Litig. , 396 F. Supp. 3d at 1118 (quoting Fed. R. Civ. P. 9(b) ). And after closely reviewing the allegations in a previous order, the Court specifically found that Plaintiffs sufficiently alleged that Defendants "had independent knowledge of the risks posed by installing Takata airbags in their vehicles." Id. at 1130 ; id. at 1159 ("Plaintiffs’ allegations demonstrate Defendants had knowledge of issues with Takata airbags.").⁵ Thus, the Court will not dismiss any fraud-based claims on this basis.

5 Throughout this litigation, the Court has made the same finding on similar allegations. See In re Takata Airbag Products Liab. Litig. , 193 F. Supp. 3d at 1336 ("The Court finds that Plaintiffs have sufficiently alleged Mazda's knowledge of the alleged inflator defect ...."); In re Takata Airbag Products Liab. Litig. , 255 F. Supp. 3d 1241, 1258 (S.D. Fla. 2017) (same as to Honda).

b) Omissions and Misstatements

Second, Defendants argue that all fraud-based claims must be dismissed because Plaintiffs do not adequately allege that Defendants either failed to disclose the Takata inflator defect, or made any actionable misstatements. Plaintiffs maintain that Defendants breached a duty owed to the Plaintiffs by failing to fully inform them about the nature of the Takata inflator defect. Plaintiffs also contend that Defendants made actionable misstatements by falsely touting the safety of their vehicles.

Earlier in this litigation, this Court ruled that, under the laws of several states, the plaintiffs adequately alleged that certain automotive manufacturing defendants owed to the plaintiffs a duty to disclose the Takata inflator defect. See In re Takata Airbag Prods. Liab. Litig. , No. 14-24009-CV, 2017 WL 2406711, at *5 (S.D. Fla. June 1, 2017) (ruling the plaintiffs adequately alleged that the defendant owed a duty to disclose the Takata inflator defect with respect to nationwide class); In re Takata Airbag Prods. Liab. Litig. , No. 14-24009-CV, 2017 WL 775811, at *4–5 (S.D. Fla. Feb. 27, 2017) (same under California, Florida, South Carolina, and Texas law); In re Takata Airbag Prods. Liab. Litig. , 2016 WL 5848843, at *6–7 (same under Alabama, Florida, Massachusetts, and South Carolina law); In re Takata Airbag Prods. Liab. Litig. , No. 14-24009-CV, 2016 WL 5844872, at *3 (S.D. Fla. June 20, 2016) (same under Alabama law); In re Takata Airbag Prods. Liab. Litig. , 193 F. Supp. 3d at 1337 (same).

This Court explained that "[b]y definition" the plaintiffs could not "point to one particular statement" because an omission is "a non-statement." In re Takata Airbag Products Liab. Litig. , 193 F. Supp. 3d at 1337. In these prior orders, the Court found the duty to disclose was invoked based on the plaintiffs’ allegations that certain automotive manufacturers: (1) failed to disclose their knowledge of the inflator defect prior to the plaintiffs’ purchases; (2) made incomplete representations about the safety and reliability of their vehicles (while purposefully withholding material facts from the plaintiffs that contradicted the representations); and (3) highly touted through marketing materials their vehicles’ safety features and overall safety quality. See id. ; see also In re Takata Airbag Products Liab. Litig. , No. 14-24009-CV, 2016 WL 5848843, at *6 (S.D. Fla. Sept. 21, 2016).

Here, Plaintiffs plead the same. They allege that Defendants had a duty to disclose the Takata inflator defect because they "[h]ad exclusive and/or far superior knowledge and access to the facts, and ... knew the facts were not known to or reasonably discoverable by Plaintiffs," and that Defendants "[i]ntentionally concealed" and "[m]ade incomplete representations about the safety and reliability of the Defective Airbags and Class Vehicles, while purposefully withholding material facts from Plaintiffs that contradicted these representations." (D.E. 2762 at ¶¶ 358, 387.) Therefore, as it has throughout this litigation under similar allegations, see supra , the Court declines to dismiss the fraud-based claims on grounds that Defendants did not have a duty to disclose the inflator defect.⁶

6 Although this analysis does not address the duty to disclose under the laws of specific states, this is because Defendants do not raise state specific arguments. To the extent specific state laws need to be addressed, that can be done at summary judgment. See In re Takata Airbag Products Liab. Litig. , 2017 WL 2406711, at *5 n.12.

Separate from the "unactionable omissions" argument, Defendants also contend that Plaintiffs fail to allege that Defendants made material misstatements. Defendants maintain that statements in marketing materials about the safety of their vehicles are mere statements of opinion or "puffery" that cannot support a fraud claim. Here, Plaintiffs allege that Defendants distributed marketing materials that, among several other safety promotions: (1) touted their vehicles’ standard and optional airbags; (2) asserted that they put safety at the top of their list; (3) promised passive safety features to help protect consumers (including airbag options); and (4) promoted certain vehicles as receiving an Insurance Institute for Highway Safety "top safety pick." (See D.E. 2762 at ¶¶ 220(a)–(e); see also id. at ¶¶ 220(f)–(g), 221(a)–(g).) Plaintiffs then allege that "[c]ontrary to these representations and countless others like them," Defendants "failed to equip Class Vehicles with airbags that would meet these proclaimed standards and failed to disclose to consumers that their vehicles actually contained dangerous and defective airbags." Id. at ¶ 222. And as discussed above, Plaintiffs sufficiently allege that Defendants had actual knowledge of the inflator defect. See supra.

Although the marketing of safety features may be construed as "puffery" when viewed in isolation, such marketing can "cross the line from mere puffery to active misrepresentations" when statements about safety are read next to allegations that an automotive manufacturer had actual knowledge of the alleged safety defect. See In re Gen. Motors LLC Ignition Switch Litig. , 257 F. Supp. 3d 372, 457 (S.D.N.Y. 2017) ; see also In re Toyota Motor Corp. , No. 8:10ML 02151 JVS (FMOx), 2012 WL 12929769, at *18 (C.D. Cal. May 4, 2012) ("Advertising a car as safe and reliable when it actually has a safety-related defect that may render it unable to stop is not ‘within the tolerable range of commercial puffery,’ especially because Toyota allegedly had exclusive knowledge of the SUA defect.").

So, in addition to the duty to disclose, the Court also finds that Plaintiffs’ allegations of material misstatements—i.e. that Defendants continued to promote the safety of their vehicles despite having actual knowledge of the inflator defect—are sufficient to survive the Motion to Dismiss. Of course, at summary judgment or trial, Defendants can present evidence to disprove these allegations. But for now, the claims survive dismissal.

c) Reliance

Third, Defendants argue that all fraud-based claims must be dismissed because Plaintiffs fail to adequately allege reliance on any statements made by Defendants. Earlier in this case, Takata and Subaru moved to dismiss fraud-based claims on the same ground. Against Takata, the plaintiffs alleged that "omissions and concealed material facts about the defective airbags caused Plaintiffs’ injuries" and that but-for the "omissions of a dangerous safety defect—a highly material fact for consumers—[the p]laintiffs would not have purchased the vehicles or would not have paid as much for them as they did." In re Takata Airbag Products Liab. Litig. , 2017 WL 2406711, at *6. The Court ruled that these allegations "suffice[d] to allege causation and reliance" against Takata, see id. , as well as against Subaru, see In re Takata Airbag Products Liab. Litig. , 2016 WL 5844872, at *3–4 ("Plaintiffs have sufficiently alleged that Subaru's omissions caused them to purchase Subaru vehicles. For these reasons, the Court finds that Plaintiffs have also plausibly alleged detrimental reliance.").

Similarly here, Plaintiffs allege they "were unaware of ... omitted material facts," "would not have acted as they did if they had known of the concealed or suppressed facts," and that "[h]ad they been aware of the Defective Airbags installed in the Class Vehicles ... [they] either would not have paid as much for their Class Vehicles, or they would not have purchased or leased them at all." (D.E. 2762 ¶¶ 363–64, 392–93.) Once more, these allegations sufficiently plead reliance. Accordingly, the Court will not dismiss any fraud-based claims on this ground.

d) Economic Loss Bars

Finally, Defendants argue that certain fraud-based claims are barred by the economic loss rule. Plaintiffs urge that several states recognize a fraud exception to the economic loss rule, and thus their statutory and common law fraud-based claims can proceed under the laws of these states.

(1) Statutory Consumer Protection Claims

Beginning with the statutory claims, Defendants argue that the claims for violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (Count 43) and North Carolina's Unfair or Deceptive Trade Practices Act (Count 39) must be dismissed under the economic loss rule of each state.

Here, the Court finds that the claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law is barred by the economic loss rule. (See Werwinski v. Ford Motor Co. , 286 F.3d 661, 681 (3d Cir. 2002) (affirming dismissal of Unfair Trade Practices and Consumer Protection Law claim as barred by economic loss rule); see also D.E. 1208 at 9 (ruling same under Werwinski ).) Plaintiffs offer no argument to the contrary. Accordingly, Count 43 is DISMISSED .

The Court finds, however, that the claim under North Carolina's Unfair or Deceptive Trade Practices Act is not barred by the economic loss rule. North Carolina courts have "declined to extend" the economic loss rule "to fraud and negligent misrepresentation claims." SAS Inst. Inc. v. World Programming Ltd. , No. 5:10-CV-25-FL, 2013 WL 12171748, at *8 (E.D.N.C. Aug. 8, 2013) (citing Club Car, Inc. v. Dow Chemical Co. , No. 06 CVS 15530, 2007 WL 2570088, at *4 (N.C. Super. May 3, 2007) ("The North Carolina appellate courts have yet to extend the application of the economic loss doctrine to bar claims based on fraud.")).

Defendants argue, citing Coker v. DaimlerChrysler Corp. , No. 01 CVS 1264, 2004 WL 32676, at *3 & n.3 (N.C. Super. Jan. 5, 2004), that North Carolina does not recognize a fraud exception to the economic loss rule. Although the Superior Court in Coker applied the economic loss rule to bar fraud claims arising from the sale of an allegedly defective automobile under North Carolina statute and common law, see id. , the North Carolina Court of Appeals "specifically decline[d] to address this issue" because it found that plaintiffs lacked standing to assert either claim, see Coker v. DaimlerChrysler Corp. , 172 N.C.App. 386, 617 S.E. 2d 306, 314 (2005). And then, the Supreme Court of North Carolina affirmed the Court of Appeals without comment. See Coker v. DaimlerChrysler Corp. , 360 N.C. 398, 627 S.E.2d 461 (N.C. 2006) (per curiam ). Thus, Coker does not establish that fraud claims are barred by the North Carolina economic loss rule.

To assert a tort claim under North Carolina's Unfair or Deceptive Trade Practices Act based on the same conduct giving rise to a breach of contract claim, "a plaintiff must allege a duty owed by the defendant that is separate and distinct from duties owed pursuant to the contract." SAS Inst. Inc. , 2013 WL 12171748, at *8 (citing Vanwyk Textile Sys., B.V. v. Zimmer Mach. Am., Inc. , 994 F. Supp. 350, 362 (W.D.N.C. 1997) ). And under North Carolina law, a party to a contract "owes the other contracting party a separate and distinct duty not to provide false information to induce the execution of the contract." Schumacher Immobilien Und Beteiligungs AG v. Prova, Inc. , No. 1:09cv00018, 2010 WL 3943754, at *2 (M.D.N.C. Oct. 7, 2010) (citing Kindred of N.C., Inc. v. Bond , 160 N.C.App. 90, 584 S.E. 2d 846, 853 (2003) (ruling defendant "owed a duty to provide accurate, or at least negligence-free financial information" to the plaintiff)).

Here, Plaintiffs allege that Defendants "failed to disclose and actively concealed the dangers and risks posed by the Class Vehicles and/or the Defective Airbags installed in them," "with intent that others rely upon such concealment, suppression or omission, in connection with the sale of the Class Vehicles and/or the Defective Airbags installed in them," and, importantly, that had Plaintiffs "been aware of the Inflator Defect that existed in the Class Vehicles and/or the Defective Airbags installed in them, and Defendants’ complete disregard for safety," then Plaintiffs would not have purchased their vehicles or paid as much for them. (See D.E. 2762 at ¶¶ 869–70, 882.) The Court finds that these allegations sufficiently allege that Defendants had a "separate and distinct duty" under North Carolina law to not provide false information to induce the purchase of Defendants’ vehicles. Thus, the claim under North Carolina's Unfair or Deceptive Trade Practices Act is not barred by the economic loss rule.

(2) Common Law Claims

Turning to the common-law fraudulent concealment claims, Defendants argue that fraudulent concealment claims under the laws of Arizona, California, Indiana, Michigan, New Jersey, New York, Ohio, and Wisconsin are barred by the economic loss rule. Plaintiffs respond that all these states (aside from California) recognize a fraudulent inducement exception to the economic loss rule.

Here, the Court agrees with Plaintiffs and finds that their fraudulent concealment allegations sufficiently invoke the fraud exceptions to the economic loss rules of these states. Earlier in this case, the Court confronted a similar economic loss challenge by Takata to fraudulent concealment claims under Indiana and Michigan law. The Court explained that the fraudulent concealment claims were "extraneous to any contractual dispute" because the claims sought relief for "misrepresentations that allegedly induced Plaintiffs to purchase vehicles, but [did] not themselves constitute contract or warranty terms." In re Takata Airbag Products Liab. Litig. , 2017 WL 2406711, at *7. After determining that Michigan recognized, and that Indiana would recognize, the fraudulent concealment exception to the economic loss rule, the Court ruled that the fraudulent concealment claims were not barred by the economic loss rule in this case. See id. (citing Huron Tool & Eng'g Co. v. Precision Consulting Servs., Inc. , 209 Mich.App. 365, 532 N.W. 2d 541, 545 (1995) ; JMB Mfg., Inc. v. Child Craft, LLC , 799 F.3d 780, 788 (7th Cir. 2015) (citing U.S. Bank, N.A. v. Integrity Land Title Corp. , 929 N.E. 2d 742 (Ind. 2010) )).

Notably, before allowing the fraudulent concealment claims to proceed against Takata, the Court also rejected Takata's argument that it did not have a duty to disclose facts and that the plaintiffs did not allege reliance and causation—the same arguments brought by Defendants here. See In re Takata Airbag Products Liab. Litig. , 2017 WL 2406711, at *5–6. Here, as discussed above, Plaintiffs also sufficiently allege that Defendants had a duty to disclose the inflator defect and that but-for Defendants’ omissions, Plaintiffs would not have purchased Defendants’ vehicles or paid as much for them. See supra. Consequently, the Court finds, as it did earlier in this litigation, that the fraudulent concealment allegations sufficiently invoke the fraud exception to the economic loss rule under the laws of Indiana and Michigan. See supra.

By extension, the Court also finds that the allegations invoke the fraud exceptions to the economic loss rules of Arizona, New Jersey, New York, Ohio, and Wisconsin. See Martin v. Weed Inc. , No. CV-18-00027-TUC-RM, 2018 WL 2431837, at *6–7 (D. Ariz. May 30, 2018) (applying fraud exception to economic loss rule under Arizona law) ; G & F Graphic Services, Inc. v. Graphic Innovators, Inc. , 18 F. Supp. 3d 583, 593 (D.N.J. 2014) (same under New Jersey law); In re Gen. Motors LLC Ignition Switch Litig. , 257 F. Supp. 3d at 432–33 (same under New York law) (collecting cases); Agilysys, Inc. v. Gordon , No. 1:06 CV 1665, 2008 WL 11377731, at *6–7 (N.D. Ohio Jan. 11, 2008) (same under Ohio law) (collecting cases); Digicorp, Inc. v. Ameritech Corp. , 262 Wis.2d 32, 662 N.W. 2d 652, 661–63 (2003) (same under Wisconsin law).

For these reasons, Counts 6 and 9 are DISMISSED only as to the California named-Plaintiffs: Cheryl Butler-Adams, Michael Cahill, Debrah Henry, Scott Lusby, Justin Maestri, Kristen Nevares, and Marcela Warmsley. The Court will now turn to the claim-specific challenges.

2. Specific Challenges to Statutory Consumer Protection Claims

Defendants advance three challenges to the statutory consumer protection claims. First, Defendants assert that class claims are barred under the laws of seven states. Second, Defendants argue that claims in nine states are time-barred. And finally, Defendants contend that the claim under the Ohio Consumer Sales Practices Act fails for lack of notice. The Court addresses each argument in turn.

a) Class Action Bars

First, Defendants argue that the statutory consumer protection claims under the laws of Alabama, Arkansas, Georgia, Louisiana, Tennessee, and Virginia must be dismissed because the statutes of these states bar class claims. Plaintiffs disagree. They argue that Federal Rule of Civil Procedure 23 controls procedural issues in federal class actions, and that prevailing Eleventh Circuit authority forecloses Defendants’ argument.

To start, Eleventh Circuit precedent governs this federal question. See In re Managed Care Litig. , 150 F. Supp. 2d at 1336 (citing Murphy , 208 F.3d at 966 (citing In re Korean Air Lines Disaster of September 1, 1983 , 829 F.2d at 1176 )). In the Eleventh Circuit, Rule 23 controls whether a plaintiff can assert a class action claim under a state statute that forbids class actions. See Lisk v. Lumber One Wood Preserving, LLC , 792 F.3d 1331, 1336 (11th Cir. 2015). The "only issue" becomes whether Rule 23 "abridges, enlarges, or modifies a ‘substantive right.’ " Id. at 1337 (quoting 28 U.S.C. § 2072(b) ). In Lisk , the Eleventh Circuit held that Rule 23 altered the plaintiff's substantive rights and obligations under the Alabama Deceptive Trade Practices Act "not a whit" because "with or without Rule 23, the parties ha[d] the same substantive rights and responsibilities." Id. Then, finding "no relevant, meaningful distinction between a statutorily created penalty of the kind at issue in [ Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. , 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ], on the one hand, and a statutorily created claim for deceptive practices" under the Alabama statute, the Eleventh Circuit further held that Rule 23 did not bar the plaintiff's class claim under the Alabama statute. See Lisk , 792 F.3d at 1335–38.⁷ Here, Plaintiffs assert class claims under the consumer protection laws of Alabama, Arkansas, Georgia, Louisiana, Tennessee, and Virginia. Following the reasoning in Lisk —that Rule 23 alters substantive rights and obligations under deceptive trade practices statutes "not a whit," id. at 1337 —the Court finds that Plaintiffs’ class claims under these statutes can proceed in this federal court. See Cardenas v. Toyota Motor Corp. , 418 F. Supp. 3d 1090, 1106–07 (S.D. Fla. 2019) (ruling Rule 23 permitted federal class action under Tennessee Consumer Protection Act, despite class action bar under state law); In re Dealer Mgmt. Sys. Antitrust Litig. , 362 F. Supp. 3d 510, 553 (N.D. Ill. 2019) (ruling same as to the Arkansas Deceptive Trade Practices Act, Georgia's Fair Business Practices Act, and the South Carolina Unfair Trade Practices Act); In re Hydroxycut Mktg. & Sales Practices Litig. , 299 F.R.D. 648, 652–54 (S.D. Cal. 2014) (ruling same as to Georgia's Fair Business Practices Act, Louisiana's Unfair Trade Practices and Consumer Protection Law, the South Carolina Unfair Trade Practices Act, and the Tennessee Consumer Protection Act); In re Myford Touch Consumer Litig. , No. 13-cv-03072-EMC, 2016 WL 7734558, at *27 (N.D. Cal. Sept. 14, 2016) (ruling same as to the Virginia Consumer Protection Act).

7 In the wake of the Eleventh Circuit's ruling in Lisk , the Alabama legislature amended the Alabama Deceptive Trade Practices Act to provide that the class action bar is a "substantive limitation" and that "allowing a consumer or other person to bring a class action ... would abridge, enlarge, or modify the substantive rights created by [the law]." Ala. Code § 8-19-10(f) (effective 2016).
This amendment does not, however, subvert Lisk. Whether the Alabama legislature "chooses to label something a ‘substantive right’ is certainly not dispositive of, and perhaps not even relevant to, to the matter of whether a substantive right actually is at stake for Rules Enabling Act purposes." Jones v. Coty Inc. , 362 F. Supp. 3d 1182, 1199–1200 (S.D. Ala. 2018) (ruling Lisk ’s analysis "remains fully intact after the 2016 amendment to the ADTPA").
Two other federal district courts in Alabama reached the same conclusion. See Phillips v. Hobby Lobby Stores, Inc. , No. 2:16-cv-00837-JEO, 2019 WL 8229168, at *5 (N.D. Ala. Sept. 30, 2019) ("Unless and until the Alabama legislature truly changes the substance of the law, Lisk controls and the court is bound to follow it."); Carter v. L'Oreal USA, Inc. , Civil Action No. 16-00508-CG-B, 2017 WL 4479368, at *3 (S.D. Ala. Sept. 21, 2017) ("Clearly, the fact that Alabama has deemed ADTPA's limitation on class actions a ‘substantive limitation’ does not mean that permitting Rule 23 class actions under ADTPA has affected a substantive right provided by the state."), report and recommendation adopted , 2017 WL 4478008 (S.D. Ala. Oct. 6, 2017).

b) Time Bars

Second, Defendants argue that the statute of limitations bars certain named-Plaintiffs’ statutory consumer protection claims under the laws of Alabama, Connecticut, Florida, Indiana, Louisiana, Michigan, New York, and Rhode Island. Defendants maintain that for these plaintiffs, either their state does not apply a discovery rule and thus the claims accrued at the time of purchase and are now time-barred, or alternatively, that their state applies a discovery rule, but certain plaintiffs admittedly discovered the defect outside of the applicable time limitation. Defendants also urge that fraudulent concealment tolling does not apply to save these time-barred claims.

Plaintiffs respond that none of the statutory consumer protection claims are time-barred (except the Louisiana Unfair Trade Practices and Consumer Protection Law claim (Count 28), which is accordingly DISMISSED ). Beginning with the fraudulent concealment tolling arguments, the Court addresses the remaining states.

Earlier in this litigation, this Court ruled that the plaintiffs’ allegations were sufficient to toll the statute of limitations in states that recognize fraudulent concealment tolling, such as Alabama, Connecticut, Florida, Indiana, and Rhode Island. See In re Takata Airbag Prod. Liab. Litig. , 2017 WL 2406711, at *13 (Connecticut, Indiana, and Rhode Island, among other states); In re Takata Airbag Products Liab. Litig. , No. 14-24009-CV, 2016 WL 6072406, at *11–12 (S.D. Fla. Oct. 14, 2016) (Alabama and Florida). Like those states, Michigan and New York also recognize fraudulent concealment tolling. See Frank v. Linkner , 500 Mich. 133, 894 N.W. 2d 574, 583 (2017) (citing Mich. Comp. Laws Ann. § 600.5855 ); Zumpano v. Quinn , 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E. 2d 926, 929 (2006) (citing Simcuski v. Saeli , 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E. 2d 713, 716 (1978) ).

Here, the Court finds that the allegations (as set out above) are substantially similar to the allegations asserted earlier in this case that the Court found sufficient to invoke fraudulent concealment tolling. See supra. The allegations detail Defendants’ knowledge of the risks posed by the Takata airbags installed in their vehicles, Defendants’ failure to fully investigate or disclose the seriousness of the issue to consumers or regulatory authorities, and their continued selling and leasing of vehicles installed with Takata airbags. (See D.E. 2762 at ¶¶ 157–218, 238–43.) Viewing these allegations in the light most favorable to Plaintiffs, as the Court must at the motion to dismiss stage, the Court again finds that fraudulent concealment tolling applies. Thus, the statutory consumer protection claims under the laws of Alabama, Connecticut, Florida, Indiana, Michigan, New York, and Rhode Island survive for now.

c) Lack of Notice (Ohio)

Finally, Defendants argue that the Ohio Consumer Sales Practices Act claim (Count 40) must be dismissed for lack of notice. To state a claim under the Act, a plaintiff must allege "two elements: notice and injury." Gerboc v. ContextLogic, Inc. , 867 F.3d 675, 680 (6th Cir. 2017). "Notice is defendant-focused: The consumer must show either that the Ohio Attorney General had already ‘declared [the seller's practice] to be deceptive or unconscionable’ or that an Ohio court had already ‘determined [the practice] ... violate[s] [the OCSPA]’ before the seller engaged in it." Id. (alternations in original) (quoting Ohio Rev. Code Ann. § 1345.09(B) ).

Here, Plaintiffs do not allege notice (see D.E. 2762 ¶¶ at 888–910), nor do they respond to Defendants’ argument (see D.E. 3034 at 120–48). As such, Count 40 is DISMISSED for failure to allege notice.

3. Conclusion

In summary, Counts 6 and 9 are DISMISSED as to all California named-Plaintiffs: Cheryl Butler-Adams, Michael Cahill, Debrah Henry, Scott Lusby, Justin Maestri, Kristen Nevares, and Marcela Warmsley. By extension, these claims are also DISMISSED as to all putative class members with fraudulent concealment claims under California law. See Wooden , 247 F.3d at 1288 ("[A] claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.") (quoting Prado-Steiman , 221 F.3d at 1280 ).

After accounting for the choice-of-law dismissals and the states excluded by Plaintiffs,⁸ surviving and proceeding to summary judgment are the fraudulent concealment claims of all named-Plaintiffs whose claims are governed under the laws of Alabama, Arizona, Arkansas, Connecticut, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, Tennessee, Texas, Virginia, Washington, and Wisconsin.

8 The Complaint specifically excludes from this claim consumers from Florida and Pennsylvania. (See D.E. 2762 at ¶¶ 353, 382.)

As for the statutory consumer protection claims, only the claims under the Louisiana Unfair Trade Practices and Consumer Protection Law (Count 28), the Ohio Consumer Sales Practices Act (Count 40), and Pennsylvania's Unfair Trade Practices and Consumer Protection Law (Count 43) are DISMISSED . The statutory consumer protection claims in Counts 12–13, 15, 17–22, 24–25, 30, 32, 35, 37–39, 41, 45, 49, 51–52, and 54–55 will proceed.

D. REMAINING NATIONWIDE-CLASS COMMON-LAW CLAIMS

The Court will now address Defendants’ challenges to the nationwide-class common-law negligence (Counts 7 and 10) and unjust enrichment (Counts 8 and 11) claims. Plaintiffs explain that these claims are asserted against all Defendants "under the common law of" negligence and unjust enrichment because "there are no true conflicts (case-dispositive differences) among various states’ laws." (See D.E. 2762 at ¶¶ 369, 376, 398, 405.) Alternatively, though, these claims are asserted under the laws of the states where the vehicles were purchased. At this stage, the Court will determine whether Plaintiffs state negligence and unjust enrichment claims under applicable state common law. Cf. In re Takata Airbag Products Liab. Litig. , 2017 WL 2406711, at *5 (evaluating nationwide fraudulent concealment claim under applicable state common law). The Court begins with the negligence claims and then proceeds to the unjust enrichment claims.

1. Negligence (Counts 7 and 10)

After accounting for the choice-of-law dismissals and the states excluded by Plaintiffs,⁹ negligence claims remain under the laws of Arkansas, Arizona, Connecticut, Georgia, Indiana, Iowa, Louisiana, Mississippi, New Jersey, New York, Ohio, Oregon, Rhode Island, Tennessee, Texas, Virginia, Washington, and Wisconsin.

9 The Complaint specifically excludes from this claim consumers from Alabama, California, Florida, Illinois, Massachusetts, Michigan, Nevada, North Carolina, Pennsylvania, and South Carolina. (See D.E. 2762 at ¶¶ 369, 398.)

Defendants argue that all these claims (except the claims under Arkansas, Louisiana, Rhode Island, and Virginia law) should be dismissed as barred by the applicable economic loss rules. Plaintiffs do not contest this argument, and instead maintain that negligence claims should proceed under the laws of Arkansas, Louisiana, and Rhode Island because these states have not adopted the economic loss rule. In turn, Defendants do not contest this argument. And the only remaining state, Virginia, bars negligence claims under the economic loss doctrine if the only damages claimed are for "purely economic loss, as opposed to damages for injury to property or persons." Burner v. Ford Motor Co. , 52 Va. Cir. 301 (Va. Cir. Ct. 2000) (citing Copenhaver v. Rogers , 238 Va. 361, 384 S.E. 2d 593, 595 (1989) (citing Sensenbrenner v. Rust, Orling & Neale, Architects, Inc. , 236 Va. 419, 374 S.E. 2d 55, 58 (Va. 1988) )).

Taken together, then, Counts 7 and 10 are DISMISSED as to all named-Plaintiffs whose negligence claims are governed under the laws of Arizona, Connecticut, Georgia, Indiana, Iowa, Mississippi, New Jersey, New York, Ohio, Oregon, Tennessee, Texas, Virginia, Washington, and Wisconsin. By extension, these claims are also DISMISSED as to all putative class members with negligence claims under the laws of these states. See Wooden , 247 F.3d at 1288 ("[A] claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.") (quoting Prado-Steiman , 221 F.3d at 1280 ).

As for the surviving claims, Counts 7 and 10 will proceed as to all named-Plaintiffs whose negligence claims are governed under the laws of Arkansas (Chloe Crater), Louisiana (Jeffery Reeves), and Rhode Island (Theresa Marie Fusco Radican).

2. Unjust Enrichment (Counts 8 and 11)

Plaintiffs also assert nationwide-class common-law unjust enrichment claims. Defendants argue that certain unjust enrichment claims should be dismissed because: (1) they are barred by express warranties; (2) no direct benefit was conferred by Plaintiffs on Defendants; (3) Plaintiffs received the benefit of their bargain; and (4) Alabama law does not permit unjust enrichment class actions. The Court addresses each argument in turn.

a) Adequate Remedy at Law (Express Warranties)

First, Defendants argue that certain Plaintiffs cannot state equitable unjust enrichment claims because they have an adequate legal remedy under contract law through the express warranties covering their vehicles. Plaintiffs urge that their claims can proceed because Defendants fail to show the existence of any written contracts and that, in any event, Plaintiffs can plead equitable unjust enrichment claims in the alternative to their remaining legal claims.

Previously, the Court denied a motion to dismiss by Mazda that raised the same argument advanced by Defendants here. See In re Takata Airbag Products Liab. Litig. , 193 F. Supp. 3d at 1344–45. There, Mazda attached the applicable express warranty to its motion to dismiss—which the plaintiff did not deny the existence of, and even conceded that his vehicle was then covered or previously covered by a written warranty. Id. at 1344. Even so, the Court denied Mazda's motion to dismiss because an unjust enrichment claim "can exist only if the subject matter of that claim is not covered by a valid and enforceable contract." Id. (quoting In re Managed Care Litig. , 185 F. Supp. 2d 1310, 1337–38 (S.D. Fla. 2002) ). And not only did Mazda fail to "prove[ ] that the contract [was] enforceable," but the plaintiff alleged that he had no adequate remedy at law and that the warranty was procedurally and substantively unconscionable. Id. at 1344–45.

Similarly here, Plaintiffs allege that they do not have an adequate remedy at law, and that the warranties are not enforceable because they are procedurally and substantively unconscionable. (See D.E. 2762 at ¶¶ 341–43, 380, 409.) But unlike before, Defendants do not even attempt to provide the Court with any written express warranties covering any of Plaintiffs’ vehicles; Defendants thus fail to show that any of Plaintiffs’ vehicles are covered by a written, valid, and enforceable contract. And so the Court declines to dismiss any unjust enrichment claims on this basis. See In re Takata Airbag Products Liab. Litig. , 193 F. Supp. 3d at 1344–45 ; see also In re Takata Airbag Products Liab. Litig. , 2017 WL 775811, at *6 (citing Mazda order and ruling same).¹⁰ In subsequent orders, the Court issued the same ruling as to "any state's law" on this ground. See In re Takata Airbag Products Liab. Litig. , 255 F. Supp. 3d at 1260 ; see also In re Takata Airbag Products Liab. Litig. , 2016 WL 5848843, at *8–9. The Court does so here as well. And regardless of whether Plaintiffs’ allegations are sufficient under the laws of each state to preclude dismissal on express warranty grounds, Plaintiffs are allowed to assert equitable unjust enrichment claims in the alternative to their legal claims. See Tershakovec v. Ford Motor Co. , No. 17-21087-CIV, 2018 WL 3405245, at *14 (S.D. Fla. July 12, 2018) (citing Martorella v. Deutsche Bank Nat. Tr. Co. , 931 F. Supp. 2d 1218, 1227–28 (S.D. Fla. 2013) ("Plaintiff may, however, maintain an equitable unjust enrichment claim in the alternative to her legal claims against Defendants."); Fed. R. Civ. P. 8(a)(3), (d)(2) (permitting pleading in the alternative)). This is because it is "only upon a showing that an express contract exists between the parties that the unjust enrichment count fails." In re Takata Airbag Products Liab. Litig. , 193 F. Supp. 3d at 1344 (emphasis added) (quoting State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc. , 427 F. App'x 714, 722 (11th Cir. 2011) ), rev. on other grounds , 824 F.3d 1311 (11th Cir. 2014). And because Defendants have not made this showing here, their motion to dismiss "on these grounds is premature." Martorella , 931 F. Supp. 2d at 1228.

10 Although Defendants summarily argue in passing that Plaintiffs fail to offer any facts showing unconscionability, Defendants have not produced the applicable written express warranties. Thus, the Court need not reach this cursory contention. (See D.E. 1208 at 20 (addressing Nissan's unconscionability argument only after "Nissan attached the express warranty covering [the plaintiff's vehicle] to its Motion," and then, only after the Court found that the warranty was "central to Plaintiffs’ claims and that Plaintiffs ha[d] not disputed the authenticity of the attached warranty").)

Finally, even though "equitable relief ultimately may not be awarded [because] there exists an adequate remedy at law," Plaintiffs "certainly may plead alternative equitable relief" at this stage. Adelphia Cable Partners, Inc. v. E & A Beepers Corp. , 188 F.R.D. 662, 666 (S.D. Fla. 1999). Provided there is evidence proving the existence of enforceable written express warranties, Defendants may renew their argument at summary judgment. But for now, the claims survive.

b) Direct Benefit

Next, Defendants advance two similar arguments for dismissing certain unjust enrichment claims on "direct benefit" grounds. Defendants first argue that several claims should be dismissed because certain Plaintiffs did not purchase their vehicles from an authorized Mercedes, Audi, or Volkswagen dealership. In earlier orders, this Court ruled that, under the laws of several states, a direct benefit is conferred on an automotive manufacturer where a plaintiff purchases or leases his vehicle from a dealership affiliated with the automotive manufacturer. See In re Takata Airbag Products Liab. Litig. , 255 F. Supp. 3d at 1260–64 (ruling such under the laws of Alabama, Arizona, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Massachusetts, Nevada, New Jersey, Ohio, Oregon, Rhode Island, Tennessee, Texas, Virginia, West Virginia, and Washington); In re Takata Airbag Products Liab. Litig. , 193 F. Supp. 3d at 1343 (ruling same under Alabama and Pennsylvania law); In re Takata Airbag Products Liab. Litig. , 2016 WL 5848843, at *10–11 (ruling same under the laws of Alabama, Florida, Massachusetts, Nevada, Pennsylvania, and South Carolina). These rulings apply equally here. See infra.

Defendants’ second argument is that claims under the laws of Connecticut, Florida, New Jersey, Pennsylvania, and Wisconsin fail for the additional reason that these states require that a plaintiff directly confer a benefit on a defendant. Despite previously addressing unjust enrichment claims under Connecticut, Florida, New Jersey, and Pennsylvania law, Defendants still maintain, with supporting authority, that these unjust enrichment claims should be dismissed (as well as the claim under Wisconsin law) because Plaintiffs do not allege that they directly conferred a benefit on Defendants. The Court will address these arguments below while analyzing, on a state-by-state basis, the unjust enrichment allegations of individual Plaintiffs.

(1) Alabama

Alabama law applies to the claims of Plaintiffs Loretta Collier, Sandra Herrell, and Omeko Pearson. The Court finds that Herrell's unjust enrichment claim can proceed because she purchased her new Audi "from Hiley Volkswagen of Huntsville." (D.E. 2762 at ¶ 79.) Collier's and Pearson's claims, however, are DISMISSED because they purchased their Mercedes vehicles "from Camping World" and "Kimpco Auto," respectively, and they offer no additional allegations from which the Court could infer that Camping World or Kimpco Auto have any affiliation with Mercedes. Id. at ¶¶ 55, 111.

(2) Arizona

Arizona law applies to the claims of Plaintiffs David De King and Diana Myers. The Court finds that De King's unjust enrichment claim can proceed because he purchased his new Volkswagen "from San Tan Volkswagen." Id. at ¶ 60. Myers's claim, however, is DISMISSED because her new Mercedes was purchased "from Bill Heard Chevrolet, Inc." and she offers no additional allegations from which the Court could infer that Bill Heard Chevrolet, Inc. has any affiliation with Mercedes. Id. at ¶ 104.

(3) Connecticut

Connecticut law applies to the claims of Plaintiffs Pren Gjuraj and Christine Palmer. Despite the Court's previous ruling under Connecticut law, Defendants argue that Connecticut unjust enrichment claims fail because "absent an allegation of purchases directly from the defendant, no cause of action for unjust enrichment may lie." (D.E. 2988-1 at 71) (quoting Granito v. Int'l Bus. Machines , 2003 WL 1963161, at *2 (Conn. Super. Ct. Apr. 16, 2003).)

In Breen v. Judge —the only opinion by a higher Connecticut court that address Granito —the Appellate Court of Connecticut explained that neither itself, nor the Supreme Court of Connecticut "has specifically addressed the question of whether an alleged benefit must be directly conferred on a defendant in order for a court to find that the defendant has been unjustly enriched." 124 Conn.App. 147, 4 A.3d 326, 335 (2010) (explaining also that "decisions of the Superior Court appear to be divided on this issue"). Furthermore, multiple rulings from the Superior Court of Connecticut have disagreed with Granito . See Stefan v. P.J. Kids, LLC , No. X01CV040185513S, 2005 WL 834208, at *3 n.7 (Conn. Super. Ct. Mar. 1, 2005) (concluding Granito ’s ruling was based on a misreading of United Coastal Indus., Inc. v. Clearheart Const. Co., Inc. , 71 Conn.App. 506, 802 A.2d 901 (2002) because " United Coastal simply doesn't say that"); HSBC Bank SA, Nat. Ass'n v. D'Agostino , No. FSTCV096002754S, 2015 WL 3797990, at *12 (Conn. Super. Ct. May 21, 2015) ("The court finds itself more in agreement with the analysis found in the Stefan case where the court flatly rejected the direct relationship requirement, refusing to read United Coastal Industries as mandating such a relationship."). Because neither the Supreme Court nor Appellate Court of Connecticut has resolved the split in the Superior Court, the Court finds, consistent with its previous ruling, that a direct conferral is not required to state a claim for unjust enrichment under Connecticut law.

Turning to the allegations, the unjust enrichment claims can proceed for Gjuraj and Palmer because their vehicles were purchased from dealerships affiliated with Mercedes and Volkswagen. (See D.E. 2762 at ¶ 74 (Gjuraj purchased his used Mercedes "from Mercedes-Benz of Greenwich"); id. at ¶ 109 (Palmer purchased her new Volkswagen "from New Milford Volkswagen").)

(4) Florida

Florida law applies to Plaintiff George O'Connor's unjust enrichment claim. Despite the Court's previous rulings under Florida law, Defendants argue that Florida unjust enrichment claims fail because "the plaintiff must directly confer a benefit to the defendant." (D.E. 2988-1 at 72) (quoting Kopel v. Kopel , 229 So. 3d 812, 818 (Fla. 2017).)

As this Court previously explained, "[a] plaintiff may confer a direct benefit through indirect contact with a defendant through an intermediary." See In re Takata Airbag Products Liab. Litig. , 2017 WL 2406711, at *9 (quoting Williams v. Wells Fargo Bank N.A. , No. 11-21233-CIV, 2011 WL 4901346, at *5 (S.D. Fla. Oct. 14, 2011) ("It would not serve the principles of justice and equity to preclude an unjust enrichment claim merely because the ‘benefit’ passed through an intermediary before being conferred on a defendant."); citing Romano v. Motorola, Inc. , No. 07-CIV-60517, 2007 WL 4199781, at *2 (S.D. Fla. Nov. 26, 2007) ("Defendant erroneously equates direct contact with direct benefit in arguing that because plaintiff here did not purchase either his phone or his batteries from Motorola, plaintiff conferred no direct benefit on Motorola.") (emphasis in original; internal citation and quotations omitted)); see also In re Takata Airbag Products Liab. Litig. , 2017 WL 775811, at *6 (ruling same and citing same); In re Takata Airbag Products Liab. Litig. , 2016 WL 5848843, at *9 (ruling same and citing same).

Defendants do not cite any authority contradicting Williams or Romano , or this Court's previous rulings on this point. And aside from the isolated reference in Kopel to one element of an unjust enrichment claim, Defendants do not cite any authority ruling that a direct benefit can only be conferred through direct contact. Without such authority, the Court, consistent with its previous rulings, finds that direct contact is not required to state a claim for unjust enrichment under Florida law.

Turning to the allegations, O'Connor's unjust enrichment claim can proceed because he purchased his new Volkswagen "from Kuhn Volkswagen." (D.E. 2762 at ¶ 108.)

(5) Georgia

Georgia law applies to Plaintiff Paulette Calhoun's unjust enrichment claim. And her claim is DISMISSED because her used Mercedes was purchased "from a private individual" and she offers no additional allegations from which the Court could infer that the private individual has any affiliation with Mercedes. Id. at ¶ 51.

(6) Illinois

Illinois law applies to the claims of Plaintiffs Diego DelaCruz, Mirsad Gacic, Melinda M. Harms, Delola Nelson-Reynolds, and Holly Stotler. The Court finds that claims can proceed for DelaCruz, Gacic, and Harms because their vehicles were purchased from Defendant-affiliated dealerships. See id. at ¶ 62 (DelaCruz purchased his used Mercedes "from Mercedes of Naperville"); id. at ¶ 72 (Gacic purchased his used Mercedes "from Grossinger Motors Mercedes-Benz"); id. at ¶ 76 (Harms purchased her new Mercedes "from Sud's Motor Car Company Mercedes-Benz"). Nelson-Reynolds's and Stotler's claims, however, are DISMISSED because their used vehicles were purchased "from Golf Mill Ford" and "from Auto Gallery Chicago," respectively, and they offer no additional allegations from which the Court could infer that Golf Mill Ford or Auto Gallery Chicago have any affiliation with Defendants. Id. at ¶¶ 105, 121. (7) Indiana

Indiana law applies to Plaintiff Malia Moore's unjust enrichment claim. And her claim is DISMISSED because her used Volkswagen was purchased "from Whitewater Motor Company" and she offers no additional allegations from which the Court could infer that Whitewater Motor Company has any affiliation with Volkswagen. Id. at ¶ 103

(8) Louisiana

Louisiana law applies to Plaintiff Jeffery Reeves's unjust enrichment claim. The Court has not previously addressed unjust enrichment claims under Louisiana law.

In Louisiana, "[a] person who has been enriched without cause at the expense of another person is bound to compensate that person.... The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less." La. Civ. Code Ann. art. 2298. "The comments to art. 2298 state that a person is enriched when his patrimony is increased or his liabilities diminish. Likewise, a person is impoverished when his patrimony decreases or his liabilities increase. There must be a direct or indirect causal connection between one person's enrichment and another person's impoverishment." See Hanger One MLU, Inc. v. Unopened Succession of Rogers , 981 So. 2d 175, 183 (La. Ct. App. 2008) (citing La. Civ. Code Ann. art. 2298, cmt. (b)).

Turning to the allegations, Reeves's claim is DISMISSED because his used Mercedes was purchased "from Bill Hood Chevrolet" and he offers no additional allegations from which the Court could infer that Bill Hood Chevrolet has any affiliation with Mercedes. (D.E. 2762 at ¶ 116.)

(9) Massachusetts

Massachusetts law applies to the claims of Plaintiffs Ericka Black, Robert Cervelli, and Shanella Prentice. The Court finds that Black's, Cervelli's, and Prentice's claims are DISMISSED because their used Mercedes vehicles were purchased "from Imotobank Dealership," "from Midway Automotive," and "from Herb Chambers Honda of Seekonk," respectively, and they offer no additional allegations from which the Court could infer that any of these dealerships have any affiliation with Mercedes. See id. at ¶¶ 41, 53, 113.

(10) Michigan

Michigan law applies to the claims of Plaintiffs Charles Hudson, Shanetha Livingston, Trevor MacLeod, Bassam Makhoul, and Michael McBride. The Court has not previously addressed unjust enrichment claims under Michigan law.

In Michigan, the "essential elements" of an unjust enrichment claim are "(1) receipt of a benefit by the defendant from the plaintiff and (2) which benefit it is inequitable that the defendant retain." In re Cardizem CD Antitrust Litig. , 105 F. Supp. 2d 618, 670 (E.D. Mich. 2000) (quoting Hollowell v. Career Decisions, Inc. , 100 Mich.App. 561, 298 N.W. 2d 915, 920 (1980) ). Not essential to an unjust enrichment claim are facts showing that the plaintiff "directly conferred a benefit" on the defendant or facts showing that "privity exists" between the plaintiff and the defendant. See id. at 670–71 (rejecting arguments to the contrary).

Here, the Court finds that the unjust enrichment claims can proceed for Hudson, Livingston, and Makhoul because their Mercedes vehicles were purchased from Mercedes-affiliated dealerships. (See D.E. 2762 at ¶ 80 (Hudson leased (then purchased) his new Mercedes "from Mercedes of Novi"); id. at ¶ 92 (Livingston purchased her new Mercedes "from Mercedes-Benz of St. Clair Shores"); id. at ¶ 97 (Makhoul purchased his used Mercedes "from Mercedes-Benz Okemos Auto Collection").) MacLeod's and McBride's claims, however, are DISMISSED because their used Audi vehicles were purchased "from Wheeler Motors" and "from Young Chevrolet," respectively, and they offer no additional allegations from which the Court could infer that these dealerships have any affiliation with Audi. Id. at ¶¶ 95, 98.

(11) Mississippi

Mississippi law applies to Plaintiff Bettie Taylor's unjust enrichment claim. The Court also has not previously addressed unjust enrichment claims under Mississippi law.

To state an unjust enrichment claim in Mississippi, a plaintiff "need only allege and show that the defendant holds money which in equity and good conscience belongs to the plaintiff. The requirements of proof of unjust enrichment are neither technical nor complicated and, [plaintiffs] can state a claim against Defendants on the basis that [defendants] were unjustly enriched because they received the profits [which] they should not have been permitted to [receive]." Owens Corning v. R.J. Reynolds Tobacco Co. , 868 So. 2d 331, 342 (Miss. 2004) (alterations in original) (quoting Fordice Const. Co. v. Cent. States Dredging Co. , 631 F. Supp. 1536, 1538–39 (S.D. Miss. 1986) ).

Turning to the allegations, Taylor's claim is DISMISSED because her used Mercedes was purchased "from Bo Haarala Autoplex" and she offers no other allegations from which the Court could infer that Bo Haarala Autoplex has any affiliation with Mercedes. (D.E. 2762 at ¶ 122.)

(12) New Jersey

New Jersey law applies to the claims of Plaintiffs Darren Boyd, Maureen Dowds, Branko Krmpotic, and Alexander Lonergan. Defendants argue that these Plaintiffs’ unjust enrichment claims fail because New Jersey law requires that a plaintiff "allege a sufficiently direct relationship with the defendant to support the claim." (D.E. 2988-1 at 77) (quoting Snyder v. Farnam Cos., Inc. , 792 F. Supp. 2d 712, 724 (D.N.J. 2011).)

The Court agrees with Defendants; as do Plaintiffs (see D.E. 3034 at 167). Under New Jersey law, "[w]hen a plaintiff fails to allege a direct relationship, that plaintiff has failed to assert a claim for unjust enrichment, and under those circumstances, dismissal is appropriate." Glass v. BMW of N. Am., LLC , Civil Action No. 10-5259 ES, 2011 WL 6887721, at *16 (D.N.J. Dec. 29, 2011) (dismissing unjust enrichment claim under New Jersey law where plaintiff did not "establish a direct relationship with BMW NA because Plaintiff purchased her MINI Cooper from The Car Factory, not BMW NA") (collecting cases).

Turning to the allegations, the unjust enrichment claims for Boyd, Dowds, Krmpotic, and Lonergan fail because their vehicles were not purchased directly from Audi or Mercedes. (See D.E. 2762 at ¶ 43 (Boyd purchased his used Mercedes "from the Benzel-Busch Mercedes-Benz dealership"); id. at ¶ 65 (Dowds purchased her used Audi "from Prestige Lexus of New Jersey"); id. at ¶ 89 (Krmpotic purchased his used Mercedes "from Prestige Motors Mercedes-Benz"); id. at ¶ 93 (Lonergan purchased his new Mercedes "from Ray Catena Motor Car Corp. Mercedes-Benz").) Notably, these Plaintiffs offer no additional allegations from which the Court could infer that any of these dealerships are directly owned or operated by Defendants. Accordingly, the unjust enrichment claims of these Plaintiffs are DISMISSED .

(13) New York

New York law applies to the claims of Plaintiffs Edward J. Burki, Jody Dorsey, Heidi Elliot, Annette Montanaro, Jennifer Wilmoth, and Deloris A. Jones. The Court has not previously addressed unjust enrichment claims under New York law.

To state an unjust enrichment claim under New York law, a plaintiff must show that: "(1) the other party was enriched, (2) at [the plaintiff's] expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered." E.J. Brooks Co. v. Cambridge Sec. Seals , 31 N.Y.3d 441, 80 N.Y.S.3d 162, 105 N.E. 3d 301, 312 (2018) (alterations in original) (quoting Mandarin Trading Ltd. v. Wildenstein , 16 N.Y.3d 173, 919 N.Y.S.2d 465, 944 N.E. 2d 1104, 1110 (2011) ).

Here, the Court finds the unjust enrichment claims can proceed for Burki and Montanaro because their Audi vehicles were purchased from Audi-affiliated dealerships. (See D.E. 2762 at ¶ 46) (Burki purchased his used Audi "from Biener Audi"); id. at ¶ 102 (Montanaro purchased her used Audi "from Schmitt's Audi Volkswagen"). The claims asserted by Dorsey, Elliot, Wilmoth, and Jones, however, are DISMISSED because their vehicles were not purchased or leased from Defendant-affiliated dealerships, and they offer no additional allegations from which the Court could infer that the dealerships have any affiliation with Defendants. See id. at ¶ 64 (Dorsey purchased her used Mercedes "from Nimey's The New Generation"); id. at ¶ 67 (Elliott's lease for her used Mercedes "originated at New Rochelle Hyundai"); id. at ¶ 84 (Jones purchased her used Volkswagen "from Healy Brothers Poughkeepsie Chevrolet"); id. at ¶ 127 (Wilmoth purchased her used Mercedes "from Atlantic Automall").

(14) Ohio

Ohio law applies to Plaintiff Randy Brown's unjust enrichment claim. And his claim can proceed because he purchased his new Mercedes "from Mercedes-Benz of West Chester," a Mercedes-affiliated dealership. Id. at ¶ 45.

(15) Pennsylvania

Pennsylvania law applies to the claims of Plaintiffs Dave Battinieri, Lillian Johnson, and Christopher Michael Knox. Despite the Court's previous ruling under Pennsylvania law, Defendants argue that these unjust enrichment claims fail because in Pennsylvania "[t]he ‘benefit’ must be conferred by the plaintiff directly—indirect benefits bestowed by third parties will not support a claim for unjust enrichment." (D.E. 2988-1 at 81) (quoting Schmidt v. Ford Motor Co. , 972 F. Supp. 2d 712, 721–22 (E.D. Pa. 2013).)

Contrary to Defendants’ single authority, the Court finds that Pennsylvania courts have "rejected the requirement that a plaintiff must directly confer a benefit on a defendant in order to allege unjust enrichment." Baker v. Family Credit Counseling Corp. , 440 F. Supp. 2d 392, 420 (E.D. Pa. 2006) (citing D.A. Hill Co. v. CleveTrust Realty Investors , 524 Pa. 425, 573 A.2d 1005, 1009 (1990)) (stating that subcontractor could recover from owner on unjust enrichment theory, even if subcontractor did not have direct contractual relationship with owner); Com. ex rel. Pappert v. TAP Pharm. Products, Inc. , 885 A.2d 1127, 1137–38 (Pa. Commw. 2005) (finding that the plaintiff did not need to plead that it directly conferred a benefit on defendants for unjust enrichment claim); see also Aetna Inc. v. Insys Therapeutics, Inc. , 324 F. Supp. 3d 541, 559 & n.71 (E.D. Pa. 2018) (agreeing with Baker ’s statement of Pennsylvania law); Bral Corp. v. Johnstown Am. Corp. , 919 F. Supp. 2d 599, 620 (W.D. Pa. 2013) (same); Lefta Assocs. v. Hurley , 902 F. Supp. 2d 559, 589–90 (M.D. Pa. 2012) (same). In short, in Pennsylvania, the claim of unjust enrichment "simply requires that plaintiff ‘confer’ benefits on a defendant; it does not require that plaintiff ‘directly confer’ those benefits." Baker , 440 F. Supp. 2d at 420. Turning to the allegations, the Court finds that the unjust enrichment claims can proceed for Battinieri, Johnson, and Knox because their vehicles were purchased from Defendant-affiliated dealerships. (See D.E. 2762 at ¶ 40 (Battinieri purchased his new Volkswagen "from YBH Volkswagen"); id. at ¶¶ 83, 88 (Johnson and Knox purchased their used Mercedes vehicles "from Sun Motor Cars, Inc. Mercedes").)

(16) Tennessee

Tennessee law applies to Plaintiff Aaron Patillo's unjust enrichment claim. And his claim must be DISMISSED because his used Mercedes was purchased "from Prestige Auto" and he offers no additional allegations from which the Court could infer that Prestige Auto has any affiliation with Mercedes. Id. at ¶ 110.

(17) Virginia

Virginia law applies to Plaintiff Michael Farriss's unjust enrichment claim. And his claim must be DISMISSED because his used Audi was purchased "in a private sale from Brandon Farriss" and he offers no additional allegations from which the Court could infer that Brandon Farriss has any affiliation with Audi. Id. at ¶ 68.

(18) Wisconsin

Wisconsin law applies to Plaintiff April Rockstead Barker's unjust enrichment claim. The Court also has not previously addressed unjust enrichment claims under Wisconsin law.

In Wisconsin, an unjust enrichment claim is "grounded on the moral principle that one who has received a benefit has a duty to make restitution where retaining such a benefit would be unjust." Lindquist Ford, Inc. v. Middleton Motors, Inc. , 557 F.3d 469, 477 (7th Cir. 2009), as amended (Mar. 18, 2009) (quoting Watts v. Watts , 137 Wis.2d 506, 405 N.W. 2d 303, 313 (1987) ). To state an unjust enrichment claim, a plaintiff must allege: "(1) a benefit conferred upon the defendant by the plaintiff, (2) appreciation by the defendant of the fact of such benefit, and (3) acceptance and retention by the defendant of the benefit, under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof." Id. (quoting Seegers v. Sprague , 70 Wis.2d 997, 236 N.W. 2d 227, 230 (1975) ).

Defendants argue that Barker's claim fails because she did not directly confer a benefit on Volkswagen. (See D.E. 2988-1 at 84) (quoting Fischer v. Renner , No. 2012AP1336, 2013 WL 2319487, at *2–5 (Wis. Ct. App. 2013) .) The Court finds, however, that Wisconsin law does not require a plaintiff to directly confer a benefit on a defendant to state an unjust enrichment claim. See In re Packaged Seafood Prods. Antitrust Litig. , 242 F. Supp. 3d 1033, 1093 (S.D. Cal. 2017) (denying motion to dismiss unjust enrichment claim under Wisconsin law and noting the court was "unable to locate a single Wisconsin case which require[s] conferral of a direct benefit"); In re Photochromic Lens Antitrust Litig. , No. 8:10-md-2173-T-27EAJ, 2011 WL 13141933, at *8 (M.D. Fla. Oct. 26, 2011) (denying motion to dismiss indirect purchasers’ claim for unjust enrichment under Wisconsin law) (citing In re Flonase Antitrust Litig. , 692 F. Supp. 2d 524, 546 (E.D. Pa. 2010) (same)).

Turning to the allegations, the Court finds that Barker's unjust enrichment claim can proceed because her used Volkswagen was purchased "from Hall Volkswagen," a Volkswagen-affiliated dealership. (D.E. 2762 at ¶ 39.)

c) Benefit of Bargain

Third, Defendants argue that certain unjust enrichment claims must be dismissed because Plaintiffs received exactly what they bargained for and that they were not promised defect-free vehicles. Defendants further contend that Plaintiffs cannot allege that any defect-related incidents render their vehicles inoperable. On these bases, Defendants argue that unjust enrichment claims must be dismissed under the laws of numerous states.

The first part of this argument misunderstands what this case is about. This entire lawsuit centers on the theory that none of the Plaintiffs received the benefit of their bargain, specifically because they overpaid for vehicles installed with Takata airbags as a result of Defendants’ misrepresentations and concealment of material facts about the safety of their vehicles. So, this is not, as Defendants’ argument suggests, a lawsuit about disgruntled consumers trying to convince Defendants to fix certain vehicle defects that may or may not be covered by a warranty.

And the second part of Defendants’ argument is simply a repackaged version of the still winless "manifestation of defect" argument. See In re Takata Airbag Prod. Liab. Litig. , 396 F. Supp. 3d at 1119–24 (rejecting "manifestation of defect" argument and collecting prior orders ruling same). Thus, the Court declines to dismiss any unjust enrichment claims on this basis.

d) Class Action Bar (Alabama)

Finally, Defendants argue that unjust enrichment claims under Alabama law should be dismissed because the Supreme Court of Alabama has ruled that unjust enrichment claims are unsuitable for class treatment. (D.E. 2988 at 85) (citing Avis Rent A Car Sys., Inc. v. Heilman , 876 So. 2d 1111, 1123 (Ala. 2003).) The Court disagrees.

The issue in Avis was whether the trial court erred in certifying a class action under Alabama law. See 876 So. 2d at 1120, 1122–23. There, the Supreme Court of Alabama explained that the unjust enrichment claims were "unsuitable for class-action treatment" because such claims were "fact specific to each case" and the "need for such inquiry defeats the predominance and superiority requirements of [ Alabama Rule of Civil Procedure 23(b)(3) ]." Id. at 1123. But whether an unjust enrichment claim can satisfy the predominance and superiority requirements of an Alabama class action has no bearing on whether Plaintiffs can certify a nationwide unjust enrichment class action under federal law—let alone, relevant here, whether Plaintiffs can state a claim for unjust enrichment. See Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC , 263 F.R.D. 205, 216–17 (E.D. Pa. 2009) (denying motion for judgment on the pleadings and rejecting argument that certain plaintiffs could not maintain a class action claim for unjust enrichment under Avis ).

Furthermore, as explained above, it is Federal Rule of Civil Procedure 23 that controls whether a plaintiff can assert a class action claim where state law forbids class actions. See Lisk , 792 F.3d at 1336. Following the reasoning in Lisk —that Rule 23 alters substantive rights and obligations under deceptive trade practices statutes "not a whit," id. at 1337 —the Court finds that Rule 23 does not alter substantive rights under Alabama's law of unjust enrichment; rather, Rule 23 simply determines whether Plaintiffs "may seek redress in one action or must instead bring separate actions." Id.

e) Conclusion

In sum, Counts 8 and 11 are DISMISSED as to the following named-Plaintiffs: Loretta Collier and Omeko Pearson (Alabama); Diana Myers (Arizona); Paulette Calhoun (Georgia); Holly Stotler and Delola Nelson-Reynolds (Illinois); Malia Moore (Indiana); Jeffery Reeves (Louisiana); Ericka Black, Robert Cervelli, and Shanella Prentice (Massachusetts); Trevor MacLeod and Michael McBride (Michigan); Bettie Taylor (Mississippi); Darren Boyd, Maureen Dowds, Alexander Lonergan, and Branko Krmpotic (New Jersey); Jody Dorsey, Heidi Elliot, Jennifer Wilmoth, and Deloris A. Jones (New York); Aaron Patillo (Tennessee); and Michael Farriss (Virginia). By extension, because there are no class representatives with unjust enrichment claims under the laws of Georgia, Indiana, Louisiana, Massachusetts, Mississippi, New Jersey, Tennessee, and Virginia, Counts 8 and 11 are also DISMISSED as to all putative class members with claims under the laws of these states. See Wooden , 247 F.3d at 1288 ("[A] claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.") (quoting Prado-Steiman , 221 F.3d at 1280 ).

As for the surviving claims, Counts 8 and 11 will proceed for the following named-Plaintiffs: Sandra Herrell (Alabama); Chloe Crater (Arkansas); David De King (Arizona); Pren Gjuraj and Christine Palmer (Connecticut); Cheryl Butler-Adams, Michael Cahill, Debrah Henry, Scott Lusby, Justin Maestri, Kristen Nevares, and Marcela Warmsley (California); George O'Connor (Florida); Diego DelaCruz, Mirsad Gacic, and Melinda M. Harms (Illinois); Susan Knapp (Iowa); Charles Hudson, Shanetha Livingston, and Bassam Makhoul (Michigan); Edward J. Burki and Annette Montanaro (New York); Daphne Bridges, Desiree Jones-Lassiter, and Kenneth Melde (North Carolina); Randy Brown (Ohio); John F. Phillips, Nancy D. Phillips, and Curtis Scott (Oregon); Dave Battinieri, Lillian Johnson, and Christopher Michael Knox (Pennsylvania); Theresa Marie Fusco Radican (Rhode Island); Tiffany Bolton, Sherri Cook, Vernettia Davis, Sam Fragale, Julius Fulmore, Celeste Lewis, Nikki Norvell, and Maria de Lourdes Viloria (Texas); William Goldberg (Washington); and April Rockstead Barker (Wisconsin).

E. NATIONWIDE-CLASS MAGNUSON-MOSS WARRANTY ACT AND STATEWIDE-CLASS BREACH OF IMPLIED WARRANTY CLAIMS

Finally, the warranty claims. Plaintiffs assert a nationwide-class warranty claim under the Magnuson-Moss Warranty Act, or in the alternative, assert statewide-class breach of implied warranty claims under the laws of several states. Defendants argue that the Magnuson-Moss Warranty Act claim must be dismissed because Plaintiffs fail to assert implied warranty claims under the laws of every state, and additionally, because Plaintiffs do not meet the 100-plaintiff requirement to bring a class action under the Act. As to the alternative claims for breach of implied warranty under state law, Defendants argue that all these claims must be dismissed because Plaintiffs fail to allege facts showing that any vehicles were unmerchantable (i.e. suffered the alleged inflator defect). In addition, Defendants argue that certain state breach of implied warranty claims should be dismissed as time-barred.

1. Nationwide-Class Magnuson-Moss Warranty Act Claim (Count 5)

To begin, Defendants argue the nationwide-class Magnuson-Moss Warranty Act claim should be dismissed because Plaintiffs do not assert breach of implied warranty claims under the laws of every state. Plaintiffs correctly construe this contention as a standing argument, and they counter that district courts routinely reject this argument because "standing to assert claims in other jurisdictions only becomes an issue if and when a class is certified, and if the certified class includes class members from a state for which there is no named plaintiff or class representative." (D.E. 3034 at 151.)

Earlier in this case, this Court addressed a similar standing issue raised by certain automotive manufacturing defendants. Those defendants argued that a plaintiff, the Automotive Recyclers Association, lacked standing to assert claims on behalf of certain companies that had previously assigned their rights to litigate to the Association. There, the Association advanced the same argument that Plaintiffs advance here: "once an individual class representative has an injury and has standing, the ability to bring claims on behalf of a class of states, or plaintiffs from multiple states, is an issue for class certification." (See In re Takata Airbag Prod. Liab. Litig. , No. 14-24009-CV, 2016 WL 1266609, at *5 (S.D. Fla. Mar. 11, 2016) ; D.E. 3034 at 151–52.) The Court disagreed with the Association because it was "unpersuaded to depart from this District's precedent," which established that "[a] named plaintiff lacks standing to assert legal claims on behalf of a putative class pursuant to state law under which the named plaintiff's own claims do not arise." In re Takata Airbag Prod. Liab. Litig. , 2016 WL 1266609, at *4–5 (emphasis added) (citing In re Terazosin Hydrochloride Antitrust Litig. , 160 F. Supp.2d 1365, 1371 (S.D. Fla. 2001) ; In re Checking Account Overdraft Litig. 694 F. Supp. 2d 1302, 1324–25 (S.D. Fla. 2010) ). This Court further explained that class certification was not "logically antecedent" to the issue of the Automotive Recyclers Association's standing because the Association was "a named plaintiff, not a class member." Id. at *6. Thus, the standing analysis "would remain unchanged, irrespective of class certification." Id.

Same as before, the Court finds no reason to wait until the class certification stage to decide whether the named-Plaintiffs of only a handful of states can establish standing for putative class members of several unrepresented states in order to state a nationwide -class Magnuson-Moss Warranty Act claim.

Where standing is challenged, "each claim must be analyzed separately." Griffin v. Dugger , 823 F.2d 1476, 1483 (11th Cir. 1987). This must be done because "a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim." Id. Indeed, "[a] named plaintiff lacks standing to assert legal claims on behalf of a putative class pursuant to state law under which the named plaintiff's own claims do not arise." In re Takata Airbag Products Liab. Litig. , 2016 WL 1266609, at *4 (emphasis added) (citing In re Terazosin Hydrochloride Antitrust Litig. , 160 F. Supp. 2d at 1371 ; In re Checking Account Overdraft Litig. , 694 F. Supp. 2d at 1324–25 ). This logic applies equally to Plaintiffs’ nationwide-class Magnuson-Moss Warranty Act claim because "implied warranty claims under the [Act] arise out of and are defined by state law. " Bailey v. Monaco Coach Corp. , 168 F. App'x. 893, 894 n.1 (11th Cir. 2006) (per curiam ) (emphasis added).

Here, despite asserting a nationwide -class Magnuson-Moss Warranty Act claim, Plaintiffs assert breach of implied warranty under the laws of only 15 states. Because standing is a claim-specific determination and implied warranty claims under the Act "arise out of and are defined by" state law, the Court finds that the named-Plaintiffs lack standing to represent putative class members of states for which there are no breach of implied warranty claims. See In re Takata , 2016 WL 1266609, at *4 ; In re Terazosin , 160 F. Supp. 2d at 1371–72 ; In re Checking Account Overdraft Litig. , 694 F. Supp. 2d at 1324–25.

And without standing, Plaintiffs cannot state a nationwide-class claim under the Magnuson-Moss Warranty Act. See In re Packaged Ice Antitrust Litig. , 779 F. Supp. 2d 642, 657 (E.D. Mich. 2011) ("As held in the many cases discussed above in which courts have chosen to address the standing issue prior to class certification, named plaintiffs lack standing to assert claims under the laws of the states in which they do not reside or in which they suffered no injury.") (collecting cases, including In re Terazosin and In re Checking Account Overdraft Litig. ); see also Johnson v. Nissan N. Am., Inc. , 272 F. Supp. 3d 1168, 1174–76 (N.D. Cal. 2017) (agreeing with argument that "named plaintiffs may not bring their claims for violation of the [Magnuson-Moss Warranty Act] ... on behalf of a nationwide class that includes citizens of unrepresented states"); Weiss v. Gen. Motors LLC , 418 F.Supp.3d 1173, 1179–81, 1185–86 (S.D. Fla. 2019) (dismissing nationwide-class Magnuson-Moss Warranty Act claim on standing grounds).

Consequently, the nationwide-class Magnuson-Moss Warranty Act claim in Count 5 is DISMISSED for lack of standing. Moreover, Count 5 is dismissed in its entirety because—unlike the nationwide-class common-law claims—Plaintiffs explicitly assert that "[i]n the event the Court declines to certify a Nationwide Consumer Class under the Magnuson-Moss Warranty Act," they assert statewide-class breach of implied warranty claims under the laws of several states. (See D.E. 2762 at ¶¶ 459, 488, 643, 695, 708, 736, 765, 792, 800, 827, 932, 960, 1013, 1040, 1092.) Because Count 5 is dismissed for lack of standing, the Court need not address Defendants’ separate argument regarding the 100-plaintiff requirement. The Court will now address the state breach of implied warranty claims.

2. Statewide-Class Breach of Implied Warranty Claims (Counts 14, 16, 23, 27, 29, 31, 33–34, 36, 42, 44, 50, and 53)

Plaintiffs assert breach of implied warranty claims under laws of Arkansas, California, Indiana, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, Pennsylvania, Rhode Island, Texas, and Virginia. Defendants argue that all these claims must be dismissed because Plaintiffs do not allege that any of their vehicles suffered the alleged inflator defect, and alternatively, that the statute of limitations bars claims under the laws of several states. The Court addresses each argument in turn.

a) Manifestation of Defect

To start, Defendants argue that all implied warranty claims fail because Plaintiffs fail to allege facts showing that any of their vehicles were unmerchantable (i.e. suffered the alleged inflator defect). As noted above, the Court has repeatedly throughout this litigation rejected the "manifestation of defect" argument. See supra; see also In re Takata Airbag Prod. Liab. Litig. , 396 F. Supp. 3d at 1119–24 (rejecting "manifestation of defect" argument and collecting prior orders ruling the same). The Court thus declines to dismiss any claims on this basis.

b) Time Bars

Finally, Defendants argue that the statute of limitations bars breach of implied warranty claims under the laws of Arkansas, California, Indiana, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, Pennsylvania, Rhode Island, Texas, and Virginia. Plaintiffs insist that these claims can proceed because each jurisdiction either applies the discovery rule or recognizes fraudulent concealment tolling, or both.

In multiple earlier orders, the Court found that the plaintiffs’ allegations were sufficient to toll the statute of limitations in states that recognize fraudulent concealment tolling, such as California, Indiana, Massachusetts, New Jersey, Pennsylvania, and Rhode Island. See In re Takata Airbag Prod. Liab. Litig. , 2017 WL 2406711, at *11 (Indiana, New Jersey, and Rhode Island, among other states); In re Takata Airbag Prod. Liab. Litig. , 255 F. Supp. 3d at 1258 (California) ; In re Takata Airbag Prod. Liab. Litig. , 2016 WL 5848843, at *15 (Pennsylvania and Massachusetts).

Like those states, Arkansas, Louisiana, Michigan, Mississippi, New York, Texas, and Virginia also recognize fraudulent concealment tolling. See Martin v. Arthur , 339 Ark. 149, 3 S.W. 3d 684, 687 (1999) (citing Adams v. Arthur , 333 Ark. 53, 969 S.W. 2d 598, 602–03 (1998) ); F.D.I.C. v. Barton , 96 F.3d 128, 134 (5th Cir. 1996) ; Frank , 894 N.W. 2d at 583 (citing Mich. Comp. Laws Ann. § 600.5855 ); Windham v. Latco of Miss., Inc. , 972 So. 2d 608, 612–16 (Miss. 2008) ; Zumpano , 816 N.Y.S.2d 703, 849 N.E. 2d at 929 (citing Simcuski , 406 N.Y.S.2d 259, 377 N.E. 2d at 716 ); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp. , 988 S.W. 2d 746, 750 (Tex. 1999) ; Grimes v. Suzukawa , 262 Va. 330, 551 S.E. 2d 644, 646 (Va. 2001).

Here, as explained above, Plaintiffs’ numerous allegations detail Defendants’ knowledge of the risks posed by the Takata airbags installed in their vehicles, Defendants’ failure to fully investigate or disclose the seriousness of the issue to consumers or regulatory authorities, and their continued selling and leasing of vehicles installed with Takata airbags. (See supra; see also D.E. 2762 at ¶¶ 157–218, 238–43.) Viewing these allegations in the light most favorable to Plaintiffs, as the Court must at this stage, the Court finds that fraudulent concealment tolling applies to the breach of implied warranty claims.

3. Conclusion

In sum, Count 5 is DISMISSED in full, and the state breach of implied warranty claims in Counts 14, 16, 23, 27, 29, 31, 33–34, 36, 42, 44, 50, and 53 will proceed.

CONCLUSION

For all the reasons explained above, Defendants’ Motion to Dismiss (D.E. 2988) is GRANTED IN PART as follows:

• The nationwide-class Magnuson-Moss Warranty Act claim (Count 5) is DISMISSED in full;

• The statewide-class breach of implied warranty claims under the laws of Kentucky and South Carolina (Counts 26 and 48) are DISMISSED ;

• The statewide-class statutory consumer protection claims under the laws of Louisiana, Ohio, Pennsylvania, and South Carolina (Counts 28, 40, 43, 46, and 47) are DISMISSED ;

• The fraudulent concealment claims (Counts 6 and 9) are DISMISSED as to all named-Plaintiffs and all putative class members whose claims are governed under the laws of California, Kentucky, and South Carolina;

• The negligence claims (Counts 7 and 10) are DISMISSED as to all named-Plaintiffs and all putative class members whose claims are governed under the laws of Arizona, Connecticut, Georgia, Indiana, Iowa, Kentucky, Mississippi, New Jersey, New York, Ohio, Oregon, South Carolina, Tennessee, Texas, Virginia, Washington, and Wisconsin;

• The unjust enrichment claims (Counts 8 and 11) are DISMISSED as to all putative class members whose claims are governed under the laws of Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, New Jersey, South Carolina, Tennessee, and Virginia, and also DISMISSED as to these named-Plaintiffs: Loretta Collier and Omeko Pearson (Alabama); Diana Myers (Arizona); Paulette Calhoun

(Georgia); Holly Stotler and Delola Nelson-Reynolds (Illinois); Malia Moore (Indiana); Jeffery Reeves (Louisiana); Ericka Black, Robert Cervelli, and Shanella Prentice (Massachusetts); Trevor MacLeod and Michael McBride (Michigan); Bettie Taylor (Mississippi); Darren Boyd, Maureen Dowds, Alexander Lonergan, and Branko Krmpotic (New Jersey); Jody Dorsey, Heidi Elliot, Jennifer Wilmoth, and Deloris A. Jones (New York); Aaron Patillo (Tennessee); and Michael Farriss (Virginia); and

• All claims asserted by Plaintiff Brett Alters are DISMISSED .

Furthermore, the Motion to Dismiss is DENIED as to the following claims, which will proceed to summary judgment:

• The statewide-class statutory consumer protection and breach of implied warranty claims in Counts 12–25, 27, 29–39, 41–42, 44–45, and 49–55;

• Claims for fraudulent concealment (Counts 6 and 9) asserted by all named-Plaintiffs whose claims arise under the laws of Alabama, Arizona, Arkansas, Connecticut, Georgia, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, Tennessee, Texas, Virginia, Washington, and Wisconsin;

• Claims for negligence (Counts 7 and 10) asserted by these named-Plaintiffs: Chloe Crater (Arkansas); Jeffery Reeves (Louisiana); and Theresa Marie Fusco Radican (Rhode Island); and

• Claims for unjust enrichment (Counts 8 and 11) asserted by these named-Plaintiffs: Sandra Herrell (Alabama); Chloe Crater (Arkansas); David De King (Arizona); Pren Gjuraj and Christine Palmer (Connecticut); Cheryl Butler-Adams, Michael Cahill, Debrah Henry, Scott Lusby, Justin Maestri, Kristen Nevares, and Marcela Warmsley (California); George O'Connor (Florida); Diego DelaCruz, Mirsad Gacic, and Melinda M. Harms (Illinois); Susan Knapp (Iowa); Charles Hudson, Shanetha Livingston, and Bassam Makhoul (Michigan); Edward J. Burki and Annette Montanaro (New York); Daphne Bridges, Desiree Jones-Lassiter, and Kenneth Melde (North Carolina); Randy Brown (Ohio); John F. Phillips, Nancy D. Phillips, and Curtis Scott (Oregon); Dave Battinieri, Lillian Johnson, and Christopher Michael Knox (Pennsylvania); Theresa Marie Fusco Radican (Rhode Island); Tiffany Bolton, Sherri Cook, Vernettia Davis, Sam Fragale, Julius Fulmore, Celeste Lewis, Nikki Norvell, and Maria de Lourdes Viloria (Texas); William Goldberg (Washington); and April Rockstead Barker (Wisconsin).

It is further

ADJUDGED that Defendants must answer the remaining claims in the Puhalla Complaint no later than July 17, 2020 .

DONE AND ORDERED in Chambers at Miami, Florida, this 27^th May 2020.