EAST ST. LOUIS – Belleville city attorney Brian Flynn can’t lead a class action for Chrysler owners nationwide but can lead an Illinois class, Chief U.S. District Judge Michael Reagan ruled on July 5.
Reagan also appointed George and Kelly Brown of Missouri to represent a class in their state, and Michael Keith of Michigan to represent a class in his state.
Reagan vacated a July 16 trial date in anticipation of an appeal. Either side might appeal, for he narrowed the action but didn’t stop it.
Flynn and the others sued Chrysler in 2015, claiming they bought an information and entertainment device that made vehicles vulnerable to hackers.
They relied on an article in Wired magazine about computer experts who remotely controlled a Jeep through a device by name of uConnect.
Chrysler had immediately recalled more than a million vehicles, but Flynn and the others claimed the recall didn’t solve the problem.
They asserted claims under the Magnuson-Moss Warranty Act and state consumer protection laws, and seek to recover the difference between what they paid and what they would have paid if they had known the risk.
Last year, Flynn and Keith moved to certify a national class for all who purchased or leased vehicles subject to the recall.
They and the Browns sought separate certification for Illinois, Missouri, and Michigan claims.
Reagan opened his order by explaining why the action should proceed.
He found a genuine dispute as to whether plaintiffs had evidence of a defect and as to whether the recall remedied the alleged defect.
He found a dispute of fact as to the effectiveness of a software recall.
Reagan wrote that plaintiffs provided evidence that the design and installation of the device, rather than software, was defective. And even though plaintiffs continued driving their vehicles after learning of the hack, Reagan could not find as a matter of law that the vehicles were merchantable based on that evidence alone.
He started trimming the complaint.
Reagan wrote that in Flynn’s fraudulent concealment and omission claim, he pointed to no evidence and developed no argument beyond mere conjecture for a fiduciary or special trust relationship.
He wrote that Flynn claimed Chrysler advertisements were deceptive but pointed to no specific communication that he saw.
In Illinois, “deceptive advertising cannot be the proximate cause of damages unless the advertisement actually deceives the plaintiff,” Reagan wrote.
He wrote that all plaintiffs allege unjust enrichment but produced no evidence of a benefit conferred on Chrysler.
He rejected Keith’s claim of affirmative misrepresentations under Michigan law, but allowed him to allege failure to disclose material facts.
He allowed the Browns to claim they suffered a loss of money or property under Missouri law.
Reagan wrote that Rule 23 of civil procedure warns against certifying a national class on a Magnuson-Moss Warranty Act claim.
He wrote that Magnuson-Moss claims rely on underlying state law.
“The court squarely rejects plaintiffs’ contention that Michigan law should be applied to an entire nationwide class regardless of where class members reside or where they purchased and used their vehicles,” Reagan wrote.
For each state he defined the class as all who purchased or leased vehicles subject to the recall.
Transactions after the recall will count, up to the date of his order.
A second defendant, Uconnect manufacturer Harman International Industries, has nearly escaped the action.
No class claims remain against it in Illinois or Missouri, and no claims remain in Michigan except failure to disclose.
On Missouri claims, Reagan found no evidence that Harman knew the installation of the device would lead to security defects.
He found no evidence that Harman was a seller within the meaning of Missouri law.
“There is no evidence that Harman sold anything to the Browns,” Reagan wrote.
As class counsel, he appointed the Belleville law offices of Christopher Cueto, Lloyd Cueto, and former U.S. attorney Stephen Wigginton.
He also appointed the Armstrong Teasdale firm of St. Louis.