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Highlight Updates Private Suits Seeking Relief Similar to a Recall

Some courts have allowed plaintiffs to seek court-ordered recall-like remedies for defective vehicles or parts, particularly in cases in which a defect is alleged but the plaintiffs or the members of the plaintiff class have not yet suffered injuries as a result of the defect.322 This result is supported by the Motor Vehicle Safety Act itself, which states that a recall conducted pursuant to 49 U.S.C. § 30120(b) does not displace any other “rights and remedies under other laws of the United States or a State.”323 Courts have also allowed consumers to bring suit based on the way a manufacturer was handling a recall.324 In addition, while a recall is in process, courts have allowed suits for damages to proceed, holding that compensating injured plaintiffs does not interfere with the administration of a voluntary recall.325 A failure-to-warn claim is not preempted by the federal law’s notice and recall procedures.326


  • 322 {322} See In re FCA US L.L.C. Monostable Elec. Gearshift Litig., 2017 WL 1382297 (E.D. Mich. Apr. 18, 2017); Lohr v. Nissan N. Am., Inc., 2017 WL 1037555 (W.D. Wash. Mar. 17, 2017); Lassen v. Nissan N. Am., Inc., 211 F. Supp. 3d 1267 (C.D. Cal. 2016); Bryde v. Gen. Motors, L.L.C., 2016 WL 6804584 (N.D. Cal. Nov. 17, 2016); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Products Liab. Litig., 754 F. Supp. 2d 1145 (C.D. Cal. 2010); Rosen v. J.M. Auto Inc., 2008 WL 9901501 (S.D. Fla. Mar. 6, 2008); Kagan v. Carwell Corp., 2001 U.S. Dist. LEXIS 4544 (C.D. Cal. Mar. 30, 2001); Zavala v. TK Holdings Inc., 2004 WL 2903981 (Cal. Ct. App. Dec. 16, 2004) (upholding trial court’s refusal to dismiss suit seeking recall-type remedy; trial court can take any federal recall into account in fashioning relief); Franco v. Mercedes-Benz USA, L.L.C., 258 So. 3d 1053 (La. Ct. App. 2018) (federal Act does not preempt buyer’s right to invoke Louisiana’s version of revocation of acceptance of vehicle that was under federal recall but for which parts were not yet available); Mazerolle v. DaimlerChrysler Corp., 48 U.C.C. Rep. Serv. 2d 1310 (Me. Super. Ct. 2002) (allowing judicial recall suit to proceed when NHTSA had not taken any action). See also McGee v. Cont’l Tire N. Am., Inc., 2007 WL 2462624 (D.N.J. Aug. 27, 2007) (refusing to dismiss claim for declaratory judgment requiring recall of tires); Besse v. Gen. Motors Corp., 317 F. Supp. 2d 646 (D.S.C. 2004) (classwide claim regarding engine defect not preempted when plaintiffs sought damages, not recall, and defect did not affect safety); Chamberlan v. Ford Motor Co., 314 F. Supp. 2d 953 (N.D. Cal. 2004) (claim not preempted when plaintiffs sought unspecified injunctive relief, possibly consisting of notification or inclusion of individual owners in ongoing voluntary fleet recall); Annelli v. Ford Motor Co., 2005 WL 2206443 (Conn. Super. Ct. July 22, 2005) (no preemption of suit seeking order under Secret Warranty Act requiring manufacturer to make repair kit available to vehicle owners); Cuellar v. Ford Motor Co., 723 N.W.2d 747 (Wis. Ct. App. 2006) (rejecting preemption argument; suit to enforce secret warranty law does not seek recall). But see Schiesser v. Ford Motor Co., 2017 WL 1283499 (N.D. Ill. Apr. 6, 2017) (claim for recall-like relief is preempted; also finding dismissal on grounds of comity appropriate, as another suit had already resulted in a nationwide settlement); Flynn v. FCA US L.L.C., 2016 WL 5341749, at *5 (S.D. Ill. Sept. 23, 2016) (requests for declaratory relief that would amount to a full-blown judicial recall are preempted); In re Bridgestone/Firestone Inc. Tires Products Liab. Litig., 153 F. Supp. 2d 935, 945 (S.D. Ind. 2001) (Motor Vehicle Safety Act preempts any state law recall; Act’s comprehensiveness with regard to recalls demonstrates that any state law providing for a recall would frustrate its purposes); Coker v. DaimlerChrysler Corp., 617 S.E.2d 306 (N.C. Ct. App. 2005), aff’d, 627 S.E.2d 461 (N.C. 2006). But cf. Granillo v. FCA US L.L.C., 2016 WL 9405772, at *18–20 (D.N.J. Aug. 29, 2016) (plaintiff cannot seek an order that the manufacturer issue a recall “pursuant to applicable NHTSA guidelines”; even a voluntary recall requires NHTSA involvement, and states cannot direct NHTSA’s actions); Owen v. Gen. Motors Corp., 2006 WL 2808632 (W.D. Mo. Sept. 28, 2006) (consumer whose vehicle had already been repaired could not seek classwide recall order); Namovicz v. Cooper Tire & Rubber Co., 225 F. Supp. 2d 582 (D. Md. 2001) (claim seeking replacement or inspection of tires is equivalent to recall and is completely preempted).

  • 323 {323} 49 U.S.C. § 30103(d).

  • 324 {324} In re Gen. Motors L.L.C. Ignition Switch Litig., 154 F. Supp. 3d 30 (S.D.N.Y. 2015) (allowing “negligent recall” claim to proceed against manufacturer, and holding that claim is not preempted); Cancino v. Yamaha Motor Corp., 2008 WL 11353628 (S.D. Ohio Mar. 17, 2008) (refusing to dismiss claim that manufacturer was not making enough parts available so that recall work could be performed, leaving vehicles unusable).

  • 325 {325} See Nolan v. Cooper Tire, 2001 WL 253865 (E.D. Pa. Mar. 14, 2001); Miller v. Bridgestone/Firestone, Inc., 2000 WL 1570732 (E.D. Pa. Oct. 19, 2000); Lennon v. Bridgestone/Firestone, Inc., 2000 WL 1570645 (E.D. Pa. Oct. 19, 2000); Dorian v. Bridgestone/Firestone, Inc., 2000 WL 1570627 (E.D. Pa. Oct. 19, 2000); Talalai v. Cooper Tire & Rubber Co., 823 A.2d 888 (N.J. Super. Ct. App. Div. 2001) (UDAP suit for damages not preempted). See also In re Toyota Motor Corp. Hybrid Brake Mktg., Sales, Practices & Products Liab. Litig., 890 F. Supp. 2d 1210 (C.D. Cal. 2011) (case not moot when buyer alleged that recall did not cure defect, nor need case be referred to NHTSA’s primary jurisdiction); Muehlbauer v. Gen. Motors Corp., 431 F. Supp. 2d 847, 854–855 (N.D. Ill. 2006) (allowing unjust enrichment claim to proceed when plaintiffs alleged that recall was inadequate); Stroderd v. Yamaha Motor Corp., 2005 WL 2037419 (E.D. La. Aug. 4, 2005) (redhibition claim can be asserted even though manufacturer is recalling motorcycles to repair potential transmission failure). But cf. Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133 (Fla. Dist. Ct. App. 2008) (refusing to certify class for damages for defect that made brakes prone to failure; NHTSA recall would be a better remedy).

  • 326 {326} Great W. Cas. Co. v. Volvo Trucks N. Am., Inc., 2010 WL 4222924 (N.D. Ill. Oct. 20, 2010).