In The United States District Court - Zimmerman Reed

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Transcript

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT TEDESCO, JR. and NATALIA
TUZOVSKAYA, on behalf of themselves and
all others similarly situated,
Plaintiffs,
v. SUBARU OF AMERICA, INC., and
FUJI HEAVY INDUSTRIES, LTD.,
Defendants.
No. ________________
CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED
ii TABLE OF CONTENTS
I. NATURE OF THE CASE ......................................................................................... 1
II. JURISDICTION AND VENUE ................................................................................ 4
III. PARTIES ................................................................................................................... 4
IV. FACTUAL ALLEGATIONS .................................................................................... 8
V. TOLLING OF STATUTES OF LIMITATION ...................................................... 33
VI. CHOICE OF LAW ALLEGATIONS ...................................................................... 33
VII. CLASS ALLEGATIONS ........................................................................................ 35
VIII. CAUSES OF ACTION ............................................................................................ 38
COUNT I - VIOLATIONS OF THE VIOLATIONS OF THE NEW JERSEY CONSUMER
FRAUD ACT, N.J. STAT. ANN. § 56:8-1, ET SEQ. ............................................. 38
COUNT II - BREACH OF EXPRESS WARRANTY ................................................................. 40
COUNT III - BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (N.J.S.A.
§ 12A:2-314) ............................................................................................................ 41
COUNT IV - BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
(C.G.S.A. § 42a-2-314) ............................................................................................ 42
COUNT V - BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING ................ 43
COUNT VI - VIOLATION OF CONNECTICUT UNFAIR TRADE PRACTICES ACT,
C.G.S.A. § 42–110a ET SEQ. .................................................................................. 44
COUNT VII - VIOLATION OF MAGNUSON-MOSS WARRANTY ACT, 15 U.S.C. § 2301,
ET SEQ..................................................................................................................... 45
IX. PRAYER FOR RELIEF .......................................................................................... 47
X. JURY TRIAL DEMANDED ................................................................................... 48
I. NATURE OF THE CASE
1. Plaintiffs Robert Tedesco, Jr. and Natalia Tuzovskaya (“Plaintiffs”), bring this
action against Defendants Subaru of America, Inc. (“SAI”) and Fuji Heavy Industries, Ltd.
(“Fuji”) (collectively “Defendants” or “Subaru”), to redress Defendants’ violations of various
states’ consumer fraud statutes, and also to seek recovery for Defendants’ breach of express
warranty, breach of implied warranty, and breach of the duty of good faith and fair dealing, on
behalf of themselves and a class (the “Class” or “State Sub-Classes”) comprised by all current
and former Subaru vehicle owners and lessees with defective piston rings.
2. As used in this complaint, the “Vehicles” refer to the Subaru vehicles sold in the
United States sharing a common, uniform, and defective design, including, but not limited to, the
following makes and model years:
• 2011-2014 Subaru Forester 2.5L
• 2013 Legacy 2.5L
• 2013 Outback 2.5L
• 2012-2013 Impreza 2.0L
• 2013 XV Crosstrek 2.0L
3. This action arises from Defendants’ failure, despite their longstanding knowledge
of a material design defect, to disclose to Plaintiffs and other consumers that the Vehicles
have an oil consumption defect (referred to herein as the “Oil Consumption Defect”). This
defect – which typically manifests during and/or shortly after the limited warranty period has
expired – causes the Vehicles to burn an excessive portion of their engine oil, leading to
increased emissions, decreased fuel efficiency, and potentially significant damage to the engine,
catalytic converter, and other engine components.
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4. The Oil Consumption Defect poses a safety risk to the driver and passengers of
the Vehicles because it prevents the engine from maintaining the proper level of engine oil, and
causes an excessive amount of engine oil consumption that can neither be reasonably anticipated
nor predicted. Further, the Oil Consumption Defect can cause sudden engine failure while the
Vehicles are in operation at any time and under any driving condition or speed. This exposes the
driver and passengers of the Vehicles, as well as others who share the road with them, to an
increased risk of accident, injury, or death.
5. Defendants not only concealed the material fact that particular components within
the Vehicles’ engines are defective, Defendants also failed to disclose that the existence of the
Oil Consumption Defect would diminish the intrinsic and resale value of the Vehicles and lead to
the safety concerns alleged herein.
6. Although Subaru has long been aware of the Oil Consumption Defect, it has
regularly and systematically refused to repair the Vehicles without charge when the Oil
Consumption Defect manifests itself, and have generally refused to pay for the costs of the
excessive oil consumption and tests for the Oil Consumption Defect.
7. Many owners and lessees of the Vehicles have communicated with Defendants’
agents to request that they remedy and/or address the Oil Consumption Defect and/or resultant
damage at no expense, but Defendants have failed and/or refused to do so.
8. Subaru has also refused to take any action to correct this concealed design defect
when it manifests in the Vehicles outside of the warranty period. Since the Oil Consumption
Defect typically manifests within and/or shortly outside of the warranty period for the Vehicles –
and given Defendants’ knowledge of this concealed safety related design defect – any attempt by
Subaru to limit the warranty with respect to the Oil Consumption Defect is unconscionable here.
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9. Despite notice and knowledge of the Oil Consumption Defect from the numerous
complaints it has received, information received from dealers, National Highway Traffic Safety
Administration (“NHTSA”) complaints, and its own internal records – including durability
testing and oil consumption testing – Subaru has not recalled the Vehicles to repair the Oil
Consumption Defect, offered its customers a suitable repair or replacement free of charge, or
offered to reimburse its customers who have incurred out-of-pocket expenses associated with the
defect (such as reimbursement for additional engine oil) or to repair the defect.
10. As a result of Defendants’ unfair, deceptive and/or fraudulent business practices,
owners and/or lessees of the Vehicles, including Plaintiffs, have suffered an ascertainable loss of
money and/or property and/or loss in value. The unfair and deceptive trade practices committed
by Defendants were conducted in a manner giving rise to substantial aggravating circumstances.
11. Had Plaintiffs and other Class members known about the Oil Consumption Defect
at the time of purchase or lease, they would not have bought or leased the Vehicles, or would
have paid substantially less for them. The Oil Consumption Defect has also injured Class
members by requiring them to constantly replenish (and pay for) engine oil in the Vehicles at an
unreasonably rapid pace. In addition, Class members are being charged for oil consumption tests
and other repairs on their Vehicles that would not be necessary but for the existence of the Oil
Consumption Defect.
12. As a result of the Oil Consumption Defect and the monetary costs associated with
attempting to repair such defect, Plaintiffs and the Class members have suffered an injury in fact,
incurred damages, and have otherwise been harmed by Subaru’s conduct.
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II. JURISDICTION AND VENUE
13. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(d),
because this action is between citizens of different states, a class action has been pled, and the
matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs.
14. Venue is proper in this District under 28 U.S.C. §1391 because Defendants
transact business in this district, are subject to personal jurisdiction in the District of New Jersey,
and therefore are deemed to be citizens of this District. Additionally, Defendants have
advertised in this District and have received substantial revenue and profits from selling and
leasing the Vehicles in this District; therefore, a substantial part of the events and omissions
giving rise to the claims occurred within this District.
15. This Court has personal jurisdiction over Defendants to this action because
Defendants do substantial business in this District, and a substantial portion of the wrongdoing
alleged took place in this District.
III. PARTIES
A. Plaintiffs
16. Plaintiff Robert Tedesco, Jr. (“Tedesco”) is a citizen of the State of
Connecticut.
17. On January 14, 2013, Tedesco received delivery on his purchase of a new 2013
Subaru XV Crosstrek 2.0i premium from Dan Perkins Subaru, an authorized Subaru dealer and
repair center located in Milford, Connecticut.
18. Tedesco purchased this vehicle for personal, family and/or household uses.
19. On or before March 16, 2013, with approximately 3,500 miles on his vehicle,
Tedesco observed that the engine oil level warning light on his Crosstrek was illuminated.
According to Subaru Technical Service Bulletins, “the engine oil low level warning light is
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designed to illuminate when the engine oil level in the sump is approximately 1.1 quarts low.”
As a result, Tedesco took his Subaru Crosstrek to Dan Perkins Subaru, where they checked out
his vehicle, but told him that they did not find any problem.
20. On or about May 11, 2013, with approximately 7,850 miles on his vehicle,
Tedesco observed that the engine oil level warning light on his Crosstrek was illuminated again.
As a result, Tedesco again took his Subaru Crosstrek to Dan Perkins Subaru, where they checked
out his vehicle and told him that they needed to perform an oil consumption test. The mechanics
at Dan Perkins Subaru instructed Tedesco to return after he had driven an additional 1,200 miles
for an oil level check.
21. As a result of his Crosstrek’s unacceptable, excessive oil consumption, Tedesco
returned to Dan Perkins Subaru on: (i) August 10, 2013, with approximately 13,301 miles on his
vehicle; (ii) October 19, 2013, with approximately 17,175 miles on his vehicle (engine oil level
warning light illuminated again, and oil sensor checked); (iii) December 21, 2013, with
approximately 20,498 miles on his vehicle (after engine oil level warning light was again
illuminated); (iv) January 25, 2014, with approximately 22,434 miles on his vehicle (engine oil
and filter changed); (v) June 9, 2014, with approximately 30,559 miles on his vehicle (engine oil
level warning light was illuminated, another oil consumption test ordered); (vi) June 28, 2014,
with approximately 31,610 miles on his vehicle (checked oil as part of oil consumption test); and
(vii) September 6, 2014, with approximately 35,047 miles on his vehicle (added oil after engine
oil level warning light illuminated).
22. Tedesco was forced to purchase and add engine oil to his vehicle between
Defendants’ recommended engine oil change intervals in order to avoid catastrophic engine
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failure. Despite Tedesco’s vigilance, on or about October 3, 2014 – after only 1,723 miles since
his last oil change – his vehicle’s engine oil level warning light was again illuminated.
23. Although Dan Perkins Subaru performed approximately two oil consumption
tests, which showed excessive oil consumption, Subaru claims that no repairs are needed for
Tedesco’s Subaru Crosstrek. Thus, Tedesco’s problems arising from the Oil Consumption
Defect continue unabated.
24. As a result of the Oil Consumption Defect, the value of Tedesco’s Subaru
Crosstrek has been greatly diminished.
25. Plaintiff Natalia Tozovskaya (“Tozavskaya”) is a citizen of the State of New
Jersey.
26. In or around 2013, Tozavskaya purchased a new 2013 Subaru Outback 2.5L from
an authorized Subaru dealer and repair center located in Howell, New Jersey.
27. Tozavskaya purchased this vehicle for personal, family and/or household uses.
28. Shortly after purchasing her Subaru Outback, Tozavskaya noticed that it was
consuming engine oil at an unacceptable rate. As a result, Tozavskaya was frequently forced to
purchase and add engine oil to her vehicle between Defendants’ recommended engine oil change
intervals in order to avoid catastrophic engine failure.
29. As a result of the Oil Consumption Defect, the value of Tozavskaya’s Subaru
Outback has been greatly diminished.
B. Defendants
30. Defendant Fuji Heavy Industries Ltd. (“Fuji” or “FHI”) is a Japanese
corporation located at The Subaru Building, 1-7-2 Nishishinjuku, Shinjuku-ku, Tokyo, 1608316, Japan.
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31. Defendant Fuji is responsible for the design, manufacturing, distribution,
marketing sales and service of Subaru vehicles, including the Vehicles, around the world,
including in the United States.
32. Defendant Subaru of America, Inc. (“SAI”) is a New Jersey corporation with its
principal place of business located in Cherry Hill, New Jersey.
33. SAI is the U.S. sales and marketing subsidiary of Fuji and wholly owned
subsidiary responsible for distribution, marketing, sales and service of Subaru vehicles in the
United States.
34. Fuji and SAI (collectively “Subaru”) have common management. Indeed, SAI’s
sales, marketing and distribution efforts in the United States are headed by corporate officers of
Fuji. For example, Takeshi Tacihmori, the chairman and CEO of SAI is also a Director and
Corporate Executive Vice President for Fuji in charge of the Subaru Global Marketing Division,
Subaru Japan Sales and Marketing Division and Subaru Overseas Sales and Marketing Divisions
1 and 2. The incoming Chairman of SAI is also a Corporate Senior Vice President of Fuji who is
Chief General Manager of Subaru Overseas and the Vice President in charge of Sales and
Marketing, Division 1.
35. Upon information and belief, Defendant Fuji communicates with Defendant SAI
concerning virtually all aspects of the Subaru products it distributes within the United States.
36. Upon information and belief, the design, manufacture, distribution, service,
repair, modification, installation and decisions regarding the engines within the Vehicles were
performed exclusively by Defendants.
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37. Upon information and belief, Defendants develop the owner’s manuals, warranty
booklets, and information included in maintenance recommendations and/or schedules (including
the oil change intervals) for the Vehicles.
38. Defendants Fuji and SAI engage in continuous and substantial business in New
Jersey.
IV. FACTUAL ALLEGATIONS
C. The Oil Consumption Defect within the Vehicles
39. Subaru is engaged in the business of designing, manufacturing, warranting,
marketing, advertising and selling vehicles under the “Subaru” brand name throughout the
United States.
40. Defendant Fuji is a Japanese multinational corporation and conglomerate,
primarily involved in aerospace and ground transportation manufacturing, and is known for its
line of Subaru automobiles. Fuji’s aerospace division serves as a defense contractor to the
Japanese government, manufacturing Boeing and Lockheed Martin helicopters and airplanes
under license along with being a global development and manufacturing partner to both
companies.
41. Founded in 1968, SAI is the U.S. Sales and Marketing subsidiary of Fuji and is
responsible for the distribution, marketing, sales and service of Subaru vehicles in the U.S.1
42. Most manufacturers of four-cylinder engines use an “inline” or “straight” piston
configuration. Inline engines have the cylinders arranged, one after the other, in a straight line,
as shown in the photograph below:
1 See http://subaru.com/company.html (last visited October 8, 2014).
9
43. Rather than using an inline engine design, for decades Subaru has used an engine
design referred to as a “Boxer” configuration, in which the pistons face away from each other in
a 180º symmetrical layout, as shown in the photograph below:2
2 See http://www.autoblog.com/2011/02/10/subarus-new-2-0-liter-boxer-its-better-but-does-it-matter/
(last visited October 8, 2014).
10
44. Subaru touts its Boxer engines as superior to other automobile engine
configurations, stating:
Subaru firmly believes that the Horizontally-Opposed Engine is the optimum
design for driving enjoyment. The pistons face away from each other in a 180º
symmetrical layout around the crankshaft and work to balance out each other’s
vibrations, delivering a smooth, shudder-free feel. This is because the engine can
rotate freely at any given speed, delivering heart-gripping response to the driver.
The length and height of this engine layout can be kept shorter than a traditional
in-line engine, and it is also lighter. The engine can be mounted lower in the
vehicle than other engines, and weight balance on the left and right can be made
almost exactly the same. In this design, the low centre of gravity engine lowers
the centre of gravity of the entire car. Similarly, a symmetrically balanced engine
increases the symmetrical balance of the entire car. Both of these aspects combine
to deliver a safer, more stable, and ultimately, more enjoyable experience on the
road.3
45. From approximately 1989 to 2010, Subaru used a Boxer engine design known as
the “EJ” series. In late 2010, Subaru introduced its next generation of its Boxer engine known as
the “FB,” which was the first completely new engine from Subaru in 20 years.
46. Subaru debuted the FB engine in the MY 2011 Subaru Forester.
3 See http://www.subaru-global.com/tec_boxer.html (last visited October 8, 2014).
11
47. Subaru has claimed that the FB engine improved both economy and performance
as compared to the previous EJ engines. Specifically, Subaru represented that the FB engines
had a 28 percent reduction in friction losses within the engine, with the biggest contributors
being lighter pistons and connecting rods, as well as a drop in piston-ring tension. As a result,
less engine friction equated to an increase in engine efficiency including a 10 percent
improvement in fuel economy.
48. Subaru has promoted purported advantages of the FB engine as compared to the
previous EJ engine, including:
• The same horsepower, but at lower rpm
• Slightly higher torque at lower rpm
• Improved fuel economy
49. The Class encompasses Vehicles with two versions of FB engines known as the
“FB20” and the “FB25.” The FB20 is a 2.0 liter (1,995 cc) displacement Boxer engine with
dual-overhead camshafts (“DOHC”) and timing chain. Subaru designed, manufactured and
distributed the following Vehicles with the FB20 engine:
a. 2012-13 Impreza (2.0L)
b. 2013 XV Crosstek (2.0L)
50. The FB25 is a 2.5 liter (2,498 cc) displacement Boxer engine, also with dualoverhead camshaft (“DOHC”) and timing chain. Subaru designed, manufactured and distributed
the following Vehicles with the FB25 engine:
a. 2013 Legacy (2.5L)
b. 2013 Outback (2.5L)
c. 2011-14 Forester (2.5L)
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51. The 20FB and 25FB engines in the Vehicles (collectively, the “FB Engines”)
have engine oil pans with fluid capacities of between 5.1 and 5.5 U.S. quarts. Specifically,
engine oil capacities are 5.1 U.S. quarts in the ZX Crosstek, Legacy, Outback, Impreza and 2014
Forester and 5.5 U.S. quarts in the 2012-2013 Forester.
52. Furthermore, according to the Vehicle maintenance schedules, as set forth in the
Subaru Warranty & Maintenance Booklet, Subaru recommends the engine oil in the Vehicles be
changed at intervals of 7,500 miles or 7½ months.
53. Engine oil is essential to proper function of internal combustion engines. Most
cars use what is called a four-stroke combustion cycle to convert gasoline into kinetic motion.
This four-stroke cycle is known as the Otto cycle, in honor of its inventor Nikolaus Otto.
54. The four phases of the combustion cycle are:
• Intake stroke – begins with the inlet valve opening and a vaporized fuel mixture
is pulled into the combustion chamber by the downward motion of the piston.
• Compression stroke – begins with the inlet valve closing and the piston
beginning its movement upward, compressing the fuel mixture in the combustion
chamber.
• Combustion stroke – the spark plug ignites the fuel mixture, expanding the gases
and generating power that is transmitted to the crankshaft and ultimately to the
wheels of the vehicle.
• Exhaust stroke – waste gases are forced out of the cylinder. The exhaust valve
then closes, the inlet valve opens, and the Combustion Cycle repeats itself.
55. The diagram below depicts the four-stroke combustion cycle:
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56. During this process, engine oil is used to lubricate the piston and cylinder wall as
the piston moves up and down through the Combustion Cycle. Engine oil is also necessary in
this process to reduce wear on moving parts throughout the engine, improve sealing within the
combustion chamber, and to cool the engine by carrying heat away from the moving parts. If
there is an insufficient amount of engine oil, the engine will not have the necessary lubrication or
cooling, thereby causing premature wear of internal parts, inadequate performance, and/or
catastrophic engine failure.
57. The top sidewall of each engine piston contains rings that, when correctly sized
and installed, prevent engine oil from entering the combustion chamber, as well as optimizing
compression. On each of the four pistons, there are three rings: (1) the top compression ring, (2)
the second compression ring, and (3) the oil control ring.
58. The top compression ring is the top ring, or closest ring to the inlet and
combustion gases, and is exposed to the greatest amount of chemical corrosion and the highest
14
operating temperature. The compression ring transfers approximately 70% of the combustion
chamber heat from the piston to the cylinder wall.
59. The second compression ring, also known as the wiper ring, is used to further seal
the combustion chamber and to wipe the cylinder wall clean of excess oil. Combustion gases that
pass by the top compression ring are stopped by the second compression ring.
60. The bottom ring, known as the oil control ring, is used to wipe excess oil from the
cylinder wall during piston movement and return excess oil through the ring openings to the
engine oil pan. The oil control ring includes two thin rails or running surfaces.
61. If engine oil is able to pass between any of these piston rings and the surface of
the cylinder wall, then the engine oil will enter the combustion chamber of the engine. Once
engine oil is in the combustion chamber, it will not only cause a decrease in engine performance
but the engine oil will also be burned off during the Combustion Cycle thereby reducing the
overall amount of oil contained in the engine. Furthermore, engine oil in the combustion
chamber will also cause a decrease in fuel efficiency, cause carbon deposits to form within the
engine, and potentially damage the vehicle ignition and emission components. An image of a
Subaru piston with grooves for these rings is shown below:
15
62. In September and December 2013, Subaru issued a total of four (4) Technical
Service Bulletins (referred to as the “Initial TSBs”) to address complaints of excessive engine oil
consumption in the FB engines contained in the Vehicles.4
63. TSBs are recommended repairs issued by automotive manufacturers and directed
only to automotive dealers. TSBs are frequently issued when a manufacturer receives
widespread reports of a particular problem within its vehicles.
64. On or about May 27, 2014, Subaru issued revised versions of the Initial TSBs
previously issued regarding oil consumption in the FB engines (collectively, the “Revised
TSBs”).5
4 See Subaru TSB nos. 02-143-13, 02-144-13, 02-145-13, and 02-147-13.
5 See Subaru TSB nos. 02-143-13R, 02-144-13R, 02-145-13R, and 02-147-13R.
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65. The Revised TSBs acknowledged that the Vehicles were experiencing abnormally
high levels of engine oil consumption that warranted an intricate repair process to properly
remedy. The Revised TSB repair procedure identifies “unanticipated wear” of the oil control
piston rings as the root cause of the Oil Consumption Defect and, when repaired according to the
TSB, with redesigned oil piston rings incorporating “a change made to the surface treatment,”
the abnormal and excessive engine oil consumption ceases.6 As explained above, the pistons
function as the heart of the engine, with the Compression Cycle generating the power that is
distributed and used throughout the entire vehicle.
66. The cause of the Oil Consumption Defect is premature wear of the oil control ring,
as shown in the photograph below, where the oil control ring is worn flush with the piston wall and
allowing engine oil to be consumed during the Compression Cycle.
6 Each of the Revised TSBs state: “[T]he change was made a result of some limited findings of
unanticipated wear of these [oil control piston] rings.” TSB 02-147-13R incorporates additional language
stating “the change was made a result of some limited findings of unanticipated wear of these [oil control
piston] rings resulting from variations in cylinder roughness / finish.” (Emphasis added).
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Subaru FB20 Piston with Worn Oil Control Ring
67. According to the Revised TSBs: “If a customer inquires about oil consumption
and is close to their next service interval, and consumption has not exceeded 1 quart in that time,
the consumption rate should not be considered unusual. Consumption at a rate greater than this
should be reviewed on a case by case basis after reviewing the vehicle’s usage patterns /
history.”
68. Despite Subaru’s knowledge of the Oil Consumption Defect, and pursuant to the
Revised TSBs, in virtually every case Subaru requires a customer to undergo at least one oil
consumption test (often more than one). The Vehicle must be taken to a Subaru dealership
where the engine is filled with oil, the engine dipstick is marked and then the individual is
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instructed to drive for 1,200 miles and to then return for inspection. Some customers are even
required to pay a fee of as much as $100 to undergo such testing.
69. If the engine consumes greater than one quart of oil in 1,200 miles then, according
to Subaru, the relevant Revised TSB applies and the vehicle should be repaired under warranty.
Unfortunately, many Vehicles are still not being properly repaired despite undergoing and failing
the required oil consumption test.
70. If the engine consumes one quart of oil or less in 1,200 miles then Subaru
considers this “normal” oil consumption and will not repair the Oil Consumption Defect under
warranty despite its knowledge of inadequate piston rings and surface treatment as described in
the Revised TSBs.7 “If you drive your vehicle under these severe conditions, you should check
the oil level at least at every second fuel fill-up time, and change the oil more frequently. Please
refer to the Warranty and Maintenance Booklet for more details.”8
71. According to the Subaru Warranty and Maintenance Booklet referenced above,
examples of “severe driving conditions” relevant to engine oil include:
• Repeated short distance driving
• Driving on rough and/or muddy roads
• Driving in extremely cold weather
• Repeated trailer towing
72. According to the Revised TSBs, and in contrast to the Owners’ Manuals and
Warranty and Maintenance Booklet, “[s]ome engine oil will always be consumed as part of
7 According to the Owner’s Manual, “the oil consumption rate seems abnormally high after the break-in
period, for example more than 1 quart per 1,200 miles or 1 liter per 2,000 kilometers, contact your
SUBARU dealer.” See Owner’s Manual at 11-7, which can be found at:
http://techinfo.subaru.com/proxy/69529/pdf/ownerManual/069529_2013_XVCrosstrek/MSA5M1317AS
TIS_18.pdf (last visited October 8, 2014).
8 Id.
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normal engine operation. How much and when it is consumed varies according to
manufacturing tolerances, wear, and vehicle usage.”
73. However, according to the Revised TSBs, excessive oil consumption can occur
under nearly every conceivable driving situation, including the following:
Higher than expected oil consumption may occur under any of the following
conditions:
• When the engine is new and within the break-in period (during the first
1000 miles of operation)
• When the engine oil being used is of a lower quality (other than “Energy or
Resource Conserving” API Classification SM or SN or ILSAC, look for
the starburst design with GF-4 or GF-5)
• When the incorrect oil viscosity is used (viscosity other than 0W-20 in the
case of these specific vehicles)
• When engine braking is employed (Downshifting to make use of the
transmission’s gear ranges and the engine to decelerate the vehicle)
• When the engine is operated at high engine speeds (Continually or under
frequent and repetitive hard acceleration such as frequent freeway
merging)
• When the engine is operated under heavy loads (Frequent carrying of
cargo, multiple passengers or trailer towing)
• When the engine idles for long periods of time (Frequent use of a remote
engine start system followed by some period of idling as an example)
• When the vehicle is operated in stop and go and/or heavy traffic situations
• When the vehicle is used under severe temperatures (Cold or hot)
• When the vehicle accelerates and decelerates frequently
• Frequent short trip driving where the engine may not reach full operating
temperature
Under these or similar operating conditions, the oil level should be checked
regularly. The engine oil and filter may also need to be changed more often.
(Emphasis added).
74. Defendants’ expansive list of driving situations that may be a factor that
contributes to excessive oil consumption is intended to minimize its own responsibility for the
Oil Consumption Defect and deflect blame onto consumers.
75. Pursuant to the Vehicles’ Warranty and Maintenance Booklet, Subaru’s
recommended oil change interval for the Vehicles is one oil change every 7,500 miles or 7.5
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months.9 If a consumer follows Subaru’s recommended maintenance schedule, a loss of one (1)
quart of oil every 1,200 miles will result in the consumption of the entire amount of oil contained
in the Class Vehicle’s engine at between 6,120 and 6,600 miles.10 In essence, Subaru’s assertion
that consuming oil at a rate of 1,200 miles is acceptable will result in the Vehicles running out of
oil before Subaru’s recommend oil change interval of 7,500 miles, which will cause premature
wear of internal parts, inadequate performance, and/or catastrophic engine failure. The Oil
Consumption Defect often results in the consumption of engine oil at an even higher rate than
one quart of oil every 1,200 miles.
76. Subaru’s proposed repair for the Oil Consumption Defect, according to the
Revised TSBs, is to replace the piston ring set contained in the FB engines. The first step of this
procedure is to remove the engine from the Class Vehicle. Once removed from the vehicle, the
FB engine is then completely disassembled to reach the heart of the engine that houses the piston
assembly. The Revised TSBs provide an estimated labor time of between 11.4 and 13.1 hours
when performed by a professional Subaru technician. Some Class members have been quoted
and/or paid over $8,000 to Subaru dealerships for this repair.
77. The Initial and Revised TSBs were issued only to authorized Subaru dealers and
were never issued to the general public or the owners and lessees of the Vehicles.
78. Subaru’s failure to notify the general public and the owners and lessees of the
Vehicles regarding the Oil Consumption Defect is particularly egregious since, once the Oil
Consumption Defect manifests, owners and lessees of the Vehicles may run out of engine oil
9 Neither the Owner’s Manual nor the Warranty and Maintenance Booklet provides any instruction to
check the engine oil level between service intervals unless the vehicle is driven under “severe conditions,”
as described in the Warranty and Maintenance Booklet.
10 Calculations based on the 5.1 U.S. quart engine oil capacity for the XV Crosstrek, Legacy, Outback,
Impreza and 2014 Forester; 5.5 U.S. quart engine oil capacity for the 2012-2013 Forester.
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before Subaru’s recommended oil change interval, thereby causing abrupt catastrophic engine
damage and placing the driver and its occupants at an increased risk of accident, injury, and
death.
79. Subaru’s Powertrain Warranty is in effect for five (5) years or 60,000 miles,
whichever occurs first. According to the Warranty and Maintenance Booklet, Powertrain
Coverage Components include:
• Engine
• Engine block and all internal parts
• Cylinder heads and valve trains
• Oil pump, oil pan
• Timing belts or gears and cover
• Water pump
• Flywheel
• Intake and exhaust manifolds
• Oil seals and gaskets
(Emphasis added.)
80. Accordingly, since the piston rings are “internal [engine] parts,” warranty and
repair of the Oil Consumption Defect is covered under Subaru’s Powertrain Warranty.
81. The Vehicles are various makes and models of 2011-2013 Subaru vehicles. Based
on the date the Initial TSBs were issued – September and December 2013 – Subaru both
acknowledged the Oil Consumption Defect and suggested a repair that would fully remedy the
Oil Consumption Defect while all, or nearly all, of the Vehicles should still be covered under
Subaru’s Powertrain Warranty.
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82. Despite Subaru’s acknowledgement of the Oil Consumption Defect in the
Vehicles during the warranty period for all or nearly all of the Vehicles, Subaru has declined to
extend warranty coverage and free repairs to those owners and lessees of the Vehicles who have,
and have not yet, experienced the Oil Consumption Defect.
83. Subaru’s Powertrain warranty purports to “cover[] repairs needed to correct
defects in materials or workmanship of any” such covered component. Buyers, lessees, and other
owners of the Vehicles were without access to the information concealed by Defendants as
described herein, and therefore reasonably relied on Defendants’ representations and warranties
regarding the quality, durability, and other material characteristics of their vehicles. Had these
buyers and lessees known of the defect and the potential danger, they would have taken steps to
avoid that danger and/or would have paid less for their vehicles than the amounts they actually
paid, or would not have purchased their vehicles.
84. In many instances, consumers have incurred and will continue to incur expenses
for the diagnosis of the Oil Consumption Defect, despite such defect having been contained in
the Vehicles when manufactured by Defendants, repair and replacement of the FB engine, the
cost of additional engine oil, the cost of additional fuel and reduced MPG, higher emissions and
the unnecessary and premature replacement of vehicle emission components including, but not
limited to, spark plugs, oxygen sensors and catalytic converters.
85. The Oil Consumption Defect also causes damage, inaccurate functioning and
premature failure of certain ignition and emission components contained in the Vehicles.
86. The Vehicles were manufactured, designed and sold with two oxygen sensors (the
“O2 Sensors”) and two catalytic converters (the “Catalytic Converters”) as part of the emissions
23
and fuel management systems. Both the O2 Sensors and the Catalytic Converters are located in
the exhaust system, as shown below:
87. Optimum cylinder combustion in the Combustion Cycle depends on the correct
air/fuel ratio for the engine operating conditions. The O2 Sensors monitor unburned oxygen in
the exhaust gases and sends this information to the vehicle’s Engine Control Module (“ECM”).11
The ECM then uses this information from the O2 Sensors to determine if the fuel mixture is rich
(too much fuel) or lean (not enough fuel). The ECM will then adjust the fuel mixture of the
11 An engine control module (ECM) is a type of electronic control unit or computer that controls a series
of actuators on an internal combustion engine to ensure optimal engine performance. This is
accomplished through the ECM reading values from a multitude of sensors within the engine
compartment, interpreting that data using multidimensional performance maps and adjusting the engine
actuators accordingly.
24
engine based on this information. The O2 Sensors also measure oxygen levels after the exhaust
has reacted with the catalytic converter. The purpose of the sensor is to help the engine run as
efficiently as possible and also to produce as few emissions as possible.
88. In the Vehicles, the Oil Consumption Defect will cause the O2 Sensors to
prematurely fail and/or cause the engine to become less efficient, thereby requiring more fuel to
operate, and/or cause the engine to produce higher emissions. This is due to the contamination of
the O2 Sensors by phosphorus and/or zinc contained in the vehicle’s engine oil which, because
of the Oil Consumption Defect, is burned or disposed of during the Combustion Cycle and
incorporated into the vehicle’s expelled exhaust gases. As a result, this causes damage,
inaccurate functioning and premature failure of the O2 Sensors contained in the Vehicles.
89. The Catalytic Converters contained in the Vehicles are vehicle emissions control
devices designed to convert toxic pollutants, contained in exhaust gases, to less toxic pollutants
by catalyzing a redox reaction (oxidation or reduction). In the Vehicles, the Oil Consumption
Defect will cause the Catalytic Converters to become poisoned (described below), fail
prematurely and/or cause the engine to become less efficient, and/or cause the engine to produce
higher emissions.
90. Catalyst poisoning occurs when the Catalytic Converters in the Vehicles are
exposed to exhaust containing substances that coat the working surfaces, encapsulating the
catalyst so that it cannot contact and treat the exhaust. As with the O2 Sensors, the Catalytic
Converters become contaminated with phosphorus and/or zinc contained in the vehicle’s engine
oil which, because of the Oil Consumption Defect, is burned or disposed of during the
Combustion Cycle and incorporated into the vehicle’s expelled exhaust gases. As a result, this
25
causes damage, inaccurate functioning and premature failure of the Catalytic Converters
contained in the Vehicles.
91. Each of the Vehicles was manufactured, designed and sold with four (4) spark
plugs and associated components as part of the ignition system. A spark plug is an engine
component that delivers electric current from the ignition system to the combustion chamber in
order to ignite the compressed fuel/air mixture during the power stroke of the Combustion Cycle.
Properly functioning spark plugs help the engine run efficiently, and allow the engine to produce
fewer emissions.
92. In the Vehicles, the Oil Consumption Defect will cause the spark plugs and
related ignition components to fail prematurely and/or cause the engine to become less efficient,
thereby requiring more fuel to operate, and/or cause the engine to produce higher emissions. This
is due to the contamination of the spark plugs and related ignition components by the vehicle’s
engine oil which, because of the Oil Consumption Defect, is burned or disposed of during the
Combustion Cycle. As a result, this causes damage, inaccurate functioning and premature failure
of the Spark Plugs and related ignition components contained in the Vehicles.
93. Pursuant to the Subaru Warranty and Maintenance Booklet, the Catalytic
Converters contained on the Vehicles are warrantied for 7 years/70,000 miles under the
California Extended Emission Defect Warranty and 8 years/80,000 miles under the Federal
Emission Control Systems Warranty.
94. Pursuant to the Subaru Warranty and Maintenance Booklet, the O2 Sensors and
spark plugs contained on the Vehicles are warrantied for 3 years/50,000 miles under the
California Emissions Defect Warranty and 3 years/36,000 miles under the Federal Emissions
Defect Warranty.
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95. Car engines are designed to function for periods (and mileages) substantially in
excess of those specified in Subaru’s warranties, and given past experience, consumers
legitimately expect to enjoy the use of an automobile without worry that the engine will
catastrophically fail for significantly longer than the limited times and mileages identified in
Defendants’ warranties.
96. Automobiles must incorporate designs that are able to withstand foreseeable
usage conditions such as the operation of the vehicle without excessive engine oil consumption.
A vehicle can suffer catastrophic damage and costly repairs from customary environmental and
usage conditions when an insufficient vehicle design is implemented.
97. The Vehicles were manufactured with defective FB engines, materials and
components. This defect renders the Vehicles prone to the Oil Consumption Defect, costly
repairs and catastrophic engine failure. The Oil Consumption Defect poses serious safety and
security issues for operators and occupants of the Vehicles.
98. Defendants, through (1) their own records of customers’ complaints, (2)
dealership repair records, (3) records from the National Highway Traffic Safety Administration
(“NHTSA”), (4) warranty and post-warranty claims, (5) internal durability testing, and (6) other
various sources, were well aware of the Oil Consumption Defect but failed to notify consumers
of the nature and extent of the problems with the Vehicle or provide any adequate remedy.
99. Defendants failed to adequately research, design, test and/or manufacture the
Vehicles before warranting, advertising, promoting, marketing, and selling the Vehicles as
suitable and safe for use in an intended and/or reasonably foreseeable manner.
D. Subaru Owners’ Complaints about the Oil Consumption Defect
100. Internet websites that allow consumers to post complaints about products,
including online forums for Subaru owners and the NHTSA website, are filled with grievances
27
by current and former Subaru owners and lessees who have experienced the same Oil
Consumption Defect as Plaintiffs.
101. Below are complaints on the NHTSA website concerning the Vehicles:
Date Complaint Filed: 07/25/2014 Date of Incident: 04/15/2014
Component(s): ENGINE NHTSA ID Number: 10616345
Vehicle Make Model Model Year(s)
SUBARU FORESTER 2011
SUMMARY:
MY VEHICLE IS CONSUMING/ BURNING OIL RAPIDLY, ADDING IN 2-4 QUARTS
BETWEEN RECOMMENDED OIL CHANGES. THERE IS NO EVIDENCE UNDER
ENGINE TO SUGGEST A LEAK. MULTIPLE OIL CHANGES AND MECHANIC UNABLE
TO FIND ANY EVIDENCE OF A LEAK FURTHER INVESTIGATION REVEALS THERE
IS A CLASS ACTION LAWSUIT FOR THIS PARTICULAR PROBLEM IN MULTIPLE
SUBARU ENGINES.
Date Complaint Filed: 06/27/2014 Date of Incident: 09/01/2011
Component(s): ENGINE , SERVICE BRAKES NHTSA ID Number: 10606444
Vehicle Make Model Model Year(s)
SUBARU FORESTER 2011
SUMMARY:
EVERY TIME I GET MY OIL CHANGED THE DEALER INFORMS ME I AM DOWN A
QUART OF OIL WHICH THEY SAY IS NORMAL. I HAVE OWNED 20 CARS AND THIS
HAS NEVER HAPPENED BEFORE AND I THINK I AM GETTING THE RUN-AROUND.
CAN YOU HELP?
Date Complaint Filed: 05/09/2013 Date of Incident: 07/12/2011
Component(s): ENGINE NHTSA ID Number: 10511334
Vehicle Make Model Model Year(s)
SUBARU FORESTER 2011
SUMMARY:
AFTER OWNING 3 OTHER SUBARUS, WE FIGURED IT WAS A GREAT IDEA TO BUY
A 4TH. WELL, SUBARU HAS CHANGED THE ENGINE DESIGN ENOUGH WHERE AS
THE OIL NEEDED IS A SUPER LIGHT WEIGHT SYNTHETIC 0W20. AFTER ABOUT
2000 MILES CONSISTENTLY, THE CAR WILL ALWAYS NEED OIL. WE HAVE 40,000
ON IT NOW AND AFTER MULTIPLE OIL CHANGES THE CAR STILL USES WAY TOO
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MUCH OIL. NOT A GREAT CHOICE OF A CAR IS WHAT I AM THINKING NOW.
SOMEONE NEEDS TO STEP IN FROM THE NHTSA AND DETERMINE WHY A NEW
CAR WOULD BE LOSING OIL AS FAST AS THE SUBARU DOES. I HAVE READ OTHER
SIMILAR COMPLAINTS. MAYBE IT IS TIME TO START AN ONLINE PETITION TO
HELP NUDGE NHTSA AND SUBARU. *TR
Date Complaint Filed: 07/19/2014 Date of Incident: 04/15/2014
Component(s): ENGINE NHTSA ID Number: 10614733
Vehicle Make Model Model Year(s)
SUBARU FORESTER 2012
SUMMARY:
ENGINE USING SYNTHETIC OW-20 OIL PER DEALER RECOMMENDATION USES OIL
FASTER THAN NEW CAR SHOULD. OIL CHANGED 18,951MI. AT AROUND 22,000 OIL
WAS NOTED LEAKING AROUND OIL FILTER. ALSO DIPSTICK SHOWING LOW
LEVEL. OWNER HAD TO ADD OIL WHILE ON A TRIP. AFTER 24,393MI OIL FILTER
LEAK REPORTED, DEALER REPLACED GASKET 803916010 AND TOPPED OFF OIL.
AT 26,312 MI, OIL AGAIN CHANGED BY DEALER. 3K MI LATER (29,000MI) OIL
AGAIN SHOWED BELOW LOW ON DIPSTICK REQUIRING OWNER TO ADD OIL.
32,191 MI SERVICE APPOINTMENT OIL CHANGE BY DEALER STATES "CLOSE TO
FULL." DEALER TOLD US THAT CARS USE A QUART OF OIL EVERY THOUSAND
MILES NORMALLY. NO LEAK FOUND ON INSPECTION. I ALWAYS PARK IN THE
SAME PLACE AT PARKING GARAGE AND THERE ARE NO OIL LEAKS ON THE
CONCRETE. MY FAMILY HAS HAD 2 OTHER NEW SUBARU VEHICLES SINCE 2003
WHICH ALSO USE SYNTHETIC OIL AND NO OTHER CAR HAS HAD THIS OIL USAGE.
I HAVE OWNED 6 NEW CARS IN MY LIFETIME. I KNOW HOW TO MAINTAIN AN
ENGINE BY FREQUENT CHECKS AND MAINTENANCE. MY CONCERN IS THAT
OWNERS MAY LOSE AN ENGINE DUE TO SEIZURE IF THEY FOLLOW SUBARU
RECOMMENDED OIL CHANGE BY MILEAGE OR MONTHS. SOME OWNERS WHO
ARE NOT DILIGENT IN CHECKING FREQUENTLY MAY LOSE AN ENGINE. MY
OTHER CONCERN IS THAT EITHER SUBARU ENGINE DESIGN, GASKETS, OR OTHER
PARTS MAY BE TO BLAME IN EXCESSIVE OIL USAGE. PLEASE INVESTIGATE THIS
PROBLEM.
Date Complaint Filed: 01/04/2014 Date of Incident: 01/02/2013
Component(s): ENGINE NHTSA ID Number: 10558426
Vehicle Make Model Model Year(s)
SUBARU FORESTER 2012
SUMMARY:
THE ENGINE CONSUMES TOO MUCH OIL FOR SUCH A RELATIVELY NEW & LOW
MILEAGE VEHICLE. THIS IS THE 2ND COMPLAINT TO THE DEALER ABOUT THIS
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CONCERN. EACH TIME THE ENGINE OIL IS CHECKED THE DIPSTICK WOULD NOT
REGISTER ANY OIL READING. ON THE SECOND VISIT, THE DEALER CHANGED
THE OIL & FILTER UNDER WARRANTY AS PER BULLETIN 02-144-13R & HAVING
ME RETURN AFTER AN ADDITIONAL 1200 MILES OF DRIVING. THIS ENGINE IS
DEFECTIVE FOR HAVING OIL USAGE AT SUCH LOW MILEAGE AND BEGIN
RELATIVELY NEW. I HAVE OWNED MANY CARS IN MY TIME AND UNDERSTAND
ALL CARS CONSUME OIL AT SOME POINT OR ANOTHER BUT NOT WHEN THE CAR
IS STILL PRACTICALLY NEW. DID RESEARCH ONLINE AND HAVE SEEN MANY
OTHER OWNERS WITH SIMILAR COMPLAINTS, MOST WITH NO RESOLUTION. THIS
POSES A SAFETY HAZARD MAINLY FOR THE OWNERS WHO ARE NOT AS SAVVY
WITH VEHICLES. THE ENGINE OIL COULD RUN OUT & SEIZE THE MOTOR OF
WHICH CAN HAPPEN WHILE DRIVING DURING HIGHWAY SPEEDS. *TR
102. Complaints concerning the Oil Consumption Defect can be found on consumer
complaints web sites like carcomplaints.com, including the following:
a. Paul B. of Worcester, MA, posted the following complaint about his 2014
Forester 2.5L:
“Driving new vehicle (first and probably last Subaru) when oil light came on at
about 3000mi. Now at 21500 and have added four quarts BETWEEN scheduled
oil changes. Took to dealer in July 2014 and have commenced oil consumption
test. Yesterday, after 2400 miles, they added a quart. Initially I was told that 1/3 qt
consumption for 1000mi was normal. If that is the case, I am very sorry I bought
this car. How much will it consume after 100k?”
b. Laura H. of Dunsmuir, CA, posted the following complaint about her 2011
Forester and 2014 Forester 2.5L:
“I purchased a 2011 Subaru Forester, it had severe oil consumption issues. After
many visits to the dealership with, two oil consumption tests, and much
aggravation the dealer put in a new short block. During this time I asked
continually about the catalytic converter and was told not to worry about that!
Two days after I got the car back I was driving on a mountain road and the
catalytic converter exploded shooting metal through the engine and out of the
exhaust. Of course this left the car inoperable so it was towed back to the
dealership. I told the manager and owner I did not want the car back, I wanted to
be reimbursed what I had paid for it and I was going to purchase another car. The
owner said he could not do that but would make me a great deal on the new and
improved 2014 Forester. With that being the option I took it. My 2014 Forester
started with the oil consumption immediately. Every time I go in for service I
complain about this issue. Yesterday, 7/21/14 at 3,000 miles after the last service
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and oil change my car needed a quart of oil! I called the dealer and here I go
again, I have to do an oil consumption test.” (Emphasis added.)
c. Jack B. of Bloomfield, New York posted the following complaint about his
2014 Forester 2.5L Premium:
[W]e bought the 2014 forester March 2013. manual transmission and at 3000
miles oil light came on. oil was 1 quart low. dealership recommended early oil
change. we had oil changed again in early sept. before long trip, oil was about a
1/3 quart low. left on trip and thank goodness I checked oil after 1800 miles.
about 1/2 quart low. during the trip, 6600 miles, checked oil daily and added 2
quarts. back to dealership in October, no solution. November they suggested oil
consumption test. [W]e have done the test, been back to dealership 3 times and oil
varies greatly on amount used. the last trip in it used 1 quart in 1400 miles. we
are taking care of problem through owner and we not going to have piston rings
replaced. I do agree that Subaru itself offers absolutely no help. [A]fter reading
many complaints it appears that the manual in much more of a problem. i would
be very careful buying a manual, even though the mileage is much better.
(Emphasis added.)
103. Complaints concerning the Oil Consumption Defect can also be found on various
Subaru owners’ forums, including the following:
a. Complaint posted in March 2014 on a Subaru Forester forum:12
I have a new 2014 Outback 2.5l .....I have 970 miles on it and i just added 1 qt.
of oil. Some say its the FB series engine coupled with the cvt transmission.
[S]ome say it's too thin of oil 0-20 wt(purposeful to get better mileage on all
wheel drives) maybe?, but which is cheaper, a gallon of synthetic oil or a gallon
of gas...
[S]ome say it's rings not seating (which Subaru has sometimes fixed on warranty),
but you have to use more than 1 quart every thousand miles.< --- ---absolutely a
ridiculous requirement.
Now this ring seating issue has some merit, but the criteria for getting resolve is
"normalized" and compromised at the consumers expense. My guess is they don't
have a meaningful solution given that this is still ongoing. Engineering mistakes
are costly to them, so if they can pass that on to the consumer, they will.
They are making a valiant attempt at changing what is normal oil consumption.
THEY MAKE THE SERVICE DEPT DO A OIL CONSUMPTION TEST and if
12 This post can be found at: http://www.subaruforester.org/vbulletin/f151/has-oil-consumption-problembeen-fixed-140849/index4.html
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it's over a quart every 1,000, they will allow the work , presumably a ring change.
again absolutely ridiculous and irresponsible.
[W]hat can a person do? Well I am not sure yet. But I can guarantee one thing...,
in my 65 years of age I have never come across a vehicle that uses oil out of
the blocks like this one has (so far). I am very, very concerned about this.
(Emphasis added.)
b. Complaint posted on January 1, 2014, on a Subaru owners forum:13
I purchased a new 2014 Subaru Forester in March of 2013. Have followed all
maintenance procedures per the manual. All work done at Saint J Subaru in St.
Johnsbury, Vermont. 7K service completed at dealer. [A]t 10,000 display said oil
required...1 quart added. Same thing ag[a]in at 12,600 miles. Told dealer at next
service, 14,300. Said bring back in 1200 miles to check. Did that and found it
burned 8 ounces. Subaru will replace rings at 10.67 ounces us[]age. Called
Subaru and they refused to do anything even though I have bought 4
Subarus. (Emphasis added.)
c. Complaint posted on April 21, 2014, on a Subaru owners forum:14
We too purchased a 2014 Forester last April and it has gone through a quart of
oil each oil change, looks like it will be a quart and a half this time and Subaru is
doing nothing about. Not all of the 2014s go through oil - a friend has the same
year and model but no oil consumption. Guess it will take a class action law suit
to get them to do something. Anyone interested? And btw, nothing but Subaru
0w-20 full synthetic has been used in the car. I am going back to being a Honda
owner. (Emphasis added.)
d. Complaint posted on July 27, 2014, on a Subaru owners forum:15
My 2012 Impreza had the same engine as the foresters and burned about a
quart per 1500 miles. Subaru Of America were not only unhelpful, but were
downright rude. Where's the "love"? An oil burner hunk of crap is not worth
"waiting for". (Emphasis added.)
e. Complaint posted on August 29, 2014, on a Subaru owners forum:16
13 This post, and other like it, can be found at: http://www.edmunds.com/subaru/forester/2014/consumerreviews/2014-forester-burns-oil.html?style=200460195&sub=&reviewId=286803830262366208
14 Id.
15 Id.
16 Id.
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Same problem, excessive oil consumption on subaru forester 2012 with less than
18k miles, there is a lawsuit in relation to this. Any body knows if this lawsuit
covers all subaru customers with this problem? (Emphasis added.)
f. Complaint posted on September 10, 2014, on a Subaru owners forum:17
I too have this issue on my 2012 Impreza. Burns a quart after 4-5k miles (7500
Mile Intervals - 0W-20) Recent forums suggest that while replacing the oil rings
"helped", it did not eliminate the problem. 0W-20 Synthetic is expensive and the
oil consumption issue will have a direct impact on resale value. No matter what
you read from mechanics here, this is a serious problem that Subaru needs to
address with more effort than thus given. A recall is in order, but they don't want
to eat the cost of it, plain and simple. I am currently working with SoA and they
are having me do an oil consumption test (Oil change/Bring in when light comes
on - measure the oil consumption). I just have to say this SUCKS and I will not be
buying another Subaru. My 02' Impreza had a head gasket failure (which I paid to
fix) and then shortly after, the transmission died. While I did get a decent trade in
for it at the dealership, I feel scammed that I bought a NEW car that is already
consuming oil. New cars shouldn't do this, period. Don't let any
mechanic/knucklehead tell you otherwise. Don't let the dealership overfill your oil
reservoir either, that will hurt your fuel economy and only covers up the problem.
I will be participating in the class action lawsuit if I am not taken care of by
Subaru. Again, I am VERY disappointed to be put in this circumstance.
(Emphasis added.)
g. Complaint posted on September 16, 2014, on a Subaru owners forum:18
I also own a manual 2014 Forester and have struggled with oil consumption. Red
light went on after 3500 miles the first time, I was told it was re-equilibrating.
About 4500 miles later had to add 1 1/2 quarts. Told it was normal. Same story
continued. Complaints to Subaru co., told to do oil consumption test but all was
within guidelines. How could it be when one can't even make it to the
recommended oil change interval? Just found out I used 12oz of oil within the
last 1200 miles. Still told acceptable. After practically arm wresting with the
dealer, they agreed to look into it tomorrow. What is the point of buying a new
car, I just don't get it! (Emphasis added).
h. Complaint posted on March 16, 2013, on a Subaru owners forum:19
I bought my [C]rosstrek in October and have almost 6,000 miles. Yesterday my
oil light came on. I checked my oil, and it was low. I brought it to Subaru to have
17 Id.
18 Id.
19 This post, and others like it, can be found at: http://clubcrosstrek.com/index.php?topic=527.0.
33
them check it out. They said it was within the acceptable limits for "consuming
oil" for the amount of miles I had. They said I was 1 quart low. A brand new car
burning oil this quickly?!?!?!? Looking for some advice or suggestions.
(Emphasis added).
V. TOLLING OF STATUTES OF LIMITATION
104. Any applicable statutes of limitations have been tolled by Defendants’ knowing
and active concealment and denial of the facts alleged herein. Plaintiffs and members of the
Class could not have reasonably discovered the true, latent defective nature of the Oil
Consumption Defect until shortly before this class action litigation was commenced.
105. Defendants were and remain under a continuing duty to disclose to Plaintiffs and
members of the Class the true character, quality and nature of the Vehicles, that the Oil
Consumption Defect is based on a defective design, and that it will require costly repairs, poses a
safety concern, and diminishes the resale value of the Vehicles. As a result of the active
concealment by Defendants, any and all applicable statutes of limitations otherwise applicable to
the allegations herein have been tolled.
VI. CHOICE OF LAW ALLEGATIONS
106. The substantive laws of New Jersey should apply to the proposed Nationwide
Class, as defined below, because Plaintiffs properly brought suit in this District.
107. New Jersey’s substantive laws may be constitutionally applied to the claims of
Plaintiffs and the Nationwide Class under the Due Process Clause, 14th Amend., § 1, and the
Full Faith and Credit Clause, art. IV., § 1, of the U.S. Constitution. New Jersey has significant
contact, or significant aggregation of contacts, to the claims asserted by Plaintiffs and all
Nationwide Class members, thereby creating state interests that ensure that the choice of New
Jersey state law is not arbitrary or unfair.
34
108. Subaru does substantial business in New Jersey, with a significant portion of the
proposed Nationwide Class located in New Jersey.
109. New Jersey hosts a significant number of Subaru’s U.S. operations, including its
North American headquarters and principal place of business. According to its website, SAI
occupies an $18 million, 115,000 square-foot, seven-story structure in Cherry Hill, New Jersey,
which serves as the company’s national headquarters housing approximately 300 people in
Finance, IT, Marketing, Sales and Product Planning. Subaru also has an Operations Center
located in Pennsauken, New Jersey housing nearly 200 employees from Customer Loyalty,
Government Relations, Parts, Service, Training, Customer Dealer Service and Subaru Financial
Services.
110. In addition, the conduct that forms the basis for each and every Class members’
claims against Subaru emanated from Subaru’s headquarters in New Jersey.
111. On information and belief, Subaru personnel responsible for customer
communications are and were located at the New Jersey headquarters, and the core decision not
to disclose the Oil Consumption Defect to consumers was made and implemented from there.
112. On information and belief, Subaru personnel responsible for communicating with
authorized Subaru dealers regarding known problems with defective Vehicles are and were also
located at the New Jersey headquarters.
113. On information and belief, Subaru’s presence is more substantial in New Jersey
than any other state.
114. The application of New Jersey’s laws to the Nationwide Class is also appropriate
under New Jersey’s choice of law rules because New Jersey has significant contacts to the claims
35
of the Plaintiffs and the proposed Nationwide Class, and New Jersey has a greater interest in
applying its laws here than any other interested state.
VII. CLASS ALLEGATIONS
115. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
116. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(a), (b)(2), and (b)(3) of
the Federal Rules of Civil Procedure, on behalf of themselves and a Class consisting of:
All persons or entities in the United States who are current or former owners
and/or lessees of a Class Vehicle (the “Nationwide Class”).
117. In the alternative to the Nationwide Class, and pursuant to Fed. R. Civ. P.
23(c)(5), Plaintiffs seek to represent the following state classes only in the event that the Court
declines to certify the Nationwide Class above:
Connecticut Class: All persons or entities in Connecticut who are current or
former owners and/or lessees of a Class Vehicle.
New Jersey Class: All persons or entities in New Jersey who are current or
former owners and/or lessees of a Class Vehicle.
118. Together, the Connecticut Class and New Jersey Class are collectively referred to
herein as the “State Sub-Classes.” Excluded from the Nationwide Class and State Sub-Classes
are governmental entities, Defendants, their affiliates and subsidiaries, Defendants’ current
employees and current or former officers, directors, agents, and representatives, and their family
members.
119. Plaintiffs reserve the right to modify, change, or expand the Nationwide Class and
State Sub-Class definitions if discovery and/or further investigation reveals that they should be
expanded or otherwise modified.
120. Plaintiffs do not know the exact size or identities of the members of the proposed
Class, since such information is in the exclusive control of Defendants. Plaintiffs believe that the
36
Class encompasses more than 1,000 individuals whose identities can be readily ascertained from
Defendants’ books and records. Therefore, the proposed Class is so numerous that joinder of all
members is impracticable.
121. Based on the size of the loan modifications at issue, Plaintiffs believe that the
amount in controversy exceeds $5 million.
122. All members of the Class have been subjected to and affected by a uniform course
of conduct by Defendant.
123. As such, there are questions of law and fact that are common to the class, and
predominate over any questions affecting only individual members of the Class.
124. These questions include, but are not limited to the following:
a. whether the FB engines in the Vehicles are predisposed to the Oil
Consumption Defect;
b. whether the FB engines in the Vehicles contain a design defect and/or
defect in materials;
c. whether the defective engine design and/or defect in materials is common
to all or some of the Vehicles;
d. if so, whether the Oil Consumption Defect causes the excessive oil
consumption in the Vehicles;
e. whether Defendants knowingly failed to disclose the existence and cause
of the Oil Consumption Defect in the Vehicles;
f. whether Defendants’ conduct violates the New Jersey Consumer Fraud
Act and the other statutes asserted herein;
g. whether, as a result of Defendants’ omissions and/or misrepresentations of
material facts related to the Oil Consumption Defect, Plaintiffs and
members of the Classes have suffered an ascertainable loss of monies
and/or property and/or value; and
h. whether Plaintiffs and Class members are entitled to monetary damages,
and, if so, what is the proper measure of those damages; and
i. Whether the Court can enter injunctive relief.
37
125. Plaintiffs’ claims are typical of the claims of the Classes since each Plaintiff
purchased or leased a Class Vehicle containing the Oil Consumption Defect, defective vehicle
design, defective materials, and defective engine, as did each member of the Classes.
Furthermore, Plaintiffs and all members of the Classes sustained monetary and economic injuries
including, but not limited to, ascertainable losses arising out of Defendants’ wrongful conduct.
Plaintiffs are advancing the same claims and legal theories on behalf of themselves and all absent
Class members.
126. The individual named Plaintiffs will fairly and adequately represent the interests
of the Class. Plaintiffs are committed to the vigorous prosecution of the Class’ claims and have
retained attorneys who are qualified to pursue this litigation and have experience in class actions,
including consumer protection actions.
127. A class action is superior to other methods for the fast and efficient adjudication
of this controversy. A class action regarding the issues in this case does not create any problems
of manageability.
128. Class certification is appropriate under Fed. R. Civ. P. 23, as the Classes satisfy
the requirements of Fed. R. Civ. P. 23(a) and 23(b)(3).
129. Class certification is also appropriate under Fed. R. Civ. P. 23(b)(2) with respect
to injunctive relief. Injunctive relief is required because Defendants have acted or refused to act
on grounds that apply generally to the Classes so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the Class as a whole.
130. A class action is superior to all other available means of fair and efficient
adjudication of the claims of Plaintiffs and members of the Classes. The injury suffered by each
individual Class member is relatively small in comparison to the burden and expense of
38
individual prosecution of the complex and extensive litigation necessitated by Defendants’
conduct. It would be virtually impossible for members of the Class individually to redress
effectively the wrongs done to them. Even if the members of the Class could afford such
individual litigation, the court system could not. Individualized litigation presents a potential for
inconsistent or contradictory judgments. Individualized litigation increases the delay and expense
to all parties, and to the court system, presented by the complex legal and factual issues of the
case. By contrast, the class action device presents far fewer management difficulties, and
provides the benefits of single adjudication, an economy of scale, and comprehensive
supervision by a single court. Upon information and belief, members of the Classes can be
readily identified and notified based on, inter alia, Defendants’ vehicle identification numbers,
warranty claims, registration records, and database of complaints.
VIII. CAUSES OF ACTION
COUNT I - VIOLATIONS OF THE VIOLATIONS OF THE NEW JERSEY CONSUMER
FRAUD ACT, N.J. STAT. ANN. § 56:8-1, ET SEQ.
(On Behalf of the Nationwide Class or, Alternatively, the New Jersey Sub-Class)
131. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
132. The New Jersey Consumer Fraud Act, N.J. STAT. ANN. §§ 56:8-1, et seq.
(“NJCFA”) protects consumers against “any unconscionable commercial practice, deception,
fraud, false pretense, false promise, misrepresentation, or the knowing, concealment,
suppression, or omission of any material fact with intent that others rely upon such concealment,
suppression or omission, in connection with the sale or advertisement of any merchandise…”
N.J.S.A. 56:8-2.
133. Plaintiffs and members of the Class are consumers who purchased and/or leased
Vehicles for personal, family or household use.
39
134. In the course of Subaru’s business, it failed to disclose and actively concealed the
dangerous risk of the Oil Consumption Defect in the Vehicles as described above. Accordingly,
Subaru has engaged in unfair and deceptive trade practices, including representing that the
Vehicles have characteristics, uses, benefits, and qualities which they do not have; representing
that the Vehicles are of a particular standard and quality when they are not; advertising the
Vehicles with the intent to not sell them as advertised in violation of N.J.S.A. 56:8-2.2; and
otherwise engaging in conduct likely to deceive in violation of N.J.S.A. 56:8-2.
135. Subaru’s acts and practices, as described herein, offend established public policy
because of the harm they cause to consumers, motorists, and pedestrians outweighs any benefit
associated with such practices, and because Subaru concealed the defective nature of the
Vehicles from consumers.
136. Subaru’s actions as set forth above occurred in the conduct of trade or commerce.
137. Defendants’ conduct caused Plaintiffs and Class members to suffer an
ascertainable loss. In addition to direct monetary losses, Plaintiffs and Class members have
suffered an ascertainable loss by receiving less than what was promised.
138. Plaintiff and the other Class members were injured as a result of Subaru’s conduct
in that Plaintiff and the other Class members overpaid for their Vehicles and did not receive the
benefit of their bargain, they incurred costs for engine oil and repairs, and their Vehicles suffered
a diminution in value.
139. A causal relationship exists between Defendants’ unlawful conduct and the
ascertainable losses suffered by Plaintiff and the Class. Had the defective vehicle design in the
vehicles been disclosed, consumers would not have purchased them or would have paid less for
the vehicles had they decided to purchase them.
40
140. Pursuant to N.J. STAT. ANN. § 56:8-20, Plaintiff will serve the New Jersey
Attorney General with a copy of this Complaint.
COUNT II - BREACH OF EXPRESS WARRANTY
(On Behalf of the Nationwide Class or, Alternatively, each of the State Sub-Classes)
141. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
142. Defendants expressly warranted that the Vehicles were of high quality and, at
minimum, would actually work properly. Defendants also expressly warranted that they would
repair and/or replace defects in material and/or workmanship free of charge that occurred during
the new vehicle and certified preowned (“CPO”) warranty periods.
143. Plaintiffs relied on Subaru’s express warranties when purchasing their Vehicles.
144. Defendants breached this warranty by selling to Plaintiffs and the Class members
the Vehicles with known engine oil consumption problems, which are not of high quality, and
which are predisposed to fail prematurely and/or fail to function properly.
145. As a result of Defendants’ actions, Plaintiffs and the Class members have suffered
economic damages including, but not limited to, costly repairs, loss of vehicle use, substantial
loss in value and resale value of the vehicles, and other related damage.
146. Defendants’ attempt to disclaim or limit these express warranties vis-à-vis
consumers is unconscionable and unenforceable under the circumstances here. Specifically,
Defendants’ warranty limitation is unenforceable because they knowingly sold a defective
product without informing consumers about the defect.
147. The time limits contained in Defendants’ warranty period were also
unconscionable and inadequate to protect Plaintiffs and members of the Class. Among other
things, Plaintiffs and Class members had no meaningful choice in determining these time
limitations, the terms of which unreasonably favored Defendants. A gross disparity in bargaining
41
power existed between Subaru and the Class members, and Subaru knew or should have known
that the Vehicles were defective at the time of sale and would fail well before their useful lives.
148. Plaintiffs and the Class members have complied with all obligations under the
warranty, or otherwise have been excused from performance of said obligations as a result of
Defendants’ conduct described herein.
COUNT III - BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
(N.J.S.A. § 12A:2-314)
(On Behalf of the Nationwide Class or, Alternatively, the New Jersey State Sub-Class)
149. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
150. In the event the Court declines to certify a nationwide Class, Plaintiffs bring this
claim solely on behalf of Class members who are New Jersey residents.
151. Defendant Subaru is a “merchant” with respect to motor vehicles.
152. A warranty that the Vehicles were in merchantable condition was implied by New
Jersey law in the transactions when Plaintiffs purchased their Vehicles.
153. The Vehicles, when sold and at all times thereafter, were not merchantable and
are not fit for the ordinary purpose for which cars are used due to the Oil Consumption Defect.
154. As a direct and proximate result of Defendants’ breach of the warranties of
merchantability, Plaintiffs and the Class have been damaged in an amount to be proven at trial.
155. Defendants’ attempt to disclaim or limit the implied warranty of merchantability
vis-à-vis consumers is unconscionable and unenforceable here. Specifically, Defendants’
warranty limitation is unenforceable because they knowingly sold a defective product without
informing consumers about the defect.
156. The time limits contained in Defendants’ warranty period were also
unconscionable and inadequate to protect Plaintiffs and member of the Class. Among other
42
things, Plaintiffs and members of the Class had no meaningful choice in determining these time
limitations, the terms of which unreasonably favored Defendants. A gross disparity in bargaining
power existed between Subaru and Class members, and Subaru knew or should have known that
the Vehicles were defective at the time of sale and would fail well before their useful lives.
157. Plaintiffs and Class members have complied with all obligations under the
warranty, or otherwise have been excused from performance of said obligations as a result of
Defendants’ conduct described herein.
COUNT IV - BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
(C.G.S.A. § 42a-2-314)
(On Behalf of the Connecticut State Sub-Class)
158. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
159. Plaintiffs bring this claim solely on behalf of Class members who are Connecticut
residents.
160. Defendant Subaru is a “merchant” with respect to motor vehicles.
161. A warranty that the Vehicles were in merchantable condition was implied by
Connecticut law in the transactions when Plaintiffs purchased their Vehicles.
162. The Vehicles, when sold and at all times thereafter, were not merchantable and
are not fit for the ordinary purpose for which cars are used due to the Oil Consumption Defect.
163. As a direct and proximate result of Defendants’ breach of the warranties of
merchantability, Plaintiffs and the Class have been damaged in an amount to be proven at trial.
164. Defendants’ attempt to disclaim or limit the implied warranty of merchantability
vis-à-vis consumers is unconscionable and unenforceable here. Specifically, Defendants’
warranty limitation is unenforceable because they knowingly sold a defective product without
informing consumers about the defect.
43
165. The time limits contained in Defendants’ warranty period were also
unconscionable and inadequate to protect Plaintiffs and member of the Class. Among other
things, Plaintiffs and members of the Class had no meaningful choice in determining these time
limitations, the terms of which unreasonably favored Defendants. A gross disparity in bargaining
power existed between Subaru and Class members, and Subaru knew or should have known that
the Vehicles were defective at the time of sale and would fail well before their useful lives.
166. Plaintiffs and Class members have complied with all obligations under the
warranty, or otherwise have been excused from performance of said obligations as a result of
Defendants’ conduct described herein.
COUNT V - BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
(On Behalf of the Nationwide Class or, Alternatively, each of the State Sub-Classes)
167. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
168. Every contract in Connecticut and New Jersey contains an implied covenant of
good faith and fair dealing. The implied covenant of good faith and fair dealing is an
independent duty and may be breached even if there is no breach of a contract’s express terms.
169. Defendants breached the covenant of good faith and fair dealing by, inter alia,
failing to notify Plaintiffs and Class members of the Oil Consumption Defect in the Vehicles,
and failing to fully and properly repair this defect.
170. Defendants acted in bad faith and/or with a malicious motive to deny Plaintiffs
and the Class members some benefit of the bargain originally intended by the parties, thereby
causing them injuries in an amount to be determined at trial.
44
COUNT VI - VIOLATION OF CONNECTICUT UNFAIR TRADE PRACTICES ACT,
C.G.S.A. § 42–110a ET SEQ.
(By Plaintiff Tedesco on Behalf of Himself and the Connecticut State Sub-Class)
171. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
172. Plaintiff Tedesco and the members of the Connecticut State Sub-Class are persons
under C.G.S.A. § 42-110a(3).
173. Subaru’s actions as set forth above occurred in the conduct of trade or commerce
under C.G.S.A. § 42-110a(4), and do not fall within any of the exemptions of C.G.S.A. § 42110c.
174. In the course of Subaru’s business, it failed to disclose and actively concealed the
dangerous risk of the Oil Consumption Defect in the Vehicles as described above. Accordingly,
Subaru has engaged in unfair and/or deceptive acts or practices in the conduct of trade or
commerce, including representing that the Vehicles have characteristics, uses, benefits, and
qualities which they do not have; representing that the Vehicles are of a particular standard and
quality when they are not; advertising the Vehicles with the intent to not sell them as advertised;
and otherwise engaging in conduct likely to deceive.
175. Further, Subaru’s acts and practices, as described herein, offend public policy,
and/or are immoral, oppressive, or unscrupulous because of the harm they cause to consumers,
motorists, and pedestrians outweighs any benefit associated with such practices, and because
Subaru concealed the defective nature of the Vehicles from consumers.
176. As a result of Defendants’ violations of the Connecticut Unfair Trade Practices
Act, Plaintiff Tedesco and members of the Connecticut State Sub-Class suffered an ascertainable
loss of money or property, including, but not limited to, diminution in the value of the Vehicles.
45
This diminution in value is measurable by financial and economic analyses, and therefore, is a
loss that is capable of being discovered, observed or established.
177. Pursuant to C.G.S.A. § 42-110g(c), Plaintiffs will mail a copy of this complaint to
the Connecticut Attorney General and the Connecticut Commissioner of Consumer.
COUNT VII - VIOLATION OF MAGNUSON-MOSS WARRANTY ACT, 15 U.S.C. §
2301, ET SEQ.
(On Behalf of the Nationwide Class or, Alternatively, each of the State Sub-Classes)
178. Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.
179. Plaintiffs bring this Count on behalf of the Nationwide Class or, alternatively, on
behalf of each of the State Sub-Classes.
180. Plaintiffs are “consumers” within the meaning of the Magnuson-Moss Warranty
Act, 15 U.S.C. § 2301(3).
181. Subaru is a “supplier” and “warrantor” within the meaning of the MagnusonMoss Warranty Act, 15 U.S.C. § 2301(4)-(5).
182. The Vehicles are “consumer products” within the meaning of the Magnuson-Moss
Warranty Act, 15 U.S.C. § 2301(1).
183. 15 U.S.C. § 2301(d)(1) provides a cause of action for any consumer who is
damaged by the failure of a warrantor to comply with a written or implied warranty.
184. Subaru’s express warranties are written warranties within the meaning of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(6). The Vehicles’ implied warranties are
covered under 15 U.S.C. § 2301(7).
185. Subaru breached these warranties as described in more detail above. Without
limitation, the Vehicles contain the Oil Consumption Defect. The Vehicles share a common
design defect in that the FB engines fail to operate as represented by Subaru.
46
186. Plaintiffs and the other Nationwide Class members have had sufficient direct
dealings with either Subaru or its agents (dealerships and technical support) to establish privity
of contract between Subaru, on one hand, and Plaintiffs and each of the other Nationwide Class
members on the other hand. Nonetheless, privity is not required here because Plaintiffs and each
of the other Nationwide Class members are intended third-party beneficiaries of contracts
between Subaru and its dealers, and specifically, of Subaru’s implied warranties. The dealers
were not intended to be the ultimate consumers of the Vehicles and have no rights under the
warranty agreements provided with the Vehicles; the warranty agreements were designed for and
intended to benefit the consumers only.
187. Affording Subaru a reasonable opportunity to cure its breach of written warranties
would be unnecessary and futile here. Indeed, Plaintiffs have already done so, and Subaru has
failed, after numerous attempts, to cure the defects. At the time of sale or lease of each Class
Vehicle, Subaru knew, should have known, or was reckless in not knowing of its
misrepresentations and omissions concerning the Vehicles’ inability to perform as warranted, but
nonetheless failed to rectify the situation and/or disclose the defective design. Under the
circumstances, the remedies available under any informal settlement procedure would be
inadequate and any requirement that Plaintiffs resort to an informal dispute resolution procedure
and/or afford Subaru a reasonable opportunity to cure its breach of warranties is excused and
thereby deemed satisfied.
188. Plaintiffs and the other Nationwide Class members would suffer economic
hardship if they returned their Vehicles but did not receive the return of all payments made by
them. Because Subaru is refusing to acknowledge any revocation of acceptance and return
47
immediately any payments made, Plaintiffs and the other Nationwide Class members have not
re-accepted their Vehicles by retaining them.
189. The amount in controversy of Plaintiffs’ individual claims meets or exceeds the
sum of $25. The amount in controversy of this action exceeds the sum of $50,000, exclusive of
interest and costs, computed on the basis of all claims to be determined in this lawsuit.
190. Plaintiffs, individually and on behalf of the other Nationwide Class members,
seek all damages permitted by law, including diminution in value of the Vehicles, in an amount
to be proven at trial.
IX. PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs respectfully request the following relief:
a. Certify this case as a class action and appoint the named Plaintiffs to be
the Class representatives and their counsel to be Class counsel;
b. Grant a permanent or final injunction enjoining Defendant and their agents
and employees, affiliates and subsidiaries, from continuing to harm
Plaintiffs and the members of the Class;
c. Award actual and statutory damages to the Plaintiffs and the Class in
amounts to be proven at trial;
d. Award restitution and prejudgment interest;
e. Award Plaintiffs the costs of this action, including the fees and costs of
experts, together with reasonable attorneys’ fees; and
f. Grant Plaintiffs and the Class such other and further relief as this Court
finds necessary and proper.
48
X. JURY TRIAL DEMANDED
Plaintiffs demand a trial by jury on all issues so triable.
Respectfully submitted,
DATED: October 8, 2014 BERGER & MONTAGUE, P.C.
By /s/Eric Lechtzin
Sherrie R. Savett (pro hac application to be filed)
Eric Lechtzin
1622 Locust Street
Philadelphia, PA 19103
Telephone: 215-875-3000
Facsimile: 215-875-4613
E-mail: ssavett@bm.net
E-mail: elechtzin@bm.net
J. Gordon Rudd, Jr. (pro hac application to be filed)
David M. Cialkowski (pro hac application to be filed)
ZIMMERMAN REED, PLLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
Gordon.Rudd@zimmreed.com
David.Cialkowski@zimmreed.com
Attorneys for Plaintiffs and the Class

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