In re Myford Touch Consumer Litig. (291 F. Supp. 3d 936, 2018)

EDWARD M. CHEN, United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Docket No. 341

The crux of this case is that Ford's infotainment system known as MyFord Touch was allegedly defective. Plaintiffs seek to recover damages on behalf of the certified classes in the form of the diminution in value caused to their vehicles by the defect. Ford now moves for summary judgment on the classwide express and implied warranty claims as well as a number of individual fraud and consumer protection claims. For the reasons below, the Court GRANTS IN PART and DENIES IN PART Ford's motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following claims have been certified for class treatment: Breach of Implied Warranty on behalf of California, Massachusetts, New Jersey, North Carolina, Ohio, and Virginia classes; Breach of Express Warranty on behalf of California and Washington classes; violation of the Massachusetts Consumer Protection Act on behalf of the Massachusetts class; negligence under Ohio law; and strict product liability under Colorado law. See Docket No. 279 at 41-43. The classes are defined to include "all persons or entities who purchased or leased a Ford or a Lincoln vehicle in [the applicable state] from Ford Motor Company or through a Ford Motor Company dealership before August 9, 2013, which vehicle was equipped with a MyFord Touch or MyLincoln Touch in-car communication and entertainment system."Id. at 1.

Plaintiffs' various claims alleging fraud and fraudulent omission were not certified by the Court, nor were express warranty claims under the laws of Iowa, Massachusetts, New Jersey, New York, North Carolina, Ohio, and Virginia. Id. at 36-39, 43.

However, several of the non-class claims remain in the case on an individual basis.

The following chart summarizes the class claims certified by state.

State Claims Certified California Breach of Implied Warranty Breach of Express Warranty Song-Beverly Act Unfair Competition Law Colorado Strict Product Liability Massachusetts Breach of Implied Warranty Massachusetts Consumer Protection Act New Jersey Breach of Implied Warranty North Carolina Breach of Implied Warranty Ohio Breach of Implied Warranty Negligence Virginia Breach of Implied Warranty Washington Breach of Express Warranty

A. Summary of Factual Allegations

Plaintiffs and Class Members purchased vehicles from Ford that were equipped by MyFord Touch ("MFT"), an "infotainment" system. The gravamen of Plaintiffs' allegations is that the MFT system suffered from an underlying, systemic defect in its base software that caused numerous problems, many of which are described in more detail below. In general, these involved failure of navigation systems, failure of Bluetooth connectivity and hands-free systems, failure of the climate control system, frequent freezes and lock-ups, the failure of the back-up camera including images that froze in place, and so on. See TAC ¶ 7. When malfunctions occurred, certain vehicle features allegedly became inoperable because MFT was the only way to utilize them. Further, Plaintiffs allege that the malfunctions distract drivers and therefore cause unreasonable safety risks.

MFT is powered by an operating system known as Ford SYNC, which is also the name given to Ford's first generation MFT system. Vehicles with MFT cost more than those without it, though the precise cost is disputed. Plaintiffs allege that Ford has not yet fixed the problem with MFT, though Ford claims that one of its post-Class Period software updates in 2013 made MFT "first in class," and that other software updates issued during the Class Period improved MFT's functionality. Ford's vehicles were covered by a limited express warranty, whose relevant portions are quoted in the analysis below.

B. Summary of Expert Reports

Although not all of the expert reports are material to the instant motion, the Court summarizes each expert's proffered testimony below.

1. Plaintiffs' Expert Dr. Arnold

Dr. Arnold is an economist with advanced degrees in business and who has taught economics; he works at Compass Lexecon applying economic models to project damages calculations. Ford does not challenge Dr. Arnold's expertise, but contends his models in this case are not tied to implied and express warranty damages and provide no reliable justification for his assumption that the value of a defective MFT to consumers was $0.

Dr. Arnold used data produced by Ford to calculate the revenue Ford received for sales of the MFT system with and without a navigation feature. See Edwards Decl., Ex. 56. He calculates that consumers paid $625 for MFT without navigation and $1,364 for MFT with navigation. Dr. Arnold then treats the full cost paid as equivalent to the economic loss suffered by each plaintiff due to the defect; in other words, Dr. Arnold's damages calculation assumes that the MFT system was valueless. Plaintiffs argue that this assumption is supported by other evidence they intend to introduce at trial showing that none of the subsequent software upgrades released by Ford resolved the defects at issue, and thus failed to restore any value to the MFT system. Dr. Arnold's determination that the MFT system had zero value is premised on the notion that risk averse consumers would not purchase the MFT with known and severe defects, especially as many affect safety, thus rendering its value zero. However, that the value to some consumers is zero does not necessarily imply that the MFT had no market value generally. Dr. Arnold did not attempt to determine the percentage of consumers or Class Members who were in fact risk averse and for whom the MFT system therefore had zero value versus those who might attribute value to it. At best, he states that "most" consumers are risk averse, but he does not state that "all" are. Plaintiffs argue that the basis for his assumption is economic literature he relies upon; thus, the credibility of his assumption is a question of fact for the jury, which may discredit his testimony and make downward adjustments to his damages estimate. The parties disagree about whether Dr. Arnold's predicate assumptions are so unreliable or unsound as to require exclusion of his opinion entirely, or whether they may be presented to the jury to consider alongside other foundational evidence and the jury may be allowed to determine what weight, if any, to give to Dr. Arnold's opinion.

2. Plaintiffs' Expert Mr. Boedeker

Mr. Boedeker is an economist with advanced degrees in statistics and economics, and 25 years of experience applying economic, statistical, and financial models. Ford does not challenge Mr. Boedeker's qualifications but rather whether his damages model is tied to implied and express warranty damages, and whether his methodology is reliable.

Mr. Boedeker used a survey method called choice-based conjoint analysis to infer how consumers valued the MFT system in four scenarios where they were exposed to varying levels of information about the MFT defect, its safety implications, and Ford's knowledge of and failure to disclose information about the defect. See Edwards Decl., Ex. 57. The analysis shows that the more information consumers were provided about the defect, the less valuable the MFT system became to them. Thus, while consumers originally valued MFT at $1,850, that value dropped by $729 when they were told to "[i]magine that your salesperson tells you at the point of purchase that the MFT system has a glitch but that a fix for the glitches will be provided for free in the future when ready," id. ¶ 74; by $910 when they were presented with statements showing Ford's knowledge of the defect and its severity; and by $839-$1,290 when they learned that the defect also caused distractions raising safety concerns.

Ford argues that Mr. Boedeker's model is not suitable for calculating express or implied warranty damages because it does not estimate the cost of repair, it fails to account for the value of subsequent software upgrades, and because the survey questions introduce an element of fraud into respondents' valuations, an element irrelevant to breach of warranty claims. Ford also argues that Mr. Boedeker's methodology is unreliable because his calculation of the change in MFT's value focuses only on the demand side of the equation without considering the supply-side, because he does not account for used car sales data, and because certain aspects of his methodology have not been peer reviewed in economic literature.

3. Plaintiffs' Expert Dr. Rosenberg

Dr. Rosenberg provided a human factors analysis of the MyFord Touch system. See Berman Decl., Ex. 19. He analyzes MFT for its usability, safety, and stability. He performed driving studies that focused on measuring subjective and objective measures of driver distraction resulting from interactions with MFT. He concluded that there are issues with the design and implementation of MFT including requiring undue time and attention, excessive task demand, overly complicated mental models, and causing mistrust of the system, resulting in distraction to drivers and hence a safety hazard. He also observes that because of the frustrations with the MFT systems, drivers may fall back on performing tasks with other devices like smartphones that are not designed with the driving task in mind, therefore increasing the safety risks involved. Dr. Rosenberg evaluated up to version 3.7 of the MFT system, including software upgrades issued after the end of the class period in August 2013. Ford has not challenged Dr. Rosenberg.

4. Other Experts

The parties have retained other experts but they are not at issue on this motion, although there are some references to their testimony or positions. Ford's additional experts include Dr. Taylor (safety issues and analysis of accident data), Dr. Rauschenberger (usability/safety issues), and Dr. Singer (economic analysis regarding damages). Plaintiffs have also retained a technical expert, Dr. Smith, but the scope of his testimony and opinion is unclear because the report was not submitted. These experts are not subject to challenges at this time.

II. LEGAL STANDARD

A party may move for summary judgment by arguing that the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed. R. Civ. P. 56(a). When a party so moves, it must identify the elements of the claims upon which the nonmoving party has failed to produce sufficient evidence. Carmen v. S.F. Unified School Dist. , 237 F.3d 1026, 1031 (9th Cir. 2001). The nonmoving party then has the burden to present evidence demonstrating the existence of a genuine dispute of material fact, which exists only when there is sufficient evidence to permit a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, evidence is viewed in the light most favorable to the nonmoving party and all justifiable inferences are drawn in his or her favor. Id. at 255, 106 S.Ct. 2505.

"Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party, however, may not rely on bare assertions. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Rather, it must bring relevant evidence to the district court's attention in a clear manner, as the court is "not required to comb the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified School Dist. , 237 F.3d 1026, 1029( 9th Cir. 2001) ; see also Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996) (the court is not obligated to "scour the record in search of a genuine issue of triable fact").

III. DISCUSSION

A. Implied Warranty of Merchantability

To state a claim for breach of the implied warranty of merchantability, a consumer must demonstrate that a good sold by a merchant with respect to such goods is "fit for the ordinary purposes for which such goods are used." U.C.C. § 2-314(2). Additional requirements which may apply on a state-by-state basis and which are relevant to Ford's motion are discussed below. Here, Ford argues that Plaintiffs (1) cannot present evidence the vehicles were unmerchantable, (2) cannot present evidence showing the defect manifested within one year; (3) may not as a matter of law bring a claim under the Song-Beverly Act for used car purchasers; (4) and are precluded from bringing claims to the extent that they used their vehicles for business or commercial purposes because of Ford's disclaimer of implied warranty.

1. Unmerchantability

Ford argues that it is entitled to summary judgment because Plaintiffs do not present (a) evidence that the transportation function of their vehicle was impaired; (b) evidence that the vehicles were so unsafe as to be unmerchantable in light of their continued use of the vehicles; or (c) evidence that MFT-equipped vehicles were involved in accidents at a greater rate than comparable vehicles.

a. Legal Standard

Before reviewing the evidence, it is necessary to set forth the standard for unmerchantability. "The implied warranty of merchantability does not impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality." T & M Solar & Air Conditioning, Inc. v. Lennox Int'l Inc. , 83 F.Supp.3d 855, 878 (N.D. Cal. 2015) (quotation omitted). To state a claim, "a plaintiff must allege a fundamental defect that renders the product unfit for its ordinary purpose." Id. (quotation omitted).

The law is clear that to be fit for its ordinary purpose, a vehicle must be "in safe condition and substantially free of defects." Isip v. Mercedes-Benz USA, LLC , 155 Cal.App.4th 19, 27, 65 Cal.Rptr.3d 695 (2007). Moreover, it must provide "reliable"

transportation. Brand v. Hyundai Motor Am. , 226 Cal.App.4th 1538, 1547, 173 Cal.Rptr.3d 454 (2014) (quotation omitted). Thus, three factors related to vehicle merchantability are safety, reliability, and substantial freedom from defects.

Contrary to Ford's suggestion, proof of a safety condition is not required to demonstrate unmerchantability; it is merely one way to demonstrate unmerchantability. See Brand , 226 Cal.App.4th at 1538, n.2, 173 Cal.Rptr.3d 454 (holding that "vehicle safety is [not] the sole or dispositive criterion in implied warranty cases, which may turn on other facts"). The Brand court further explained that Isip , which concerns a defect related to a potential safety hazard, "provides just one example of a breach of the implied warranty of merchantability, and does not purport to establish the only manner in which a seller violates the warranty." Id. 1547, 173 Cal.Rptr.3d 454. Reliability, operability, and substantial freedom from defects related thereto are independent grounds for demonstrating unmerchantability.

Moreover, courts reject the notion that a vehicle is fit for its ordinary purpose "merely because [it] provides transportation from point A to point B[.]" Isip , 155 Cal.App.4th at 27, 65 Cal.Rptr.3d 695. A car's ability to provide transportation is a defense only in "the context of ... cases in which no damage ha[s] been suffered " otherwise. Id. at 25, 65 Cal.Rptr.3d 695 (emphasis added). Ford cites a number of cases where courts looked to continued use of the vehicle to conclude that it was not unmerchantable, but those cases involved defects where a vehicle's operability was not impaired until a particular part malfunctioned and required replacement. They did not involve situations where a defect's symptoms were persistent and could not be addressed through repair or replacement of an isolated component. Because no aspect of the vehicle's operability in such cases was impaired before the defective part failed, it could not be unmerchantable. In contrast, courts have recognized that vehicles may be unmerchantable even if they can be used to provide basic transportation when a defect presents symptoms in a persistent manner that can be said to impair safety, reliability, or operability over an extended period of time.

In sum, the law does not require Plaintiffs to introduce proof that the vehicles were not in fact used to demonstrate unmerchantability. They can also demonstrate unmerchantability by introducing evidence that their vehicles were affected by a persistent defect that so affected their safety, reliability, or operability as to render them unfit.

a. Application to Evidence

Plaintiffs have introduced sufficient proof from which a reasonable jury could conclude that the MFT defect caused, inter alia , persistent distractions; failed intermittently and unexpectedly while performing key functions such as navigation assistance or rear-view cameras; and impaired operability by undermining use of the rear-view cameras, climate control systems, and navigation systems, often requiring drivers to pull-over to reboot the systems. Plaintiffs have introduced evidence that these defects are prevalent in the class vehicles. Id. Irrespective of whether these issues also pose safety concerns, they are adequate to support a claim for unmerchantability because a jury could conclude that the symptoms were so persistent and prevalent that they impaired the reliability or operability of the vehicles class-wide.

Ford argues that Plaintiffs cannot demonstrate that the MFT defect created safety issues so serious as to render the vehicles unmerchantable because they have not shown that the MFT-defect causes more accidents than other vehicles nor presented evidence of an accident caused by MFT. Plaintiffs are not required to introduce proof of an accident caused by the defect to demonstrate the vehicle was unmerchantable. See , e.g. , Brand , 226 Cal.App.4th at 1547, 173 Cal.Rptr.3d 454 (focusing on whether sun-roof defect could create a "dangerous distraction," not whether accident actually occurs); Borkman , 2017 WL 4082420, at *9 (defect could create "hazardous conditions , including loss of power during operation, engine overheating, and potentially , engine failure" (emphasis added) ). Rather, it is sufficient to show that the defect creates "hazardous conditions," Borkman , 2017 WL 4082420, at *9, or "dangerous distraction[s]," Brand , 226 Cal.App.4th at 1547, 173 Cal.Rptr.3d 454.

Many of the safety issues alleged with respect to MFT are not as graphic as in other cases. See , e.g. , Isip , 155 Cal.App.4th at 27, 65 Cal.Rptr.3d 695 (smoke, smells, engine failure); Borkman , 2017 WL 4082420, at *9 (burning smells in cabin, engine overheating). Moreover, Plaintiffs do not suggest that the MFT defects impair the mechanical functionality of the vehicles. Nevertheless, a reasonable juror could conclude, for instance, that a rear-view camera whose image spontaneously freezes without warning while a car is moving in reverse, and thus misleads a driver about what is or is not behind the vehicle, may present a hazardous or dangerous condition. See supra , n. 6.

Additionally, Plaintiffs have testified that problems like their navigation systems failing in the middle of a trip or providing insufficient time before instructing the driver to exit or turn, the non-responsiveness of the climate control system, and their inability to properly operate the Bluetooth or hands-free features of MFT cause unexpected distractions while they are driving. See supra , n. 6. This is bolstered by Plaintiffs' expert on user interfaces, Dr. Rosenberg, who claims that various design issues and usability problems with MFT result in greater distractions than necessary to drivers. These are further examples of evidence that a jury could rely on to determine the defect caused a safety issue implicating merchantability.

Although many of the distraction-based evidence implicates safety issues that are less tangible than defect cases involving engine fires or shutdowns, Ford has not identified case-law which precludes, as a matter of law, a claim for unmerchantability. Moreover, Plaintiffs have presented sufficient evidence from which a jury could reasonably conclude that the extent of the distractions, in addition to other problems associated with the defect, rendered the vehicles so unsafe as to be unmerchantable. Though Ford cites evidence like customer satisfaction surveys supporting the notion that many customers provided positive feedback about MFT, see Edwards Decl., Ex. 40 at 31-32 (in 2012, most consumers report being "mostly satisfied"

with most MFT features), Ex. 41 at 27 & 31 (in 2012, most would "probably" or "definitely" recommend MFT), Ex. 42 at 32, 35 and 43 (similar results in 2013), and an expert analysis purporting to show that crash and injury rates of MFT-equipped vehicles were lower than those of vehicles without MFT, see Edwards Decl., Ex. 44 at ¶¶ 29-30, 33-34, that evidence is for the trier of fact to consider and weigh against Plaintiffs' competing evidence. See Docket No. 97 (Order re: Motion to Dismiss) at 48 ("[I]t is a question of fact for the jury as to whether the problems with MFT posed enough of a safety risk that the cars at issue could not be said to provide safe, reliable transportation.").

Accordingly, the Court DENIES Ford's motion for summary judgment on the basis that Plaintiffs cannot prove the vehicles were unmerchantable.

2. Manifestation Within One Year Under Song-Beverly

Ford argues that the California Plaintiffs have not demonstrated that their vehicles' MFT system "caused an accident or otherwise caused his or her vehicle to be inoperable" during the one-year statute of limitations for an implied warranty claim under the Song-Beverly Act. Mot. at 8.

Under the Song-Beverly Act, a plaintiff must show their vehicle was unmerchantable within one year of purchase. See Cal. Civ. Code § 1791.1(c). However, this requirement does not mean "that the purchaser [must] discover and report to the seller a latent defect within that time period." Daniel v. Ford Motor Co. , 806 F.3d 1217, 1222-23 (9th Cir. 2015) (quoting Mexia v. Rinker Boat Co. , 174 Cal.App.4th 1297, 1309, 95 Cal.Rptr.3d 285 (2009) ) (emphasis in reproduction). Rather, there is a "distinction between unmerchantability caused by a latent defect and the subsequent discovery of the defect; the fact that the alleged defect resulted in destructive [harm to the product] two years after the sale ... does not necessarily mean that the defect did not exist at the time of sale," the critical question under the Act. Mexia , 174 Cal.App.4th at 1308, 95 Cal.Rptr.3d 285. In other words, the defect itself renders a vehicle unmerchantable at the time of sale, even if the consequences of the defect do not manifest until a later time.

The evidence shows the defect did manifest persistently from the time of purchase onwards; indeed, Plaintiffs allege that the defect was inherent to the MFT software system, which was included in all vehicles as of purchase. Plaintiffs need not show that an accident occurred or that the vehicle became absolutely inoperable within one year. Rather, as discussed above, Plaintiffs need only to demonstrate that a persistent defect affecting safety, reliability, or operability either manifested within one year or arose due to a latent defect; they have done so here. Accordingly, the Court DENIES Ford's motion for summary judgment on this basis.

3. Song-Beverly and Used Car Purchasers

Ford argues that used car purchasers do not have a claim under the Song-Beverly Act because the statute extends only to "consumer goods," which are defined as referring to "any new product or part." Cal. Civ. Code § 1791(a) (emphasis added).

In opposition, Plaintiffs argue that the statute permits used car purchasers to sue for the breach of implied warranty of merchantability because it also provides that, "[n]otwithstanding the provisions ... defining consumer goods to mean 'new' goods, the obligation of a distributor or retail seller of used consumer goods in a sale in which an express warranty is given shall be the same as that imposed on manufacturers under this chapter." Cal. Civ. Code § 1795.5. Such an express warranty was given here, so § 1795.5 would apply to used vehicles where its conditions are met. The provision, however, does not create additional obligations on a manufacturer vis-à-vis used car purchasers; rather, it simply states that the retailer or distributor is also subject to whatever obligations already apply to the manufacturer. See Johnson v. Nissan N. Am., Inc. , 272 F.Supp.3d 1168, 1178-79 (N.D. Cal. 2017) (holding that used car purchaser may only pursue implied warranty claims against a "distributor" or "retailer" under § 1795.5(c) ).

Plaintiffs assert that Ford is liable as a "distributor" or "retailer" of used vehicles, but they do not cite evidence to support that representation (nor is evidence cited of an agency relationship between the dealers and Ford). Cf. Herrera v. Volkswagen Grp. of Am., Inc. , 2016 WL 10000085, at *5 (C.D. Cal. Sep. 9, 2016) (dismissing implied warranty of merchantability claims for used car purchasers on the basis that plaintiffs had not alleged defendant was a distributor or retailer). At the hearing, Plaintiffs conceded that they have no evidence of an agency relationship between Ford and its authorized dealerships with respect to used car sales.

Because Plaintiffs have no evidence sufficient to create a genuine, triable issue of material fact with respect to whether Ford was a retailer or distributor of used vehicles, the Court GRANTS summary judgment in Ford's favor on the California Class's implied warranty claims under the Song-Beverly Act with respect to class members who purchased used vehicles.

4. Vehicles Used for Business Purposes

Ford argues that its express warranty disclaims the implied warranty of merchantability for vehicles used for business purposes, and summary judgment should therefore be granted in its favor against each of the six certified implied warranty classes (California, Massachusetts, New Jersey, North Carolina, Ohio, and Virginia).

In opposition, Plaintiffs argue that the disclaimer is not sufficiently conspicuous and therefore invalid, citing the California Commercial Code. The Code permits disclaimers of the implied warranty of merchantability so long as they are "conspicuous," defined as "so written, displayed, or presented that a reasonable person against whom it is to operate ought to have noticed it." Cal. Com. Code § 1201(10) ; see also Cal. Com. Code § 2316(2). The statute further provides:

Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include both of the following:

(A) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size.

(B) Language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language.

Id. (emphasis added). The conspicuousness requirement serves to "protect the buyer from the situation where the salesman's 'pitch,' advertising brochures, or large print in the contract, giveth, and the disclaimer clause-in fine print-taketh away." Dorman v. Int'l Harvester Co. , 46 Cal.App.3d 11, 18, 120 Cal.Rptr. 516 (Cal. Ct. App. 1975). The court must "review the conspicuousness of the disclaimer in the context of the entire contract, and in light of the sophistication of the parties." Medimatch, Inc. v. Lucent Techs., Inc. , 120 F.Supp.2d 842, 860 (N.D. Cal. 2000) (citation omitted). The court's analysis "is not simply a matter of measuring the type size or looking at the placement of the disclaimer within the contract," but rather, "[a] reviewing court must ascertain that a reasonable person in the buyer's position would not have been surprised to find the warranty disclaimer in the contract." Sierra Diesel Injection Serv., Inc. v. Burroughs Corp., Inc. , 890 F.2d 108 (9th Cir. 1989).

The relevant portions of Ford's disclaimer appear on pages 5, 6, and 7 of the 2013 Limited Warranty, near the middle of a 3-page section titled, in all-caps and bold text, "Limitations and Disclaimers." It is re-produced below with a highlight of the sentence that disclaims the implied warranty for vehicles used for business purposes.

See Edwards Decl., Ex. 47 at 5-7 (Docket No. 343-4).

Ford relies primarily on two cases to show that its disclaimer is conspicuous, but they are different in important respects because, in those cases, the heading clearly indicated that it involved a disclaimer of warranty, and the portions disclaiming the implied warranty of merchantability were distinguishable from the surrounding text. See Hammond Enters. Inc. v. ZPS Am. LLC , 2013 WL 5814505, at *3-4 (N.D. Cal. Oct. 29, 2013) (disclaimer sufficiently conspicuous even though entire term sheet was in small typeface because paragraph 13 contained a bold-face, all-capitals heading stating "Warranty: Disclaimer of Implied Warranties," followed by a subheading in all capitals explaining that all implied warranties were disclaimed); In re Google Phone Litig. , 2012 WL 3155571, at *8 (N.D. Cal. Aug. 2, 2012) (disclaimer sufficient where boldfaced heading larger than surrounding text read "Warranties; Disclaimer of Warranties," and text of disclaimer was in all-caps while surrounding text was not, and stated that "GOOGLE EXPRESSLY DISCLAIMS ALL WARRANTIES ... WHETHER EXPRESS OR IMPLIED ... INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY").

In contrast, here, the heading only states "Limitations and Disclaimers," and the disclaimer of the implied warranty of merchantability does not appear until the middle of 3 pages that mostly discuss the terms of the express warranty. The sentence including the disclaimer of implied warranty does not appear until the bottom of the second page and is not distinguished from the surrounding text. To be conspicuous, the disclaimer of implied warranty should have been in a larger font size, in all caps, in bold, or set-off in some way from the surrounding text (much like the "NOTE:" that appears on page 3 of this section).

Thus, these circumstances are more similar to Sierra Diesel , where the Ninth Circuit held that a disclaimer was not conspicuous even though the front of a software agreement stated in large capital bold letters that "THE TERMS AND CONDITIONS, INCLUDING THE WARRANTY AND LIMITATION OF LIABILITY, ON THE REVERSE SIDE ARE PART OF THE AGREEMENT," but the back-side contained 14 separately numbered and titled sections and the ninth section containing the disclaimer was titled "WARRANTY," in all caps but not bolded. Sierra Diesel , 890 F.2d at 114. On those facts, the Ninth Circuit held that a reasonable person would not have noticed the warranty disclaimers on the back of the contract.

Ford has not cited any case approving a disclaimer similar to the one in its limited warranty, and the warranty does not appear to meet the requirements for conspicuousness. Accordingly, the Court DENIES Ford's motion for summary judgment with respect to class members who used their vehicles for business or commercial purposes.

B. Tort Claims

The Court has also certified a class tort claim under Colorado strict product liability law and under Ohio negligence law. Ford argues that (1) the economic loss doctrine bars Plaintiffs' strict product liability claim under Colorado law; (2) Plaintiffs cannot demonstrate that the vehicles created an unreasonable safety risk under Colorado law; and (3) Plaintiffs cannot show that Ford breached its duty to design a safe vehicle under Ohio negligence law. The Court addresses each argument below.

1. Colorado Law and Economic Loss Doctrine

Ford argues that the economic loss doctrine bars the Colorado Plaintiffs' strict liability claim, an argument this Court previously rejected in connection with Ford's earlier motion to dismiss. See In re MyFord Touch Consumer Litig. , 46 F.Supp.3d 936, 962-63 (N.D. Cal. 2014). The parties' disagreement arises from an apparent conflict between two decisions of the Colorado Supreme Court. In 1975, the Colorado Supreme Court held that in non-commercial, non-business transactions, a consumer may bring a claim under strict products liability in tort to recover damages, even when the defect harms only the product's own economic value. See Hiigel v. General Motors Corp. , 190 Colo. 57, 544 P.2d 983, 989 (1975). Twenty-five years later, in 2000, the Colorado Supreme Court re-visited the question in Town of Alma v. AZCO Constr. Inc. , 10 P.3d 1256, 1264 (Colo. 2000), engaging in a thorough discussion about the economic loss doctrine and its role in maintaining a boundary between tort and contract law. After a lengthy analysis of the history of the economic loss rule nationwide, the court concluded, "[w]e hold that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law." Id. Though Town of Alma did not expressly overrule Hiigel , it cited the case in its historiography of the economic loss rule. Id. at 1260.

This Court previously interpreted Town of Alma narrowly, stating that it "did not overrule Hiigel ," that it "addressed the issue of whether the [economic loss] rule barred the plaintiff's claim for negligence, not strict liability," and emphasized that it applies when no "independent duty" arises under tort law. See In re MyFord Touch , 46 F.Supp.3d at 963, 963 n.8. Since then, however, the Colorado Supreme Court has described Town of Alma as "adopting the economic loss rule, which provides that a party who suffers only economic harm may recover damages for that harm based only upon a contractual claim and not on a tort theory, such as negligence or strict liability , in order to 'maintain the boundary between tort law and contract law.' " Forest City Stapleton Inc. v. Rogers , 393 P.3d 487, 491 (Colo. 2017) (emphasis added). This description appears in a parenthetical describing Town of Alma and is not central to Forest City 's holding that implied warranty claims may be brought only if privity of contract is shown, except in the consumer goods context. Arguably, it is dicta. However, coming from Colorado's highest court, the language-contradicting this Court's earlier interpretation that Town of Alma was limited to negligence claims-is a sufficient reason to re-consider the issue despite Plaintiffs' objections under the law of the case. See Hurst v. Prudential Securities, Inc. , 923 F.Supp. 150, 153 (N.D. Cal. 1995) (court has discretion to reopen a previously resolved question when, inter alia, "an intervening charge in the law has occurred" or "other changed circumstances exist").

With the benefit of the Colorado Supreme Court's clarification in Forest City , the Court concludes that Town of Alma is not limited to negligence claims. Rather, in Town of Alma , the Supreme Court adopted the economic loss rule in relation to all tort claims. See Town of Alma , 10 P.3d at 1264 ("We hold that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law."). Notwithstanding the fact that Town of Alma does not expressly overrule Hiigel , it extends the economic loss rule to tort claims in strict liability, as the Colorado Supreme Court later stated in Forest City .

Plaintiffs urge the Court not to read Forest City 's parenthetical reference to have overturned "decades" of law under Hiigel , but it is Town of Alma -not the parenthetical remark in Forest City -that appears to have changed the law. Hiigel did not stand without ambiguity for decades. In Town of Alma , the Colorado Supreme Court began by discussing the origins of the economic loss rule, including its adoption by the California Supreme Court in 1965. See Town of Alma , 10 P.3d at 1259-61. The court then explained that, in Hiigel , "[a]lthough not reaching as far as the [California Supreme Court], we endorsed the principles underlying the economic loss rule when we declined to extend ... [the] strict liability doctrine to allow it to be used as a vehicle to recover commercial or business losses." Id. at 1261. Consumers could still pursue strict product liability claims premised solely on economic loss. The court then discussed the gradual adoption of the broader economic loss rule by courts around the country and by Colorado's appellate courts. Id. at 1261-62. After that overview and a discussion of the rationale underlying the economic loss rule, id. at 1262-63, the court stated unequivocally, "we now expressly adopt the economic loss rule" and "[w]e hold that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law." Id. at 1264. As this Court noted in its earlier ruling, see 46 F.Supp.3d at 963, Town of Alma had to be construed narrowly to save Hiigel . That interpretation is no longer viable after Forest City .

Thus, the economic loss rule applies to strict product liability claims in Colorado. Plaintiffs' claim may only proceed if premised on breach of an "independent duty of care under tort law." Town of Alma , 10 P.3d at 1264. The Tenth Circuit has recently explained:

Under Colorado law, for a duty to be 'independent' of a contract, and thus actionable in tort notwithstanding the economic-loss rule, two conditions must be met. First, the duty must arise from a source other than the relevant contract. Second, the duty must not be a duty also imposed by the contract . That is, even if the duty would be imposed in the absence of a contract, it is not independent of a contract that memorializes it.

Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc. , 573 F.3d 947, 962 (10th Cir. 2009) (citations, quotations, and alterations omitted) (emphasis added). Thus, it is not sufficient simply that strict products liability creates a duty independent of the contract if the contract memorializes or imposes the same duty. See , e.g. , In re Porsche Cars N. Am., Inc. , 880 F.Supp.2d 801, 837 (S.D. Ohio 2012) (interpreting Town of Alma as setting forth a standard inconsistent with Hiigel and holding that "[w]hen a product sustains damage that would have been covered under its warranty, but the damage occurs outside of the warranty period, the damages could have been addressed in contract and are exactly the kind of damages that the economic loss rule developed to address").

Here, to the extent that Plaintiffs allege the defective design gave rise to an unreasonable safety hazard (rather than non-safety defective performance), there is some ambiguity whether such claims arise from an independent tort duty and therefore are not precluded by the economic loss rule. See Scott v. Honeywell Int'l Inc. , 2015 WL 1517527, at *11, 2015 U.S. Dist. LEXIS 42194, at *34-36 (D. Colo. Mar. 30, 2015) (holding that plaintiffs' strict liability claims had to be dismissed under Colorado's economic loss rule because, inter alia, plaintiff failed to allege his defective "humidifiers created any unreasonable risk of injury"). Most courts still apply the economic loss rule in such circumstances, however, and that appears to be the direction Colorado has taken after Town of Alma and Forest City . In any case, even if strict liability gives rise to an independent duty protecting against safety hazards in design, given the terms of Ford's express warranty, that duty also arises under Ford's broader express warranty protections against any design defects. Under Haynes , Ford's express warranty effectively memorializes the strict liability duty and therefore the economic loss rule precludes the claim for breach of that duty. The Court GRANTS Ford's motion for summary judgment on the Colorado strict product liability claim.

2. Ohio Negligence Claims

Plaintiffs bring a class claim for negligence based on Ohio law. TAC ¶ 640 (alleging Ford breached its "duty to design and manufacture [vehicles that] worked reasonably well and presented no significant risks to the safe operation of the vehicles"). Under Ohio law, "to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson , 67 Ohio St.2d 282, 423 N.E.2d 467, 469-70 (1981). Moreover, manufacturers have a duty "to design a product that is reasonably safe for its intended use, and for other uses which are foreseeably probable." Jones v. White Motor Corp. , 61 Ohio App.2d 162, 401 N.E.2d 223, 229 (1978) (quotation omitted). No cases have been cited to support the notion that Ford had a duty to design vehicles that "worked reasonably well," TAC ¶ 640, so it appears this claim may proceed only to the extent Plaintiffs present evidence of a breach of duty to design a vehicle that is reasonably safe.

Ford argues Plaintiffs have failed to present evidence of an unreasonable safety risk, especially in light of the fact that Ohio Plaintiff Miskell never collided his vehicle despite driving it extensively and continuously for several years. Thus, according to Ford, Plaintiffs' sole "harm" is allegedly the potential risk of future accidents, which is not actionable in and of itself. See Hoffer v. Cooper Wiring Devices, Inc. , 2007 WL 1725317 (N.D. Ohio June 13, 2007). Plaintiffs respond that they are not seeking damages caused by car accidents-present or future-but rather only for the decreased value of their vehicles consistent with the Court's certification order. As Hoffer -the case cited by Ford-itself recognizes, plaintiffs may recover for economic loss "connected to alleged damage to or decreased value of a defective product." 2007 WL 1725317 at *8.

Thus, the Ohio Plaintiffs' negligence claim appears to rise or fall with whether Plaintiffs have shown that Ford breached its duty to design a reasonably safe product, and whether they can show a loss of value of the vehicles proximately caused by that breach of duty. As explained earlier, Plaintiffs have presented sufficient evidence for a jury to conclude that the defect presents an unreasonable safety risk. Further, as discussed below, they present evidence that the MFT lost value due to the various problems associated with it.

However, in their briefing Plaintiffs have not squarely addressed causation , i.e. , whether the lost value can be attributed to the breach of the duty to design a safe product rather than a good product. If the economic harm was simply the result of MFT not living up to consumer expectations (rather than the result of its safety defects), then their economic loss would not be proximately caused by breach of the duty underpinning their negligence claim. Nevertheless, though Plaintiffs do not cite to it in this portion of their briefing, as explained in the section below regarding the experts, it appears that one of Mr. Boedeker's studies predicts the loss of economic value when the defect is linked to safety concerns (see Result 4 in Mr. Boedeker's study, infra ). This model may constitute a basis for calculating proximate damages with respect to the Ohio negligence claims, for the reasons explained below.

The Court thus DENIES Ford's motion for summary judgment on the Ohio negligence claim.

C. Express Warranty Claims and Repair Attempts

Ford argues that the California and Washington class claims for breach of express warranty based on failure of its essential purpose must fail because Plaintiffs cannot demonstrate that class members attempted at least two repair attempts. "A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty." Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 525, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). A repair or replace remedy "fails of its essential purpose when a warrantor fails to successfully repair defects within a reasonable time." Oddo v. Arcoaire Air Conditioning and Heating , Case No. 15-cv-01985-CAS(Ex), 2017 WL 372975, at *12 (Jan. 24, 2017). "[B]efore the exclusive repair and replace remedy is considered to have failed of its essential purpose, the seller must be given an opportunity to repair and replace the product." In re MyFord Touch Consumer Litig. , 46 F.Supp.3d 936, 970 (N.D. Cal. 2014) (quotation and citation omitted, emphasis in original). Ford makes a similar argument with respect to Plaintiffs Kirchoff and Mitchell's individual breach of express warranty claims. The Court addresses each separately.

1. Class Claims

In its class certification order, the Court explained that "[t]o recover for breach of express warranty, a plaintiff must have brought his or her vehicle in for repair twice, and Ford must have been unable to repair it." See Docket No. 279 at 42. The Court reasoned that such information should be reflected in Ford's records, and,

[i]f Ford has no record that a particular consumer took his or [her] vehicle in for repair twice, then the fact finder can presume that the consumer did not do so. A consumer may rebut that presumption by producing proof that he or she took the vehicle in for two repairs, from his or her own records. As the consumer has the burden of proof, if he/she is not able to produce such proof, then he or she will not recover. The inquiry will turn on records and is relatively simple. It does not defeat predominance.

Id.

Ford's expert, Dr. Taylor, analyzed Ford's business records with respect to Subject Vehicles in twelve states (before the Court certified only two states) and concluded that 77.1% of proposed class members did not obtain any MFT repairs, and 17.3% obtained only one. See Edwards Decl., Ex. 44 at 31, Fig. 14. Thus, 94.4% of the then-proposed class members did not meet the two-repair threshold, and only 1.5% obtained three or more MFT warranty repairs. Id. Neither party has introduced evidence focusing on repair attempts by class members in the certified states, California and Washington.

Plaintiffs raise two main arguments in rebuttal.

First , Plaintiffs argue that Ford's "repair and replace remedy" under the warranty does not apply to design defects, so they were not required to attempt repairs to demonstrate a breach. Ford's warranty states that "if" a vehicle "was taken to a Ford dealership for a warranted repair during the warranty period," then Ford will "without charge, repair, replace, or adjust all parts on your vehicle that malfunction or fail during normal use ... due to a manufacturing defect in factory-supplied materials or factory workmanship." See Edwards Decl., Ex. 47 at 8-9 (emphasis added). The next paragraph, however, states that "[d]efects may be unintentionally introduced ... during the design and manufacturing processes," and "[f]or this reason, Ford provides the [warranty] in order to remedy any such defects that result in vehicle part malfunction or failure during the warranty period." Id. at 9 (emphasis added). As Plaintiffs note, the Ninth Circuit has construed this warranty provision to cover both design and manufacturing defects, reasoning that the ambiguity created by the second clause requires construction of the first clause against the drafter, Ford. See Daniel v. Ford Motor Co. , 806 F.3d 1217, 1225 (9th Cir. 2015). Contrary to Plaintiffs' argument, however, that necessarily means that the requirement to present the vehicle for repair also applies to design defects. Thus, class members must comply with the repair requirement to allege a breach.

Second , Plaintiffs point back to the Court's order on class certification to state that Ford has records which could show the required repairs were attempted. This argument makes little sense. Plaintiffs conflate their burden at class certification (demonstrating the existence of a common issue not predominated by individualized inquiries) with their burden at summary judgment (demonstrating that evidence exists to permit a jury to conclude that class members exhausted their repair attempts). Plaintiffs have not presented any evidence that permits a class-wide inference that repair attempts were exhausted such that Ford was given an opportunity to resolve the breach with respect to each class member.

Nevertheless, classwide summary judgment in Ford's favor is not appropriate here. Dr. Taylor's analysis, as Ford concedes, does not address whether the California and Washington class members had the same rates of repair attempts as the twelve states analyzed by Dr. Taylor in the aggregate. Moreover, even Dr. Taylor's analysis confirms that at least 5% of consumers in the twelve states analyzed did attempt at least two repairs. There is no basis to enter judgment against those class members. Further, Ford's lack of records with respect to the remaining class members is not dispositive; rather, under the burden-shifting framework established by the Court's class certification order, they are still entitled to demonstrate on an individual basis whether they pursued repairs. The Court therefore DENIES Ford's motion for summary judgment (on a classwide basis) on this basis.

2. Plaintiff Kirchoff (Washington)

Ford argues it is entitled to summary judgment against Plaintiff Kirchoff because he sought only one repair for the MFT system and then three repairs for an issue with his rearview camera, which was "solved." Ford's summary mischaracterizes the record.

Kirchoff presented his vehicle for service on July 3, 2013 regarding a Bluetooth connectivity issue in connection with incoming and outgoing calls, for which he was advised to pull the fuse to reset SYNC. He followed these steps a few times when the problem arose and he said the problem stopped recurring after a summer 2013 software update. See Edwards Decl., Ex. 36 at 162:16-164:23. In November 2014, Kirchoff began experiencing problems with his backup camera, so he presented it to a dealer three times between November and December 2014. See Edwards Decl., Ex. 36 at 186:24-192:24. The measures that the dealer attempted (including cleaning connectors and replacing the camera) solved a "problem concerning wavy lines on the screen or picture, a fuzzy, a staticy picture." Id. at 191:18-23. However, the issue of 'the MyFord Touch indicating it can't connect with a camera went back to the incident that was the frequency prior to when it started to get much worse." Id. In other words, the November 2014 repairs mitigated the issues that had suddenly become exacerbated, but did not eliminate all the issues Kirchoff had been experiencing in connection with the MFT system. See id. at 192:16-18 (testifying that "[c]ertain aspects of those problems still exist and are part of the total body of issues which have prompted me to get involved in this").

Ford argues that these multiple repair attempts are insufficient because they related to "separate" issues, and that Plaintiffs, in place of "lumping" service requests, have to instead show that they sought two repair attempts with respect to each discrete issue to show a breach of warranty. In connection with Ford's first motion to dismiss, the Court observed that "all of the problems here relate to the MFT system specifically" and held:

Plaintiffs have alleged there is an underlying defect within the MFT system (software and/or hardware). Even if that underlying defect manifests itself in different ways within the MFT system, that does not necessarily detract from the allegation that there is still an underlying systemic defect. That assertion is supported by factual allegations in the complaint, in particular, the allegations related to Ford's issuance of the TSBs and software updates. In other words, if Ford was trying to fix the problems with MFT by issuing TSBs and software updates that implemented systemic types of fixes, that lends support to Plaintiffs' theory that the varying problems were manifestations of an underlying systemic problem and hence 'grouping' is permissible, at least for pleading purposes.

In re MyFord Touch Litig. , 46 F.Supp.3d 936, 972 (N.D. Cal. 2014). Thus, to the extent a repair request arises out of that systemic, underlying defect, then it appears that grouping of service requests for purposes of fulfilling the terms of the express warranty-even with respect to distinct symptoms-is permissible.

Ford does not argue that Plaintiffs lack evidence of an underlying systemic defect in MFT. For the purposes of this motion, then, the existence of such a defect is not disputed. Grouping of Plaintiff Kirchoff's repair requests is therefore proper. The Court DENIES Ford's motion because Kirchoff unsuccessfully sought warranty service related to MFT on at least two occasions.

3. Plaintiff Mitchell (Iowa)

Ford also argues that Plaintiff Mitchell failed to attempt at least two repairs. In November 2010, Mitchell presented his car for service due to a problem with his USB connector, but it turned out that the issue was with his cable and not MFT. Id. at 104-110. Replacing the cable fixed the problem, but Mitchell testified that "[t]here was still other issues[.]" Id. at 110:7-8. Ford does not appear to have closed out the issue by asking Mitchell what those "other issues" were. In any case, the repair request related to a dysfunctional USB cable, not the MFT defect, so it does not count for purposes of this breach of express warranty claim.

In September 2011, Mitchell presented his vehicle for service again due to issues with the backup camera image freezing. See Edwards Decl., Ex. 51 at 128-129. Ford installed a software update. Mitchell could not recall whether it ever happened again, but noted that it "hasn't happened for some time, so it very well could have been this [software] update that cleared that up." Id. at 129:24-25. He could not remember any specific additional issues he raised in September 2011, but he testified that he "repeatedly complained about [MFT]." Id. at 130:11-13. Ford did not close out the issue to determine what or when those repeated complaints were. Thus, Ford has not established that no question of material fact exists as to how many times Mitchell requested a repair and whether it addressed the issues with the MFT system. Ford's motion is DENIED .

D. UCL Class Claims

The parties dispute what claims under California's Unfair Competition Law have been certified for class treatment. Ford contends that none have been certified because Plaintiffs sought only certification of fraud claims under the UCL, which the Court declined to certify. See Docket No. 279 at 48 (stating "The Court will not certify the class as to Plaintiffs' claims for violation of California's Unfair Competition Law to the extent they are predicated upon fraud[.]"); see also Docket No. 202 (Mot. for Class Certification) at 25, 29-30 (describing the UCL claim as a "California consumer fraud claim" and arguing only that the elements of fraudulent conduct satisfy commonality). Plaintiffs respond that the Notice of Motion was broader, in that it stated broadly that the "California Class seeks certification of claims for: ... (b) violation of the Unfair Competition Law," Docket No. 202 at 1. They contend the Court therefore understood that Plaintiffs may bring class claims under the unfair and unlawful prongs of the UCL as well, which Plaintiffs pled in their complaint. See TAC ¶¶ 300-304.

Though there is some ambiguity in Plaintiffs' briefing of the motion for class certification, both parties ignore that the Court's class certification order explicitly states that "[t]he Court will certify the class as to claims for violation of ... California's Unfair Competition Law to the extent they are predicated on bases other than fraud." Docket No. 279 at 47-48. If fraud were the only basis on which Plaintiffs sought class certification for the California Class under the UCL, then there would have been no need for this sentence. Moreover, the TAC is clear that Plaintiffs have at least also pled a claim under the UCL's "unlawful" prong. See TAC ¶ 301(ii) (Ford marketed the vehicles as possessing functional and defect-free in-car communications and entertainment units); id. ¶ 301(iii) (Ford refused or otherwise failed to repair and/or replace defective MFT systems); id. ¶¶ 301(iv) (Ford violated the Magnuson-Moss Warranty Act). The breach of warranty claims have therefore been pled under the UCL and, in light of the Court's order, are certified for class treatment.

Thus, whether Ford should be granted summary judgment on the class UCL claim depends on the outcome of Plaintiffs' express and implied warranty claims. Because the Court denied Ford's motion to grant summary judgment on the breach of warranty claims, the Court will also DENY Ford's motion with respect to the UCL.

E. Plaintiff Creed's MCPA § 9 Claim

Ford argues that Plaintiff Creed's claim under the Massachusetts Consumer Protection Act (MCPA), Mass. Gen. Laws ch. 93A, § 9, fails because he did not use his vehicle for purely business purposes and the pre-litigation demand letter he sent failed to meet the statutory requirements. Neither of Ford's arguments is persuasive, as explained below.

1. Purely Business Purposes

Under Massachusetts law, "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are ... declared unlawful." Mass. Gen. Laws ch. 93A, § 2(a). A person "who engages in the conduct of any trade or commerce and who suffers any loss of money or property" due to violations of § 2"by another person who engages in any trade or commerce" may bring a cause of action under § 11 of the MCPA. See id. § 11. In contrast, any other person must bring a cause of action under § 9 of the MCPA. See id. § 9. Thus, the MCPA "distinguishes between 'consumer' and 'business' claims, the former actionable under § 9, the latter actionable under § 11." Frullo v. Landenberger , 61 Mass. App. Ct. 814, 821, 814 N.E.2d 1105 (2004). "The dividing line between a consumer claim and a business claim ... is not always clear." Id. The question "[w]hether a particular plaintiff is acting in a business context ... is a question of fact" reserved for the trier of fact. Frullo , 61 Mass.App.Ct. at 822, 814 N.E.2d 1105 ; see also Brown v. Gerstein , 17 Mass.App.Ct. 558, 460 N.E.2d 1043, 1052 (1984).

Here, Plaintiff Creed brings a claim under § 9, but Ford argues that he may not do so because he did not use his vehicle for "purely" personal reasons. See Frullo , 61 Mass.App.Ct. at 821, 814 N.E.2d 1105 (explaining that "the choice [between Section 9 and Section 11 claims] appears to turn on whether a given party has undertaken the transaction in question for business reasons, or has engaged in it for purely personal reasons (such as the purchase of an item for personal use)"). In using the phrase "purely personal reasons," however, the Appeals Court of Massachusetts went beyond Massachusetts Supreme Court precedent stating that Section 9 merely "require[s] the plaintiff to prove that she purchased goods or services primarily for personal, family, or household purposes." Linthicum v. Archambault , 379 Mass. 381, 398 N.E.2d 482, 487 (1979) (emphasis added), abrogated on other grounds by Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp. , 418 Mass. 737, 640 N.E.2d 1101 (1994) ; see also Slaney v. W