In re Gen. Motors LLC (339 F. Supp. 3d 262, 2018)

[Regarding Application of the Court's Prior Rulings on Manifestation, Incidental Damages (Lost Time), and Unjust Enrichment to All Remaining Jurisdictions in Dispute (MDL Order No. 131 Issues) ]

JESSE M. FURMAN, United States District Judge

INTRODUCTION... 274

LEGAL STANDARDS... 275

DISCUSSION... 275

A. Manifestation... 276

1. State Consumer Protection Laws... 277

a. Broad Remedial Statutes... 277

i. Alaska... 277

ii. Colorado... 278

iii. Kansas... 279

iv. Mississippi... 280

v. Montana... 281

vi. Nevada... 281

vii. New Jersey... 282

viii. New Mexico... 284

b. "Actual Damages"... 284

i. Arizona... 285

ii. Connecticut... 285

iii. Iowa... 286

iv. Kentucky... 287

v. Maine... 288

vi. Nebraska... 288

vii. Ohio... 288

viii. Oregon... 289

ix. Rhode Island... 290

x. South Dakota... 290

xi. Tennessee... 292

xii. Washington... 292

xiii. West Virginia... 292

2. Fraudulent Concealment... 293

i. Minnesota... 298

ii. Mississippi... 299

iii. New Jersey... 300

iv. Oregon... 301

v. West Virginia... 301

3. Implied Warranty... 301

i. Colorado... 304

ii. Delaware... 305

iii. Ohio... 305

iv. West Virginia... 306

B. Lost Time... 307

1. Lost Time as Lost Earnings... 309

2. Lost-Time Damages for Household Work... 321

3. States Allowing Recovery for Lost Time Beyond Lost Earnings... 327

i. Colorado... 327

ii. New York... 328

iii. Ohio... 330

iv. Oklahoma... 330

v. Utah... 331

vi. Virginia... 332

C. Unjust Enrichment... 332

i. Arizona... 333

ii. Connecticut... 334

iii. Mississippi... 335

iv. New Hampshire... 335

v. New Jersey... 337

vi. New Mexico... 338

vii. Oregon... 339

viii. Rhode Island... 340 ix. South Carolina... 340

x. West Virginia... 341

CONCLUSION... 342

INTRODUCTION

This multidistrict litigation ("MDL"), familiarity with which is assumed, arose from the recall in February 2014 by General Motors LLC ("New GM") of General Motors ("GM") vehicles that had been manufactured with a defective ignition switch - a switch that could too easily move from the "run" position to the "accessory" and "off" positions, causing moving stalls and disabling critical safety systems (such as the airbag). Following that recall, New GM recalled millions of other vehicles, some for ignition switch-related defects and some for other defects. In this litigation, Plaintiffs seek recovery on behalf of a broad putative class of GM car owners and lessors whose vehicles were subject to those recalls, arguing that they have been harmed by, among other things, a drop in their vehicles' value due to the ignition switch defect and other defects. Their operative complaint - the Fifth Amended Consolidated Complaint or "5ACC" (Docket No. 4838) - exceeds 1700 pages and 7400 paragraphs, and includes claims relating to the ignition-switch defect and various other alleged defects under state law brought by named Plaintiffs in all fifty states and the District of Columbia.

In conjunction with the parties, the Court decided early on not to entertain a motion to dismiss all of the Plaintiffs' economic loss claims at once - given, among other things, the number and scope of those claims; the possibility that the litigation would be materially affected by parallel proceedings in (and arising out of) bankruptcy court; and the likelihood that the parties could ultimately agree upon how the Court's rulings as to some state law claims would apply to others, saving the need for the parties to brief and the Court to decide the same issues in fifty-one different jurisdictions. In an Opinion and Order filed on July 15, 2016, with respect to the then-operative Third Amended Consolidated Complaint ("TACC"), the Court ruled on the validity of Plaintiffs' claims in eight jurisdictions. See In re Gen. Motors LLC Ignition Switch Litig. , No. 14-MD-2543 (JMF), 2016 WL 3920353 at *36 (S.D.N.Y. July 15, 2016) (" TACC Op. "). A little less than one year later, the Court issued another Opinion and Order (later modified), with respect to the then-operative Fourth Amended Consolidated Complaint ("FACC"), addressing the validity of Plaintiffs' claims in another eight jurisdictions. See In re Gen. Motors LLC Ignition Switch Litig. , 257 F.Supp.3d 372, 423 (S.D.N.Y. 2017) (" FACC Op. "), modified on reconsideration , No. 14-MC-2543 (JMF), 2017 WL 3443623 (S.D.N.Y. Aug. 9, 2017) (" FACC Supp. Op. "). Plaintiffs later filed the Fifth Amended Consolidated Complaint.

In MDL Order No. 131, entered on August 30, 2017, the Court directed the parties to "meet and confer regarding the application of the Court's prior motion to dismiss opinions on the issues of (i) unjust enrichment, (ii) incidental damages, and (iii) manifest defect" to the jurisdictions that had not been the subject of prior rulings by the Court - a total of thirty-five jurisdictions for the issues of unjust enrichment and manifest defect and forty-seven jurisdictions for the issue of incidental damages. (Docket No. 4499, ¶ 4). That process yielded agreement, and a stipulation (Docket No. 5099 ("Parties' Stipulation") ), with respect to application of the Court's prior opinions to some issues in some of the remaining jurisdictions - albeit many fewer issues in many fewer jurisdictions than the Court had hoped. Thereafter, the parties submitted lengthy briefs addressing the disputes that remained: (1) whether "manifest defect" is required for Plaintiffs to recover for their economic losses under the laws of twenty-seven jurisdictions ; (2) whether Plaintiffs can recover damages for their "lost time" (for example, time lost in repairing their vehicles) under the laws of forty-seven jurisdictions ; and (3) whether the existence of a contract or an adequate legal remedy bars Plaintiffs' unjust enrichment claims under the laws of ten jurisdictions. (Docket Nos. 5098, 5101, 5191, 5192).

In this Opinion and Order, the Court resolves those disputes - no easy task given the sheer number of issues and jurisdictions in dispute, the fact that the relevant law in many of jurisdictions is unsettled or in conflict, and because "subtle differences in state law can dictate different results for plaintiffs in different jurisdictions." TACC Op. , 2016 WL 3920353 at *18. Nevertheless, for the reasons that follow, the Court concludes that manifestation is not required for any of claims and jurisdictions that remain in dispute; that, in all but a few of the jurisdictions that remain in dispute, Plaintiffs cannot recover for lost "free" or "personal" time, but can recover for lost time in the form of lost earnings or wages; and that Plaintiffs in most of the jurisdictions in dispute cannot bring unjust enrichment claims where the subject matter is covered by a valid and enforceable contract or there is an adequate remedy at law.

LEGAL STANDARDS

In applying the law of a state, the pronouncement of the state's highest court "is to be accepted by federal courts as defining state law." West v. Am. Tel. & Tel. Co. , 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940) ; accord Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. , --- U.S. ----, 138 S.Ct. 1865, 1874, 201 L.Ed.2d 225 (2018) ("If the relevant state law is established by a decision of the State's highest court, that decision is binding on the federal courts." (internal quotation marks omitted) ). "Where the high court has not spoken, the best indicators of how it would decide are often the decisions of lower state courts." In re Brooklyn Navy Yard Asbestos Litig. , 971 F.2d 831, 850 (2d Cir. 1992) (citing Comm'r of Internal Revenue v. Estate of Bosch , 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) ). Nevertheless, a federal court is not bound by the opinions of a state's lower courts. See, e.g., Calvin Klein Ltd. v. Trylon Trucking Corp. , 892 F.2d 191, 195 (2d Cir. 1989) ; see also Estate of Bosch , 387 U.S. at 465, 87 S.Ct. 1776 ("[I]n diversity cases[,] while the decrees of lower state courts should be attributed some weight[,] the decision [is] not controlling where the highest court of the State has not spoken on the point." (internal quotation marks and alterations omitted) ). When faced with an unsettled question of state statutory interpretation, a federal court should consider "the statutory language, pertinent legislative history, the statutory scheme set in historical context, how the statute can be woven into the state law with the least distortion of the total fabric, state decisional law, and federal cases which construe the state statute." Bensmiller v. E.I. Dupont de Nemours & Co., State of La. , 47 F.3d 79, 82 (2d Cir. 1995) (internal quotation marks and alterations omitted).

DISCUSSION

As noted, the parties have briefed application of the Court's prior Opinions on the issues of (1) manifestation; (2) incidental damages (i.e., lost time); and (3) unjust enrichment to the jurisdictions that have not been the subject of prior motion practice and that remain in dispute. The Court will address each of those issues in turn.

A. Manifestation

Putative class actions "alleging neither personal injury nor property damages, but economic loss stemming from purchase of a product" with an unmanifested defect have become increasingly common in the automotive, pharmaceutical, and other industries. 1 McLaughlin on Class Actions § 5:56 (14th ed.). In its previous Opinions, the Court resolved the question of whether Plaintiffs could pursue economic loss claims for defects if those defects never manifested themselves under the laws of sixteen jurisdictions. In its Opinion resolving New GM's motion to dismiss the Fourth Amended Consolidated Complaint, the Court also signaled its agreement with a prominent treatise that the "majority view is that there is no legally cognizable injury in a product defect case, regardless of whether the claim is for fraud, violation of consumer protection statutes, breach of warranty, or any other theory, unless the alleged defect has manifested itself in the product used by the claimant." FACC Op. , 257 F.Supp.3d at 423 (citing 1 McLaughlin on Class Actions § 5:56 ). But neither this Court's nor the treatise's conclusion was based on a comprehensive analysis of the law of the remaining states.

Having now engaged in such an analysis of the law in twenty-seven states, covering three different kinds of claims (statutory consumer protection, common-law fraud, and implied warranty), the Court can no longer say with confidence that, across the states, the "majority view" is that manifestation is required to state claims for fraud, violations of consumer protection statutes, and breaches of warranty. Indeed, for every disputed claim in every disputed state, the Court concludes that manifestation is not a requirement. This is due in part to the Court's determination that, in the absence of state law to the contrary, there is no legal or logical ground to bar Plaintiffs' recovery if they can prove that they suffered economic loss. If Plaintiffs paid x for their cars and can prove that their cars are now worth x minus y as the result of the alleged defects, it is arbitrary to prevent them from recovering the difference between x and y simply because the defect did not manifest itself in property damage or personal injury. See Steven R. Swanson, The Citadel Survives a Naval Bombardment: A Policy Analysis of the Economic Loss Doctrine ("Citadel "), 12 TUL. MAR. L.J. 135, 140 (1987) ("If the product is not worth what it was rep[r]esented to be, the purchaser has been harmed to the extent of the decrease in value.").

In the Court's view, the courts that have adopted a manifestation requirement often do so as a proxy for proof of actual defect. See, e.g., Briehl v. Gen. Motors Corp. , 172 F.3d 623, 626 (8th Cir. 1999) ("The Plaintiffs do not allege that the [brake system] is incapable of stopping the vehicles or that [the brake system] has violated any national safety standards."). But while manifestation may be helpful in proving the presence of a defect, it does not follow that recovery for economic loss should turn on whether the defect also caused property or personal damage. See Swanson, Citadel , 12 TUL. MAR. L.J. at 141. It has also been suggested that, without manifestation, damages for economic loss are too speculative or that consumers did in fact get the benefit of their bargain. See Moin A. Yahya, Can I Sue Without Being Injured?: Why the Benefit of the Bargain Theory for Product Liability Is Bad Law and Bad Economics , 3 GEO. J.L. & PUB. POL'Y 83, 114 (2005) (casting doubt on the reliability of economic analysis and questioning whether consumers fundamentally alter their view of a product on the knowledge that there is some chance of harm); Sheila B. Scheuerman, Against Liability for Private Risk-Exposure , 35 HARV. J.L. & PUB. POL'Y 681, 706 (2012) ("[C]ourts reason that if the product has so far worked as promised, then consumers have received the benefit of their bargain."). But there is no reason to think that the calculation of economic damages is any more reliable when a defect happens also to have caused personal or property damages. See Swanson, Citadel , 12 TUL. MAR. L.J. at 171. And if a plaintiff can demonstrate that public knowledge of a defect did cause the value of her vehicle to drop, and that her vehicle is consequently worth less than what she had bargained for, she has demonstrated that she lost the benefit of her bargain.

In the final analysis, Plaintiffs may not be able to prove that their vehicles contained defects and that those defects actually caused them economic losses. But Plaintiffs allege the existence of defects and that, through expert analyses, they can demonstrate economic losses. (See, e.g. , 5ACC ¶¶ 397, 827-67). At this stage of the proceedings, the Court accepts the truth of those allegations and assertions, and - absent state law to the contrary - will not impose a manifestation requirement as a proxy for evidence to support them. With that in mind, the Court proceeds state by state and addresses whether manifestation is required in each substantive area: statutory consumer protection, common-law fraud, and implied warranty.

1. State Consumer Protection Laws

The Court begins with Plaintiffs' claims under state consumer protection laws. For convenience, the Court divides the applicable states into two categories: first, those that have broad remedial statutes and for which neither New GM nor the Court has found case law suggesting that the state would require manifestation; and, second, those that require a showing of "actual damages." The Court will address each category in turn.

a. Broad Remedial Statutes

First, eight states in dispute have consumer protection statutes that courts have held are remedial nature or must be liberally construed and for which neither New GM nor the Court has found case law suggesting that the state would require manifestation. The Court concludes that, where those circumstances are present, Plaintiffs need not prove manifestation to state a claim under the state's consumer protection statute. For each state, the Court will describe the law in general terms and then address the authority on which New GM relies.

i. Alaska

Alaska's Unfair Trade Practices and Consumer Protection Act ("Alaska CPA") provides that "[a] person who suffers an ascertainable loss of money or property as a result of [unfair or deceptive acts or practices in the conduct of trade or commerce] may bring a civil action to recover for each unlawful act or practice." Alaska Stat. § 45.50.531 ; see Alaska Interstate Constr., LLC v. Pac. Diversified Invs., Inc. , 279 P.3d 1156, 1163 (Alaska 2012). The Alaska Supreme Court has not explicitly decided whether manifestation is required for purposes of an Alaska CPA claim, but it has affirmed an award of damages under the statute where the plaintiff alleged that the model year of his motor home had been misrepresented and sought the difference in value between what was represented and what he received - without demanding allegations of a malfunction due to the vehicle's actual age. See Borgen v. A & M Motors, Inc. , 273 P.3d 575, 585-92 (Alaska 2012). Moreover, the Alaska Supreme Court has held that, "because the [Alaska CPA] is a remedial statute, its language should be liberally construed." Alaska Tr., LLC v. Bachmeier , 332 P.3d 1, 10 (Alaska 2014). On these bases, the Court concludes that manifestation is not required for purposes of an Alaska CPA claim.

New GM's argument to the contrary rests almost exclusively on Jones v. Westbrook, 379 P.3d 963 (Alaska 2016). There, the plaintiff claimed that an attorney had violated the Alaska CPA by misrepresenting himself as an attorney with legal expertise in the sales of businesses; failing to inform the plaintiff that he lacked malpractice insurance; and failing to properly advise and document the sale of the plaintiff's business. Id. at 970. Seven years after the sale of the plaintiff's business, when tax liens were imposed on the corporation's assets, the plaintiff learned that his attorney had failed to provide a recorded security interest in the corporation's stock or buyer's home. In determining when the statute of limitations began to run, the Alaska Supreme Court held that the plaintiff had not suffered an "ascertainable loss of money or property" until the tax lien was imposed because, until that point, the plaintiff might have fixed the mistake and properly secured the buyer's payments. Id. New GM argues that Jones should be read to mean that manifestation is required because "the plaintiff had no [Alaska CPA] claim until the defect in the documents (the absence of a security interest) actually manifested and harmed plaintiff, even though plaintiff had not received the benefit of his bargain (a sale agreement with a security interest) several years earlier." (Docket No. 5191 ("New GM Resp."), at 12-13).

The Court, however, reads Jones differently. This Court previously held that Plaintiffs who sold their vehicles at an allegedly still-inflated value before a defect became public did not have valid claims for economic loss because they had suffered no damages. See FACC Supp. Op. , 2017 WL 3443623, at *2 ("[A] plaintiff who is injured at one point in time by a defendant's conduct does not necessarily suffer cognizable damages at that same time for purposes of an economic loss claim."). The Court reads Jones to hold something similar - that the plaintiff had no Alaska CPA claim before the tax liens because he had suffered no actual damages until the defect in his sales document became unfixable. See also Cozzetti v. Madrid , No. S-15117, 2017 WL 6395736, at *8-9 & nn.53, 55 (Alaska Dec. 13, 2017) (finding that Madrid "suffer[ed] an ascertainable loss of money or property" when "Cozzetti's misrepresentation of Madrid as a renter damaged Madrid by leading the district court to improperly grant judgment against him without jurisdiction" but Madrid suffered no "ascertainable loss" where a misrepresentation of ownership had no "impact on Madrid's decision to purchase the mobile home" (alteration in original) (emphasis added) ). The Court does not read Jones to suggest that the Alaska Supreme Court would adopt a manifestation requirement.

ii. Colorado

The Colorado Supreme Court has stated that the Colorado Consumer Protection Act ("Colorado CPA") has a "broad legislative purpose ... to provide prompt, economical, and readily available remedies against consumer fraud." Showpiece Homes Corp. v. Assurance Co. of Am. , 38 P.3d 47, 50-51 (Colo. 2001), as modified on denial of reh'g (Jan. 11, 2002). Although the "[Colorado CPA] is silent as to specific injuries for which it intends to provide a remedy," Hall v. Walter , 969 P.2d 224, 234 (Colo. 1998), at least one federal district court has suggested that a plaintiff would have a cognizable claim under the Colorado CPA "to the extent she paid for a product and got something less than what was promised," Boyd v. Johnson & Johnson Consumer Cos. , No. 09-CV-3135 (DMC), 2010 WL 2265317, at *7 (D.N.J. May 31, 2010), reconsideration granted on other grounds , No. 09-CV-3135 (DMC), 2010 WL 3024845 (D.N.J. Aug. 2, 2010). In light of that decision, and the "broad legislative purpose" of the statute, the Court concludes that manifestation is not required to state a claim under the Colorado CPA.

In arguing otherwise, New GM relies on Edwards v. Zenimax Media Inc. , No. 12-CV-00411 (WYD), 2012 WL 4378219 (D. Colo. Sept. 25, 2012). (See Docket No. 5098 ("New GM Br."), at 12-13). In that case, involving an allegedly defective videogame, the court declined to certify a class on ascertainability grounds, concluding that the proposed class would inevitably include members who had in fact suffered no benefit-of-the-bargain damages. See id. at *5. But to the extent relevant here, that was true because the proposed class included those who bought a used copy of the video game and then gave it away, and such a purchaser "would neither have experienced the alleged Defect nor suffered from a decreased secondary market value." Id. (emphasis added). If anything, therefore, the court suggested that a purchaser who could prove "a decreased secondary market value" - that is, benefit-of-the-bargain damages - would have a viable Colorado CPA claim even without "experienc[ing]" (that is, manifesting) a defect.

iii. Kansas

The Kansas Consumer Protection Act ("Kansas CPA") provides that a "consumer who is aggrieved by a violation of [the Kansas CPA] may recover ... damages or a civil penalty." Kan. Stat. Ann. § 50-634(b) ; see Lowe v. Surpas Res. Corp. , 253 F.Supp.2d 1209, 1227 (D. Kan. 2003). According to the Kansas Supreme Court, "[a] party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of some burden or obligation." Finstad v. Washburn Univ. of Topeka , 252 Kan. 465, 472, 845 P.2d 685 (1993) (internal quotation marks omitted) (citing Fairfax Drainage Dist. v. Kansas City , 190 Kan. 308, 308, 374 P.2d 35 (1962) ). Moreover, the Kansas Supreme Court has described the Kansas CPA as a statute that "expressly provides that it is to be construed liberally in order to protect consumers from suppliers who commit deceptive and unconscionable practices," and explained that "a consumer need not establish measurable monetary damages to qualify as aggrieved." Via Christi Reg'l Med. Ctr., Inc. v. Reed , 298 Kan. 503, 519, 314 P.3d 852 (2013).

Although the Kansas Supreme Court has not explicitly ruled on the issue, two federal court decisions have allowed Kansas CPA claims to proceed even without proof of a manifested defect. In Gonzalez v. PepsiCo, Inc. , 489 F.Supp.2d 1233 (D. Kan. 2007), for example, the plaintiffs alleged that beverages manufactured or distributed by the defendants "had a tendency to contain benzene" at elevated levels, but did "not allege that any of the beverage products which they purchased and consumed actually contained benzene or that they [had] suffered any personal injuries." Id. at 1239. Nevertheless, the court held that the plaintiffs had "alleged a defect in defendants' beverage products which ... reduced their value so as to cause plaintiffs economic loss" and that such a loss sufficed to state a claim under the Kansas CPA. Id. at 1248 ; see id. (noting that "nothing in established case law ... suggests that a claim under the Kansas CPA cannot be maintained on the basis of economic harm"). Along similar lines, the court in Nieberding v. Barrette Outdoor Living, Inc. , 302 F.R.D. 600 (D. Kan. 2014), certified a class alleging "economic damages resulting from the difference between the railing products as warranted and their value in light of ... allegedly defective brackets," id. at 606 - even though the alleged defect "remain[ed] latent for the majority of class members," id. at 611-12.

Finstad , upon which New GM principally relies, does not support a contrary conclusion. In that case, a group of students sought damages from the Washburn University of Topeka for falsely stating in its course catalog that it had an accredited program in court reporting. But while "[t]he students claimed that they were aggrieved because they paid tuition for a program that was not accredited, ... they [did] not claim that they were induced to enroll in the program by the false statement that it was accredited." Id. at 467, 845 P.2d 685. In fact, they stipulated "that no Plaintiff relied upon defendant's representation of approval/accreditation." Id. Faced with those facts, the Kansas Supreme Court held that the students had failed to demonstrate a causal connection between the university's misconduct and their injuries and, thus, were not "aggrieved" within the meaning of the Kansas CPA. Id. at 474, 845 P.2d 685. Put differently, the Court held that the students could not recover the benefit of a bargain they had never struck; it did not hold that benefit-of-the-bargain damages are unavailable in the absence of a manifested defect.

iv. Mississippi

Under Mississippi's Consumer Protection Act ("Mississippi CPA"), a plaintiff who "suffers any ascertainable loss of money or property" due to deceptive or unfair trade practices can "recover such loss of money or damages." Miss. Code Ann. § 75-24-15(1) ; see In re Mississippi Medicaid Pharm. Average Wholesale Price Litig. , 190 So.3d 829, 841 (Miss. 2015) (noting that the purpose of the Mississippi CPA is "to protect the citizens of Mississippi from deceptive and unfair trade practices" (internal quotation marks and citations omitted) ). At least one case suggests that the Mississippi Supreme Court would be open to allowing a Mississippi CPA claim even without a manifested defect. In Holman v. Howard Wilson Chrysler Jeep, Inc. , 972 So.2d 564 (Miss. 2008), that Court considered a Mississippi CPA claim against a car dealership that had misrepresented as "new" a vehicle that "had been in a wreck and was repaired prior to their purchase." Id. at 567. The plaintiffs did not allege that the vehicle had manifested any defect because of the prior accident, and the intermediate appellate court had granted summary judgment to the defendants in part because the plaintiffs had "failed to show any connection with the prior damage to the damages they allegedly suffered." Id. at 567-68. The Mississippi Supreme Court reversed, and allowed the plaintiffs' Mississippi CPA claims to go forward. It did not explicitly state that a Mississippi CPA claim did not require manifestation, but it did consider - and implicitly reject - the defendants' argument that "the Holmans suffered no damages due to the [dealership's] failure to disclose." Id. at 568.

The federal district court cases upon which New GM relies are irrelevant because they do not pertain to the Mississippi CPA; nor, for that matter, do they cite any Mississippi law to support their conclusions that manifestation is required under the Mississippi CPA. See Jarman v. United Indus. Corp. , 98 F.Supp.2d 757 (S.D. Miss. 2000) (analyzing negligent misrepresentation, breach of implied and express warranties, fraud, and unjust enrichment claims); Lee v. Gen. Motors Corp. , 950 F.Supp. 170 (S.D. Miss. 1996) (analyzing negligence, strict liability, implied warranty, and intentional infliction of emotional distress claims). New GM also urges the Court not to "ignore" the Seventh Circuit's decision in In re Bridgestone/Firestone, Inc. , 288 F.3d 1012 (7th Cir. 2002). (New GM Resp. 8). But the Bridgestone/Firestone Court did not analyze any Mississippi law. See In re Bridgestone/Firestone , 288 F.3d at 1017. It did suggest that Briehl , had analyzed Mississippi law, Bridgestone/Firestone , 288 F.3d at 1017, but Briehl merely cites to Lee v. General Motors Corp. - which does not analyze the Mississippi CPA. See Briehl , 172 F.3d at 627 ; Lee , 950 F.Supp. at 172. Accordingly, the Seventh Circuit's decision does not support the weight that New GM puts upon it.

v. Montana

Montana's Unfair Trade Practices and Consumer Protection Act ("Montana CPA") provides a remedy for "[a] consumer who suffers any ascertainable loss of money or property" as the result of "unfair or deceptive act or practices in the conduct of any trade or commerce." Mont. Code Ann. §§ 30-14-103, 133(1). "[A] consumer may sue under the act if he or she has suffered any ascertainable loss of money or property as the result of an unfair practice." Jacobson v. Bayview Loan Servicing, LLC , 383 Mont. 257, 272, 371 P.3d 397 (2016) (internal quotation marks and citations omitted). "[T]he purpose of the [Montana] CPA is to protect the public from unfair or deceptive practices." Tripp v. Jeld-Wen, Inc. , 327 Mont. 146, 156, 112 P.3d 1018 (2005) (internal quotation marks omitted). "An award of damages may benefit the plaintiffs in a case, but its remedial nature also serves as notice to all that violations of the [Montana CPA] are consequential and will not be tolerated." Jacobson , 383 Mont. at 278, 371 P.3d 397. The Montana courts do not appear to have addressed whether manifestation is required under the Montana CPA. The Montana Supreme Court, however, has defined "ascertainable loss" broadly. See, e.g., Puryer v. HSBC Bank USA, N.A. , 391 Mont. 361, 375, 419 P.3d 105 (2018) (describing how the Montana Supreme Court has rejected arguments that an "ascertainable loss of money and property" under the Montana CPA requires a showing of "actual damages" and finding that lost opportunities to save a home and negative impact to one's credit were both "sufficient to establish a pecuniary loss" under the Montana CPA). In the absence of any contrary authority, and in light of the statute's broad purpose, the Court predicts that the Montana Supreme Court would not require a manifested defect to state an "ascertainable loss" under the Montana CPA.

vi. Nevada

Under the Nevada Deceptive Trade Practices Act ("Nevada DTPA"), "[a]n action may be brought by any person who is a victim of consumer fraud." Nev. Rev. Stat. § 41.600(1). If the claimant prevails, the Court shall award that party "[a]ny damages that he has sustained."

Id. §§ 41.600(3), (3)(a). There is a surprising dearth of authority on the Nevada DTPA's breadth and construction. The Court thus relies on the statute alone, applying Nevada's rules of statutory construction. Cf. In re Goldman , 70 F.3d 1028, 1029 (9th Cir. 1995). Under Nevada's first rule of statutory interpretation, "if a statute is clear and unambiguous," the court must give "effect to the plain and ordinary meaning of the statute's language, and ... not resort to the rules of statutory construction." HSBC Bank, N.A. v. Stratford Homeowners Ass'n , No. 15-CV-01259 (JAD), 2016 WL 1555716, at *2 (D. Nev. Apr. 14, 2016). The Nevada DTPA awards "[a]ny damages that" a person who is a victim of consumer fraud (as defined by the Nevada DTPA) "has sustained." Nev. Rev. Stat. Ann. § 41.600(3)(a). The only limitation suggested by the statute's language is that the claimant must have "sustained ... damages" as the result of "consumer fraud." See also Picus v. Wal-Mart Stores, Inc. , 256 F.R.D. 651, 658 (D. Nev. 2009) (holding that a private Nevada DTPA claim requires "damage to the plaintiff"). There is nothing in the language of the statute to suggest that a manifested defect should be required.

vii. New Jersey

To state a claim under the New Jersey Consumer Fraud Act ("New Jersey CFA"), a plaintiff must demonstrate an " 'ascertainable loss of moneys or property, real or personal' as a result of a practice in violation of the [New Jersey CFA]." Thiedemann v. Mercedes-Benz USA, LLC , 183 N.J. 234, 238, 872 A.2d 783, 786 (2005) (quoting N.J. Stat. Ann. § 56:8-19 ). To qualify as ascertainable, loss must be "quantifiable or measurable." Id. at 248, 872 A.2d 783. "In cases involving ... misrepresentation," however, "either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle." Id. That definition aligns with the statute's "broad ... protection ... envisioned by the [New Jersey] legislature and ... recognized by the Supreme Court of New Jersey." Maniscalco v. Brother Int'l Corp. (USA) , 627 F.Supp.2d 494, 502 (D.N.J. 2009) (citing Gennari v. Weichert Co. Realtors , 148 N.J. 582, 604, 691 A.2d 350 (1997) ("The history of the [New Jersey CFA] is one of constant expansion of consumer protection."); Lemelledo v. Beneficial Mgmt. Corp. of Am. , 150 N.J. 255, 264, 696 A.2d 546 (1997) ("The language of the [New Jersey CFA] evinces a clear legislative intent that its provisions be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud.") ).

The New Jersey Supreme Court has not spoken directly to the issue of manifestation, but its decision in Thiedemann provides some reason to conclude that it would not impose a manifestation requirement. In that case, the plaintiffs brought claims against Mercedes-Benz for the cost of repair for fuel gauges that had manifested a defect, as well as for the possible future diminution in the value of vehicles whose fuel gauges had since been repaired and had exhibited no defects since. See 183 N.J. at 244, 252, 872 A.2d 783. The New Jersey Supreme Court held that the plaintiffs had failed to plead a [New Jersey CFA] claim for two reasons. First, the plaintiffs' defective fuel gauges had already been repaired "at no cost to the [plaintiffs]" through their warranty. Id. at 251, 872 A.2d 783. Second, the plaintiffs presented no evidence of a present diminution in value; a "future hypothetical diminution in [the] value" of the plaintiffs' cars "due to a fuel gauge that at one time did not read properly a full tank of gasoline" was "too speculative" to satisfy the New Jersey CFA's requirement of "a quantifiable or otherwise measureable loss." Id. at 252, 872 A.2d 783 (first emphasis added). Notably, however, the problem with the plaintiffs' "loss in value" claim was not the absence of manifestation, but rather the absence of any present diminution in value. Id. at 244, 872 A.2d 783. Indeed, the New Jersey Supreme Court noted that if the plaintiffs had presented sufficiently reliable "expert evidence to support an inference of loss in value ..., i.e. , that the resale market for the specific vehicle had been skewed by the 'defect,' " the claim may have gone forward. Id. at 252, 872 A.2d 783.

Following Thiedemann , courts have generally allowed New Jersey CFA claims to go forward even without a manifested defect. See In re Ford Motor Co., Spark Plug & 3-Valve Engine Prod. Liab. Litig. , No. 1:12-MD-2316, 2014 WL 3778592, at *28, *44 (N.D. Ohio July 30, 2014) (discussing Thiedemann and permitting a New Jersey CFA claim to go forward where the plaintiffs alleged a defect causing some, but not all, spark plugs in certain Ford models to break); Strzakowlski v. Gen. Motors Corp. , No. CIV.A. 04-4740, 2005 WL 2001912, at *2, *7 (D.N.J. Aug. 16, 2005) (discussing Thiedemann and denying a motion to dismiss class allegations where all members of the class alleged that their cars contained a defect in the form of "a poorly designed plastic manifold-plenum" but not all class members had "experienced a coolant leak" as a result of that defect). That conclusion is reinforced by the fact that Thiedemann itself favorably cited a New Jersey trial court opinion in which the court had explicitly stated that plaintiffs need not plead manifestation under the New Jersey CFA. See Thiedemann , 183 N.J. at 252 n.8, 872 A.2d 783 (citing Talalai v. Cooper Tire & Rubber Co. , 360 N.J. Super. 547, 823 A.2d 888 (Law. Div. 2001), as an example of a case in which "[s]ufficient proof of an ascertainable loss in respect of the 'lost bargain' was present"); see also Talalai , 360 N.J. Super. at 564, 823 A.2d 888 (rejecting the defendants' contention that "a product defect that has not manifested itself is not a claim for which a court can provide relief" under the New Jersey CFA).

In arguing that the New Jersey CFA requires manifestation, New GM relies primarily on Perkins v. DaimlerChrysler Corp. , 383 N.J. Super. 99, 890 A.2d 997 (App. Div. 2006), and several federal court opinions that have adopted or expanded its reasoning. (GM Br. 9-10). But Perkins is not binding here and, even if it were, the Court concludes that it is inapposite for several reasons. First, Perkins 's holding - that a defect that does not manifest itself until after the expiration of warranty cannot support a claim under the New Jersey CFA - does not follow from Thiedemann , which held only that defects already "addressed by warranty" do not provide a predicate "loss" under the New Jersey CFA. See Thiedemann , 183 N.J. at 251, 872 A.2d 783 ; cf. Asp v. Toshiba Am. Consumer Prods., LLC , 616 F.Supp.2d 721, 737 (S.D. Ohio 2008) (" Thiedemann does not stand for the proposition ... that a plaintiff must avail himself of remedies under a limited warranty to have an ascertainable loss under the [New Jersey CFA]."). Second, Perkins specifically declined to address cases, such as this one, "in which safety concerns might be implicated." Perkins , 383 N.J. Super. at 111-12, 890 A.2d 997. And finally, Perkins and its progeny rest on the proposition that recognizing New Jersey CFA claims for defects that do not appear before the end of a warranty would "extend the warranty period beyond that to which the parties agreed." Noble v. Porsche Cars N. Am., Inc. , 694 F.Supp.2d 333, 338 (D.N.J. 2010) (internal quotation marks omitted); see also Perkins , 383 N.J. Super. at 113, 890 A.2d 997. In other words, the courts assumed that consumers receive the benefit of their bargain where no defects arise before the end of the warranty. But when a manufacturer or seller has acted fraudulently, consumers cannot be said to have gotten the benefit of their bargain "because parties to a contract do not usually treat the chance that they are lying to each other as a subject for their contract to allocate." Restatement (Third) of Torts: Liability for Economic Harm § 9 (Tentative Draft No. 2, 2014); see also Maniscalco , 627 F.Supp.2d at 501-02 (noting that the plaintiff in Perkins did not allege that the defendant knew of the alleged product defect and predicting that the New Jersey Supreme Court would not find the New Jersey CFA "categorically inapplicable" were it was "faced with a situation where a manufacturer or seller ... intentionally concealed [a product defect] from a purchaser, with the purpose of maximizing profit"); Mickens v. Ford Motor Co. , 900 F.Supp.2d 427 442-43 (D.N.J. 2012) (holding that the warranty coverage of a potential defect does not, as a matter of law, negate a knowing omission claim under the New Jersey CFA); see also Coba v. Ford Motor Co. , No. 12-1622 (DRD), 2013 WL 244687, at *9 (D.N.J. Jan. 22, 2013) ("The notion that a manufacturer would be absolved from liability for knowingly omitting a defect because it acknowledges the possibility of defects in its warranty is both illogical and contrary to the spirit of the [New Jersey CFA].").

viii. New Mexico

New Mexico's Unfair Trade Practices Act ("New Mexico UTPA") provides that "[a]ny person who suffers any loss of money or property," as a result of a statutory violation, may "recover actual damages or the sum of one hundred dollars ($100), whichever is greater." N.M. Stat. Ann. § 57-12-10(B). Because "the [New Mexico UTPA] constitutes remedial legislation," the New Mexico Supreme Court "interpret[s] the provisions of this Act liberally to facilitate and accomplish its purposes and intent." Truong v. Allstate Ins. Co. , 147 N.M. 583, 591, 227 P.3d 73 (2010) (internal quotation marks omitted). Consistent with that, the New Mexico Supreme Court has held that a party may recover the "diminution of value to [a] vehicle" caused by a violation of the New Mexico UTPA. Hale v. Basin Motor Co. , 110 N.M. 314, 319, 795 P.2d 1006 (1990) ; see also Lohman v. Daimler-Chrysler Corp. , 142 N.M. 437, 446, 166 P.3d 1091 (2007) ("An award of monetary damages may be premised upon [a diminution in value]."). It is true that in Lohman , the plaintiffs alleged manifestation, see Lohman , 142 N.M. at 446, 166 P.3d 1091, but nothing in the Court's decision - or any other decision applying New Mexico law - suggests that manifestation is required to recover under the New Mexico UTPA.

b. "Actual Damages"

Next, the Court turns to thirteen states in which the consumer protection statute limits recovery to "actual damages." Invoking this Court's prior conclusion that the Oklahoma Consumer Protection Act ("Oklahoma CPA") requires proof of manifestation, see TACC Op. , 2016 WL 3920353 at *36, New GM contends that manifestation should be required if a state's consumer protection statute allows recovery only for "actual damages." (See New GM Br. 19-20). But New GM puts too much weight on the term "actual damages," which "has often been defined broadly in common-law cases, and in [United States Supreme Court cases], to include all compensatory damages." FAA v. Cooper , 566 U.S. 284, 299, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012). More to the point, New GM distorts this Court's prior decision. The Court's conclusion about the Oklahoma CPA was not based solely on the "actual damages" element of the statute. It was based also on case law holding that the Oklahoma CPA "require[d] either a manifested defect or damages beyond a failure to receive the benefit of a bargain." TACC Op. , 2016 WL 3920353 at *36. In the absence of authority suggesting either that the phrase "actual damages" should be read to have a narrower meaning than "compensatory damages" or that manifestation is required, the Court will not impose a manifestation requirement based solely on the term "actual damages."

i. Arizona

A private plaintiff's relief under the Arizona Consumer Fraud Act ("Arizona CFA") "is limited to the recovery of actual damages suffered as a result of such unlawful act or practice." Peery v. Hansen , 120 Ariz. 266, 270, 585 P.2d 574 (Ct. App. 1978). The Arizona CFA is nonetheless "a broadly drafted remedial provision," In re Arizona Theranos, Inc., Litig. , 256 F.Supp.3d 1009, 1022 (D. Ariz. 2017) (quoting State ex rel. Woods v. Hameroff , 180 Ariz. 380, 884 P.2d 266 (1994) (internal quotation marks omitted) ), which "prohibits fraudulent, deceptive, or misleading conduct in connection with the sale or advertisement of consumer goods and services," Schellenbach v. GoDaddy.com, LLC , 321 F.R.D. 613, 619 (D. Ariz. 2017).

The Arizona Supreme Court has not directly addressed manifestation under the Arizona CFA, but at least two recent district court decisions support Plaintiffs' argument that the statute does not require manifestation. See Cheatham v. ADT Corp. , 161 F.Supp.3d 815, 820-22, 831 (D. Ariz. 2016) (holding that the plaintiff's allegation that she would not have purchased an allegedly defective wireless security system but for the defendant's misrepresentations was "sufficient to establish the damages element" of an Arizona CFA claim where the plaintiff had not alleged that the defect - lack of encryption or authentication - had manifested in any harm to herself or her home) (citing Parks v. Macro-Dynamics, Inc. , 121 Ariz. 517, 521, 591 P.2d 1005 (Ct. App. 1979) ); In re Arizona Theranos, Inc., Litig. , 256 F.Supp.3d 1009, 1028 (D. Ariz. 2017), (analyzing Arizona cases to uphold an Arizona CFA claim where the plaintiffs alleged no injury other than that they "would not have purchased Theranos blood tests if they had known that defendants were using their blood samples for research and product development") reconsideration granted in part on other grounds , No. 2:16-CV-2138 (HRH), 2017 WL 4337340 (D. Ariz. Sept. 29, 2017).

New GM's sole argument to the contrary rests on Arizona CFA's "actual damages" requirement. (See New GM Br. 19 & n.14 (citing Peery , 120 Ariz. 266 at 270, 585 P.2d 574 ; Rich v. Bank of Am., N.A. , 666 F. App'x 635, 638-39 (9th Cir. 2016) ) ). As discussed, however, that is not enough to imply a requirement of manifestation. (Indeed, the court in Peery used the phrase "actual damages" in order to differentiate the damages owed a private plaintiff from civil penalties that could be sought in an action by the state, not to suggest that manifestation was required. Peery , 120 Ariz. at 270, 585 P.2d 574.)

ii. Connecticut

Under the Connecticut Unfair Trade Practices Act ("Connecticut UTPA"), "[a]ny person who suffers any ascertainable loss of money or property" as a result of a violation may "recover actual damages." Conn. Gen. Stat. Ann. § 42-110g. The Connecticut Supreme Case has defined an "ascertainable loss" under the Connecticut UTPA broadly, as "a loss that is capable of being discovered, observed or established .... The term 'loss' necessarily encompasses a broader meaning than the term 'damage,' and has been held synonymous with deprivation, detriment and injury." Artie's Auto Body, Inc. v. Hartford Fire Ins. Co. , 287 Conn. 208, 217-18, 947 A.2d 320 (2008) (internal quotation marks and brackets omitted) (citing Hinchliffe v. Am. Motors Corp. , 184 Conn. 607, 613-14, 440 A.2d 810 (1981) ). The Connecticut Supreme Court has thus held that "the words 'any ascertainable loss' ... do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case." Hinchliffe , 184 Conn. at 612-13, 440 A.2d 810.

Hinchliffe itself strongly suggests that the Connecticut Supreme Court does not require manifestation to satisfy the Connecticut UTPA. See In re Bridgestone\Firestone, Inc. Tires Prods. Liab. Litig. 155 F.Supp.2d 1069, 1097 (S.D. Ind. 2001), rev'd on other grounds , 288 F.3d 1012 (7th Cir. 2002) (citing Hinchliffe as an example of a case holding that a state consumer protection statute does not require manifestation). In Hinchliffe , the plaintiffs alleged that the defendant had advertised a vehicle as a "four-wheel drive," when the vehicle actually had "a system for transmitting power to the wheels using a limited slip differential mechanism" that could "under certain circumstances" result in a loss of traction. Hinchliffe , 184 Conn. at 611, 440 A.2d 810. It is unclear whether the plaintiffs ever experienced the defect. What is clear is that manifestation played no role in the court's holding that the consumer suffered an "ascertainable loss" under the Connecticut UTPA where he "received something other than what he bargained for .... To the consumer who wishes to purchase an energy saving subcompact, for example, it is no answer to say that he should be satisfied with a ... gas guzzler." Id. at 614, 440 A.2d 810. Meanwhile, Neighborhood Builders, Inc. v. Town of Madison , 294 Conn. 651, 656-58, 986 A.2d 278 (2010), the one case cited by New GM (see New GM Br. 19 n.14), does not suggest that the Connecticut UTPA has a manifestation requirement.

iii. Iowa

There is relatively little case law addressing Iowa Private Right of Action for Consumer Frauds Act ("Iowa CFA"), if only because it was enacted relatively recently. See 2009 Iowa Acts 671. Under the Iowa CFA, "[a] consumer who suffers an ascertainable loss of money or property as the result of" a statutory violation may "recover actual damages." Iowa Code Ann. § 714H.5. The Act itself defines "actual damages" as "all compensatory damages proximately caused by the prohibited practice or act that are reasonably ascertainable in amount." Iowa Code Ann. § 714H.2. New GM urges the Court to read "actual damages" to require manifestation based on the Court's decision with respect to Oklahoma. But New GM cites no Iowa case law suggesting such a requirement. New GM points to McKee v. Isle of Capri Casinos, Inc. 864 N.W.2d 518, 532-33 (Iowa 2015), in which the Iowa Supreme Court held that the plaintiff - who won $1.85 using a penny slot machine, but also received an erroneous message from the machine that she was entitled to a "bonus award" of approximately $41 million - had suffered no "ascertainable loss" under the Iowa CFA where she experienced no "out-of-pocket loss." (See New GM Br. 19 n.14). But the reason the plaintiff suffered no "ascertainable loss" due to the casino's refusal to pay her the $41 million bonus was because, under the rules of the game, she had no right to a bonus in the first place. See McKee , 864 N.W.2d at 532-33. The Court's holding therefore provides little guidance for this Court's purposes.

More guidance, however, may be found in the McKee Court's discussion of a Missouri case upholding casino patrons' claims for fraud under a statute that, "much like Iowa's, required the plaintiffs to have suffered an 'ascertainable loss.' " Id. at 533. The Missouri court found that casino patrons had suffered "ascertainable loss" where the casino had in fact misrepresented the rules of the game, thus reducing the value of the merchandise the plaintiffs purchased when they dropped a token into a gambling machine. Raster v. Ameristar Casinos, Inc. , 280 S.W.3d 120, 130-31 (Mo. Ct. App. 2009). Notably, the Iowa Supreme Court did not reject Raster 's reasoning that purchasing a product whose actual value fell short of what was represented would constitute an ascertainable loss under a consumer fraud statute like Iowa's. Instead, the Court held that Raster did not apply because, in McKee , the casino had not misrepresented the rules of the game. See McKee , 864 N.W.2d at 533 ("This is not a situation as in Raster where the casino changed the rules of the game after the plaintiffs had spent money and accumulated points, which were now devalued by the casino's rule changes .... Rather, in this case, the rules of the game did not provide for the bonus in question and McKee therefore did not suffer an 'ascertainable loss' when the casino refused to pay it. See Iowa Code § 714H.5(1)."). The Court's consideration of Raster suggests that the Iowa Supreme Court is open to the argument that a loss of the benefit of one's bargain constitutes an "ascertainable loss" under the Iowa CFA. Also significant is this Court's determination, discussed below, that Iowa courts do not require manifestation for purposes of common-law fraud, as the Iowa Supreme Court has stated that Iowa's Consumer Fraud Act, Iowa Code Ann. § 714.16 - for which the Iowa CFA provides a private right of action - "provides broader protection to the citizens of Iowa" than common-law fraud. State ex rel. Miller v. Hydro Mag, Ltd. , 436 N.W.2d 617, 622 (Iowa 1989) (emphasis added).

iv. Kentucky

The Kentucky Consumer Protection Act ("Kentucky CPA") provides that a court may "award actual damages" to an individual who suffers "any ascertainable loss of money or property," as a result of a statutory violation. Ky. Rev. Stat. Ann. § 367.220. While the Kentucky courts have not directly addressed what constitutes "ascertainable loss" under the Kentucky CPA, case law suggests that manifestation is not a requirement. In Smith v. Gen. Motors Corp. , 979 S.W.2d 127, 131 (Ky. Ct. App. 1998), for example, the Kentucky Court of Appeals held that a jury could find that it was a violation of the Kentucky CPA to sell a vehicle as "new" and fail to disclose its pre-sale repair history - even though there were no allegations of a manifested defect. See also Craig & Bishop, Inc. v. Piles , 247 S.W.3d 897, 905 n.13 (Ky. 2008) (citing Smith with approval). The Sixth Circuit later followed Smith 's reasoning in a case involving a plaintiff who purchased a 2004 Ford truck that, unbeknownst to him, contained a 2003 engine with "widely-known problems." Corder v. Ford Motor Co. , 285 F. App'x 226, 229 (6th Cir. 2008). Although the plaintiff did not allege a manifested defect, the Sixth Circuit held that he may have suffered an " 'ascertainable loss of money or property' within the meaning of the [Kentucky CPA]" because the value of the truck with the 2003 engine was less than represented. Id. at 229-30 ("[I]n Smith , the Kentucky Court of Appeals reversed a summary judgment for General Motors, holding that 'a fact finder might reasonably conclude that the sale of the van as "new" without disclosure of its pre-sale history constituted a false, misleading or deceptive act.' ").

On top of that, "Kentucky courts construe the [Kentucky CPA] 'broadly to effectuate its purpose of curtail[ing] unfair, false, misleading or deceptive practices in the conduct of commerce.' " Id. at 228 (quoting Commonwealth ex rel. Chandler v. Anthem Ins. Cos. , 8 S.W.3d 48, 54 (Ky. Ct. App. 1999) ) (some internal quotation marks omitted); Stevens v. Motorists Mut. Ins. Co. , 759 S.W.2d 819, 821 (Ky. 1988) ("[T]he Kentucky legislature created [the Kentucky CPA] which has the broadest application in order to give Kentucky consumers the broadest possible protection for allegedly illegal acts."). New GM does not cite any authority to the contrary. Indeed, all of its cited cases concern common-law tort claims, not the [Kentucky CPA]. (See New GM Br. 11 (citing Line v. Astro Mfg. Co. , 993 F.Supp. 1033, 1038 (E.D. Ky. 1998) ; Wood v. Wyeth-Ayerst Labs. , 82 S.W.3d 849, 851, 854 (Ky. 2002) ; Bridgestone/Firestone, 288 F.3d at 1017 ; Capital Holding Corp. v. Bailey , 873 S.W.2d 187, 192 (Ky. 1994) ) ).

v. Maine

Under the Maine Unfair Trade Practices Act ("Maine UTPA"), a plaintiff who "suffers any loss of money or property" due to a violation of the statute may bring an action for "actual damages." Me. Rev. Stat. tit. 5, § 213. The Maine Supreme Court has provided a broad rationale for why the Maine legislature required that a plaintiff "suffer[ ] a loss," explaining that the legislature wanted to ensure that the plaintiff was "personally [ ]affected" by the "misrepresentation of a product or service." Bartner v. Carter , 405 A.2d 194, 201-02 (Me. 1979). The Maine courts have made clear that a plaintiff must demonstrate "pecuniary loss," Bowen v. Ditech Fin. LLC , No. 2:16-CV-00195 (JAW), 2017 WL 4183081, at *17 (D. Me. Sept. 20, 2017), but New GM does not cite, and the Court has not found, any case law suggesting that the Maine UTPA requires a manifested defect. Accordingly, the Court will not impose one.

vi. Nebraska

Nebraska's Consumer Protection Act ("Nebraska CPA") provides that a plaintiff who has been "injured" by a violation of the statute may recover "actual damages ... and the court may in its discretion, increase the award of damages to an amount which bears a reasonable relation to the actual damages which have been sustained and which damages are not susceptible of measurement by ordinary pecuniary standards." Neb. Rev. Stat. Ann. § 59-1609. The Nebraska Supreme Court has stated that "the [Nebraska CPA] should be liberally construed to effect its purpose." Kuntzelman v. Avco Fin. Servs. of Nebraska, Inc. , 206 Neb. 130, 134, 291 N.W.2d 705 (1980) (quoting Dick v. Att'y Gen. , 83 Wash. 2d 684, 688, 521 P.2d 702 (1974) ); see also Powers v. Credit Mgmt. Servs., Inc. , No. 8:11-CV-436, 2012 WL 7798959, at *4 (D. Neb. Aug. 31, 2012) ("The [Nebraska CPA] ... is remedial consumer legislation which is to be liberally construed."). The Supreme Court of Nebraska has also noted that "[t]he goal [of the Nebraska CPA] is to establish a uniform standard of conduct so that businesses will know what conduct is permitted and to protect the consumer from illegal conduct." Arthur v. Microsoft Corp. , 267 Neb. 586, 598, 676 N.W.2d 29 (2004) ; see also Bassett v. Credit Bureau Servs., Inc. , 309 F.Supp.3d 733, 738 (D. Neb. 2017). In the absence of any authority suggesting a manifestation requirement, and in light of the Nebraska CPA's broad remedial and deterrent purpose, the Court finds that the Nebraska CPA does not require manifestation.

vii. Ohio

The Ohio Supreme Court has held that plaintiffs bringing class-action suits under Ohio's Consumer Sales Practices Act ("Ohio CSPA") "must allege and prove that actual damages were proximately caused by the defendant's conduct." Felix v. Ganley Chevrolet, Inc. , 145 Ohio St. 3d 329, 335, 49 N.E.3d 1224 (2015). The Court has defined "actual damages" as "equivalent" to "compensatory damages," which can "consist of both economic and noneconomic damages." Whitaker v. M.T. Auto., Inc. , 111 Ohio St. 3d 177, 183, 855 N.E.2d 825 (2006). That definition is in line with the language of the statute, which states that a consumer may recover "actual economic damages" under the Ohio CSPA. Ohio Rev. Code Ann. § 1345.09. Given the Ohio CSPA's overt endorsement of "economic damages," it is perhaps unsurprising that courts interpreting the Ohio CSPA have not required a manifested defect. See Blankenship v. CFMOTO Powersports, Inc. , 161 Ohio Misc. 2d 5, 11, 944 N.E.2d 769 (Ohio Ct. Com. Pl. 2011) (finding, in a case involving allegations of an unsafe braking system but not of manifestation, that "the plaintiff and proposed class members need not allege an actual physical injury, but are instead required under the [Ohio CSPA] to allege some type of injury, whether economic or noneconomic"); Delahunt v. Cytodyne Techs. , 241 F.Supp.2d 827, 832-33, 835 (S.D. Ohio 2003) (allowing Ohio CSPA claims where class members "placed themselves at 'risk' of harm by purchasing the product," and "suffered harm because they paid for a product that differed from what it was represented to be, and thereby incurred a financial injury," and noting that "[t]he plain language of section 1345.09... indicates that it is the financial harm resulting from the unfair or deceptive transaction that the statute was intended to redress").

New GM argues that, in Felix , the Ohio Supreme Court incorporated a manifestation requirement into the Ohio CSPA's requirement of "actual damages." (New GM Br. 11). The Court is unconvinced. It is true that in listing other state consumer protection statutes that required "actual damages," the Felix Court cited a number of cases that had incorporated a manifestation requirement into their definition of "actual damages." See Felix , 145 Ohio St. 3d at 336, 49 N.E.3d 1224 (citing Meyer v. Sprint Spectrum L.P. , 45 Cal. 4th 634, 642-43, 88 Cal.Rptr.3d 859, 200 P.3d 295 (2009) ; Wallis v. Ford Motor Co. , 362 Ark. 317, 327-28, 208 S.W.3d 153 (2005) ; Tietsworth v. Harley-Davidson, Inc. , 270 Wis.2d 146, 169, 677 N.W.2d 233 (2004) ; Frank v. DaimlerChrysler Corp. , 292 A.D.2d 118, 741 N.Y.S.2d 9, 12-13 (2002) ; Yu v. Internat'l Bus. Machs. Corp. , 314 Ill. App. 3d 892, 247 Ill.Dec. 841, 732 N.E.2d 1173 (2000) ; Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co. , 105 Wash. 2d 778, 783-84, 792, 719 P.2d 531 (1986) ). But the Ohio Supreme Court also cited Rule v. Fort Dodge Animal Health, Inc. , 607 F.3d 250, 255 (1st Cir. 2010), in which the First Circuit stated that the owner of a car "whose value was now reduced because of the risk that the doors might malfunction" had a valid "economic injury" claim. Id. at 255 (emphasis added). Furthermore, Felix did not involve a product defect and did not once mention manifestation; the court discussed "actual damages" only to distinguish them from "[t]reble and statutory damages." Felix , 145 Ohio St. 3d at 334-35, 49 N.E.3d 1224. The Court declines to conclude that the Ohio Supreme Court would, without discussion, incorporate a never-before-discussed requirement into a state statute while deciding a case to which such a requirement would not even be applicable.

viii. Oregon

Under Oregon's Unfair Trade Practices Act ("Oregon UTPA"), "a person that suffers an ascertainable loss of money or property, real or personal" as a result of a violation may "recover actual damages or statutory damages of $200, whichever is greater." Or. Rev. Stat. Ann. § 646.638. The Oregon Supreme Court has not addressed whether the Oregon UTPA requires a manifested defect, but it has suggested that, upon proper proof, a plaintiff may recover for diminished value. In Pearson v. Philip Morris, Inc. , 358 Or. 88, 361 P.3d 3 (2015),