Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS (Docket No. 56) EDWARD M. CHEN, United States District Judge Plaintiffs are twenty-three persons and one organization residing in fifteen different states. They have filed a class action against Defendant Ford Motor Company, asserting, in essence, that an “infotainment system” — known as MyFord Touch (“MFT”) — used in certain of its vehicles (Ford, Lincoln, and Mercury) is defective and that Ford knew the system was defective at the time it sold the vehicles to Plaintiffs and other putative class members. Plaintiffs have asserted various claims under federal and state law, but the claims can loosely be categorized into (1) fraud claims and (2) breaeh-of-warranty claims. Ford has challenged the bulk of the claims in the currently pending motion to dismiss. Having considered the parties’ briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part Ford’s motion. I. FACTUAL & PROCEDURAL BACKGROUND As a preliminary matter, the Court provides below a chart which lists the name of each named Plaintiff, the state of Plaintiffs residence, whether Plaintiff purchased or leased the car, the car that was purchased or leased, and the date of purchase or lease. In their operative complaint, Plaintiffs allege as follows. The MFT system is a factory-installed, integrated in-vehicle communication, navigation, and entertainment system that allows users to use a rearview camera, control vehicle climate, operate adaptive cruise control, receive navigational direction, make hands-free telephone calls, control music, and perform other functions with voice and touch commands. [MFT] also includes 9-1-1 Assist, which automatically contacts emergency personnel with the vehicle’s coordinates in case of an accident. In addition to touchscreen and voice-based commands, [MFT] also features a steering wheel control panel. FAC ¶ 232. Pictures of what the MFT system looks like can be found in paragraphs 242-43 and 245 of the complaint. Ford has promoted the MFT system, including in particular its safety, communication, and entertainment features, in various ways — e.g., on its website, through advertisements (including print and television), and through dealerships. See, e.g., FAC ¶¶ 22, 49, 66, 251-61. MFT is powered by an operating system known as Ford SYNC. See FAC ¶3. Ford SYNC is also the name of the earlier, first generation of the MFT system. See FAC ¶233. “Ford designed and developed SYNC with Microsoft and installed the original Sync system in Ford vehicles in 2007.” FAC ¶233. “The initial versions of Ford SYNC, however, did not include a touchscreen, like [MFT].” FAC ¶ 233. “In January 2010, hoping to capitalize on the success of SYNC, Ford announced that it would be launching a second generation of SYNC called [MFT]. [MFT] was a much more comprehensive technology which utilized Ford SYNC as the operating system, but included many more features than had been available with the initial versions of Ford SYNC.” FAC ¶ 235. Ford aimed to employ MFT in all of its vehicles, not just its higher-end vehicles. See FAC ¶ 237. The rollout of the MFT system began in 2010 (i.e., for 2011 model vehicles). See FAC ¶¶ 16, 238. “Currently, more than 5 million Ford vehicles contain [MFT].” FAC ¶ 238. In a June 2013 press release, Ford stated that, “combined, Sync and [MFT] systems are sold on 79 percent of new 2013 Ford vehicles.” FAC ¶ 239. Ford charges a premium for the MFT system. “As a stand-alone option, Ford’s suggested retail price for the [MFT] system is approximately $1,000. Customers can add further options to their [MFT] system — such as GPS navigation capability — by paying additional fees of several hundred dollars.” FAC ¶ 241. However, according to Plaintiffs, there are serious problems with the MFT system. Plaintiffs underscore that “[t]he scope of the problem is wide. In late 2012, Ford reported 400 problems with the [MFT] system for every 1000 vehicles. That was an improvement over the problems earlier in 2012 when Ford reported a ‘things-gone-wrong’ rate for its [MFT] system of 500 for every 1000 vehicles.” FAC ¶10. Plaintiffs have identified various problems with the MFT system, ranging from the entire system freezing up or crashing (in which case no features connected to MFT are operational, including the navigation technology, the radio, the rearview camera, and the defroster) to isolated problems such as random but frequent screen black outs, nonresponsiveness to touch or voice commands, locking up of the rearview camera, and inaccurate directions on the navigation system. See FAC ¶ 7; see also FAC ¶¶ 262-63. Plaintiffs maintain that the problems with the MFT system actually create safety risks as malfunctions in the system lead to the driver becoming distracted. See FAC ¶ 263. Also, there are more obvious safety risks involved when, e.g., the rearview camera or defroster breaks down. Plaintiffs maintain that, although there are varying problems with the MFT system, there is an underlying defect in the system attributable to software and/or hardware. See FAC ¶¶ 268-69. Plaintiffs assert that Ford failed to conduct adequate testing of the MFT system prior to its release. See, e.g., FAC ¶ 271. Furthermore, soon after the release of the system, customer complaints began to mount. In response, Ford began to issue Technical Service Bulletins (“TSBs”) and software updates. “TSBs are recommended repairs issued by the manufacturer and sent to dealers.” FAC ¶ 274. The first TSB was issued on April 27, 2011. See FAC ¶ 275. TSBs continued to be issued through at least October 3, 2013. See FAC ¶286. Plaintiffs have identified at least eight TSBs, as well as multiple software updates. See generally FAC ¶¶ 274-87. According to Plaintiffs, in spite of the TSBs and software updates, Ford still has not fixed the problem with MFT — this in spite of the fact that, at the very least, there is an express limited warranty on each vehicle. See FAC ¶¶ 297-300. A copy of the relevant limited warranty can be found at Exhibit A of Ford’s request for judicial notice. See Docket No. 57-2 (RJN, Ex. A) (limited warranty). The limited warranty provides, in relevant part, as follows: Under your New Vehicle Warranty if: —your Ford vehicle is properly operated and maintained, and —was taken to a Ford dealership for a warranted repair during the warranty period, then authorized Ford Motor Company dealers will, without charge, repair, replace, or adjust all parts on our vehicle that malfunction or fail during normal use during the applicable coverage period due to a manufacturing defect in factory-supplied materials or factory workmanship. This warranty does not mean that each Ford vehicle is defect free. Defects may be unintentionally introduced into vehicles during the design and manufacturing processes and such defects could result in the need for repairs. For this reason, Ford provides the New Vehicle Limited Warranty in order to remedy any such defects that result in vehicle part malfunction or failure during the warranty period. The remedy under this written warranty, and any implied warranty, is limited to repair, replacement, or adjustment of defective parts. This exclusive remedy shall not be deemed to have failed its essential purpose so long as Ford, through its authorized dealers, is willing and able to repair, replace, or adjust defective parts in the prescribed manner. Ford’s liability, if any, shall in no event exceed the cost of correcting manufacturing defects as herein provided and upon expiration of this warranty, any such liability shall terminate. Nothing in this warranty should be construed as requiring defective parts to be replaced with parts of a different type of design than the original part, so long as the vehicle functions properly with the replacement part. Moreover, Ford and its authorized dealers are entitled to a reasonable time and a reasonable number of attempts within which to diagnose and repair any defect covered by this warranty. Docket No. 57-2 (RJN, Ex. A) (Limited Warranty at 8-9) (emphasis added). II. LEGAL STANDARD Ford has moved for a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) allows for dismissal based on a failure to state a claim for relief. A motion to dismiss based on the rule essentially challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In considering a 12(b)(6) motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d ,1063, 1067 (9th Cir.2009). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 129 S.Ct. at 1949. Ford’s 12(b)(6) motion presents arguments with respect to the following categories of claims: (1) fraud claims; (2) certain tort claims; (3) express warranty claims; (4) implied warranty claims; (5) claims under the federal Magnuson-Moss Warranty Act (“MMWA”); and (6) claims under California’s secret warranty law. Because the instant case involves fraud claims, Rule 9(b) is also implicated. “Under Rule 9(b), claims alleging fraud are subject to a heightened pleading requirement, which requires that a party ‘state with particularity the circumstances constituting fraud or mistake.’ ” Reese v. Malone, 747 F.3d 557, 568 (9th Cir.2014). The Court’s opinion addresses first the fraud and tort claims. The opinion then turns to the warranty-related claims. III. FRAUD AND TORT CLAIMS A. Fraud Claims Plaintiffs’ fraud claims are based on state law. The fraud claims are either claims for fraudulent concealment (common law) or claims for fraud based on a consumer protection statute. With respect to the fraud claims, Ford makes the following arguments: (1) that Plaintiffs have failed to plead with sufficient particularity any affirmative misrepresentation by Ford; (2) that, to the extent Plaintiffs claim a failure to disclose by Ford, they fail to plead sufficient facts that (a) Ford knew, at the time of sale, of a material fact of which Plaintiffs were not aware and that (b) Ford had a duty to disclose in the first place; and (3) that, for the Iowa, Texas, and Virginia Plaintiffs, their fraud claims based on the consumer protection statutes are time barfed. 1. Affirmative Misrepresentation The Court agrees with Ford that Plaintiffs have failed to state a fraud claim based on an affirmative misrepresentation. Below are typical allegations from the operative complaint regarding the fraud on Plaintiffs: Plaintiff Whalen selected and ultimately purchased her vehicle, in part, because of the features of the [MFT] system, as represented through advertisements and representations made by Ford. Specifically, prior to her purchase of the vehicle, Plaintiff Whalen viewed television advertisements regarding the [MFT] and a representative of Henry Curtis Ford made verbal representations about [MFT] to Plaintiff Whalen. A salesperson from Henry Curtis Ford even demonstrated the [MFT] and Bluetooth system working through his phone and stated Plaintiff Whalen could connect her phone or IPOD to the system and listen to music. She recalls that the advertisements and representations touted the voice command features of the [MFT] system, including, the ability to adjust the temperature of the vehicle; the ability to control the audio portion of the vehicle without having to take her eyes off the road; and the purported ability to dial 9-1-1 in the event of an accident. None of the advertisements reviewed or representations received by Plaintiff Whalen contained any disclosure relating to any defects in the [MFT] system. Had Ford disclosed that the [MFT] in her vehicle suffered from numerous defects which would prevent her full use of her vehicle and pose safety risks, she would not have purchased her vehicle with [MFT], or would have paid less for the vehicle. FAC ¶ 22 (emphasis added). Plaintiff Zuehowski saw advertisements for and representations made by Defendant Ford about MyFord Touch, including television, print media, and on the internet. The Marshall Ford salesperson represented that the MyFord Touch system worked well and had full functionality. Although Plaintiff Zuehowski cannot recall the exact language from the various publications, he recalls the materials touting the innovative nature of MyFord Touch, how it would enhance the driving experience, and increase the safety of the vehicle. None of these publications contained any disclosure relating to any defects in the MyFord Touch system. Had these materials that Plaintiff Zuehowski viewed disclosed that the MyFord Touch in his vehicle suffered from numerous defects which would prevent his full use of his vehicle and pose safety risks, he would not have leased his vehicle with MyFord Touch, or certainly would not have paid as much as he did for his vehicle. FAC ¶ 187 (emphasis added). As indicated by the above, Plaintiffs’ fraud theory is really a failure to disclose rather than an affirmative misrepresentation. As Ford contends, Plaintiffs are not really arguing that the MFT system does not have the features described in, e.g., Ford’s advertisements. See Mot. at 9. Rather, their beef is that the features of the MFT system do not work (and that Ford knew that fact at the time of the sales/leases to Plaintiffs but failed to disclose such). This is not a case where, e.g., Ford made an affirmative representation that the MFT system was defect free. In fact, the opposite is true given the limited warranty, which expressly states that the warranty does not mean that each Ford vehicle is defect free. The case law cited by Ford is on point. Those cases show that, unless a product manufacturer makes claims about, e.g., a product’s quality or reliability, no claim based on an affirmative misrepresentation is viable. For example, in In re Iphone 4S Consumer Litigation, No. C 12-1127 CW, 2014 WL 589388, 2014 U.S. Dist. LEXIS 19363 (N.D.Cal. Feb. 14, 2014), the plaintiffs filed suit against Apple regarding the Siri feature on its iPhone. Judge Wilken rejected the plaintiffs’ fraud claim in part because they failed to point to “any specific statement by Apple that expressly indicates that Siri would be able to answer every question, or do so consistently.” Id. at *6-7, 2014 U.S. Dist. LEXIS 19363, at *20-21; see also Morgan v. Harmonix Music Sys., Inc., No. C08-5211 BZ, 2009 WL 2031765, at *3 (N.D.Cal. July 30, 2009) (stating that “plaintiffs have alleged no specific representations about the durability of the foot pedal” on the drum set); Long v. Hewlett-Packard Co., No. C 06-02816 JW, 2007 WL 2994812, at *7, 2007 U.S. Dist. LEXIS 79262, at *21 (N.D.Cal. July 27, 2007) (stating that “[t]he word ‘notebook’ describes the type of product being sold; it does not constitute a representation regarding the quality of the computer’s parts, nor a representation regarding the consistency or longevity of the computer’s operation”). The case law cited by Plaintiffs is not to the contrary. For example, in Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 8 Cal.Rptr.3d 22 (2003), a fraud claim was asserted against the defendant because it had represented in its advertisements that, e.g., a customer would receive 50 channels from its satellite TV services. According to the defendant, the fraud claim was not viable because this statement “was not a statement that all 50 channels would be available at all times.” Id. at 1362, 8 Cal.Rptr.3d 22. The court held that whether the statement was untrue or misleading was a triable issue of fact to be resolved later. More importantly (at least for purposes of this opinion), the court indicated that the theory here would be one of a failure to disclose. See id. (“Under the False Advertising Act and the UCL, ‘[a] perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by a failure to disclose other relevant information, is actionable.”) (emphasis added). In their opposition, Plaintiffs suggest that, at the very least, there were affirmative misrepresentations made in Ford’s limited warranty. Plaintiffs admit that “the Limited Warranty contains a generic admission of potential defect” but maintain that “using that to insulate Ford from liability for misrepresenting specific product features (or knowingly omitting specific defects) would undermine the remedial purpose of state consumer-protection laws.” Opp’n at 11-2. But Plaintiffs miss the point here. The fact that Ford’s limited warranty stated “[t]his warranty does not mean that each Ford vehicle is defect free,” Docket No. 57-2 (RJN, Ex. A) (Limited Warranty at 8-9), does not provide a basis for a claim that Ford made an affirmative misrepresentation that the MFT system was defect free. Plaintiffs’ reliance on Mickens v. Ford Motor Co., 900 F.Supp.2d 427 (D.N.J. 2012), see Opp’n at 12 n.35, is unavailing. In Mickens, the court simply stated that “[w]arranty coverage of a particular problem does not, as a matter of law, negate a CFA [Consumer Fraud Act] claim that the manufacturer knowingly omitted information about a design defect.” Mickens, 900 F.Supp.2d at 442 (emphasis omitted). But here Plaintiffs are trying to argue not just an omission (failure to disclose) but also an affirmative misrepresentation. Accordingly, to the extent Plaintiffs have asserted any fraud claims based on an affirmative representation (as opposed to a failure to disclose), the Court grants Ford’s motion, with one exception. The exception is with respect to one Plaintiff, Mr. Miller (New York). For Mr. Miller, there is the allegation that, he “was aware of some mixed reviews of [MFT], [but] he was informed by the sales representatives at Mahopac Ford that Ford had corrected any defects in [MFT].” FAC ¶ 164 (emphasis added). This is an affirmative representation — i.e., that all defects with the MFT system had been corrected. Ford contends that the Court should still dismiss Mr. Miller’s claim because “[a] statement by a salesperson at a dealership cannot be imputed to Ford absent an agency relationship, which Plaintiffs have not even attempted to plead.” Mot. at 9 (citing Maietta v. Ford Motor Co., No. 96 C 8347, 1997 WL 162894, 1997 U.S. Dist. LEXIS 3788 (N.D.Ill. Mar. 24, 1997) (citing an Illinois Supreme Court opinion for the proposition that “ ‘[a] complaint relying on agency must plead facts which, if proved, establish the existence of an agency relationship!;] [i]t is insufficient to merely plead the legal conclusion of agency’”)). Plaintiffs argue in return that whether there is an agency relationship is a question of fact and, here, they have made. sufficient “factual allegations from which the Court can infer the existence of agency relationships between Ford and its authorized dealers with respect to [MFT].” Opp’n at 11. Plaintiffs cite in particular ¶¶ 274-87 of the complaint, which discuss the TSBs and software updates sent by Ford to dealers. Based on these paragraphs, Plaintiffs have made sufficient allegations of agency to withstand the motion to dismiss. “Under New York law an agent may bind his principal in matters within the scope of his agency,” Agristor Leasing v. Hollister, No. 83-CV-1357, 1985 U.S. Dist. LEXIS 12872, at *9 (N.D.N.Y. Dec. 12, 1985), and “ ‘[a] principal is liable for an agent’s misrepresentations [or other frauds] that cause pecuniary loss to a third party, when the agent acts within the scope of his ... authority.’ ” Seifts v. Consumer Health Solns. LLC, No. 05 Civ. 09355(RJH), 2011 WL 4542905, at *6, 2011 U.S. Dist. LEXIS 113617, at *19 (S.D.N.Y. Sept. 30, 2011); cf. Sachs v. Cantwell, No. 10 Civ. 1663(JPO), 2012 WL 3822220, at *17, 2012 U.S. Dist. LEXIS 125335, at *55 (S.D.N.Y. Sept. 4, 2012) (stating that, “[u]nder New York law, ‘an employer may be vicariously liable for an intentional tort committed by an employee if the employee was acting within the scope of employment at the time the tort was committed’ ”). It is reasonable to infer that an agency relationship may be found where a salesperson of an authorized dealership of Ford makes a representation about the Ford product in the course of the sale of that product. In its reply brief, Ford argues that “instructions to dealers about how to perform repairs do not create an agency relationship regarding sales representations.” Reply at 4. While this argument is not necessarily without merit, ultimately, the scope of the agency is a factual one for the jury to resolve, especially as information about Ford’s precise relationship with its dealers — in particular, with regard to MFT — is largely within Ford’s possession, custody, or control. 2. Failure to Disclose For Plaintiffs’ claims that Ford engaged in fraud by failing to disclose, Ford makes two primary arguments: (1) that Plaintiffs have failed to adequately allege Ford knew, at the time of sale, of a material fact of which Plaintiffs were not aware and (2) that Plaintiffs have failed to adequately allege Ford had a duty to disclose in the first place. a. Knowledge of Material Fact of Which Plaintiffs Were Unaware As preliminary matter, the Court rejects Ford’s argument that the fraud claims based on a failure to disclose should be dismissed because its limited warranty informed customers that the vehicles were not defect free. As noted above, in Mick-ens, the court stated that “[wjarranty coverage of a particular problem does not, as a matter of law, negate a CFA [Consumer Fraud Act] claim that the manufacturer knowingly omitted information about a design defect.” Mickens, 900 F.Supp.2d at 442. Moreover, it would be odd to say that a generic disclosure of possible defects should insulate Ford from liability if it actually knew of a specific defect. Aside from the above argument, Ford makes two main arguments as to why Plaintiffs have not adequately alleged that Ford knew, at the time of sale, of a material fact of which Plaintiffs were not aware: (1) “Plaintiffs’ allegations do not set forth which facts were allegedly material to each Plaintiff’ and (2) “Plaintiffs’ ... allegations ... fail to establish Ford’s knowledge” of these facts. Opp’n at 13. i. Materiality The materiality is argument weak. Plaintiffs should not be obligated to spell out which exact features of the MFT system they were most interested in. The FAC adequately conveys that the MFT system was an attractive component because of safety features and features that make the driving experience easier or more enjoyable. Furthermore, “materiality is generally a question of fact,” Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 333, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011), and a reasonable jury could well conclude that the problems with the MFT system were material facts because the system arguably was the subject of Ford’s marketing efforts — the system enhanced the functionality and experience of the vehicle, including its safety. Although Ford contends that there is no safety risk if the MFT system is rendered inoperable because a car without the MFT system can still be safe (e.g., cars that are not Fords or Lincolns do not have the MFT system), a reasonable jury could still conclude otherwise. For instance, a reasonable jury could find that a MFT system that suddenly breaks down while a person is driving the car could cause a safety risk because of the driver becoming distracted. More obviously, a reasonable jury could find a safety risk if a person was relying on the rearview camera feature of MFT while driving in reverse and that feature broke down. See, e.g., FAC ¶ 25 (Plaintiff Whalen alleging that “the backup camera would freeze while driving ”). The Court also notes that it is odd for Ford to quibble with materiality here when it promoted the MFT system as a desirable component of a vehicle in the first place. In other words, if the MFT system was so desirable, then it would not be surprising for Plaintiffs to consider a problem with the system — particularly a systemic one — a material fact. ii. Knowledge As for Ford’s argument that Plaintiffs have failed to sufficiently allege Ford knew, at the time of sale, of the material facts (i.e., the problems with the MFT system), that argument is also problematic. In evaluating the argument, the Court bears in mind that Plaintiffs purchased or leased their vehicles containing the MFT system between October 2010 and April 2013, with most purchases or leases taking place in 2011 and 2012. According to Plaintiffs, Ford knew at the time of the purchases or leases that there were problems with MFT based on, e.g., (1) the TSBs and updates that it issued to dealers; (2) the customer complaints that were made (e.g., websites set up specifically to complain about MFT and nineteen complaints ranging from October 2010 to July 2013 made to NHTSA, see FAC ¶¶288-91); and (3) a statement by a salesperson at a dealership (apparently some time in 2013) that the MFT problems he experienced were common. See Opp’n at 16. For Plaintiffs who purchased or leased their vehicles from 2011 to 2013, there is a plausible allegation of knowledge on the part of Ford. For example, three Plaintiffs (CDD, Mr. Miller, and Mr. Miller-Jones) purchased or leased their vehicles in 2013. Prior to 2013, Ford had issued six TSBs to dealers as well as two updates. See FAC ¶¶ 275-83. Thus, it is more than fair to say that, by 2013, Ford was aware of significant problems with the MFT system. Of course, most Plaintiffs purchased or leased their vehicles before 2013 (four in 2010, six in 2011, and eleven in 2012). Prior to 2012, Ford had issued only two TSBs and no updates. See FAC ¶¶ 275-76. Nevertheless, it is still reasonable to infer that, if Ford had issued four TSBs and two updates in 2012 alone, Ford should have known of problems with MFT by around 2011, i.e., before it could recommend what repairs or updates needed to be done. Presumably, the TSBs and updates were proceeded by an accretion of knowledge by Ford. See Falco v. Nissan N. Am., Inc., No; CV 13-00686 DDP (MANx), 2013 WL 5575065, at *6-7, 2013 U.S. Dist. LEXIS 147060, at *17-18 (C.D.Cal. Oct. 10, 2013) (stating that, where defendant issued the first of several TSBs in July 2007 and further did a redesign in 2006 or 2007, that “permit[s] plausible inferences that [defendant] was aware of the defect at the time they sold the vehicles in 2005 and 2006”). The closer question is whether there is enough to charge Ford with knowledge with respect to those Plaintiffs who purchased or leased their vehicles in 2010.2010 was the year of the rollout of MFT. That being the case, Plaintiffs would basically have to be alleging that, at or about the time of rollout, Ford knew that the MFT system had problems. While the Court has some doubts whether Plaintiffs will actually be able to prove such, that does not mean that Plaintiffs’ case is implausible. The first TSB issued in April 2011, i.e., only a few months after the rollout of the MFT system. One could reasonably infer that the TSB was issued in response to consumer complaints that surfaced immediately after rollout. That there were such complaints is substantiated by the NHTSA complaints identified by Plaintiffs, as well as the fact that some of the 2010 Plaintiffs began taking in their cars for servicing almost immediately. See, e.g., FAC ¶¶ 120 (Mr. Mitchell), 216 (Mr. Con-nell). Accordingly, for 12(b)(6) purposes, given all reasonable inferences must be drawn in Plaintiffs’ favor, the Court finds that Plaintiffs have adequately pled knowledge on the part of Ford. b. Duty to Disclose The parties agree that, where a fraud claim is based on nondisclosure or concealment, there must first be a duty to disclose and that a duty can arise from the following circumstances: (1) when there is a known defect in a consumer product and there are safety concerns associated with the product’s use; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. See, e.g., Smith v. Ford Motor Co., 749 F.Supp.2d 980, 987-88 (N.D.Cal.2010) (Chesney, J.); see also Wilson v. Hewlett-Packard, 668 F.3d 1136, 1141 (9th Cir. 2012). In the instant case, Plaintiffs have relied on each of the above circumstances in arguing that Ford had a duty to disclose. For purposes of this opinion, the Court need only address the first two categories, i. Safety Concerns As indicated above, Plaintiffs have alleged enough to implicate a duty to disclose based on safety concerns alone. Ford argues that a vehicle with an inoperable MFT system “is no less safe than the same vehicle not equipped with a [MFT] system,” Mot. at 16, but, as discussed above, a reasonable jury could find that a suddenly malfunctioning MFT system could create a safety risk, particularly if the system were to suddenly crash while a person was driving. It is one thing for a product never to have a feature; it is another for a consumer to have purchased the product with that feature and to depend on that feature, only to have it suddenly malfunction. Ford contends that, “[b]y this rationale, any feature on a car can become a safety risk,” as virtually any defect could become distracting to the driver.” Mot. at 17. But this argument is not particularly convincing given the prominence of the MFT system and its far-reaching capabilities with respect to the driving experience. In any event, there are certain obvious safety risks if there is a breakdown in the MFT system — e.g., if the rearview mirror camera or the defroster were to stop functioning. See, e.g., FAC ¶ 266 (“Additionally, because certain crucial vehicle functions, including the defroster and the rearview camera, are routed through and controlled by MyFord Touch, these features become inoperable when the My-Ford Touch system crashes. Thus, driving in winter becomes dangerous because the driver cannot defrost his or her windshield and other windows, and drivers are more likely to collide with other cars or pedestrians when moving in reverse because the rearview camera fails”). These safety concerns are not speculative as the concerns were in Smith, 749 F.Supp.2d at 991 (stating that “Plaintiffs offer no evidence that the ignition-lock defect causes engines to shut off unexpectedly or causes individuals to stop their vehicles under dangerous conditions,” and thus “agreeing] with Ford that the dangers envisioned by plaintiffs are speculative in nature, deriving in each instance from the particular location at which the driver initially has parked the vehicle. and/or the driver’s individual circumstances”). To the extent Ford disputes a safety risk because the defroster can be operated outside of the MFT system, see Reply at 12, it is not clear from the evidence provided by Ford that that purported fact is indeed true. For example, ¶ 243 of the FAC show buttons for “My Temp” but it is not clear that that function controls the defroster. Also, page 27 of the MFT Handbook, see Def.’s RJN, Ex. B (MFT Handbook), does not clearly show a button for a defroster. Furthermore, Plaintiffs allege in their complaint that, “[i]n at least some of the Class Vehicles, Ford eliminated the physical knobs for climate-control functions, including defrosters. ¶ 263. After outcry from consumers, Ford backtracked on this design choice and reintroduced knobs. ¶ 16.” Opp’n at 16 (emphasis added). Thus, even if Ford’s evidence did show that a defroster can be operated outside of the MFT system, Plaintiffs have alleged that this was not always the case. As for Ford’s contention that a safety risk from a broken rearview camera is not that significant because there are many cars today and during the relevant period that do not have such camera, that argument is also unpersuasive. Ford’s position fails to take into account that a safety risk can arise by virtue of the fact that there is a safety feature in a product that a consumer comes to depend upon (or at least a reasonable jury could so find). Accordingly, for 12(b)(6) purposes, the Court concludes that a reasonable jury could find a safety concern here with respect to MFT that gives rise to a duty to disclose. ii. Exclusive Knowledge Even if there were insufficient safety concerns to give rise to a duty to disclose, Ford could still have a duty to disclose based on an independent ground. According to Plaintiffs, one such ground is exclusive knowledge. Exclusive knowledge can be established where, e.g., the defendant knew of a defect-while the plaintiffs did not and, “given the nature of the defect, it was difficult to discover.” Collins v. eMachines, Inc., 202 Cal.App.4th 249, 256,134 Cal.Rptr.3d 588 (2011). But exclusivity is not limited to this specific circumstance. Indeed, courts have noted that “[exclusivity is not applied with rigidity.” Czuchaj v. Conair Corp., No. 13-CV-1901-BEN (RBB), 2014 WL 1664235, at *4, 2014 U.S. Dist. LEXIS 54410, at *10 (S.D.Cal. Apr. 17, 2014). Thus, for example, even the presence of information online does not automatically defeat exclusive knowledge. See id. at *4, 2014 U.S. Dist. LEXIS 54410, at *11. Also, exclusivity is analyzed in part by determining whether the defendant has superior knowledge. See id.; see also Johnson v. Harley-Davidson Motor Co. Grp., LLC, 285 F.R.D. 573, 583 (E.D.Cal. 2012). But where a plaintiff simply makes conclusory allegations that a defendant has superior knowledge, that is not enough to overcome a 12(b)(6) challenge. See, e.g., Taragan v. Nissan N. Am., Inc., No. 09-3660 SBA, 2013 WL 3157918, at *6-7, 2013 U.S. Dist. LEXIS 87148, at *21-22 (N.D.Cal. June 20, 2013) (indicating that ‘“a plaintiff cannot establish a duty by pleading, in a purely conclusory fashion, that a defendant was in a superior position to know the truth about a product and actively concealed the defect’”; adding that, “Plaintiffs must allege specific facts that they claim should have alerted Nissan that the Intelligent Key system design was, in fact, defective”) (emphasis added). Here, Ford primarily argues against exclusive knowledge on the ground that there was public knowledge about problems with the MFT system. See Mot. at 20. While the complaint does contain allegations regarding publicly available knowledge, that is far from being dispositive. Even if the public — and therefore Plaintiffs — were aware of some problems with MFT, that does not establish that either the public or Plaintiffs knew or should have known of the severity of the problems, including the fact that the problems could not be fixed (as alleged by Plaintiffs). Indeed, as Ford conceded at the hearing, Plaintiffs would not have had full awareness of the TSBs because the full content of the TSBs was not publicly available on the NHTSA website. Even if Plaintiffs were aware of the TSBs, that would suggest that the problems, even if significant, were still capable of being repaired. Plaintiffs would not know that the MFT system was in fact not capable of repair, as alleged in the FAC. 3. Time Bar Ford’s final argument regarding the fraud claims is that, for the Iowa, Texas, and Virginia Plaintiffs, their fraud claims based on the consumer protection statutes are time barred. Ford contends—and Plaintiffs do not dispute—that the consumer protection statutes for these states is two years. Plaintiffs also do not dispute that they filed suit more than two years after the Iowa, Texas, and Virginia Plaintiffs first experienced problems with the MFT system. Where the parties disagree is whether there is a basis for tolling of the statute of limitations. Statute of limitations is, of course, an affirmative defense that a plaintiff has no obligation to plead around in his or her complaint. See Belluomini v. CitiGroup, Inc., No. CV 13-01743 CRB, 2013 WL 3855589, at *3 n.3, 2013 U.S. Dist. LEXIS 103882, at *9 n.3 (N.D.Cal. July 24, 2013) (stating that “[fjederal courts have repeatedly held that a plaintiff is not required to plead facts in his complaint in order to avoid potential affirmative defenses”). But where there is a statute-of-limitations problem apparent from the face of the complaint, see id. at *3 n.3, 2013 U.S. Dist. LEXIS 103882, at *10 n.3 (noting that a Rule 12(b)(6) motion may still be made where “it is apparent from the face of the complaint that an action will be time barred”), it is not uncommon for a plaintiff to make allegations of tolling, as Plaintiffs did in their FAC. Here, Plaintiffs pled tolling based on Ford’s active concealment—i.e., Ford’s active concealment of the problems with MFT prevented Plaintiffs from finding out about Ford’s fraud (failure to disclose the problems with MFT). See FAC ¶ 230 (“Any applicable statute(s) of limitation has been tolled by Defendant’s knowing and active concealment and denial of the facts alleged herein.”). For purposes of 12(b)(6), Plaintiffs have adequately alleged active concealment. If, as Plaintiffs allege, Ford pretended to fix the problems with MFT instead of actually admitting that the problems could not be fixed, that would be active concealment. Cf. Ho v. Toyota Motor Corp, 931 F.Supp.2d 987, 999 (N.D.Cal.2013) (Conti, J.) (finding that plaintiffs had adequately pled active concealment by alleging, inter alia, that defendants repaired the class vehicles’ headlamps only temporarily or replaced them with other defective parts). Also, active concealment is supported by Plaintiffs’ allegation that Ford kept the existence of the TSBs “secret”—ie., Ford never shared the existence of the TSBs with Plaintiffs when they took their cars in for service. Moreover, aside from active con-, cealment, there are enough allegations in the complaint to support Plaintiffs’ position (as argued at the hearing) that the fraud claims did not accrue until well after they first began to experience problems with their cars. First, a single problem with MFT did not establish that there was a systemic problem with the system. Second, and even more important, even after successive problems with the MFT system, that does not in and of itself establish that Plaintiffs should therefore have known of Ford’s alleged fraud in concealing the extent of the problems with the MFT system. B. Certain Tort Claims For certain tort claims, Ford has also argued for dismissal largely on the basis of the economic loss rule. The claims at issue here are as follows: 1. Colorado a. Strict Liability Claim For the Colorado Plaintiff (Mr. Sheerin), Ford asserts that, where a plaintiff brings a strict liability claim, and the only damages sought are damages to the product itself (ie., economic loss and not, e.g., damages to the plaintiff or other property belonging to the plaintiff), Colorado does not recognize such a claim. The critical case is Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975). There, the Colorado Supreme Court adopted the doctrine of strict liability in tort which was stated in § 402A of the Restatement. It also determined that “a failure to warn adequately can render a product, otherwise free of defect, defective for purposes of § 402A.” Id. at 987. For purposes of this case, however, the Hiigel court’s significant ruling was with respect to the issue of damages for strict liability. More specifically, the Hiigel court criticized the trial court’s interpretation of § 402A as being too narrow. Although there is a split among the jurisdictions as to whether the damage to the product sold is covered under the doctrine of strict liability, we think the wiser view is that it is. Since under § 402A the burden of having cast a defective product into the stream of commerce falls upon the manufacturer, it appears inconsistent to limit his responsibility to property other than the product sold. Id. at 989 (emphasis added). A subsequent decision of the Colorado Supreme Court, Town of Alma v. AZCO Construction, Inc., 10 P.3d 1256 (Colo.2000), did not overrule Hiigel in this regard. Town of Alma addressed the issue of whether the rule barred the plaintiffs claim for negligence, not strict liability. b. Fraud Claims According to Ford, the two fraud claims under Colorado law (i.e., fraudulent concealment and the consumer protection statute) are directly barred by the economic loss rule. In Town of Alma, the Colorado Supreme Court opined on the economic loss rule, stating that “[t]he key to determining the availability of a contract or tort action lies in determining the source of the duty that forms the basis of the action.” Town of Alma, 10 P.3d at 1262. See id. (stating that “ ‘[a] breach of duty which arises under the provisions of a contract must be redressed under contract, and a tort action will not lie’ ”). Here, Plaintiffs make three arguments as to a duty of care owed by Ford independent of the contract: (1) a duty under the consumer protection statute (in short, a statutory duty), (2) a duty not to fraudulently induce another to enter a contract, and (3) a duty to disclose that exists independent of the contract. Plaintiffs’ position has merit on all three grounds. For example, in A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo.2005), the Colorado Supreme Court essentially recognized that a statutory duty was a duty independent of a contract. See id. at 865, 868 (noting that case law established that subcontractors owe homeowners a duty of care, independent of any contractual obligations, to act without negligence in the construction of homes and that “the General Assembly has [also] explicitly recognized that subcontracts are under an independent duty of care”); see also Stan Clauson Assocs. v. Coleman Bros. Constr., LLC, 297 P.3d 1042, 1047 (Colo.Ct.App. 2013) (“concluding] that SCA does not owe Colejnan a duty independent of the agreement^] [l]and planning is not a profession that is held to an independent duty and standard of care under any Colorado statute, nor have land planners otherwise been held to such a duty or standard at common law in our state”) (emphasis added). Here, one of Plaintiffs’ fraud claims has a statutory basis. See Colo.Rev.Stat. § 6-1-101 (Colorado Consumer Protection Act). Also,- although “fraud claims cannot proceed where they arise from duties implicated by the parties’ contract,” pre-contractual allegations of fraudulent inducement are not barred by the economic loss rule. Xedar Corp. v. Rakestraw, No. 12-cv-01907-CMA-BNB, 2013 WL 93196, at *5-6, 2013 U.S. Dist. LEXIS 3416, at *17-18 (D.Colo. Jan. 8, 2013). Notably, Town of Alma intimated such in a footnote. See Town of-Alma, 10 P.3d at 1263 n.10 (citing Texas state court opinion noting that fraudulent inducement is based on an independent duty, thus precluding application of the economic loss rule). Colorado courts of appeal have also so indicated. See, e.g., Makoto USA Inc. v. Russell, 250 P.3d 625, 628 (Colo.Ct.App. 2009) (noting that another court “suggested that pre-contractual claims of fraudulent inducement might be considered independent of the contract — and hence not be barred by the economic loss rule[ — ][b]ut, as this case comes before us, the parties agree that the jury’s $ 50,000 theft award was predicated on the final post-contractual installment payment made in 2004[,] long after the contract was entered”). In this case, Plaintiffs allege pre-contractual fraudulent inducement led them to purchase or lease the vehicles. See, e.g., FAC ¶22 (Plaintiff Whalen alleging that she saw television advertisements regarding MFT and that a dealership salesperson made verbal representations about MFT; also alleging that she selected and purchased her vehicle in part because of the feature of MFT as represented through the advertisements and representations made by Ford). The case cited by Ford — ie., Van Rees v. Unleaded Software, Inc., — P.3d-, 2013 WL 6354532, 2013 Colo.App. LEXIS 1870 (Colo.Ct.App. Dec. 5, 2013) — is not to the contrary. Indeed, in Van Rees, the court acknowledged that a precontract false representation intended to induce action would not get the benefit of the economic loss rule. See id. at-, at *3, 2013 Colo.App. LEXIS 1870, at *7-9. The economic loss rule was a bar to the fraud claims in Van Rees because the plaintiff did not really assert fraudulent inducement (even though he claimed precontract representations had been made). Rather, the gist of the plaintiffs fraud claim was simply that the defendant had falsely promised to perform certain contract terms; See id. at-, at *3, 2013 Colo. App. LEXIS 1870, at *7, 9. The court underscored that the promise to perform was memorialized in the parties’ contracts and that the risk of nonperformance was something that the plaintiff could have protected against through contract bargaining. See id. at-, at *3-4, 2013 Colo.App. LEXIS 1870, at *8, 10 (stating that, “[b]y bargaining for contract prices and duties, the parties had the ability to account for the risk of nonperformance”); cf. Makoto, 250 P.3d at 628 (noting that “another division of this court recently rejected a similar contention that ‘a claim for fraud in the performance of a contract necessarily is based on a duty independent of the contract’ ”). Finally, as discussed in Part IV. A.2.b, Ford had a duty to disclose that was entirely independent of any contract between itself and Plaintiffs. That duty to disclose had nothing to do with the terms of the limited warranty that Ford extended to Plaintiffs. 2. Florida As above,’ Ford challenges the two fraud claims of the Florida Plaintiff (Mr. Oremland) — ie., fraud under the consumer protection statute and fraudulent concealment — on the basis of the economic loss rule. And as above, Plaintiffs contend that the economic loss rule is not applicable because the fraud claims are based on a duty independent of any contract — ie., a statutory duty, a duty not to fraudulently induce another to enter a contract, and a duty to disclose. Plaintiffs’ position is supported by the Florida Supreme Court’s decision in Tiara Condo Association v. Marsh & McLennan Companies, Inc., 110 So.3d 399 (Fla.2013). There, the Supreme Court acknowledged prior case law holding that there are exceptions to the economic loss doctrine, including where there is fraudulent inducement and where there are freestanding statutory causes of action. See id. at 406 (noting that “we ... reaffirmed in cases involving either privity of contract or products liability, the other exceptions to the economic loss rule that we have developed, such as for ... fraudulent inducement ... or free-standing statutory causes of action still apply”). As noted above, both exceptions apply here. The case that Ford cites, Burns v. Winnebago Industries, Inc., No. 8:13-cv-1427-T-24 MAP, 2013 WL 4437246, 2013 U.S. Dist. LEXIS 116377 (M.D.Fla. Aug. 16, 2013), is not to the contrary. While the Bums court did find that the plaintiffs fraudulent concealment claim was barred by the economic loss rule, it made no ruling, that all claims for fraud are necessarily barred by the rule. Furthermore, the court recognized the fraudulent inducement exception to the rule but simply held that, “under the facts alleged, the exception ... do[es] not apply.” Id. at *4, 2013 U.S. Dist. LEXIS 116377, at *9. Unfortunately, the specific facts of the case are not clear from the order, and therefore why the fraudulent inducement exception was not applicable cannot be determined. As for HTC Leleu Family Trust v. Piper Aircraft, Inc., No. 1:12-cv-21118-KMM, 2012 WL 4982633, 2012 U.S. Dist. LEXIS 149498 (S.D.Fla. Oct. 17, 2012), another case cited by Ford, it too is of little support. There, the court explained that, “[i]f the fraud is in a term of the bargain, it is not barred by the economic loss rule,” but, “if the alleged fraud relates to an act of performance, then it is barred.” Id. at *3-4, 2012 U.S. Dist. LEXIS 149498, at MO-11. Ultimately, the court found the plaintiffs fraudulent inducement claim (as well as fraudulent concealment and negligent misrepresentation claims) not viable because it was related to whether the defendant adequately performed under the contract — “that is, whether Defendant breached the agreement by providing a defective Aircraft.” Id. at *4, 2012 U.S. Dist. LEXIS 149498, at *12. Here, Plaintiffs’ fraudulent inducement claim is not based on Ford’s performance under the contract (which presumably would be to repair or replace a defect within the limited warranty period). Cf Marvin Lumber & Cedar Co. v. PPG Indus., 223 F.3d 873, 896 (8th Cir.2000) (noting that “ ‘[t]he defendant must have fraudulently induced the plaintiff to enter into the agreement, and that inducement must be a promise other than merely pledging to perform the terms of the contract’ ”). 3. North Carolina The North Carolina Plaintiff (Mr. Fink) also brings two fraud claims, one under a consumer protection statute and another for fraudulent concealment — both of which have been challenged on the basis of the economic loss rule. The fraudulent concealment claim is clearly viable based on Plaintiffs’ theory that they were fraudulently induced to purchase or lease the vehicles with the MFT system. See Schumacher Immobilien Und Beteiligungs AG v. Prova, Inc., No. 1:09ev00018, 2010 WL 3943754, at *2, 2010 U.S. Dist. LEXIS 107526, at *5 (M.D.N.C. Oct. 7, 2010) (stating that, “[u]nder North Carolina law, a party to a contract owes the other contracting party a separate and distinct duty not to provide false information to induce the execution of the contract”); see also Wireless Com-muns., Inc. v. Epicor Software Corp., No. 3:10CV556-DSC, 2011 WL 90238, at *5, 2011 U.S. Dist. LEXIS 2633, at *14 (W.D.N.C. Jan. 11, 2011) (distinguishing, inter alia, Schumacher because, there, the validity of the contract was challenged and the plaintiff “specifically pled facts that the defendant! ] never intended to perform the contract[] or specifically intended to deceive the plaintiff! ]”). Furthermore, the fraudulent concealment claim is viable based on the duty to disclose which exists independent of any contract (e.g., the limited warranty). As for the claim under the consumer protection statute, here, there is authority to support Ford’s position— namely, Ellis v. Louisiana-Pacific Corp., No. 3:11CV191, 2011 WL 5402878 (W.D.N.C. Nov. 8, 2011). In Ellis, the court found that the plaintiffs’ claim under the consumer protection statute was barred by the economic loss rule because they already had a contractual remedy available, i.e., a warranty remedy. See id. at *1. The court also noted that “the damage incurred by the plaintiff is not separate and apart from the damage arising out of a breach of warranty claim.” Id. at *2; see also Bussian v. Daimler-Chrysler Corp., 411 F.Supp.2d 614, 625, 627 (M.D.N.C.2005) (report and recommendation, subsequently adopted by district court) (concluding that “Plaintiffs unfair or deceptive trade practices claim should be dismissed pursuant to the ‘economic loss rule’ but “limitfing] its decision to cases such as the instant case involving allegations of a defective product where the only damage alleged is damage to the product itself and the allegations of unfair trade practices are intertwined with the breach of contract or warranty claims”). But Plaintiffs legitimately point out that, on the Ellis appeal, the Fourth Circuit declined to make a ruling on whether the economic loss rule barred the plaintiffs’ claim. It explained as follows: “[T]he North Carolina courts have never addressed whether [Unfair and Deceptive Trade Practices Act] claims are subject to the [economic loss rule], and in the absence of such direction, we are well-advised to rely on other grounds” for dismissal. Ellis v. La.-Pac. Corp., 699 F.3d 778, 787 n.5 (4th Cir.2012). As the Fourth Circuit indicated, no state court has expressly ruled on whether claims under the consumer protection statute may be barred by the economic loss rule. Only a few federal district courts in North Carolina have so ruled. See, e.g., Reply at 19 (citing, e.g., Malone v. Tamko Roofing Prods., No. 3:13-cv-00089-MOC-DCK, 2013 WL 5561628, at *2-3, 2013 U.S. Dist. LEXIS 145530, at *6-7 (W.D.N.C. Oct. 8, 2013)). In light of this fact, the Court is not precluded from holding, and does so hold, that the consumer protection statute here gives .rise to a duty independent of the contract and therefore should not be barred by the economic loss rule. See Coker v. DaimlerChrysler Corp., 172 N.C.App. 386,617 S.E.2d 306, 319 (2005) (Hudson, J., dissenting) (supporting the view that claims under consumer protection statute “are exempt from the economic loss rule because the rule is judicial, not legislative, and must give way to specific legislative policy pronouncement allowing damages for economic loss[;] [i]n other words, by enacting a remedy for economic losses suffered by reason of an act deemed wrongful by the statute, the legislature has effectively preempted the economic loss rule for those cases covered by the act’ ”). In any event, the economic loss rule does not apply to Plaintiffs’ claim of fraudulent concealment. 4. Ohio Finally, Ford contends that the Ohio Plaintiffs (Mr. ZuchowsM) claim for negligence is barred by the economic loss doctrine. In support of this position, Ford cites Chemtrol Adhesives, Inc. v. American Manufacturers Mutual Insurance Co., 42 Ohio St.3d 40, 537 N.E.2d 624 (1989). There, the Ohio Supreme Court took note of the “general rule ... that a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable.” Id. at 630. The reason for denying recovery in negligence for purely economic loss lies not in a failure to find “negligent” conduct by the manufacturer, nor in a lack of proximate relationship between that conduct and the consumer’s injury. Rather, the key factor is the extent, and more important, the source, of the duty owed by the manufacturer to the eon-sumer. In negligence, the law imposes upon the manufacturer of a product the duty of reasonable care. That duty protects the consumer from physical injury, whether to person or property. However, the law of negligence does not extend the manufacturer’s duty so far as to protect the consumer’s economic expectations, for such protection would arise not under the law but rather solely by agreement between the parties. “[W]hen the promisee’s injury consists merely of the loss of his bargain, no tort claim arises because the duty of the promisor to fulfill the term of the bargain arises only from the contract.” In the instant case, Midland-Ross provided Chemtrol with an arch dryer pursuant to the contract between them. If the defect in the arch dryer had caused personal injury or damage to other property of Chemtrol, Midland-Ross might be found to have breached its duty of care imposed by law, and recovery in negligence would accordingly lie. However, Chemtrol’s losses here were economic, i.e., additional expenses incurred because the Midland-Ross arch dryer did not perform as expected. Midland-Ross’ duty to provide a working arch dryer arose not under the law of negligence but rather under its contract with Chemtrol. Id. at 630-31. In response, Plaintiffs argue that Chem-trol is not dispositive because, there, the parties were two business entities (ie., the plaintiff was not a consumer); moreover, the parties were in contractual privity. According to Plaintiffs, there is a more relaxed rule where a consumer brings suit and is not in contractual privity with the defendant. See Opp’n at 31-32. Plaintiffs’ view has support. For example, in In re Porsche Cars N.A., Inc. Plastic Coolant Tubes Products Liability Litigation, 880 F.Supp.2d 801 (S.D.Ohio 2012), the court took note that, under Chemtrol, a commercial plaintiff in contractual privity with the defendant could not recover damages in tort for purely economic loss. See id. at 871. But in Chemtrol, the court “distinguished parties in privity from those not in privity, stating, ‘[f]or an ordinary consumer, i.e., one not in privity of contract with the seller or manufacturer against whom recovery is sought, an action in negligence may be an appropriate remedy to protect the consumer’s property interests.’ ” Id. The Porsche court went on to cite several Ohio district court opinions which “permitted individual consumers to bring negligence claims for purely economic loss against a manufacturer with whom they are not in privity of contract.” Id. at 872. As Ford points out in its reply brief, Judge Seeborg recently held to the contrary in Ford Tailgate. In Ford Tailgate, Judge Seeborg cited a 1965 Ohio Supreme Court decision, see Inglis v. Am. Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583 (1965), for the proposition that, under Ohio law, “a plaintiff cannot recover in negligence for purely economic losses allegedly caused by a defective product when the only damage is to the product itself.” Ford Tailgate, 2014 WL 1007066, at *5, 2014 U.S. Dist. LEXIS 32287, at *23; see also Inglis, 209 N.E.2d at 588 (agreeing with Dean Prosser’s comments that “ ‘the usual rule ... for negligence [is] there is no liability for mere pecuniary loss of a bargain’ ”). He acknowledged that “[a] more recent Ohio decision [ie., Chemtrol ] suggested in dicta that this rule applies only where the consumer was in privity with the manufacturer at the time of sale.” Ford Tailgate, 2014 WL 1007066, at *5-4, 2014 U.S. Dist. LEXIS 32287, at *23-24. But, he explained, “[t]he Ohio state courts ... continue to apply Inglis not Chemtrol in cases involving individual consumers.” See id. at *24-25 (citing three cases). While some federal district courts in Ohio followed Chemtrol, none “cite Inglis or discuss the continuing viability of that case. Because Inglis continues to be the rule in Ohio, defendant’s motion to dismiss plaintiffs’ Ohio negligence claim ... must be granted without leave to amend.” Id. at *25-26. However, the three Ohio state court cases cited by Judge Seeborg did not rely on Inglis in any way in reaching their conclusions. In fact, all cited Chemtrol, though none seems to have considered the Chemtrol dicta which suggested that a plaintiff-individual consumer not in privity with the defendant would not be subject to the economic loss rule. The Court therefore respectfully declines to follow Judge Seeborg’s approach — particularly because, here, the duty to disclose on the part of Ford has nothing to do with any contract (e.g., the limited warranty) between Ford and Plaintiffs. C. Summary on Fraud, and Tort Claims For the foregoing reasons, the Court rules as follows on the fraud and tort claims: (1) On the fraud claims based on an affirmative misrepresentation, the motion to dismiss is granted except as to Mr. Miller (a New York resident). The dismissal is without prejudice. (2) On the fraud claims based on a failure to disclose, the motion to dismiss is denied. (3) On