09-50026-reg Doc 12843 Filed 08/14/14 Entered 08/14/14...

23422061.4

KING & SPALDING LLP 1185 Avenue of the Americas New York, New York 10036 Telephone: (212) 556-2100 Facsimile: (212) 556-2222 Arthur Steinberg Scott Davidson KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Richard C. Godfrey, P.C. (admitted pro hac vice) Andrew B. Bloomer, P.C. (admitted pro hac vice)

Attorneys for General Motors LLC

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x In re : Chapter 11

: MOTORS LIQUIDATION COMPANY, et al., : Case No.: 09-50026 (REG) f/k/a General Motors Corp., et al. :

: Debtors. : (Jointly Administered)

---------------------------------------------------------------x

NOTICE OF FILING OF SEVENTH SUPPLEMENT TO SCHEDULE “1” TO THE MOTION OF GENERAL MOTORS LLC

PURSUANT TO 11 U.S.C. §§ 105 AND 363 TO ENFORCE THE COURT’S JULY 5, 2009 SALE ORDER AND INJUNCTION

PLEASE TAKE NOTICE that on August 14, 2014, General Motors LLC filed

the attached Seventh Supplement to Schedule “1” to the Motion of General Motors LLC

Pursuant to 11 U.S.C. §§ 105 and 363 to Enforce the Court’s July 5, 2009 Sale Order and

Injunction with the United States Bankruptcy Court for the Southern District of New York.

09-50026-reg Doc 12843 Filed 08/14/14 Entered 08/14/14 15:41:30 Main Document Pg 1 of 3

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Dated: New York, New York August 14, 2014

Respectfully submitted, /s/ Scott I. Davidson Arthur Steinberg Scott Davidson KING & SPALDING LLP 1185 Avenue of the Americas New York, New York 10036 Telephone: (212) 556-2100 Facsimile: (212) 556-2222

Richard C. Godfrey, P.C. (admitted pro hac vice) Andrew B. Bloomer, P.C. (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Attorneys for General Motors LLC


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SEVENTH SUPPLEMENT1 TO SCHEDULE “1”

CHART OF ADDITIONAL IGNITION SWITCH ACTIONS COMMENCED AGAINST NEW GM NOT LISTED IN THE

PREVIOUS SUPPLEMENTS TO SCHEDULE “1” TO MOTION TO ENFORCE

Name Class Models Plaintiffs’ Model Court Filing Date

1 Cecchini2 N/A 2006 Saturn Ion Superior Court of the State of California

(County of Los Angeles)

BC5496043

6/23/14

2 Johnson4 N/A 2008 Chevy HHR Superior Court of the State of California

(County of Los Angeles)

BC5506065

7/02/14

3 Rollins6

(Class Action)

Various models from 1997 to 2014

2006 Saturn Ion

2007 Saturn Ion

2006 Chevy HHR

Eastern District of Michigan

2:14-cv-13051

8/06/14

1 This schedule supplements the previous supplements and the original Schedule “1” previously filed with the

Court in connection with the Motion of General Motors LLC Pursuant to 11 U.S.C. §§ 105 and 363 to Enforce the Court’s July 5, 2009 Sale Order and Injunction on April 21, 2014 [Dkt. No. 12620]. See Dkt. Nos. 12620-1, 12672, 12698, 12719, 12722, 12780, 12818.

2 A copy of the complaint filed in the Cecchini Action is attached hereto as Exhibit “A.” 3 The Cecchini Action was removed by New GM to the United States District Court for the Central District of

California (No. 2:14-cv-6326) on August 12, 2014. 4 A copy of the complaint filed in the Johnson Action is attached hereto as Exhibit “B.” 5 The Johnson Action was removed by New GM to the United States District Court for the Central District of

California (No. 2:14-cv-6305) on August 12, 2014. 6 A copy of the complaint filed in the Rollins Action is attached hereto as Exhibit “C.”


Exhibit A

09-50026-reg Doc 12843-1 Filed 08/14/14 Entered 08/14/14 15:41:30 Exhibit A Pg 1 of 10

State Court File Page 12

Case 2:14-cv-06326 Document 1-2 Filed 08/12/14 Page 1 of 9 Page ID #:13

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Ramtin Shahian (SBN 276203) e-mail: [email protected] Joshua Valero (SBN 271013) e-mail: [email protected] Strategic Legal Practices, APC 1875 Century Park East, Suite 700 Los Angeles, CA 90067 Telephone: (310) 277-1040 Facsimile: (310) 943-3838

Attorney for Plaintiff SHAWN CECCHINI

)UN 2 3 2014

Sherri R Cart ~ .. . , . .e1. O-e:.:utive Officer/Clerk

By Cristina Grijalva, Deputy

SUPERIOR COURT OF THE ST A TE OF CALIFORNIA

COUNTY OF LOS ANGELES

SHAWN CECCHINI,

Plaintiff,

vs.

GENERAL MOTORS, LLC; and DOES 1 through 10, inclusive,

Defendants.

Case Nos.:

Hon. Dept.:

COMPLAINT FOR BREACH OF CONTRACT/WARRANTY

JURY TRIAL DEMANDED

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Plaintiff alleges as follows:

PARTIES

1. As used in this Complaint, the word "Plaintiff' shall refer to Plaintiff Shawn

Cecchini.

2. Plaintiff is a resident of Alameda County, California

3. As used in this Complaint, the word "Defendant" shall refer to all Defendants

named in this Complaint.

4. Defendant is a Delaware corporation with its headquarters and principal place

of business in the state of Michigan. Defendant does business in the state of California. At all

times relevant herein, Defendant was engaged in the business of designing, manufacturing,

constructing, assembling, marketing, distributing, and selling automobiles and other motor

vehicles and motor vehicle components in Los Angeles County.

5. Plaintiff is ignorant of the true names and capacities of the Defendants sued

under the fictitious names DOES 1 to l 0. They are sued pursuant to Code of Civil Procedure

section 474. When Plaintiff becomes aware of the true names and capacities of the

Defendants sued as DOES l to 10, Plaintiff will amend this Complaint to state their true

names and capacities.

FIRST CAUSE OF ACTION

BY PLAINTIFF AGAINST DEFENDANT

VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2

6. In or around July of 2006, Plaintiff purchased a 2006 Saturn Ion, vehicle

identification number IG8AN18F46ZI85947 (hereafter "Vehicle") which was manufactured

and or distributed by Defendant. The total consideration which Plaintiff paid or agreed to pay,

including taxes, license, and loan interest charges was over $12,000. The Vehicle was

purchased primarily for personal, family, or household purposes. Plaintiff purchased the

Vehicle from a person or entity engaged in the business of manufacturing, distributing, or

selling consumer goods at retail.

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7. In connection with the purchase, Plaintiff received an express written warranty

in which Defendant undertook to preserve or maintain the utility or performance of the

Vehicle or to provide compensation if there is a failure in utility or performance for a

specified period of time. The warranty provided, in relevant part, that in the event a defect

developed with the Vehicle during the warranty period, Plaintiff could deliver the Vehicle for

repair services to Defendant's representative and the Vehicle would be repaired.

8. During the warranty period, the Vehicle contained or developed defects,

including but not limited to, defects relating to the Vehicle's headlamps, defects relating to the

Vehicle's brake system, defects relating to the Vehicle's windows, and defects relating ot the

Vehicle's ignition housing and ignition cylinder.

9. Defendant and its representatives in this state have been unable to service or

repair the Vehicle to conform to the applicable express warranties after a reasonable number

of attempts. Despite this fact, Defendant failed to promptly replace the Vehicle or make

restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil

Code section 1793.1, subdivision (a)(2).

I 0. Plaintiff has been damaged by Defendant's failure to comply with its

obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section

1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code

section 1794.

11. Defendant's failure to comply with its obligations under Civil Code section

1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that

they were unable to service or repair the Vehicle to conform to the applicable express

warranties after a reasonable number of repair attempts, yet Defendant failed and refused to

promptly replace the Vehicle or make restitution despite Plaintiffs demand. Accordingly,

Plaintiff is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil

Code section 1794, subdivision (c).

12. Defendant does not maintain a qualified third-party dispute resolution process

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which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is

entitled to a civil penalty of two times Plaintiffs actual damages pursuant to Civil Code

section 1794, subdivision (e).

13. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e)

in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code

section 1794, subdivision (f).

SECOND CAUSE OF ACTION


VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2

14. Plaintiff incorporates by reference the allegations contained in paragraphs set

forth above.

15. Although Plaintiff delivered the Vehicle to Defendant's representative in this

state, Defendant and its representative failed to commence the service or repairs within a

reasonable time and failed to service or repair the Vehicle so as to conform to the applicable

warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff

did not extend the time for completion of repairs beyond the 30-day requirement.

16. Plaintiff has been damaged by Defendant's failure to comply with its

obligations pursuant to Civil Code section 1793 .2(b ), and therefore brings this Cause· of

Action pursuant to Civil Code section 1794.

17. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the

Vehicle, and has exercised a right to cancel the sale. By serving this Complaint, Plaintiff does

so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section

1794(b)(l ), including the entire purchase price. In the alternative, Plaintiff seeks the remedies

set forth in California Civil Code section 1794(b)(2), including the diminution in value of the

Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's

value is de minimis.


1793.2(b) was willful, in that Defendant and its representative were aware that they were

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obligated to service or repair the Vehicle to conform to the applicable express warranties

within 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of

two times Plaintiffs actual damages pursuant to Civil Code section 1794(c ).

THIRD CAUSE OF ACTION


VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2


forth above.

20. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed

to make available to its authorized service and repair facilities sufficient service literature and

replacement parts to effect repairs during the express warranty period. Plaintiff has been

damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section

1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794.


1793.2,subdivision (a)(3) was wilful, in that Defendant knew of its obligation to provide

literature and replacement parts sufficient to allow its repair facilities to effect repairs during

the warranty period, yet Defendant failed to take any action to correct its failure to comply

with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual

damages; pursuant to Civil Code section 1794( c).

FOURTH CAUSE OF ACTION


BREACH OF EXPRESS WRITTEN WARRANTY

CIV. CODE,§ 1791.2, SUBD. (a);§ 1794)


forth above.

23. In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to

Defendant's representative in this state to perform warranty repairs. Plaintiff did so within a

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reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its

representative of the characteristics of the Defects. However, the representative failed to

repair the Vehicle, breaching the terms of the written warranty on each occasion.


obligations under the express warranty, and therefore brings this Cause of Action pursuant to

Civil Code section 1794.

25. Defendant's failure to comply with its obligations under the express warranty

was willful, in that Defendant and its authorized representative were aware that they were

obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff

is entitled to a civil penalty of two times of Plaintiffs actual damages pursuant to Civil Code

section 1794( c ).

FIFTH CAUSE OF ACTION


BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

(CIV. CODE,§ 1791.1; § 1794)

26. Plaintiff incorporates by reference the allegations contained in the paragraphs

set forth above.

27. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied

by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1,

the duration of the implied warranty is coextensive in duration with the duration of the express

written warranty provided by Defendant, except that the duration is not to exceed one-year.

28. Pursuant to Civil Code section 1791.1 (a), the implied warranty of

merchantability means and includes that the Vehicle will comply with each of the following

requirements: ( 1) The Vehicle will pass without objection in the trade under the contract

description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)

The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to

the promises or affirmations of fact made on the container or label.

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29. In or around July of 2006, or within one-year thereafter, the Vehicle contained

or developed the defects set forth above. The existence of each of these defects constitutes a

breach of the implied warranty because the Vehicle (I) does not pass without objection in the

trade under the contract description, (2) is not fit for the ordinary purposes for which such

goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not

conform to the promises or affirmations of fact made on the container or label.


obligations under the implied warranty, and therefore brings this Cause of Action pursuant to

Civil Code section 1794.

SIXTH CAUSE OF ACTION


VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT

31. Plaintiff incorporates by reference the allegations contained in the paragraphs

set forth above.

32. Plaintiff is a "consumer" as defined in the Magnuson-Moss Warranty Act

(referred to as "Mag-Moss"), 15 U.S.C. § 2301(3).

33. Defendant is a "supplier" and "warrantor" as defined in the Mag-Moss Act, 15

u.s.c. § 2301(4), 15 u.s.c. § 2301(5).

34. The vehicle is a "consumer product" as defined in the Mag-Moss Act, 15

u.s.c. § 2301(1).

35. In addition to the express warranty, in connection with the sale of the vehicle to

Plaintiff, an implied warranty of merchantability was created under California law. The

vehicle's implied warranties were not disclaimed using a Buyer's Guide displayed on the

vehicle; thus any purported disclaimers were ineffective pursuant to 15 U.S.C. § 2308(c).

36. Defendant violated the Mag-Moss Act when it breached the express warranty

and implied warranties by failing to repair the defects and nonconformities, or to replace the

vehicle.

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3 7. Plaintiff performed all terms, conditions, covenants, promises and obligations

required to be performed on Plaintiff's part under the terms of the purchase agreement, and

express warranty and implied warranty except for those terms and conditions, covenants,

promises and obligations or payments for which performance and/or compliance has been

excused by the acts and/or conduct of the Defendant and/or by operation of law.

38. As a direct and proximate result of the acts and omissions of the Defendant,

Plaintiff has been damaged in the form of general, special and actual damages in an amount

within the jurisdiction of this Court, according to proof at trial.

39. Under the Act, Plaintiff is entitled to reimbursement of the entire amount paid

or payable.

40. Plaintiff is entitled to all incidental, consequential and general damages

resulting from Defendant's failure to comply with their obligations under the Mag-Moss Act.

41. Plaintiff is entitled under the Mag-Moss Act to recover as part of the judgment

a sum equal to the aggregate amount of costs and expenses, including attorney's fees,

reasonably incurred in connection with the commencement and prosecution of this action

pursuant to 15 U.S.C. § 2310(d)(2).

PRAYER

PLAINTIFF PRAYS for judgment against Defendant as follows:

a. For Plaintiff's damages in the amount that exceeds $12,000;

b. For restitution;

c. For a civil penalty in the amount of two times Plaintiff's total damages

pursuant to Civil Code section 1794, subdivision (c) and (e);

d. For any consequential and incidental damages;

e. For costs of the suit and Plaintiff's reasonable attorneys' fees pursuant

to Civil Code section 1794, subdivision (d);

f. For prejudgment interest at the legal rate; and

g. For such other relief as the Court may deem proper.

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DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial on all causes of action asserted herein. ,-} /i

Dated: June 19, 2014 ! f ~ ,

LitJJ------By: Joshua Va~~ro

Attorney for Plaintiff

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Exhibit B

09-50026-reg Doc 12843-2 Filed 08/14/14 Entered 08/14/14 15:41:30 Exhibit B Pg 1 of 10


Case 2:14-cv-06305 Document 2-2 Filed 08/12/14 Page 1 of 9 Page ID #:1609-50026-reg Doc 12843-2 Filed 08/14/14 Entered 08/14/14 15:41:30 Exhibit B Pg 2 of 10

Exhibit C

09-50026-reg Doc 12843-3 Filed 08/14/14 Entered 08/14/14 15:41:30 Exhibit C Pg 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION JACKIE ROLLINS, EARL GOLSTON, and MARY GREENE, individually and on behalf of all similarly situated persons, Plaintiffs, v. GENERAL MOTORS, LLC; and DELPHI AUTOMOTIVE, PLC, Defendant

Case No. CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF, EQUITABLE RELIEF, AND DAMAGES JURY DEMANDED Related to MDL No. 2543

Plaintiffs Jackie Rollins, Earl Golston, and Mary Greene, individually and

on behalf of all similarly situated persons (collectively termed “Plaintiffs”) bring

this action against Defendants General Motors, LLC (“GM” or “New GM”) and

Delphi Automotive, PLC (“Delphi”) (collectively termed “Defendants”) and

alleges as follows:

I. NATURE OF THE CASE

1. This case arises from GM’s active concealment, for over a decade, of

its knowledge of a dangerously defective ignition switch installed at least 8.2

million GM vehicles. Specifically, as a result of having a defective ignition switch,

the vehicles at issue are at risk of shutting down during normal driving conditions

2:14-cv-13051-RHC-RSW Doc # 1 Filed 08/06/14 Pg 1 of 47 Pg ID 109-50026-reg Doc 12843-3 Filed 08/14/14 Entered 08/14/14 15:41:30 Exhibit C Pg 2 of 48

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– shutting down the engine and losing power to major electrical systems

responsible for critical safety features such as airbags, power steering, and antilock

brakes – thus creating an extreme and unreasonable risk of accident, serious bodily

harm, and death.

2. The vehicles at issue (“Defective Vehicles”) include the following

make and model years:

• Cadillac CTS (2003-14 model years);

• Cadillac SRX (2004-06 model years);

• Chevrolet Cobalt (2005-2010 model years);

• Chevrolet HHR (2006-2011 model years);

• Chevrolet Impala (2000-05 model years);

• Chevrolet Malibu (1997-2005 model years);

• Chevrolet Monte Carlo (2000-05 model years);

• Oldsmobile Intrigue (1998-2002 model years);

• Oldsmobile Alero (1999-2004 model years);

• Pontiac G5 (2006-2007 model years);

• Pontiac Grand Am (1999-2005 model years);

• Pontiac Grand Prix (2004-08 model years);

• Pontiac Solstice (2006-2010 model years);


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• Saturn Ion (2003-2007 model years); and

• Saturn Sky (2007-2010 model years).

3. Other models may be affected by this defect, but are currently

unknown to the public. Plaintiffs reserve the right to supplement this Complaint to

include additional vehicle models which were manufactured with the defective

ignition switch.

4. It has come to light that GM knew of the defective ignition switch as

early as 2001, before the switches was placed into production, but continued to

market and sell the vehicles with this defect. Reports have surfaced that the GM

engineer charged with designing the defective ignition switch, Ray DeGiorgio,

referred to it as the “switch from hell.” Despite ignition switch failure to meet

GM’s specifications, DeGiorgio approved the switch for production, despite its

failure to meet GM’s specifications.

5. Almost immediately after the switch was installed into the Saturn Ion,

the first car equipped with the defective switch, GM started getting complaints of

unexpected stalling from drivers. These complaints only increased as the switch

was installed on more GM models. However, even as the chorus of complaints

increase, GM willful ignored the problem as annoying but not particularly

problematic – definitely not a safety issue. GM reasoned that drivers could still


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wrestle their vehicles to the side of the road, if they did stall, despite the fact that

the ignition switch defect disabled both the power-assisted steering and airbags.

6. As a result, rather than replacing the defective ignition switch, or

notifying the National Highway Traffic Safety Administration (“NHTSA”) or the

public of this danger, GM made a “business” decision to conceal the defects. When

Defendants eventually began manufacturing vehicles with a corrected part, they

used the same part number to avoid notice of or questions regarding the change.

7. It was only after at least thirteen deaths, and mounting public criticism

that GM finally admitted there was a problem. However, even after GM was

confronted with conclusive proof of the defective nature of the ignition switch, GM

waited several months to recall the effected vehicles and did so in a piece-meal

fashion.

8. Under the Transportation Recall Enhancement, Accountability and

Documentation Act (“TREAD Act”), 49 U.S.C. §§ 30101-30170, along with its

accompanying regulations, a manufacturer must promptly disclose any safety

defects as soon as they are known. 49 U.S.C. § 30118(c)(1) & (2). If it is

determined that the vehicle is defective, the manufacturer must notify vehicle

owners, purchasers, and dealers of the defect and must remedy the defect promptly.

49 U.S.C. § 30118(b)(2)(A) & (B).


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9. GM violated the TREAD Act by failing to timely inform NHTSA of

the Ignition Switch Defect and allowed cars to remain on the road that were

inherently dangerous. GM’s violations of the TREAD Act also constitute

violations of various state consumer protection laws. In addition to the TREAD

Act, GM breached its implied warranties and fraudulently concealed the deadly

ignition switch defect from consumers, owners, and lessees of the Defective

Vehicles.

10. Plaintiffs and the Class have been damaged by Defendant’s

misrepresentations, concealment and non-disclosure of the Ignition Switch Defect

in the Subject Vehicles, as they are now in possession of dangerous vehicles the

value of which has greatly diminished because of GM’s failure to timely disclose

the serious defect. Plaintiffs now bring this class action to seek redress for these

injuries.

II. PARTIES

11. Plaintiff JACKIE ROLLINS is a Texas citizen and resides in

Texarkana, Texas. Ms. Rollins owns a 2006 Saturn Ion which was purchased at

Cross Landers and is subject to the recall at issue. Ms. Rollins’ Saturn Ion was

manufactured, sold, distributed, advertised, marketed, and warranted by GM. Ms.

Rollins purchased her GM vehicle primarily for her personal, family, and


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household use. Ms. Rollins has experienced several incidents consistent with the

ignition defects at issue.

12. Plaintiff EARL GOLSTON is an Arkansas citizen and resides in

Nashville, Arkansas. Mr. Golston owns a 2007 Saturn Ion which was purchased at

Orr Chevrolet and is subject to the recall at issue. Mr. Golston’s Saturn Ion was

manufactured, sold, distributed, advertised, marketed, and warranted by GM. Mr.

Golston purchased his GM vehicle primarily for his personal, family, and

household use. Mr. Golston has experienced several incidents consistent with the

ignition defects at issue.

13. Plaintiff MARY GREEN is an Arkansas citizen and resides in Ogden,

Arkansas. Ms. Green owns a 2006 Chevrolet HHR which was purchased at

Ashdown Chevrolet and is subject to the recall at issue. Ms. Green’s Chevrolet

HHR was manufactured, sold, distributed, advertised, marketed, and warranted by

GM. Ms. Green purchased her GM vehicle primarily for her personal, family, and

household use.

14. Defendant GENERAL MOTORS LLC (“GM” or “New GM”) is a

Delaware corporation with its headquarters in Detroit, Michigan. During the

relevant time period, GM manufactured, marketed and sold motor vehicles under


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the brands Chevrolet, GMC, Cadillac, Saturn, Pontiac and Hummer. GENERAL

MOTORS LLC is the successor in interest to the General Motors Corporation.

15. General Motors Corporation (“Old GM”) was a Delaware corporation

with its headquarters in Detroit, Michigan. General Motors LLC is registered with

the Secretary of State and conducts business in all fifty states (including the

District of Columbia). GM was incorporated in 2009 and on July 10, 2009,

acquired substantially all assets and assumed certain liabilities of General Motors

Corporation through a Section 363 sale under Chapter 11 of the U.S. Bankruptcy

Code.

16. In 2009, Old GM filed for bankruptcy, and substantially all of its

assets were sold pursuant to a Master Sales and Purchase Agreement

(“Agreement”) to New GM. Under the Agreement, New GM also expressly

assumed certain liabilities of Old GM, including certain statutory requirements:

From and after the Closing, Purchaser [GM] shall comply with the certification, reporting and recall requirements of the National Traffic and Motor Vehicle Safety Act, the Transportation Recall Enhancement, Accountability and Documentation Act, the Clean Air Act, the California Health and Safety Code and similar Laws, in each case, to the extent applicable in respect of vehicles and vehicle parts manufactured or distributed by Seller.

In addition, New GM expressly set forth that it:

shall be responsible for the administration, management and payment of all Liabilities arising under (i) express written warranties of Sellers


8

[General Motors Corporation] that are specifically identified as warranties and delivered in connection with the sale of new, certified used or pre-owned vehicles or new or remanufactured motor vehicle parts and equipment (including service parts, accessories, engines and transmissions) manufactured or sold by Sellers or Purchaser prior to or after the Closing and (ii) Lemon Laws. 17. Because New GM acquired and operated Old GM and ran it as a

continuing business enterprise, and because GM was aware from its inception of

the ignition defects at issue in the Defective Vehicles, GM is liable through

successor liability for the deceptive and unfair acts and omissions of Old GM, as

alleged in this Complaint.

18. Defendant DPH-DAS LLC f/k/a DELPHI AUTOMOTIVE

SYSTEMS, LLC (“Delphi”) is a corporation with its headquarters in Troy,

Michigan. Delphi began as a wholly-owned subsidiary of Old GM, until it was

launched as an independent publicly-held corporation in 1999.

19. In 2005, Delphi declared Chapter 11 bankruptcy. After emerging from

bankruptcy in 2009, GM purchased certain Delphi assets, including Delphi’s

steering assets, and four Delphi plants to assist with its post-bankruptcy

restructuring. In 2011, GM finally ended its ownership interest in Delphi by selling

back the assets.


9

20. At all times relevant herein, Delphi, through its various entities,

designed, manufactured, and supplied GM with motor vehicle components,

including the subject ignition switches.

III. VENUE AND JURISDICTION

21. This Court has subject-matter jurisdiction over this action under the

Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), because members of the

proposed Class are citizens of states different from Defendants’ home states, and

the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and

costs.

22. Venue is proper in this District under 28 U.S.C. § 1391 because GM

conducts substantial business in this District, has a principal place of business in

this District, has caused harm to Class members residing in this District, and

because, as a corporation, GM is deemed to reside in any judicial district in which

it is subject to personal jurisdiction.

IV. STATEMENT OF FACTS

a. The Ignition Switch Defect

23. The ignition switch on most vehicles has several positions which

allows the driver to select the vehicle’s mode of operation by turning a key. Most

vehicles’ ignition switches have several common positions, including “run” (or


10

“on”), “off,” and “acc” (or “accessory”). At the “run” position, the vehicle’s engine

is running and the electrical systems are fully activated to allow normal vehicle

operation; at the “accessories” position, the engine is turned off, however electrical

power is generally supplied to the vehicle’s lighting, displays, and entertainment

system; and at the “off” position, both the vehicle’s engine and electrical systems

are turned off. In most vehicles, a driver must intentionally turn the key in the

ignition to move to these various positions.

24. GM began installing the Delphi-manufactured ignition switches

beginning in its 2002 vehicle models. Upon information and belief, both GM and

Delphi knew these ignition switches were defectively designed, and did not meet

GM’s specifications, but nonetheless were continued to be manufactured and

installed in GM vehicles, including the Defective Vehicles.

25. The portion of the ignition switch at issue is a relatively small and

inexpensive part, as can be seen in the photographs take by McSwain Engineering,

Inc., below:


11

Upon information and belief, in the recalled vehicles, the spring on the detent

plunger was both too short and too weak. Accordingly, the spring did not create

enough tension to hold the key in position; thus, very little force was required to

turn the ignition key.

26. Because of its inherent design, the ignition switches installed in the

Defective Vehicles are unable to hold the vehicle’s key in the “on” or “run”

position. As such, normal forces associated with driving the vehicle and/or the

weight of the objects on any attached key ring could turn the ignition to the “off”

or “acc” position (the “Ignition Switch Defect”). Also compounding this problem

is the fact that the ignition module is located in an area where the driver could

often bump or jar any attached key ring, further causing the ignition to shift

positions. When this ignition is shifted to the “off” or “acc” position, the engine


12

and certain electrical components, such as the power-assisted steering and anti-lock

brakes, are turned off, thereby endangering the vehicle occupants.

27. Given the importance that a vehicle and its electrical operating

systems remain operational during ordinary driving conditions, it is imperative that

a vehicle manufacturer ensure that its vehicles remain operational from the time

the driver starts the vehicle until the driver intentionally shuts down the vehicle.

With respect to the Defective Vehicles, Defendants have failed to do so.

28. Here, the Ignition Switch Defect can occur at any time during normal

and proper operation of the Defective Vehicles, meaning the ignition can suddenly

switch off while it is moving at freeway speeds, leaving the driver unable to

control the vehicle, and vulnerable to have an accident with a nonfunctioning

safety airbag system. Additionally, some drivers have experienced difficulty

turning the key back to the desired position after experiencing the Ignition Switch

Defect, thus preventing them from quickly correcting the problem.

29. The Defective Vehicles are, therefore, unreasonably prone to be

involved in accidents, and those accidents are unreasonably likely to result in

serious bodily harm or death to the drivers and passengers of the Defective

Vehicles, as well as to other vehicle operators and pedestrians.


13

30. GM has acknowledged that the Ignition Switch Defect has caused at

least thirteen (13) deaths and forty-seven (47) accidents. GM has refused, however,

to disclose the identities of those it counts among these thirteen (13) deaths.

Independent safety regulators have recorded 303 deaths associated with only the

Saturn Ion and Chevrolet Cobalt Defective Vehicle models alone. The actual

number of deaths for all Defective Vehicle models is expected to be much higher.

b. GM Knew of the Defective Ignition Switches but Failed to Act

31. Upon information and belief, prior to the sale of the Defective

Vehicles, Defendants knew of the Ignition Switch Defect through sources such as

pre-release design, manufacturing, and field testing data; in-warranty repair data;

early consumer complaints made directly to GM, collected by the NHTSA’s Office

of Defect Investigation and/or posted on public online vehicle owner forums, field

testing done in response to those complaints, aggregate data from GM dealers, and

accident data.

32. Indeed, according to a memorandum released by Congress, a 2001

pre-production report for the 2003 Saturn Ion identified issues with the ignition

switch. In a section entitled “Root Cause Summary,” the report stated that the “two

causes of failure” were “[l]ow contact force and low detent plunger force.” The


14

report stated that a design change would resolve the problem, however no action

was taken.

33. GM engineers encountered the problem again in 2004 just prior to the

launch of the 2005 Chevrolet Cobalt. GM learned of an incident in which a Cobalt

vehicle suddenly switched out of the “run” position and lost engine power. GM

engineers were able to replicate this problem during test drives of the Cobalt.

According to GM, an engineering inquiry known as a Problem Resolution

Tracking System (“PRTS”) was able to pinpoint the problem and evaluate a

number of solutions; however, after considering lead time required, cost, and

effectiveness, GM decided to do nothing.

34. After the Chevrolet Cobalt entered the market, GM began receiving

complaints about incidents of sudden loss of engine power. GM engineers

determined that the low torque in the ignition switch could cause the key to move

from the “run” to the “accessory” or “off” position under ordinary driving

conditions with normal key chains because “detent efforts on ignition switch are

too low, allowing key to be cycled to off position inadvertently.” Specifically, in

February 2005, GM engineers concluded that “there are two main reasons that we

believe can cause a lower effort in turning the key: a lower torque detent in the


15

ignition switch . . . [and a] low position of the lock module [on] the [steering]

column.”

35. Additional PRTS’s were opened to investigate the problem, and in

May 2005, GM engineers proposed redesigning the key head from a “slotted” to a

“hole” configuration to prevent inadvertent shifting of the key in the ignition. See

below.

36. Although GM initially approved the design, the company once again

declined to act. GM CEO Mary Barra explained in her April 1, 2014 testimony

before the House Committee on Energy and Commerce that the proposed “fixes”

for the Ignition Switch Defect were rejected in 2005 because it would have taken

too long and cost too much. Ms. Barra testified that GM’s decision making was the

product of a “cost culture” versus a “culture that focuses on safety and quality.”

37. In April 2006, GM approved a design change for the Chevrolet

Cobalt’s ignition switch, as proposed by the supplier, Delphi. According to GM,


16

the changes included a new detent plunger and spring. GM estimates that Delphi

began producing the redesigned ignition switch for all Defective Vehicles during

the 2007 model year.

38. Defendants assigned its newly designed switch the same part number

assigned to the faulty ignition switch. Upon information and belief, Decedents’

action was intended to make it difficult to trace the defective switch back to its

original design in 2001.

39. After another PRTS in 2009, GM redesigned the Chevrolet Cobalt

key, changing the top of the key from a “slot” design to a “hole” design – as had

been suggested in 2005. GM instituted the change after finding that consumers

“with substantially weighted key chains/additional keys hanging from ignition key

have experienced accidental ignition shut-off” and the design change was intended

to “significantly reduce downward force and the likelihood of this occurrence.”

The new key design was produced for 2010 model year.

40. GM now acknowledges that Field Product Reports and PRTS reports

related to the Defective Vehicles from 2003 and 2006 concerned engine stalling in

the Saturn Ion and may be related to the Ignition Switch Defect.

41. In May 2009, GM engineers again concluded that millions of cars that

GM sold had this serious safety defect. In the months and years that followed, as


17

the internal documents and studies increasingly confirmed the safety problems,

GM hid that information, but finally publicly disclosed the existence of those

safety problems in February 2014.

42. GM’s CEO Mary Barra recently admitted that: “Something went

wrong with our process in this instance, and terrible things happened.” In Ms.

Barra written opening remarks before Congress on April 1, 2014, she further

acknowledged GM’s delay: “Sitting here today, I cannot tell you why it took years

for a safety defect to be announced in that program, but I can tell you that we will

find out.”

43. Despite all its prior knowledge of the Ignition Switch Defect, GM

failed to disclose the defect but instead actively concealed it from Plaintiffs and

members of the Class and the public, and continued to market and advertise the

Defective Vehicles as reliable and safe. GM’s egregious deceit lasted the better

part of a decade, continuing installation of these defective ignition switch systems

in models from 2002 through at least 2010. Even when GM eventually fixed the

problem, it further attempted to hide the defect by assigning the same part number

to the corrected part, making it much harder for customers to identify and fix the

Ignition Switch Defect.


18

c. GM’s Belated Repair Recall of Some Vehicles

44. On February 7, 2014, GM filed a Part 573 Defect Notice with the

NHTSA to recall 2005 to 2007 model year Chevrolet Cobalt and 2007 model year

Pontiac G5 vehicles. The notice stated that the “ignition switch torque performance

may not meet General Motors’ specifications,” explaining that if “the key ring is

carrying weight or the vehicle goes off road or experiences some other jarring

event, the ignition switch may inadvertently be moved out of the ‘run’ position”

and may result in deactivating the airbags. The notice did not acknowledge that the

Ignition Switch Defect could occur under normal driving conditions, even when

the key ring is not carrying added weight. The notice also did not identify all the

vehicles affected by the Ignition Switch Defect.

45. The notice failed to indicate the full extent to which GM had been

aware of the defect. The notice suggests that GM’s knowledge of the defect is

recent, stating that “[t]he issue was presented to the Field Performance Evaluation

Review Committee and on January 31, 2014, the Executive Field Action Decision

Committee decided to conduct a safety recall.”

46. In a February 24, 2014 letter to the NHTSA, GM amended the Part

573 Report to include a more detailed chronology. The chronology indicated that


19

GM first learned of the Ignition Switch Defect during the launch of the 2005

Chevrolet Cobalt from field tests by its engineers.

47. On February 25, 2014, GM amended its Part 573 Report to cover

additional models and model years due to the same Ignition Switch Defect.

Specifically, GM identified the 2003 to 2007 model years of the Saturn Ion, 2006

and 2007 model years of the Chevrolet HHR, 2007 model year of the Pontiac

Solstice, and 2007 model year of Saturn Sky vehicles.

48. According to the NHTSA Acting Administrator David Friedman, the

chronology information provided by GM on February 24, 2014 “raise[d] serious

questions as to the timeliness of GM’s recall.” Therefore, the NHTSA opened a

“timeliness query” on February 26, 2014.

49. On March 4, 2014, the NHTSA issued GM a Special Order

demanding that it provide additional information by April 3, 2014, on 107 specific

requests, including information to “evaluate the timing of GM’s defective decision-

making and reporting of the safety defect to NHTSA.”

50. On March 11, 2014, GM filed a new Part 573 report superseding its

February 24, 2014 filing. The new chronology provided with the report indicated

that GM was aware of the Ignition Switch Defect in 2001—significantly earlier

than its previous 2004 disclosure. GM now indicated that it had a report from 2001


20

that revealed a problem with the ignition switch during pre-production of the

Saturn Ion.

51. On March 28, 2014, GM filed a new Part 573 report, which expanded

the recall set forth in its February 25, 2014 filing. GM’s March 28 report indicated

that several additional model year vehicles may be affected by the Ignition Switch

Defect. GM identified those vehicles as the 2008-2010 Chevrolet Cobalt, 2008-

2011 Chevrolet HHR, 2008-2010 Pontiac Solstice, 2008-2010 Pontiac G5, and

2008-2010 Saturn Sky. The March 28 report added over one million vehicles to the

total number affected by the Ignition Switch Defect.

52. GM notified dealers of the recall of the Defective Vehicles in

February and March 2014. GM also notified owners of the recall of the Defective

Vehicles by letter. The letter minimized the risk of the defect, indicating that the

Ignition Switch Defect would occur only “under certain conditions” and

emphasized that the risk increased if the “key ring is carrying added weight . . . or

your vehicle experiences rough road conditions.” Despite the recall, many owners

of the Defective Vehicles are still waiting for the parts required to safely operate

their vehicles. According, these individuals are often left without a suitable and

safe method of transport.


21

53. As a result of GM’s alleged misconduct, Plaintiffs and the Class were

harmed and suffered actual damages in that the Defective Vehicles are unsafe,

unfit for their ordinary and intended use, and have manifested, or are at

unreasonable risk of manifesting, the Ignition Switch Defect by way of a sudden

and dangerous failure that puts them and others at serious risk of injury or death.

Drivers and owners of the Defective Vehicles, including Plaintiff, did not receive

the benefit of their bargain as purchasers and/or lessees, received vehicles that

were of a lesser standard, grade, and quality than represented, and did not receive

vehicles that met ordinary and reasonable consumer expectations. Drivers and

owners of the Defective Vehicles, including Plaintiffs, did not receive vehicles that

would reliably operate with reasonable safety, and that would not place drivers and

occupants in danger of encountering an ongoing and undisclosed risk of harm,

which could have been avoided, as GM knew but did not disclose, through the use

of non-defective ignition parts. Plaintiffs and the Class paid more for the Subject

Vehicles than they would have had they known of the Ignition Switch Defect or

they would not have purchased the Defective Vehicles at all.


22

V. SUCCESSOR LIABILITY

54. As discussed above, GM expressly assumed certain obligations under,

inter alia, the TREAD Act, and is liable for its non-disclosure and concealment of

the Ignition Switch Defect from the date of its formation on July 10, 2009.

55. New GM has successor liability for Old GM’s acts and omissions in

the marketing and sale of the Defective Vehicles because it has continued the

business enterprise of Old GM. Additionally, New GM has admitted that it knew

of the Ignition Switch Defect from the very date of its formation; New GM has

continued in the business of designing, manufacturing, and marketing vehicles,

including at least some of the same vehicles as Old GM; New GM retained the

bulk of the employees of Old GM; New GM acquired, owned, and leased real

property of Old GM, including all machinery, equipment, tools, information

technology, product inventory, and intellectual property; New GM acquired the

contracts, books, and records of Old GM; and New GM acquired all goodwill and

other intangible personal property of Old GM.

VI. TOLLING OF THE STATUTES OF LIMITATION.

56. All applicable statutes of limitation have been tolled by Defendants’

knowing and active fraudulent concealment and denial of the facts alleged herein.

Plaintiffs and Class members did not discover - and were not aware of material


23

facts that would have caused a reasonable person to suspect - that Old GM and

New GM had information in their possession about the existence and

dangerousness of the ignition switches in the Defective Vehicles and that they

affirmatively concealed that information until shortly before this class action

Complaint was filed.

57. Because of the active concealment by Defendants, any and all

limitations periods otherwise applicable to the claims of Plaintiffs and members of

the Class have been tolled.

VII. CLASS ACTION ALLEGATIONS

58. Plaintiffs bring this action as a class action pursuant to Federal Rule of

Civil Procedure 23(a) and 23(b)(2) and 23(b)(3) for the following Class of persons:

All persons in the United States who currently own or lease one or more of the following GM vehicles: 2005-2010 model year Chevrolet Cobalt; 2006-2010 model year Pontiac Solstice; 2007-2010 model year Pontiac G5; 2007-2010 model year Saturn Sky; 2006-2011 model year Chevrolet HHR; and 2003- 2007 model year Saturn Ion. 59. This list will be supplemented to include other GM vehicles that have

the Ignition Switch Defect, which inadvertently turns off the engine and vehicle

electrical systems during ordinary driving conditions.

60. Plaintiffs also bring this action on behalf of the following State

Subclasses:


24

Arkansas Subclass: All Class Members who reside in and purchased

or leased a Defective Vehicle in the State of Arkansas (“Arkansas

Subclass”).

Texas Subclass: All Class Members who reside in and purchased or

leased a Defective Vehicle in the State of Texas (“Texas Subclass”).

61. Excluded from the Class are all legal entities, Defendants herein and

any person, firm, trust, corporation, or other entity related to or affiliated with any

defendant, as well as any judge, justice or judicial officer presiding over this matter

and members of their immediate families and judicial staff.

62. Plaintiffs are informed and believe that GM manufactured and sold to

consumers at least 8.2 million of the Defective Vehicles nationwide and hundreds-

of-thousands of Defective Vehicles in the Subclass States.

63. The Class can be readily identified using registration records, sales

records, production records, and other information kept by GM or third parties in

the usual course of business and within their control.

64. Plaintiffs’ claims are typical of the claims of the other members of the

Class. All members of the Class have been and/or continue to be similarly affected

by Defendant’s wrongful conduct as complained of herein, in violation of state and

federal law. Plaintiffs have no interests adverse to the Class.


25

65. Plaintiffs will fairly and adequately protect the Class members’

interests and have retained counsel competent and experienced in consumer class

action lawsuits and complex litigation.

66. Defendants have acted with respect to the Class in a manner generally

applicable to each Class member. Common questions of law and fact exist as to all

Class members and predominate over any questions wholly affecting individual

Class members. There is a well-defined community of interest in the questions of

law and fact involved in the action, which affect all Class members. Among the

questions of law and fact common to the Class are, inter alia:

a. whether the Defective Vehicles suffer from Ignition Switch

Defect detailed in this Complaint;

b. whether Defendants knew or should have known about the

Ignition Switch Defect detailed in this Complaint;

c. if Defendants knew of the Ignition Switch Defect detailed in

this Complaint, how long Defendants knew of such defects;

d. whether Defendants attempted to conceal the Ignition Switch

Defect detailed in this Complaint from Plaintiffs and Class

members;


26

e. whether Defendants misrepresented to Plaintiffs and Class

Members that the Defective Vehicles were safe;

f. whether Defendants engaged in fraudulent concealment;

g. whether Defendants engaged in unfair, deceptive, unlawful

and/or fraudulent acts or practices in trade or commerce by

failing to disclose that the Defective Vehicles were designed,

manufactured, and sold with defective ignition switches;

h. whether the nature of the defective ignition switches in the

Defective Vehicles constitutes a material fact reasonable

consumers would have considered in deciding whether to

purchase a Defective Vehicle;

i. whether Defendants had a duty to disclose the defective nature

of the Defective Vehicles to Plaintiffs and Class Members;

j. whether the Defective Vehicles were fit for their intended

purpose;

k. whether the Defective Vehicles were of merchantable quality;

1. whether Old GM’s and GM’s unlawful, unfair and/or deceptive

practices harmed Plaintiffs and the members of the Class;


27

m. whether Defendants violated the Arkansas Deceptive Trade

Practices Act, Ark. Code Ann.§§ 4-88-101, et seq.,

(“ADTPA”), and, if so, what remedies are available under the

ADTPA;

n. whether Defendants violated the Texas Deceptive Trade

Practices Consumer Protection Act, Tex. Bus. & Com. Code §§

17.41, et seq. (“TDTPA”);

o. whether, and to what extent, GM has successor liability for the

acts and omissions of Old GM; and

p. whether Plaintiffs and Class Members are entitled to damages,

civil penalties, punitive damages, and/or injunctive relief.

67. A class action is superior to all other available methods for the fair

and efficient adjudication of this controversy since joinder of all members is

impracticable. Furthermore, as the damages suffered by individual Class members

may be relatively small, the expense and burden of individual litigation make it

virtually impossible for Class members to individually redress the wrongs done to

them. There will be no difficulty in managing this action as a class action.

68. The prosecution of separate actions by the individual Class members

would create a risk of inconsistent or varying adjudications for individual Class


28

members, which would establish incompatible standards of conduct for GM. The

conduct of this action as a class action presents far fewer management difficulties,

conserves judicial resources and the parties’ resources, and protects the rights of

each Class member.

69. Defendants have acted on grounds generally applicable to the entire

Class with respect to the matters complained of herein, thereby making appropriate

the relief sought herein with respect to the Class as a whole.

VIII. CAUSES OF ACTION

COUNT I FRAUDULENT CONCEALMENT

(On Behalf of All Classes)

70. Plaintiffs hereby incorporate by reference the allegations contained in

the preceding paragraphs of this Complaint.

71. Defendants had knowledge of the Ignition Switch Defect as early as

2001, as alleged above.

72. Defendants' omissions were material because they directly implicate

the safety of the Defective Vehicles. Whether a vehicle has an increased risk of

losing power to the engine and/or major electrical systems in the course of driving

is a material safety concern.


29

73. Defendants concealed and suppressed material facts concerning the

Ignition Switch Defect, and GM has successor liability for the acts of concealment

and oppression of Old GM as set forth above.

74. Defendants had a duty to disclose these safety issues because they

consistently marketed their vehicles as reliable and safe and proclaimed that

Defendants maintain the highest safety standards.

75. Once Defendants made representations to the public about safety,

Defendants were under a duty to disclose these omitted facts, because where one

does speak one must speak the whole truth and not conceal any facts which

materially qualify those facts stated. One who volunteers information must be

truthful, and the telling of a half-truth calculated to deceive is fraud.

76. Defendants had a duty to disclose the Ignition Switch Defect because

they were known and/or accessible only to Defendants who had superior

knowledge and access to the facts, and Defendants knew they were not known to

nor reasonably discoverable by Plaintiffs and the Class. These omitted and

concealed facts were material because they directly impact the safety of the

Defective Vehicles.


30

77. Defendants' acts were done maliciously, oppressively, deliberately,

with intent to defraud, in reckless disregard of Plaintiffs and the Class's rights and

well-being, and for the sole purpose of enriching Defendants.

COUNT II VIOLATION OF MAGNUSON-MOSS CONSUMER WARRANTIES ACT,

15 U.S.C. §§ 2301, et. seq. (“MMWA”) (On Behalf of the Class)



79. The MMWA provides a private right of action by purchasers of

consumer products against manufacturers or retailers who, inter alia, fail to

comply with the terms of the written, express and/or implied warranties. 15 U.S.C.

§ 2310(d)(l). As alleged above, Defendants have failed to comply with the terms of

its written, express, and/or implied warranties.

80. The Defective Vehicles are consumer products, as that term is defined

in 15 U.S.C. § 2301(a).

81. GM is a supplier and warrantor, as that term is defined in 15 U.S.C. §

2301(4) and (5).

82. Plaintiffs and each member of the Classes are consumers, as that term

is defined in 15 U.S.C. § 2301(3).


31

83. As a warrantor, GM is obligated to afford the Class, as consumers, all

rights and remedies available under the MMWA, regardless of privity.

84. The MMWA provides a cause of action for breach of warranty or

other violations of the Act. 15 U.S.C. § 2310(d)(l ). GM has breached its

warranties as alleged herein.

85. GM has breached its implied warranty of merchantability and fitness,

which it cannot disclaim under the MMWA, 15 U.S.C. § 2308(a)(1), by failing to

provide a vehicle which could not be safely operated.

86. Plaintiffs have suffered damages as a result of GM’s breaches of

express and implied warranties as set forth herein; thus, this action lies. 15 U.S.C.

§ 2310(d)(1)-(2).

87. GM was on notice of the Ignition Switch Defect as early as 2001, yet

did not undertake any opportunity to cure until 2014, nearly thirteen years later,

when GM’s knowledge of the Ignition Switch Defect was first made public. Also,

once Plaintiffs’ representative capacity is determined, notice and opportunity to

cure on behalf of the Class – through Plaintiffs – can be provided under 15 U.S.C.

§ 2310(e).


32

88. Plaintiffs and the Class Members have suffered, and are entitled to

recover, damages as a result of GM’s breaches of warranty and violations of the

MMWA.

89. Additionally, or in the alternative, the MMWA provides for “other

legal and equitable” relief where there has been a breach of warranty or failure to

abide by other obligations imposed by the MMWA. 15 U.S.C. § 2310(d)(1).

Rescission and revocation of acceptance are equitable remedies available to Class

Members under the MMWA.

90. Plaintiffs also seek an award of costs and expenses, including

attorneys’ fees, under the MMWA, to prevailing consumers in connection with the

commencement and prosecution of this action. 15 U.S.C. §2310(d)(2). Plaintiffs

and the Class intend to seek such an award, including expert witness costs and

other recoverable costs, as prevailing consumers at the conclusion of this lawsuit.

91. It was not necessary for Plaintiffs and each Class Member to give GM

notice of GM’s breach of the implied warranty of merchantability because GM had

actual notice of the Ignition Switch Defect.

92. Prior to the filing of this action, GM issued a safety recall for the

Defective Vehicles acknowledging the Ignition Switch Defect. GM admitted it had

notice of the Ignition Switch Defect as early as 2001.


33

93. At the time of the safety recall, GM also acknowledged that numerous

accidents and fatalities were caused by the Ignition Switch Defect. In addition to

the above, the filing of this action is sufficient to provide GM notice of its breaches

of the implied warranty of merchantability with respect to the Defective Vehicles.

COUNT III BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

(On Behalf of the Class)



95. GM is a merchant who sold the Defective Vehicles to Plaintiffs and

Class members.

96. GM impliedly warranted to Plaintiffs and members of the Class that

the Defective Vehicles were free of defects, and were merchantable and fit for the

ordinary purpose for which such goods were sold and used.

97. As alleged herein, GM’s sales of the Defective Vehicles breached this

implied warranty of merchantability because the Defective Vehicles were sold with

latent defects described herein as the Ignition Switch Defect. As such, the

Defective Vehicles are defective, un-merchantable, and unfit for the ordinary,

intended purpose at the time of sale. This Ignition Switch Defect creates serious

safety risks in the operation of the Defective Vehicles.


34

98. GM, however, marketed, promoted, and sold the Defective Vehicles

as safe and free from defects.

99. GM breached its implied warranty of merchantability to Plaintiffs and

the Class because the Defective Vehicles would not pass without objection in the

trade, as they contained the Ignition Switch Defect.

100. GM further breached its implied warranty of merchantability to

Plaintiffs and Class Members because the Defective Vehicles were not adequately

contained, packaged, and labeled. The directions and warnings that accompanied

the Defective Vehicles did not adequately instruct Plaintiffs on the proper use of

the Defective Vehicles in light of the Ignition Switch Defect or adequately warn

Plaintiffs of the dangers of improper use of the Defective Vehicles.

101. GM had knowledge of, yet concealed, these defects for over a decade.

Plaintiffs provided reasonable and adequate notice to GM through its dealer

network when seeking repairs on the vehicle following an accident. GM failed to

cure the Ignition Switch Defect that existed, and were known to GM yet concealed

from Plaintiffs, at the time Plaintiffs purchased their Defective Vehicles.

102. Defendants’ purported disclaimer or exclusion of the implied warranty

of merchantability in its written warranty is invalid, void, and unenforceable per

MMWA 15 U.S.C. § 2308(a)(l). GM’s warranty disclaimers, exclusions, and


35

limitations were unconscionable and unenforceable because they disclaimed

defects known but not disclosed to consumers at or before the time of purchase.

103. Any contractual language contained in GM’s written warranty that

attempts to limit remedies is unconscionable, fails to conform to the requirements

for limiting remedies under applicable law, causes the warranty to fail of its

essential purpose, and is, thus, unconscionable, unenforceable, and/or void.

104. As a direct and proximate result of the breach of said warranty,

Plaintiffs and the Class suffered and will continue to suffer losses as alleged herein

in an amount to be determined at trial.

105. Additionally, or in the alternative, Plaintiffs and the Class seek

declaratory relief relating to the Ignition Switch Defect alleged herein, and the

opportunity to rescind the purchase agreement for the Defective Vehicle.



actual notice of the Ignition Switch Defect. Prior to the filing of this action, GM

issued a safety recall for the Defective Vehicles acknowledging the Ignition Switch

Defect. GM admitted it had notice of the Ignition Switch Defect as early as 2001.

At the time of the safety recall, GM also acknowledged that numerous accidents

and fatalities were caused by the Ignition Switch Defect. In addition to the above,


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the filing of this action is sufficient to provide GM notice of its breaches of the

implied warranty of merchantability with respect to the Defective Vehicles.

COUNT IV BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR

PURPOSE (On behalf of the Class)



108. GM is a manufacture of motor vehicles which knew that the vehicles

sold to Plaintiffs and the Class would be used for the specific purpose of, inter alia,

providing safe transportation at relatively high rates of speed.

109. GM impliedly warranted to Plaintiffs and members of the Class that

the Defective Vehicles were fit for the purpose of providing safe transportation.

110. As alleged herein, GM’s sales of the Defective Vehicles breached this

implied warranty of fitness because the Defective Vehicles were sold with latent

defects described herein as the Ignition Switch Defect. As such, the Defective

Vehicles are defective, not safe to operate at any speed, and thus unfit for their

intended purpose at the time of sale. These Ignition Switch Defect create serious

safety risks in the operation of the Defective Vehicles.

111. GM had knowledge of, yet concealed, these defects for over a decade.

Plaintiffs and Class members provided reasonable and adequate notice to GM


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through its dealer network when seeking repairs on the vehicle following an

accident. GM failed to cure the Ignition Switch Defect that existed, and were

known to GM yet concealed from Plaintiffs, at the time Plaintiffs purchased their

Defective Vehicle.

112. Defendants’ purported disclaimer or exclusion of the implied warranty

of merchantability in its written warranty is invalid, void, and unenforceable per

MMWA, 15 U.S.C. § 2308(a)(l). GM’s warranty disclaimers, exclusions, and

limitations were unconscionable and unenforceable because they disclaimed

defects known but not disclosed to consumers at or before the time of purchase.

113. Any contractual language contained in GM’s written warranty that

attempts to limit remedies is unconscionable, fails to conform to the requirements

for limiting remedies under applicable law, causes the warranty to fail of its

essential purpose, and is, thus, unconscionable, unenforceable, and/or void.

114. As a direct and proximate result of the breach of said warranty,

Plaintiffs and the Class suffered and will continue to suffer losses as alleged herein

in an amount to be determined at trial.

115. Additionally, or in the alternative, Plaintiffs and the Class seek

declaratory relief relating to the Ignition Switch Defect alleged herein, and the

opportunity to rescind the purchase agreement for the Defective Vehicle.


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actual notice of the Ignition Switch Defect. Prior to the filing of this action, GM

issued a safety recall for the Defective Vehicles acknowledging the Ignition Switch

Defect. GM admitted it had notice of the Ignition Switch Defect as early as 2001.

At the time of the safety recall, GM also acknowledged that numerous accidents

and fatalities were caused by the Ignition Switch Defect. In addition to the above,

the filing of this action is sufficient to provide GM notice of its breaches of the

implied warranty of merchantability with respect to the Defective Vehicles.

COUNT V VIOLATIONS OF THE ARKANSAS DECEPTIVE TRADE PRACTICES

ACT, ARK. CODE ANN. §§ 4-88-101, et seq. (the “ADTPA”)

(On Behalf of the Arkansas Subclass)



118. This claim is brought on behalf of Plaintiffs EARL GOLSON, MARY

GREENE, and the Arkansas Subclass.

119. As detailed throughout this Complaint, Defendants committed

deceptive and unfair acts in the conduct of trade and commerce as prohibited by

Ark. Code Ann.§ 4-88-107(a).


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120. Defendants and Plaintiffs EARL GOLSTON and MARY GREENE

are “persons” under ADTPA § 4-88-102(5).

121. By failing to disclose and actively concealing the dangerous risk of

ignition switch movement, engine shutdown, and disabled safety airbags in

Defective Vehicles, Defendants engaged in deceptive business practices prohibited

by the ADTPA § 4-88-107(a), including:

a. Defendants represented that the Defective Vehicles had

approval, characteristics, uses, and benefits that they do not

have;

b. Defendants provided, disseminated, marketed, and otherwise

distributed uniform false and misleading advertisements,

technical data and other information to consumers regarding the

safety, performance, reliability, quality, and nature of the

Defective Vehicles;

c. Defendants represented that the Defective Vehicles were of a

particular standard, quality, or grade, when they were of

another;

d. Defendants engaged in unconscionable commercial practices in

failing to reveal material facts and information about the


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Defective Vehicles, which did and tended to mislead Plaintiffs

and the Class about facts that could not reasonably be known by

the consumer until the 2014 recalls;

e. Defendants failed to reveal facts concerning the faulty ignition

switch in the Defective Vehicles that were material to the

transaction in light of representations of fact made in a positive

manner;

f. Defendants failed to reveal material facts concerning the faulty

ignition switch in the Defective Vehicles to Plaintiffs and the

Class Members, the omission of which would tend to mislead

or deceive consumers, including Plaintiffs and the Class;

g. Defendants made material representations and statements of

fact to Plaintiffs and the Class that resulted in Plaintiffs and the

Class Members reasonably believing the represented or

suggested state of affairs to be other than what they actually

were; and

h. Defendants intended that Plaintiffs and Class Members rely on

their misrepresentations and omissions, so that Plaintiffs and


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other Class Members would purchase or lease the Defective

Vehicles.

122. Defendants’ Fraudulent concealment of material facts, as complained

of herein, is also a violation of ADTPA § 4-88-108.

123. Plaintiffs and the Class have suffered an injury, including the loss of

money and property, as a result of Defendants’ unfair, unlawful, and deceptive

practices. Defendants failed to inform Plaintiffs and Class Members that its

Defective Vehicles had a defective ignition switch that could lead to injury or

death. Had Plaintiffs and the Class known this, they either would not have

purchased their vehicles at all, or they would have paid less for them. Plaintiffs and

the Class have therefore suffered a “loss” because of the violations of the ADTPA

complained of herein.

124. All of the wrongful conduct alleged herein occurred, and continues to

occur, in the conduct of the Defendants’ business.

125. Plaintiffs requests that this Court enjoin GM from continuing its

unfair, unlawful, and deceptive practices, and award to Plaintiffs and each Class

Member their actual damages as the result of GM’s unfair, unlawful, and deceptive

trade practices, reasonable attorneys’ fees, and other appropriate relief pursuant to

ADTPA § 4-88-113.


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COUNT VI VIOLATIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT,

TEX. BUS. & COM. CODE, §§ 17.41, et seq. (“TDTPA”) (On Behalf of the Texas Subclass)



127. This claim is brought on behalf of Plaintiff JACKIE ROLLINS, and

the Texas Subclass.

128. Defendants’ above-described acts and omissions constitute false,

misleading or deceptive acts or practices under the TDTPA.

129. Plaintiff JACKIE ROLLINS is a “consumer” within the meaning of

the TDTPA, who purchased or leased one or more Defective Vehicles.

130. By failing to disclose and actively concealing the dangerous risk of

ignition switch movement, engine shutdown, and disabled safety airbags in

Defective Vehicles, Defendants engaged in deceptive business practices prohibited

by the TDTPA, including:

a. representing that Defective Vehicles have characteristics, uses,

benefits, and qualities which they do not have;

b. representing that Defective Vehicles are of a particular

standard, quality, and grade when they are not;


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c. advertising Defective Vehicles with the intent not to sell them

as advertised;

d. representing that a transaction involving Defective Vehicles

confers or involves rights, remedies, and obligations which it

does not; and

e. failing to disclose information concerning Defective Vehicles

with the intent to induce consumers to purchase or lease the

Defective Vehicles.

131. Defendants also breached express and implied warranties to Plaintiffs

and the Class, as set out above, and are, therefore liable to Plaintiffs and the Class

for damages under §§ 17.50(a)(2) and 17.50(b) of the TDTPA. Defendants’ actions

also constitute an unconscionable action or course of action under §17.50(a)(3) of

the TDTPA.

132. Plaintiffs and the Class have suffered an injury, including the loss of

money and property, as a result of Defendants’ unfair, unlawful, and deceptive

practices. Defendants failed to inform Plaintiffs and Class Members that its

Defective Vehicles had a defective ignition switch that could lead to injury or

death. Had Plaintiffs and the Class known this, they either would not have

purchased their vehicles at all or they would have paid less for them. Plaintiffs and


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the Class have therefore suffered a “loss” because of the violations of the TDTPA

complained of herein.

133. As alleged above, Defendants made numerous material statements

about the safety and reliability of Defective Vehicles that were either false or

misleading. Each of these statements contributed to the deceptive context of

Defendants’ unlawful advertising and representations as a whole.

134. Defendants’ unfair or deceptive acts or practices were likely to and

did in fact deceive reasonable consumers, including Plaintiffs and Texas Subclass

Members, about the true safety and reliability of Defective Vehicles.

135. In purchasing or leasing their vehicles, the Plaintiffs and Texas

Subclass Members relied on the misrepresentations and/or omissions of

Defendants with respect of the safety and reliability of the vehicles. Defendants’

representations turned out not to be true because the vehicles can unexpectedly and

dangerously have ignition switch movement, shutting down the engine, and

disabling the safety airbags.

136. All of the wrongful conduct alleged herein occurred, and continues to

occur, in the conduct of the Defendants’ business.

137. Plaintiffs request that this Court enjoin GM from continuing its unfair,

unlawful, and deceptive practices, and award to Plaintiffs and each Class Member


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their actual damages as the result of GM’s unfair, unlawful, and deceptive trade

practices, reasonable attorneys’ fees pursuant to § 17.50(d) of the TDTPA, and

other appropriate relief. For those Plaintiffs and the Class who wish to rescind their

purchases, they are entitled under § 17.50(b)(4) to rescission and other relief

necessary to restore any money or property that was acquired from them based on

violations of the TDTPA.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually and on behalf all others similarly

situated, respectfully requests that this Court enter a judgment against GM and

Delphi in favor of Plaintiffs and the Class, and grant the following relief:

A. Determine that this action may be maintained as a class action and

certify it as such under Rule 23(b)(3), or, alternatively, certify all issues and claims

that are appropriately certified and designate and appoint Plaintiffs as Class and

Subclass Representatives and Plaintiffs’ chosen counsel as Class Counsel;

B. Declare, adjudge and decree the conduct of GM and Delphi as alleged

herein to be unlawful, unfair and/or deceptive, and enjoin any such future conduct;

C. Award Plaintiffs and Class Members actual, compensatory damages,

nominal damages, and/or statutory damages, as proven at trial;


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D. Alternatively, if elected by Plaintiffs and the Class, permit rescission

of the purchase agreement for the Defective Vehicles requiring GM’s buy-back of

the Defective Vehicles;

E. Alternatively, if elected by Plaintiffs and the Class, require GM to

repair the defective ignition switches or provide a comparable vehicle that does not

have Ignition Switch Defect;

F. Award Plaintiffs and the Class all monies paid to Old GM because of

GM’s violation of the State Unfair Trade Practices and Consumer Protection Laws

as set forth herein;

G. Award Plaintiffs and Class Members exemplary/punitive damages;

H. Award Plaintiffs and Class Members their reasonable attorneys’ fees,

costs, and pre- and post-judgment interest; and

I. Award Plaintiffs and the Class such other further and different relief

as the case may require or as determined to be just, equitable, and proper by this

Court.

X. JURY DEMAND

Plaintiffs demand a trial by jury on any and all issues in this action so triable

of right.


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Respectfully submitted,

SOMMERS SCHWARTZ, P.C.

Dated: August 6, 2014 By: /s/ Jason J. Thompson Jason Thompson (P47184)

Lance Y. Young (P51254) One Towne Square, Suite 1700 Southfield, MI 48076 (248) 355-0300 [email protected] [email protected]

FINKELSTEIN & KRINSK LLP Jeffrey R. Krinsk, Esq. (SBN 109234) Mark L. Knutson, Esq. (SBN 131770) Trenton R. Kashima, Esq. (SBN 291405) 501 West Broadway, Suite 1250 San Diego, California 92101-3579 Telephone: (619) 238-1333 Facsimile: (619) 238-5425 [email protected] [email protected] [email protected] Attorneys for Plaintiffs


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09-50026-reg Doc 12843 Filed 08/14/14 Entered 08/14/14...

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Transcript of 09-50026-reg Doc 12843 Filed 08/14/14 Entered 08/14/14...