Exhibit C Proof of Claim No. 51094docs.motorsliquidationdocket.com/pdflib/8173_50026.pdf · 90679...

Exhibit C

Proof of Claim No. 51094

90679 0708151896 1011111111 II

UNITED STATES BANKRUPTCY COURT FOR ME SOUTHERN DISTRICT OF NEW YORK PROOF OF CLAIM Name of Debtor (Check Only One) Case No illiMolorb Liquidation Company (17k/a General Motors Corporation) 09-50026 (REG) C1MLCS, LLC (f/k/a Saturn, LLC) 09-50027 (REG) qMLCS Distnbution Corporation (f/k/a Saturn Distribution Corporation) 09-50028 (REG) UMLC of Harlem, Inc (f/k/a Chevrolcl-Satum of Harlem, Inc ) 09-13558 (REG)

Your Claim la Scheduled As Follows

u„sseurod

Contingent

If an anoint scheduled by scheduled anteadutrat agree anti the echeduled by

tin a Mid CON i INGENT order to receive taw Kr:41We mask= yak meow'

Motors Ueuidebon

=Oronnth.Dobememzusszufamyou

Company

Emmy,

I unimulosted / Disputed

CIT)f

is identified above, you haw a claw me of the Debtors as shown (mm

amount of your dam nuy be an a a prevermly scheduled amount ) If you

amount and pnonty of yaw chum as the Debtor and you have no War damn

do wt need to fileu.dwimproommunf a

NOTI. Thu form should not be used to make a dawn for on admunraranve EVOISC anon after the C0111114CRIVIIIIII of the ease but may be used for purposes of asserting a claim ander 11 U S C § 503(b)(9) (see Item N 5) Al! other requests .* payment of an adesuuctrauve erpente should be filed persusuu to II USC § 501

Name of Creditor (the person or other entity to whom the debtor owes money or

property) GOLISK ROBERT

q Check this box to indicate that this claim d11)2314.15 a previously filed claim

Court Claim Number

Name and address where notices should be sent

GOLISH, ROBERT GIRARD GIBBS & DEBARTOLOMEO LLP 601 CALIFORNIA ST STE 1400 SAN FRANCISCO, CA 94108-2819

Telephone number Email Address

(If known)

Filed on

Name a payment be sent (if different from above)

FILED - 510% MOTORS LIQUIDATION COMPANY

F/K/A GENERAL MOTORS CORP SDNY 0 09-50026 (REG)

Telephone number

q Check this box if you are aware that anyone else has filed a proof of chum rotating to your chum Attach copy of statement grvmg particulars

0 Check this box it- you am the debtor or truster. in tins care

la DISPUTED, UNIAQUIDATCD, or a proof of elms MUST be filed in day chainbabon lo nweeet of Your

already filed a Foot dawn 111 its maw isstattgas plumed not

I Amount of Chum Wall or pan of you. claim your claim is amded to

CI Check this box itemized statement

as of Date Case Flied, lune 1, 2009 S Unliquidated s Amount

If any If

In one check amount

Specify the Specify Domestic

II USC u Wages,

before petition business, U S

q Contributions plan

q Up to purchase,

q Taxes

El Value Debtor date IlUSC

0 Other of II

*Amounts 1/1/10 and respect to cases the date of

to $10,950*)

or services household § 507(a)(7)

governmental § 507(aX8)

Amount

of Chum Rabaul to under 11 Use § 507(a)

porhon of your claim falls of the following categories, the box and state the

pnonty of the claim support obligations under § 507(a)(IXA) or (aXIXB)

salaries, or commissions (up earned within 180 days

filing of the bankruptcy or cessation of the debtor's

whichever is earlier — I I C § 507(aX4)

to an employee benefit —IIUSC 6 507(0(5)

52,42.5° of deposits toward lease, or rental of property for personal, family, or

use —1111SC

or penalties owed to units —II USC

of goods received by the within 20 days before the

of ease commencement of the §503(b)(9) (§ 507(a)(2)) -

—Specify applicable paragraph USC § 507(a)(_ j

entitled to priority

S

is seaued, complese nem 4 below, however, rfaR of your claim is pnonty, coniplete item 5 Wall or part of your claim is asserted pursued

of claim includes interest or other charges in addition to the pnocipal of interest or charges

See Attu-hi-fleet

unsecwed, do not complete nem 4 ifa/lor part of to II USC § 503(b)(9), compiete 1=15

amount of Attach

2 Basle for Claim (See intuition 02 on mu. aide)

3 Last four digits

3s Debtor

of any number by which creditor identifies debtor

may have scheduled account as (See instruction ell oil reverse ode)

4 Secured Cl a® (Sea Check the appropriate information

Nature of property Describe

Value of Property

Amount of arrearage

Basis for perfection.

Amount of Secured

untructoo N4 on reverse side ) box if your claim is secured by a hen on property or a right

or right of setoff q Real Estate q Motor Vehicle

$ Annual Interest Rate%

of setoff and provide requested

q Equipment q Other

claim, If any S

___

and other charges as of tune case flied included In secured

Claim . 5 Amount Unreettrtd S

6 Credits, The amount of all payments on this claim has been credited for the purpose of making this proof of claim

7. Documents Attach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements or running accounts, ecmtracts, Judgments, mortgages, and security agreements You may also attach a summary Attach redacted copies of documents providing evidence of perfection of a security interest You may also attach a summary (See instruction 7 and definition of 'redacted" on reverse side)

DO NOT SEND ORIGINAL DOCUMENTS ATTACHED DOCUMENTS MAY BE DESTROYED An ER SCANNING

If documents are not available, please explain in an attachment

are vidneci to atifustment on every 3 years thereafter with

commenced on or after adjustment

Date 0 tr410Signature The person filing this claim must sign it Sign and print name and title, if any, of the creditor or other person authorized to file this claim and state address and telephone number &different from the notice address above Attach copy of power of enemy, Karl

Al____, iillaroa d. ASKO 0-06{ AC' aarai

FOR COURT USE ONLY

Penalotforentmerraschdent clean Fine of up to1500,000 or unprisonoient for up to 5 years, or both 18 US C §§ 152 and 3571 Modified B10 (MG) (12/019

INSTRUC I IONS FOR PROOlt OF CLAIM FORM d definitions baton we general explanation, of eke law In certain circumstance% such as bankruptcy cases not filed voluntarily by the debtor, there may

to these general rules The attorneys for the Debtors and their courr•appointed claims agent, The Carden City Group Inc are not authorized and we not pravtdrng )ou with any legal advit I

A SEPARA TE PROOF 0O CLAIM OURS, al US I BE FILED AGAINST EACH Mil Olt EASE SEND YOUR ORIGINAL, COMPLETED CLAIM FORM AS FOLLOWS IF BY MAIL THE GARDEN CITY GROUP, INC A ITN MOTORS LIQUIDATION

OMPANY CLAIMS PROCESSING, PO BOX 9186, DORI IN, 011 43017-4286 IM BY HAND OR OVERNIGII r COURIER THE GARDEN CITY GROUP, INC , MTN ()TORS LIQUIDATION COMPANY CLAIMS PROCESSING, 5151 BLAZER PARKWAY, SUITE A, DUBLIN, OH 43017 PROOFS OF CLAIM MAY ALSO BE HAND

DELIVERED TO THE UNITED S FATES BANKRUPTCY COURT, SDNY, ONE BOWLING GREEK ROOM 534, NEW YORK, NEW YORK 10004 ANY PROOF OF CLAIM SUBMIT I ED BY FACSIMILE OR E-MAIL WILL NOT BE ACCEPTED

THE GENERAL AND GOVERNhIEN7 AL BAR DATh IS NOVEMBER 30, 2009 AT 5 OD PM (PREVAILING EAS I ERN TIME)

Court, Name of Debtor, and Cast Numb( r These chapter I 1 cases were commenced in the United Stairs Bankruptcy Cour for the Southern District of New York on June I, 2009 You should select the debtor ageing which you are asserting your claim

SEPARA rE PROOF OM CLAIM FORM MLIS I BE FILED AGAINS r EACH DEBTOR Creditor's Name and Address Fill in the mine of the person or entity asserting a claim and the name and address oldie person who should receive notices issued during the bankruptcy case Please provide us with a valid email address A separate space is provided for the payment address if it differs from the notice address The creditor has a continuing obligation to keep the court informed of its current addles: Sr.i, Federol Rule of Bankniptcy Procedure (I RBP) 2002(g) I Amount of Claire as of Date Case Filed

Slate the total amount owed to the creditor on dut date of the bankruptcy filing Follow the instructions concerning whether to complete item 4 use 5 Check the box if interest or other charges are included in the clam

for Calm State the type of debt or how it was incurred Examples include goods sold, m loaned, scmcm performed, personal initoyfwroogthl death, car loon, mortgage note, and credit and If the claim us based on the delivery ofbeahh care goods or services, limit the disclosure of the goods or services so as to avoid embarrassment or the disclosure of confidential health care information You may be required to provide addruonil disclosure if the debtor, trustee or another party In interest files " el:Felton to your claim Last Foar Digits of Any Number In Whkh Creditor Identifies Debtor State only the last four digits of the debtor's account or other number used by the creditor to identify the debtor, if any 3a Debtor May Have Scheduled Account As Use this space to report a change in the creditor's name, a transferred claim, or any other information that clarifies a difference between this proof of clam anal the claim as scheduled by the debtor

4 Si cured Cl.dm

Cheek the appropriate box and provide the requested informauon if the claim is fully or partially secured Skip this section ;film claim is entirely unsecured (See DEFINITIONS, below) State the type and the value of property that secures the claim, attach coptes of lien documentation, and stale MOW interest rate and the amount past due on the claim as of the date of the bankruptcy filing

5 Amount of Claim Entitled to Priority Under 11 U S C § 507(a) If any portion of your claim falls in one or more of the listed categories, check the appropriate hex(es) and stale the amount entitled to priority (See DEFINITIONS, below ) A claim may be partly priority and partly non-priority For example, In some of the categories, the law limits the amount entitled to priority For claims pursuant to II USC 0 503(b)(9), indicate the amount of your claim anang from the value of any goods received by the debtor within 20 days before June I, 2009, the date of commencement of these cases (See DEFINITIONS, below) Attach documentation supporting such claim

6 Credits An authorized signature on dins proof of claim serves as an acknowledgment that when caluilating the amount of the claim, thm creditor gave the Debtor credit for any payments received toward the deed

7 Documents Attach to thus proof of clean form redacted copies documenting the existence of the of any hen securing the debt You may also attach a summary You MUSE also monk comes of documents that evidence perfection of any security interest You may also attach a summery ORB? 3001(e) and (d) If the claim is based on the delivery of health cam goods or services, see instruction 2 Do not send original documents, as attachments may be destroyed alter scannmg

Date and Signature - The person filing this proof of claim must sign and date it FRBP 9011 If the coin o fi electronically, fRBP 5005(aK2) authorizes courts to tstablith local rules specifying what constitutes a signature Prod the name and title, if any, of the creditor or other person authorized to file this claim State the filer's address and telephone number old Men from the address given on the top of the form for purposes of receiving notices Attach a complete copy of any power of attorney Crimea! penalties apply for making a false statement on proof of claim

laFFINITIONS

INFORMADON

A debtor is the person, corporation, or other entity that has filed a bankruptcy case The Debtors in these Chapter 1 I casts are

Motors Liquidation Company (filde General Motors Corporation) MLCS, LLC (fIlda Saturn, LLC) MLCS Distribution Corporation (Ma Saturn Distribution Corporation) MIX of Harlem, Inc (ffk/a Chevrolet-Saturn of Harlem, Inc )

09-50026 (REG)

09-50027 (REO)

09-50028 (KEG)

09-13558 (RF-G)

Creditor A creditor is the person, corporation, or other entity owed a debt by the debtor on the date of the bankruptcy filing

Claim A claim is the creditor's right to receive payment an a debt that was owed by the Debtor on the date of the bankruptcy films See 11 U S C 101(5) A claim may be secured or unsecured

Proof of Claim A proof of claim is a form used by the creditor to indicate the amount of the debt owed by the debtor on the dale of the bankruptcy filing The creditor must file the form with The Garden City Group, Inc as dosenbett in the instructions about

the Bar Date Notice

ut ed Claim Under 11 U S C § 506(a) A secured claim is one backed by a lien on property of the debtor

secured so long as the creditor has the right to be

paid from the property prior to other creditors The amount of the secured claim cannot exceed the value of the property Any amount owed to the creditor in excess of the value of the property is an unsecured claim Examples oilman on property mclude a mortgage on real estate or a security mterest in a car A lien may be voluntarily granted by a debtor or may be obtained ibrongh a court proceeding In some states, a court Judgment is a lien A claim also may be secured if the creditor owes the debtor money (has a oak to setoff)

Section 503(b)(9) Claim A Section 503(b)(9) claim is a claim for the value of any goods received by the debtor within 20 days before the date of commencement of a bankruptcy case in which the goods have been sold to the debtor in the ordinary course of such debtor's busmen

Unsecured Claim An unsecured claim is one that does not meet the requirements of a secured claim A claim may be partly unsecured if the amount of the claim exceeds the value of the property on which the creditor has a lien

Claim Entitled to Pnorlty Under LI USC § 507(a) Priority claim are certain categories of unsecured dams that are paid from the available money ar property tn a bankruptcy case before other unsecured alarms

Redacted A document has been redacted when the person filmg rt has masked, edited out, or otherwise deleted, certain infornsauon A creditor should redact and use only the last four digits of any social-security, individual's

tax•dentification, or financial-account number, all but the mauls of a minor's name and only the year of any person's date of birth

,Evidence of Perfection Evidence of perfection may include a mortgage, lien, certificate of tide, financing statement, Of other document showing that the hen has been filed or recorded

Acknowladgmenl of Ring of Claim To receive acknowledgment of your filing from The Garden City Group, Inc , please provide a self-addressed, stamped envelope and a copy of tits proof of aeon when you submd the anginal claim to The Garden City Group, Inc

Offers to Purchase a Claim Certam cootie are m the bunnies of purchasing claims for an amount less than the face value of claims One or more of these entities may contact the creditor and offer to purchase the clean Some of the written cononemeattora from these entities may easily be confused with official court documentatton or commorucations from the &blot These mutter do not represent the bankruptcy court or the debtor The emehfor has no obligation to sell its clams However, if the creditor decides to sell its claim, any transfer of such claim is sullied to FRBP 3001(e), any applicable provisions of the Bankruptcy Code (I I USC § 101 et seq ), and any applicable orders of the bankruptcy court

Additional informatuni • If you have any questions with respect to this claim form, please contact Alm Partners at I (800) 414-4607 or by e-mail at chums@motorsliquidation corn

GIRARD GIBBS LLP Attorneys at Law

601 CaNome Street 14111 Floor 711 Third Avenue 20th Floor San Francisco CA 94108-2819

New York NY 10017-4036 Tel 415 981 4800 I Fax 4 /5 981 4846

Tel 212 867 1721

www grrardgbbs corn Fax 212 867 1767

November 24, 2009

VIA FEDERAL EXPRESS

Patrick M. Passarella Vice President, Midwest Operations The Garden City Group, Inc 5151 Blazer Parkway, Suite A Dublin, OH 43017

Re: In re Motors Liquidation Company Case Number: 09-50026

Dear Patrick,

Enclosed please find courtesy copies of proof of claim forms filed in the General Motors bankruptcy proceedings, Case No. 09-50026 (REG), U.S Bankruptcy Court for the Southern District of New York. We are providing you this courtesy copy out of an abundance of caution to ensure receipt by Garden City Group by the bar date.

If you have any questions about the enclosed, please give me a call at (415) 981-4800

Very truly yours,

GIRARD GIBBS LLP

Enclosures

GENERAL MOTORS ON-STAR PRODUCTS LIABILITY LITIGATION PROOF OF CLAIM

In re Motors Liquidation Company — 09-50026 (REG)

Debtor Motors Liquidation Company (f/k/a General Motors Corporation)

Total Amount of Claim Unliquidatedi

Treatment of Claim Pre-petition/Unsecured

Exhibits to Claim

t. Second Master Amended Class Action Complaint

Basis for Claim

1. The On-Star Products Liability Litigation

Robert Golish is a plaintiff in a putative class action against the On-Star Corporation and various automobile manufacturer defendants including General Motors Corporation (MDL Case No 07-1867, U S Distnct Court for the Eastern Distnct of Michigan) ("On-Star Litigation") The claims in the On-Star Litigation generally assert that the defendants violated vanous consumer protection and warranty laws by selling consumers analog-wireless On-Star telematics equipment in their vehicles that would become obsolete in 2008 unless they were able to purchase a digital-wireless upgrade [See Exhibit 1 ] Robert Golish owns a 2005 Volkswagen Phaeton that contained analog-wireless On-Star telematics equipment Robert Golish is now unable to upgrade his OnStar system from analog-to-digital to make the OnStar system operative again

claim laimant reserves the nght to amend this claim after the date of filing of this proof of

EXHIBIT 1

Case 2 07-md-01867-SEC Document 113 Filed 04/30/2009 Page 1 of 76

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

IN RE GENERAL MOTORS ONSTAR LITIGATION

Master File No 07-1867

THIS DOCUMENT RELATES TO All Actions

SECOND A R AMENDED CLASS ACTION COMPLAINT

Introduction

Plaintiffs bring this class action against , General Motors Corporation ("GM"),

A merican Honda Motor Company ("Honda"), Subaru of Arne, Ica ("Subaru") and Volkswagen of

America ("VW") (collectively the "Manufacturer Defendants") and OnStar Corporation

`OliStar") due to the failure of nalog OnStar equipment in their vehicles and the resulting

icrnimation of OnStar sei vice

2 OnStar is a unique in-vehicle telecommunication safety system that provides

automatic crash notification to emergency responders, stolen vehicle location, remote door

unlock and remote diagnostics in the event of problems with airbags, anti-lock brakes or other

systems According to OnStar

[OnStar provides] ci Meal communications links among members of the public, emergency medical service providers and emergency dispatch providers, public safety, file service and law enforcement officials, and hospital emergency and trauma care facilities

The life-saving benefits of OnStar ale intended not only for initial vehicle purchasers but also for subsequent owners over the life of the vehicle

Case 2 07-md-01867-SFC Document 113 Red 04/30/2009 Page 2 of 76

In August 2002, the Federal Communications Commission ("FCC") ruled that

cellular telephone companies need not continue to carry analog cellular signals The FCC

allowed for a "sunset" penod to allow companies whose products were reliant upon analog

signals to transition to digital equipment

4 In 2002 the Defendants' OnStar equipment relied on analog cellular signals to

function

5 All of the Defendants knew by August 2002 that their analog-based OnStar

equipment would stop working on February 18, 2008 Despite the knowledge that their

equipment would stop working in 2008, Defendants continued to ell analog equipment to

customers without notifying those customers that the equipment would cease to function

Defendants intentionally concealed from consumers the material fact that then equipment would

stop working on February 18, 2008

6 Aftei selling consumers equipment they knew would stop working, Defendants

belatedly began warning consumers that their equipment was going to stop working by February

2008 Defendants requucd those custom's whose equipment could be upgraded to a digital

signal to pay to foi such upgrades to keep then OnStar equipment working

7 Because of Defendants' intentional concealment of the material fact that the

equipment they sold to consumer; would stop working in 2008, hundreds of thousands of

consumers across the country either have equipment that is now useless or have paid to purchase

new digital equipment

8 As a iesult of the Defendants' actions, Plaintiffs and thousands of other owners and

lessees of OnStar equipped vehicles have lost the benefits of this safety system and are exposed

to an increased risk of serious personal injury and harm, of were forced to pay for upgrades to

2

Case 2 07-md-01867-5FC Document 113 Filed 04/30/2009 Page 3 of 76

keep their systems functioning Plaintiffs seek damages for themselves and all others similarly

situated

The Parties

Plaintiffs

9 Plaintiff Jack Jacovefli is a citizen and resident of New Jersey his address is 5

Dorado Road, Laurel Spnngs, NJ

10 Plaintiff Janice Rhodes is a citizen and resident of Michigan Her address is 3151

Kendalwood Court, Grand Rapids, Michigan

I1 Plaintiffs Betty and Melvin Rubertt ("Rubertts") are citizens and residents of

Washington Their address is 3308 E 21' Street, Spokane, Washington

12 Plaintil f Blum Johnson is a citizen and resident of the State of Washington His

address is P 0 Box 670 Edmonds, Washington

13 Plaintiff Walter Rochow is a citizen and iesident of Connecticut His address is 25

Hamden Hills Di ive, Hamden, Connecticut

14 Plaintiff Irene Nai y is a citizen and resident of Ohio Her address is 31 Periwinkle

Drive, Olmsted Falls, Ohio

15 Plaintiffs Susan Nelson and Noi man Nelson ("Susan and Norman Nelson") are

citizens and residents of California Their address is 6405 Bonsall Dr , Mainbu, California

16 Plaintiff David Busch is a citizen and resident of New York His address is 43

Moffat Road, Washingtonvi Ile. New Vol k

17 Plaintiffs Marhiory Gill and Luna Gill are citizens and residents of California

Their address is 4081 Ban nsdale Way, Saciamento, California

3

Case 2 07-md-01867-SFC Document 113 Filed 04/30/2009 Page 4 of 76

18 Plaintiff John Irvine is a citizen and resident of California His address is 3622

Delancey Lane, Concoid, California

19 Plaintiff Sandra Williams is a citizen and resident of California Her address is

3101 82nd Avenue, Oakland, California

20 Plaintiff Carey Stein is a citizen and resident of Illinois Her address is 1000

Portwine Road, Riverwoods, Illinois

21 Plaintiff Wanda Hoover is a citizen and resident of Illinois Her address is 1912 W

Hood Avenue, Apt 2B, Chicago, Illinois

22 Plaintilf Cheryl Nicholas is a citizen and resident of Louisiana

23 Plaintiff Sharon Schueter is a citizen and resident of Missouri Her address is 1410

Summerhaven Diive, St Louis, Missouri

24 Plaintiffs Michael and Jacqueline Tchoukaleff are citizens and residents of Illinois

Their address is 1506 Parts Drive, Godfrey, Illinois

25 Manion Bradley Reich is a citizen and resident of Colorado His address is 3713 S

Andes Way, Aurora, Colorado

26 Plaintiff Angela lmbicrowicz is a citizen and resident of Illinois Her address is

1301 W 22"d Street, Oakbrook, Illinois

27 Plaintiff John C Kuller is a citizen and resident of Washington His address is 581

Pinecrest Drive Poi t Townsend, Washington

28 Plaintiff Charlie Allenson is a citizen and resident of New York His address is 315

E 68th Street, 7F, New York, New York

29 Plaintiff Robert Golish is a citizen and resident of California His address is 501 N

Clementine, Anaheim, California


30 DELETED

31 Plaintiff Mark Vamos is a citizen and resident of Texas His address is 5112 Victor

Street, Dallas, Texas

32 Plaintiff Robert Schatz is a citizen and resident of Colorado His address is 5678

Allure Street, Arvada, Colorado

33 Plaintiff Christian P Borurn is a citizen and resident of Virginia Her address is 257

E 40' Street, Norfolk, Virginia

34 Plaintiffs Gordon and Ann Erdenberger are citizens and residents of Pennsylvania

address is 220 Fai m Lane, Doylestown, Pennsylvania

35 Plaintiff Murle Kemp is a citizen and resident of Oregon His address is 3355 N

Delta Highway #9, Eugene, Oregon

36 Plaintiff R S Reishman is a citizen and resident of West Virginia He resides in

Kanawha County

Defendants

37 Defendant CM is a Delawaie corporation with its principal place of business and

national headquaiteis located at 300 Renaissance Center, Detroit, Michigan GM designs, tests,

manufactures, markets, advertises, warrants, distiibutes, sells or leases cars, trucks and sports

utility trucks under several prominent brand names, including, but not limited to GMC,

Chevrolet, Pontiac., Oldsmobile, Buick, Cadillac, Saturn and Saab throughout the United States

38 Defendant VW is a corporation engaged in the sale and distribution of motor

vehicles in the United States under various bi ands and models including Audi and Volkswagen

Phaetons and Passats Audi of America is a wholly-owned subsidiary of VW At the time of the

5

Case 2 07-rnd-01867-SFC Document 113 Filed 04/30/2009 Page 6 of 76

filing of the Amended Master Class Action Complaint VW maintained corporate headquarters in

Auburn Hills, Michigan VW now maintains corporate headquarters in Herndon, Virginia

39 Defendant Honda is a corporation engaged in the sale and d tribution of motor

vehicles in the United States under various brands, including "Aetna" Honda maintains

ate headquarters at 1919 Torrance Boulevard, Torrance, California

40 Defendant Subaru is the exclusive United States marketer of Subaru products

manufactured by Fuji Heavy Industries Ltd of Japan Subaru is headquartered in Cherry Hill,

rsey GM owned 20 percent of Fun Heavy Industries from 1999-2005

41 Defendant OnStar is a wholly owned subsidiary of GM and was at all times

exptessly and impliedly controlled and directed by GM OnStar also maintains headquarters in

Der on, Michigan

42 At all relevant times, OnStar engaged in co-ventures with each of the Manufacturer

Dcicridants with respect to the sale and distribution of OnStar equipment

43 At all relevant Limes, Defendants acted by and through then agents, servants,

rs and employees who weie then and there acting within the course and scope of their

ion, agency, employment and authority, in tut therance of Defendants' businesses, and

otherwise on behalf of Defendants

Jurisdiction and Venue

44 Plaintiffs bring this action seeking class-action status and alleging violations of the

Michigan Consumer Maud Act, violations of the consumer fraud laws of each of the 50 states,

bleach of express and implied warranties, and violations of the Magnuson-Moss Wairanty Act

This Court has itirisd tenon over these claims pursuant to 28 U S C 1332 (d)


45 Venue is proper in this District because Defendants GM, VW and OnStar are

headquartered in this District and many 61 the acts and transactions giving rise to the violations

of law alleged herein occurred within and emanated from Defendants' offices in this District

Specifically, the marketing and sales materials discussing OnStar, and containing the matenal

misstatements and omissions alleged herein, were designed, developed and approved by GM,,

VW and OnStar personnel at facilities in this District

46 Additionally, the OnStar subscription agreements expressly provide that Michigan

law will apply

Background

47 In the 1990s OnStar developed the OnStar telematic system

48 The OnStar telematic system is a cellular communication and global positioning

device that is incorporated into motor vehicles as factory installed equipment The OnStar

system enables occupants of vehicles with OnStar equipment and service to receive emergency

set vice and ailormation anywhere in the United States and portions of Canada OnStar desci ales

the system on its website this way

OnStar's in-vehicle safety, security, and information services use Global Positioning System (GPS) satellite and cellular technology to link the vehicle and driver to the OnStar Center At the OnStar Center, advisors offer real-time, personalized help 24 bouts a day, 365 days a year

Imp //www onstar com/us english/i /explore/onstar basics/technology is

49 OnStar has developed and operated the OnStai system throughout the United States

and Canada since about 1998

7


50 At all relevant times, each of the Manufacturer Defendants maintained the policy

and practice of manufacturing and selling OnStar equipped vehicles and providing seivrce and

parts for safety components through a network of authorized dealers

51 OnStar equipment and service for Manufacturer Defendants' vehicles is unique and

is not available from ther sources or as an after-market product

52 By December 2006 there were approximately two and a half million OnStar

subscribers who owned or leased vehicles manufactured by Defendants GM, VW, Honda and

Subaru with analog equipment

The Types Of OnStar Equipment Saki By Defendants

53 OnStar's cellular system used both the Advanced Mobile Phone System ("AMPS")

and the Code Division Multiple Access ("CDMA") cellular standards AMPS is analog, CDMA

is digital Although the two standards are not compatible, by 2001 most cellular equipment e,

cell phones) had both capabilities and could switch back and forth, depending on the kind of

signal available

54 OnStar and the Manufacturer Defendants touted and sold analog OnStar systems as

siandaid and optional equipment that would provide added safety, security and convenience

When sold as optional equipment, customers would be charged lees of several hundred dollars

for the OnStar equipment

55 At various times, OnStar capable vehicles were equipped with three types of

wireless cellular equipment a) Analog-Only, b) Analog/Digital-Ready, and c) Dual-Mode

(Analog/Digital)

56 Vehicles with analog-only equipment were manufactured to operate only on analog

wneless networks The Manufacturer. Defendants are not offering their custorneis any

8


opportunity to upgrade analog-only equipment to operate on digital networks Analog-only

telemaucs systems ceased working on or about December 31, 2007

57 Vehicles with analog/digital-ready equipment have wiring and sensors that permit

the vehicle to operate on digital networks by replacing the communications module with dual-

mode (analog/digital) modules All Manufacturer Defendants are charging their customers to

upgrade their analog/digital-ready equipment

58 At the time of purchase, the Manufacturer Defendants did not disclose to Plamtiffs

and other purchase's and lessees the type of OnStar equipment installed m their vehicles Thus,

Plaintiffs and class members did not know that the OnStar equipment in their vehicles was

analog-only and would not function on digital cellular systems, or that their equipment was

analog/digital-ready and would not function on digital cellular systems without substantial

expenditure

Defendants Knew That Analog OnStar Systems Would be Inoperable as of February 2008

59 On May 17, 2001, the FCC proposed eliminating the requirement that wueless

phone milers operate analog-based networks, and allowing camels to provide only digital-

based networks Notice of Proposed Rule Making, 16 FCC Red 11169 (May 17, 2001)

60 Defendants were aware of the FCC's proposed rule change and understood that

such a lute change would result in wireless carriers ceasing to provide analog networks

61 Despite this, Defendants chose to not disclose to their customers that their vehicles

had analog OnStar systems that would be rendered inoperable and/or obsolete once this switch to

a digital network infrastructure took place Instead, Defendants pocketed the money for the sale

of the OnStar equipment and the monthly subscnption lees, all the while omitting this material

I act

9


The Defendants' Statements to the FCC

62 Defendants' knowledge of the impending switch to a digital network infrastructure

and its adverse impact on OnStar users is evidenced by the fact that OnStar and the Manufacturer

Defendants made v nous presentations and submissions to the FCC concerning the elimination

of analog set vice

63 Indeed, GM and OnStar filed comments and objections to the FCC's proposal on

July 2, 2001 and August 1, 2001 These comments reveal GM and OnStar's knowledge that a

shift away from analog service would harm their customers

64 On or about March 29, 2002, OnStai submitted to the FCC a document entitled,

"Re Ex Parte Submission, In the Matter of the Yea! 2000 Biennial Regulatoi y Review —

Amendment of Pait 22 of the Commission's Rules to Modify or Eliminate Outdated Rules

Affecting Cellular Radio Telephone Service And Other Commercial Mobile Radio Se ices, WT

Docket No 01-108 "

65 In its March 29, 2002 Ex Par to submission, OnStar explicit lyrecognized that a shift

to a digital network infrastructure (to the exclusion of analog network c pability), as was being

contemplated at the time, would adversely affect OnStar customers In this regard, OnStar

submitted to the FCC that

If the Commission uses this pi oceeding to establish or propose a phase out AMPS, OnStar urges the Commission to take into ar count the consequences for the initial owners as well as the second and subsequent osvners of the fleet of vehicles with installed analog systems By the end of model Year 2006, Onstai estimates the industry installed analog base is likely to be six to seven million vehicles On star believes any Commission action establishing a phase out for the analog compatibility requirement should permit these consumers the maximum opportunity to secure the safety, security and other benefits from their investment before implementing regulatory changes that could potentially strand that investment Existing embedded analog systems are not susceptible to being easily replaced with digital technology and compatible antennas

10


With the ownership of a new vehicle averaging three to four years for lessees, and six to seven years for purchasers, the five-year time frame proposed by some commentators in this proceeding is insufficient to allow even the first owners of 2005 or 2006 model year vehicles with analog systems any substantial benefit from the safety and .security features provided by their embedded telematics systems (emphasis added)

66 Following that Ex Parte submission, representatives from OnStar met with

representatives from the FCC to discuss the adverse impact that would be borne by owners and

lessees of vehicles equipped with analog OnStar equipment if a complete switch to an

exclusively digital network infrastructure were to happen Asa follow-up to one of these

meetings, OnStar submitted a letter to the FCC, mernonahzing the discussions between OnStar

and FCC personnel In that May 21, 2002 letter, OnStar again reiterated that

addition, OnStar expressed the belief that any change to the analog compatibility standard should also take into account the investment of the owners of the current fleet of vehicles with analog systems OnStur reiterated its recommendation that the Commission should not take action that would potentially strand that consumer investment before the owners have an opportunity to benefit from the investment for a reasonable period of time considering the average ownership and lease periods of vehicles over their pioduct life

67 Further, OnStar's comments to the FCC acknowledged that the average car had a

lifespan of 8-9 years, and that almost 40 peicent of vehicles on the road %vele civet 10 yea's old

OnStar also acknowledged that the "life saving benefits of OnStar are intended not only for

minal vehicle purchasers but for subsequent owners over the life of the vehicle " OnStar stated

that its analog equipment would not work without an analog wireless phone network

68 On July 30, 2002 the President of GM North America, Gary Cowgci, wrote to the

FCC to say that GM and OnStar were moving to digital equipment, but that the transition would

take at least three years

II


69 Mr Cowger then addressed the "difficult issue of a legacy fleet" and advised that,

due to the cost and practicability, retrofitting future and current vehicles "appears impractical "

70 While GM, through OnSur, told these important facts to the FCC, GM elected not

to tell its customers GM never told its customers that their equipment was analog-only and

would not operate over digital only cellular networks Instead, GM continued to sell its vehicles

with analog telematic equipment and with the promise that its OnStar product would continue to

provide "emergency services "

71 Furthermore, on July 31, 2002, a News Release from GM touted the benefits of a

new version of OnStar by stating that "the next-generation GM automatic crash notification

system linked with OnStar will assist even more customers by taking this potentially hie-saving

sei vice beyond air bag deployments " GM's news release did not mention the fact that its new

system was still analog and would not operate after 2007 That critical tact was not revealed to

GM'S customers

Volkswagen and Honda Statements to FCC:

72 Volkswagen/Audi and Honda also filed comments and objections in attempt to

persuade the FCC to abandon its proposed May 17, 2001 Rule Change

73 On May 2, 2002, Audi filed comments with the FCC asserting that "Audi believes

initial and subsequent owners of these vehicles should have a reasonable opportunity to benefit

from their investment in the safety and security features of these vehicles before the Commission

takes any action that could have the potential effect of stranding their investment" Et Parte

Submission, In the Matter of the Yea, 2000 Biennial Regulatory Review— Amendment of Part 22

of the Coin miscion's Rules to Modify of Eluninate Outdated Rules Affecting Cellulai Radio

Telephone Some and Other Commercial Mobile Radio Servrces, WT Docket No 01-log

12

Case 2 07- d-01867-SFC Document 113 Filed 04/30/2009 Page 13 of 76

74 Thus, Audi argued that if the FCC adopted the May 17, 2001 Rule Change, its

customers who purchased the analog-based OnStar equipment would not be receiving the

benefits of the equipment that they bargained for, as the Rule Change would have th "effect of

stranding their investment "

75 Likewise, on June 24, 2002, Honda filed comments with the FCC stating that

"Honda believes that both the first and subsequent owners of vehicles with embedded telematics

systems should have a reasonable opportunity to benefit from the safety and security features in

which they have invested, prior to any Commission action "Es Parte Submission, In the Matter

of the Year 2000 Biennial Regulatory Review — Amendment of Part 22 of the Commission's

Rules to Modify or Eliminate Outdated Rules Affecting Cellular Radio Telephone Service and

Other Commercial Mobile Radio Services, WT Docket No 01-108

76 Thus, Honda also acknowledged in lune 2002 that its customers with analog-based

equipment would not be receiving the full benefits of OnStar

The FCC Rule Change is Announced

77 On August 24, 2002 the FCC issued a Report and Older announcing that it would

modify its rules to eliminate the requirement that wireless can iers provide analog sei vice for

mobile phone networks The FCC provided for a 5 year transition period, which ended on

Februaiy 18, 2008

78 The FCC Order made it clear that analog service would not be available after

February 2008 The FCC stated that the put pose was to switch all cellular service to digital and

provided for a 5-year sunset provision to allow sufficient time to accomplish this goal For

example, the FCC stated

We need not keep in place a twenty year-old technical standard to ensure roaming, as we ale confident that demand horn consumers for ubiquitous

13


access generally will provide sufficient incentive to cellular earners to resolve problems relating to roaming and interoperability

*

the elimination of the cellular analog requirement will increase the demand for the development and commercial implementation of multimode/inultiband handsets, a process that is already occurring

79 In tact, CTIA (the cellular providers trade association) as well as AT&T and

angular specifically told the FCC that " due to the growth of the mobile telephony services

market and increased competitiveness, the analog standard has served its ongmal purposes and is

no longer necessary " They based their position on the fact that the previous rule requiring

analog cellular sei vice had significant costs and creates inefficiency

80 No ruhng of the FCC or any other agency regulates whether any of the

Manufacturer Defendants or OnStar is permitted to sell an analog OnStar system without

disclosing that the system may be rendered obsolete or inoperable by Defendants' actions

81 Thus, by August 24, 2002, each Manufacturer Defendant and OnStar knew of the

FCC niling, and thus knew or should have known that its analog OnStar equipment wars certain

to become useless and would stop working on February 18, 2008, was not fit for its ordinary and

intended use, and would not perform in accordance with the advertisements, mai Wing materials

and warranties they disseminated, nor with the reasonable expectations of ordinary consumers

82 However, even though all of the Manufacturer Defendants knew that their

equipment would hecome useless in a relatively short period, they intentionally failed to advise

their customers and concealed from them that h OnStar equipment was analog and would not

work as of a date certain, or would require a costly upgrade to function and remain operable

Defendants continued to equip then vehicles with, and provide customer ~, analog equipment, all

14


the whsle touting OnStar as an important safety feature, and with knowledge that they would not

provide or make available compatible equipment, upgrades or repairs

83 On its website OnStar admits that it was aware of the FCC rule change and the

pending loss of analog service In the FAQ (Frequently Asked Questions) section, OnStai lists

the question "Why Didn't OnStar Begin to Utilize Digital Technology Sooner" OnStar's

answer is not that it did not realize that analog technology would not be available, rather,

OnStar's answer is that at the time of the FCC ruling there were competing digital technologies,

and that OnStar could not determine which one would prevail

http //www onstar com/us english/tsp/explore/onstar basics/helpful info sp?in I o view=tech equip

Defendants' Affirmative Representations And Warranties

84 At the time of purchase or lease, Manufacturei Defendants expiessly and implied!),

repiesented to Plaintiffs and the Class that their OnStar equipment would provide safety and

seem ay and would function and he available for the life of their vehicles

85 OnStar, along with the Manufacturer Defendants, designed and prepared "OnStar

Owner's Guides" foi each Manutacturer Defendants' dealers to distribute with OnStai equipped

vehicles at the time of purchase

86 In the OnStar Ownci's Guide, OnStar and the Manufacturer Defendants repiesented

that

OnStar is a safety device that "uses sophisticated technology to

provide the communications link and seamless integration into their vehicle" so that OnStar

"Advisors" can provide plaintiffs with "a range of helpful services to protect [Plaintiffs) and

[their] vehicle",

15


(b) OnStar will put "Safety, Security and Convenience at [plaintiff's'

Fingertips",

(c) "The ease of the hands-free communications service allows

[plaintiff] to enjoy an even greater level of safety, secunty and convenience while driving".

(d) OnStar's service center and Advisors are available "24 houis a

day, seven days a week Even on weekends and holidays, there is always someone ready to

help",

(e) Plaintiffs can renew their Safe & Sound plan "for excellent

protection, 24/7, 365 days a year", and

(f) "If [Plaintiffs) purchased additional years Rif service] or upgiadcd

[their] OnStai service, when 'Plaintiffs] dispose of the vehicle, 'Plaintiffs' may Pollster the

remaining service to the new owner"

87 Al vaiious times, OnStar also told its customcis that OnStai haidwaic was

wan anted as part of the manufacturer's new vehicle limited warranty

GM's Warranties

88 At the time of purchase or lease, GM provided all Plaintiffs and Class member,

with a "Bumper to Bumper" warranty covering "the complete vehicle" for three years or 36,000

Mlles, whichever occurs first These wairanties were expressly extended to subsequent owners

and lessees

89 In its new vehicle and extended warranties, GM expressly iepresenied and

warranted to the puichasers, lessees, and subsequent owners and lessees that during the waiianty

period GM would piovide repaus, upgrades and, it necessary, replacement, to "correct any

vehicle detect related to materials or workmanship" at no cost to them

16


90 In December 2006 GM's North American President, Troy Clark, affirmatively

stated that GM would not "walk away from" its analog OnStar customers or leave them "in the

lurch" These statements expressly extended GM's vanous warranties for its analog OnStar

equipment

VW's Warranties

91 At the time of sale or lease, VW provided Plaintiffs and all Class membei s who

purchased or leased VW vehicles with a new car warranty These warranties provided owners

and lessees with the following

The New Vehicle Warranty period is 4 years or 50,000 miles, whichever occurs first

This warranty covers any repair to correct a manufacturers defect in material or workmanship

Repairs under this wairanty ale tree of charge Your authorized Volkswagen dealer will iepair the detective part of replace it with a new or remanufactured genuine Volkswagen part

92 The New Vehicle Warranty also specifically provided that "OnStai idware is

warranted as part of the New Vehicle Limited Warranty"

93 At the time of purchase or lease, VW expressly and impliedly represented and

warranted to Plaintiffs and the Class that the OnStar equipment in their vehicles was lice of

defects and would be suitable lot use in the OnStar system

Subaru's Warranties

94 At the time of sale or lease, Subaru provided Plaintiffs and all Class members who

purchased or leased Subaru vehicles with a new car warranty These warranties cove' any

17


needed to correct defects in material or workmanship reported during the applicable

warranty period and which occurs under normal use" including "Subaru Optional Acccssones

installed on the car prior to delivery " The "Basic Coverage" is for 3 years or 36,000 miles,

whichever comes first

95 In its new vehicle and extended warranties, Subaru expressly represented and

warranted to the purchasers, lessees, and subsequent owners and lessees that during the warranty

period Subaru would provide repairs, upgrades and if necessary, replacement, to "conect any

vehicle defect related to materials or workmanship" at no cost to them

96 At the time of purchase or lease, Subaru e p sly and implicitly represented and

warranted to Plaintiffs and the Class that the OnStar equipment in their vehicles was free of

defects and would be suitable for use in the OnStar system

Honda's Warranties

97 At the time of sale or lease, Honda provided Plaintiffs and all Class members who

purchased or leased Aetna vehicles with a new car warranty The Aetna win ',tiny stated

Time and Mileage Period

This warranty begins on the date the vehicle is put into use

Your vehicle is covered for 4 yeais or 50,000 miles, whichevei comes fist

Warranty Coverage

Acura will renal' or replace any part that is defective iii material or workmanship under normal use All repairsheplacements made uncle, his warranty are I ee of charge The replaced or iepaircd parts are covered only until this New Vehicle Warranty expires

Accessory Limited Warranty

This warranty applied to any accessory distributed by Amer scan Honda and purchased from an Acura automobile dealer in the United States, Puerto Rico, of the U S Virgin Islands

18



Accessories Installed Prior to Retail Sale:

This warranty begins on the same date as the New Vehicle Limited Warranty (see page I I) All accessories are covered for the length of the New Vehicle Ltmited Warranty 4 years or 50,000 miles, whichever comes first

* * *

Warranty Coverage

Acura will repair or replace any Acura accessory that is defective in material or workmanship under normal use Acura- will decide if an accessory will be repaired or replaced If the accessory was installed by an Acura dealer, all parts and labor costs are covered If the accessory was installed by someone else, the cost of all parts to repair or replace it are covered by Acura, but you must pay the labor cost

98 At the time of purchase or lease, each Manufacturer Defendant expressly and

impliedly represented and warranted to Plaintiffs and the Class that the OnStar equipment in

then vehicles was free of defects and would he suitable for use in the OnStal system

99 Each Manufacturer Defendant's Implied warranties included its custom and practice

of providing repair parts and service for defective safety components for the reasonable life of a

vehicle This custom and practice was part of Plaintiffs' bargain to purchase their vehicles

100 Thus, the OnStar equipment in Plaintiffs' vehicles and the vehicles of all Class

members was covered by their new vehicle warranties and vii loin implied wan antics

Unreasonableness And Unconscionability Of Durational Limitations On Manufacturers' Warranties

101 The Manufacturer Defendants' limitations on their express and implied warranties

were unreasonable and unconscionable in that

(a) OnStar is a safety device

19


(b) The Manufacturer Defendants knew at the time of sale that analog-only.

OnStar equipment would cease functioning at the latest, February 18, 2008

(c) The Manufacturer Defendants knew at the time of sale that analog/digital

dual mode equipment would cease functioning at the latest, February 18, 2008

(d) Plaintiffs reasonably anticipated that safety features provided by the

equipment would last the life of the vehicle

(e) Plaintiffs reasonably believed that the safety features provided by the

equipment could be repaired and/or upgraded and that Defendants would make replacement parts

and service available at least for the anticipated reasonable life of the vehicle, which was

typically 8-10 years

(1) The Manufacturer Defendants knew of Plaintiffs' reasonable expectations

(g) The Manufactui ei Defendants intentionally and knowingly concealed

Plaintiffs at the time of sale that analog-only OnStar devices would fail and could not be

repaued

(h) The Manufacture' Defendants knew at the time of sale that the failure of

analog-only OnStar equipment would remove a safety function of the vehicle and increase the

risk of personal injuly and propeity damage to Plaintiffs

(I)

The Manufacturer Defendants knew at the time of sale that OnStar analog

devices were not mei charitable and not fit for their intended purpose

(1)

The Manufacture! Defendants and OnStar refused to make after-market

pails and upgrades available to convert the equipment from analog to digital

20


(k) It was unconscionable for the Manufacturer Defendants to conceal this

material information about a safety feature and at the same time limit the duration of their

warranties

(1) The durational limitations were Imposed on a take-it-or-leave-it basis and

were not the product of negotiation

(m) Plaintiffs and the class are less sophisticated in business and telematics

technology than Defendants

(n) There was great economic disparity between the parties Plaintiffs had

weak bargaining power vis-a-vis Defendants and did not have access to relevant facts which

were concealed from them

(o) Plaintiffs could not obtain repairs or upgiades from analog to digital

equipment from any other source The Manufactuier Defendants were the sole source of repairs

and/or upgrades to digital, but refused to make them available to Plaintiffs

(p) Ube dui ational limitations were substantively unfair and one sided They

weic imposed by the Manufactuier Defendants based on undisclosed material infoimation

known to defendants but concealed from Plaintiffs•

(q) The durational limitations unreasonably frvored the Manufacturer

Defendants

(r) The dui ational limitations constitute overreaching

Defendants' Refusal to Honor their Warranties

102 Plaintiffs and all Class members purchased and leased their vehicles and purchased

OnStar se, vice for personal, family and household use

21


103 Plaintiffs and the Class have performed all of their obligations with respect to their

OnStar account.,

104 Plaintiffs and all Class members purchased the same or similar defective and

unsuitable analog OnStar equipment, received the same representations, have the same express

and implied agreements for OnStar equipment and warranties, received the same notices of

termination, and have or wilt sustain the same or similar damages

105 The analog OnStar equipment in Plaintiffs' vehicles and all Class members'

vehicles was manufactured with poor workmanship, and at the time of purchase and/or lease was

faulty, defective and dysfunctional These defects and poor workmanship occurred and

manifested themselves during the relevant warranty period and were made known to

Manufacturer Defendants' during the relevant warranty period


vehicles is not suited for its intended purpose and is uninerchantable

107 Defendants have ref used to provide Plaintiffs and all Class members with OnStar

safety and security products as promised, and have failed and refused to provide necessary

repairs

108 Contrary to the Manufactures Defendants written warranties, the Manufacturer

Defendants and OnStar have stated on the OnStar website that they do not believe the imminent

failure of the analog OnStar equipment is covered under any applicable wan anty

Defendants Required Plaintiffs and the Class to Pay for the Fix

109 Beginning in about January 2007, OnStai and the Manufacturer Defendants began

notifying Plaintiffs and the Class that then vehicles had analog equipment and that unless their

22


vehicles were upgraded, their equipment would cease to function and OnStar service would

terminate after December 31, 2007

110 All Manufacturer Defendants and OnStar continued to mislead customers by

claiming that cerain vehicles, with analog-only equipment, could not be upgraded to digital

tOematics when, in fact, they knew such vehicles could be upgraded, but chose not to incur the

costs associated with an upgrade

11 I OnStar's Internet website advised owners, lessees and subscribers with analog-only

equipment that heir systems would not function because "a decision was made (by General

Motors) to support a different network in the cellular Industry

112 When the Defendants belatedly began to inform Plaintiffs and the Class of the

imminent failure of their OnStai equipment, those vehicle owners and lessees with analog/

digital-ready equipment were advised that they could continue to receive OnStar service by

upgrading to analog/digital dual mode equipment for a fee of $15 and entering into a service

agicement for additional years

113 Even though analog cellular service would be available thioughout the country for a

period after January I. 2008, Defendants unilaterally decided to terminate OnStar service and

effectively disable the OnStar equipment in plaintiffs' vehicles and the vehicles of all Class

members as of January I, 2008

114 All class members are either original purchasers or lessees, or are successors and

assignees of the original purchase's and lessees with respect to the rights and claims asserted

herein

115 Plaintiffs believe that Defendants have acted in the same or similar manner with

respect to all Class members

23


116 Solely as a result of Defendants' conduct, Plaintiffs and all Class members were

damaged including, infer alto, costs and expenses to replace and/or repair the analog OnStar

equipment in their vehicles to function with digital cellular service

Facts With Respect to Lost Prepaid Minutes

117 Many OnStar subscribers exercised the option offered by OnStar to prepay for a set

amount of cellular phone SCI vice, or minutes, on their OnStar equipment Class members with

analog-only of analog/digital-ready equipment who had prepaid minutes as of December 31,

2007, when analog service was cut off, lost the value of those minutes OnStar has refused to

credit Class member s who lost prepaid minutes due to the cessation of analog service

118 In 2007 and for many years prior, OnStar offered subscribers the option to prepay

for a set flambe' of cellular telephone minutes ("Prepaid Minutes") for use on then OnStai

equipment

119 Subscribers paid for Prepaid Minutes by authorizing OnStar to charge their credit

cards for the purchase

(a) The transaction would appeal on the subscriber's credit card statement

OnStai did not °vide the subscriber with a paper receipt or record of the transaction, nor any

statement showing the status of the account

(h) After a subscriber purchased Prepaid Minutes, OnStar assigned the

minutes to the subscr iber's ccount and tracked the usage

(c)

When the subscriber's Prepaid Minutes were nearly exhausted, OnStat

sent an electronic message to the subscr iber's OnStar equipment information screen that their

Prepaid Minutes were low and that the subsurber could purchase additional Prepaid Minutes, in

various amounts, and at various prices

24

Case 2 07-md-01867-SFC Document 113 Red 04/30/2009 Page 25 of 76

(d) When analog service was available, subscribers could determine the status

of their account by calling OnStar or by pressing a button on the OnStar device in their motor

vehicle Subscribers with analog-only of analog/digital-ready equipment no longer have access

to their OnStar ccount information They presently have no means of obtaining information

about the status of their account and the number of or dollar amount of unused minutes This

information is in OnStar's exclusive possession and control

120 Many OnStar subscribers exercised the option to purchase Prepaid Minutes

121 Many thousands of class members with analog-only and analog/digital-ready

equipment lost the value of unused Prepaid Minutes in their accounts when OnStar terminated

analog service as of January 1, 2008

122 OnStai gave subscribers no prior notice that if they did not use their Prepaid

Minutes below termination of analog service, their Prepaid Minutes would be lost

123 OnStar failed to disclose to its analog-only or analog/digital-ready subscribers that

unused minutes would be lost and that they would not be entitled to refunds when OnStar analog

service was no longer available

124 In the event that OnStar gave subscribers such disclosures, they were so

inconspicuous, confusing and/or misleading that Plaintiffs could not reasonably understand the

disclosures' purpose or meaning Such disclosures, if any, were substantively and procedurally

unconscionable and invalid

125 OnStar has refused to refund class members with analog-only or analog/digital-

ready equipment who lost Prepaid Minutes due to the cessation of analog service

25


Facts As To Re resentative Plaintiff obnson

126 In March 2005, Plaintiff Bruce Johnson Purchased a Buick Park Avenue sedan with

manufacturer-installed OnStar telematic equipment from Liberty Buick, an authorized GM

dealer in Peoria, Arizona At the time of purchase, Plaintiff Johnson was not told I) the type of

teleinaucs equipment in his vehicle, 2) that the equipment would fail after December 31, 2007,

3) that the Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that he

would have to pay to upgrade analog/digital-ready equipment Mr Johnson also purchased an

extended GM warranty for the vehicle His extended warranty was expressly extended to

subsequent owners and Iessees He has continuously subscribed to the OnStar service since

acquiring this vehicle

127 By torm letter dated February 12, 2007, GM, through Its OnStar subsidiary, advised

Mr Johnson that his OnStar equipment was "analog-only," meaning that it was not capable of

receiving of transmitting . digital signals, that it would not function and would be-completely

inoperable after December 31, 2007 GM further advised that it would not repair, modify or

replace his OnStar equipment

128 On February 12, 2007 Mr Johnson's Buick had less than 36,000 miles and was less

than three years old

Facts as to Representative Pllaintiffjacovelli

129 Plaintiff Jack Jacovelli purchased two GM vehicles, both through DeSimone

Cadillac in Marlton, NJ, an authorized GM dealer He purchased a 2(02 Cadillac DTS on or

about September 2003 and a 2005 Cadillac STS on or about June 2006 At the time of purchase,

Plamulf Jacovelli was not told I) the type of telematics equipment in his vehicles, 2) that the

equipment would fail after December 31, 2007, 3) that the Manufacturer would not fix, repair 01

26


upgrade analog-only devices, and 4) that he would have to pay to upgrade analog/digital-ready

equipment He has continuously subscnbed to the OnStar service since acquiring these vehicles

13D In 2007, by form letters, GM, through its OnStar subsidiary, advised Mr Jacovelli

that with respect to his 2002 Cadillac DTS, his hardware was analog-only, would not function

after December 31, 2007, and that his OnStar service was terminated as of January I, 2008 He

was further advised that GM would not repair, replace or upgrade his OnStar equipment in this

vehicle With respect to his 2005 Cadillac STS, GM advised Mr Jacovelli that his hardware was

analog but could be upgraded to digital for an additional cost of $15 and an additional

subscription lee, and that without the upgrade and additional payment, Mr Jacovelles OnStar

equipment would not work after December 31, 2007 He was further advised that GM would not

repair, replace or upgrade his OnStar equipment without charge At the time, Plaintiff was

subscnber to the OnStar service

Facts AS To Representative Plaintiff Rochow

131 On or about August 19, 2003, MI Rochow purcha ,,ed a 2004 Buick Park Avenue

with manufacturer-installed OnStar telernatic equipment from a GM dealer in Connecticut At

the time of purchase, Plaintiff Rochow was not told I) the type of telematies equipment in his

vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the Manufacturer

would not Inc, repaii of upgrade analog-only devices, and 4) that he would have to pay to

unlade analog/clignal-ieady equipment He has continuously subscribed to the OnStai service

since acquiring this vehicle


132 By form letter dated March 20, 2007, OnStar advised Mr. Rochow that his OnStar

equipment was analog only, would not function after December 31, 2007 and that his service

would be terminated as of that date He was further advised that GM would not repair, replace or

upgrade his OnStar equipment

Facts As To Representative PI intifTNary

133 On or about October 28, 2003, Ms Nary purchased a 2003 Buick Park Avenue with

manufacturer-installed OnStar telemauc equipment from Spitzer Buick-Cadillac in Parma, Ohio

At the time of purchase, Plaintiff Nary was not told I) the type of telernatics equipment in her


would not fix, repair or upgrade analog-only devices, and 4) that she would have to pay to

upgrade analog/digital-ready equipment She has continuously subscribed to the OnStai service


134 By form letter dated February 12, 2007, OnStai advised Ms Nary that her OnStar

equipment was analog-only, would not function after December 31, 2007 and that her OnStar

service was terminated as of January 1, 2008 She was lui thei advised that GM would not repair,

replace or upgrade her OnStar equipment

Facts As To Representative Plaintiffs Nelson

135 In July 2004, Plaintiffs Susan and Nor man Nelson purchased a new 2004 Cadillac

Escalade with manulacturer-installed OnStar telematic equipment from Rydcli GM Auto Center

in Grand Forks, Noith Dakota They also purchased an extended warranty on the vehicle at that

time which is still in effect At the time of purchase, Plaintiffs Nelson were not told I) the type

of telernatics equipment in their vehicle, 2) that the equipment would fail alter December 31,

2007, 3) that the.Manulactuier would not fix, repair or upgrade analog-only devices, and 4) that

28


they would have to pay to upgrade analog/digital-ready equipment They have continuously

subscribed to the OnStar service since acquiring this vehicle

136 By form letter dated April 24, 2007, addressed to Plaintiff Susan Nelson, GM,

through its OnStar subsidiary, advised these Plaintiffs that the hardware on their 2004 Escalade

was analog and will not operate on a digital network unless it is upgraded for an additional cost

of $15 00, plus a new subscription fee of $199 Without ihe upgrade and additional payment, the

letter stated that the OnStar equipment would cease to operate after December 31, 2007

Facts as to Representative Plaintiff Busch

137 On March 9, 2004, Mr Busch purchased a new 2004 Volkswagen Passat from

Heart Chevrolet in Kingston, New York, an authonzed Volkswagen dealer The car had OnStar

telematic equipment as a manufacturer installed option, with a manufacturer sticker puce of

$699 At the time of puichase, Plaintiff Busch was not told I) the type of telematics equipment

in his vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the

Manufacture' would not fix, rep= or upgrade analog-only devices, and 4) that he would have to

pay to upgrade analog/digital-ready equipment

138 In 2007, by form letter, OnStar advised MI Busch that his OnStar equipment was

analog-only, would not function after December 31, 2007, and that his OnStat service was

terminated as of January I, 2008 He was furthei advised that Volkswagen would not repair,

replace or upgiade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStai

service

Facts As To Representative Plaintiffs Gill

139 On February 6, 2003, Mr and Mrs Gill leased a new 2003 Acura 3 5 RL with

nanufacturei installed OnStar telemauc equipment from Acura of Seiramonte, located in Colma,

29


California At the time of purchase, Plaintiffs Gill were not told 1) the type of telematics

equipment in their vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the

Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that they would have

to pay to upgiade analog/digital-ready equipment

140 In 2007, by form letter, OnStar advised Mr and Mrs Gill that their OnStar

equipment was analog-only, would not function after December 31, 2007, and that their OnStar

service was terminated as of January 1, 2008 They were further advised that Acura would not

repan, replace or upgrade their OnStar equipment At the time, Plaintiffs were subscribers to the

OnStar service

Facts As To Representative Plaintiff Irvine

141 On September 11, 2002, Mr Irvine purchased a new 2002 Cadillac Seville with

manufacturer installed OnSta: telematic equipment from Wayne Stead Cadillac, located i n

Walnut Creek, California At the time of purchase, Plaintiff Irvine was not told I) the type of

teiemancs equipment in his vehicle, 2) that the equipment would fail after December 31, 2007,

3) that the Manufactuici would not fix, repan or upgiade analog-only devices, and 4) that he

would have to pay to upgrade analog/digital-ready equipment

142 In 2007, by lot m letter, OnStat advised Mr Irvine that his hardware was analog but

could be upgraded to digital lor an additional cost of $15 and an additional subscription lee, and

that without the upgiade and additional payment, Mr Irvine's OnStar equipment would not work

alter Decembei 31, 2007 and that his OnStar service was terminated as of January I, 2008 He

was further advised that GM would not repair, replace or upgrade his OnStar equipment without

charge At the time, Plaintiff was a subscriber to the OnSiar service

30

Case 2 07-md-01867-SFC Document 113 Filed 30/2009 Page 31 of 76

Facts As To Representative Plaintiff Williams

143 On October 20, 2002, Ms Williams purchased a new 2003 GMC Envoy with

ranufacturer installed OnStar telematic equipment from Marina Pontiac & GMC, located in San

i.candro, California At the time of purchase, Plaintiff Williams was not told 1) the type of

teiematics equipment in her vehicle, 2) that the equipment would fail after December 31, 2007,

that the Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that she


144 In 2007; by form letter, OnStar advised Ms Williams that her hardware was analog

but could be upgraded to digital for an additional cost of $15 and an additional subscription fee,

at)(1 that without the upgrade and additional payment, Ms William's OnStar equipment would

not work after December 31, 2007 and that her OnStat service was terminated as of January 1,

2008 She was further advised that GM would not repair, replace or upgrade her OnStar

equipment At the time, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff Stein

145 In Septembei 2004, Ms Stein leased a new 2004 Cadillac C. I S with manufactuier

ins;al led OnSitir telematic equipment florin Weil Cadillac, located in Libertyville, Illinois At the

tune of purchase, Plaintiff Stein was not told I) the type of telematics equipment in her vehicle,

2) that he equipment would fail after December 31, 2007, 3) that the Manufacture,' would not

fix : :elmr or upgrade analog-only devices, and 4) that she would have to pay to upgrade

analog/digital-ready equipment

146 In 2007, by form letter, OnStar advised Ms Stem that her OnStar equipment was

analog-only, would not function after December 31, 2007, and that het OnStar service was


terminated as of January 1, 2008 She was further advised that GM would not repair, replace or

upgrade her OnStar equipment At the time, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff Hoover

147 On November 9, 2002, Ms Hoover purchased a new 2002 Oldsmobile Intrigue

GLS with manufacturer installed OnStar telematic equipment from Martino Motor Sales, located

in Lansing, Illinois At the time of purchase, Plaintiff Hoover was not told 1) the type of

telematics equipment in her vehicle, 2) that the equipment would fail after December 31, 2007,

3) that the Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that she


148 In 2007, by form letter, OnStar advised Ms Hoover that her OnStar equipment was

analog-only, would not function after December 31, 2007, and that her OnStar service was


upgrade her OnStar equipment At the time, Plaintiff was J subscriber to the OnStar service

Facts As To Representative Plaintiff Nicholas

149 On October 22, 2002, Ms Nicholas purchased a new 2003 Chevrolet Trailblazer

with manufacturer installed OnStar telematic equipment from Graves Chevrolet, Baker,

Louisiana At the time of purchase, Plaintiff Nicholas was not told 1) the type of telematics

equipment in her vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the

Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that she would have

to pay to upgrade analog/digital-ready equipment

150 In 2007, by form letter, OnStar advised Ms Nicholas that her OnStar equipment

was analog-only, would not function after December 31, 2007, and that her OnStar service was

32



upgrade her OnStar equipment At the time, Plaint!! f was a subscriber to the OnStar service

Facts As To Representative Plaintiff &Muter

151 On November 28, 2002, Ms Schueter purchased a new 2002 GMC Yukon XLT

with manufacturer installed OnStar telematic equipment from Frank Bommanto Olds, located in

Missouri At the time of purchase, Plaintiff Schueter was not told I) the type of

telematics equipment in her vehicle, 2) that the equipment would fail after Dccembei 31, 2007,



152 In 2007, by form late!, OnStar advised Ms Schueter that her OnStar equipment

nalog-only, would not function after December 31, 2007, and that her OnStar service was

terminated as of January I, 2008 She was further advised that GM would not repair, replace 01


Facts As To Representative Plaintiffs Tchoukaleff

153 On November 15, 2003, Mi and Mrs Tchoukaleff purchased a new 2004 Cadillac

Escalade with manufacturer installed OnStar telematic equipment from Jim Lynch Cadillac in

Hazelwood, Missouri

154 At the time of puichase, Plaintiffs Tchoukaleff were not told I) the type of

telematics equipment in their vehicle, 2) that the equipment would fail after December 31, 2007,

3) that the Manufacture! would not fix, repair or upgrade analog-only devices, and 4) that they

would have to pay to upgiade andlog/digital-ready equipment By form letter, OnStai advised

Mr and Mrs Tchoukaleff that, with respect to their 2004 Cadillac Escalade, their haidwaie was


33


subscription fee, and that without the upgrade and additional payment, their OnStar equipment

would not work after December 31, 2007 At the time, Plaintiffs were subscribers to the OnStar

service

Facts As To Representative Plaintiff Reich

155 In 2003, Mr Reich purchased a new 2003 Saab 9-3 with manufacturer installed

OnStar telematic equipment from Mike Shaw Buick/Saab in Denver, Colorado At the tune of

purchase, Plaintiff Reich was not told 1) the type of telematics equipment in his vehicle, 2) that

the equipment would fail alter December 31, 2007, 3) that the Manufacturer would not fix, repair

or upgrade analog-only devices, and 4) that he would have to pay to upgrade analog/digital-ready

equipment

156 In 2007, by lorm letter, OnStar advised MI Reich that his OnStar equipment was

analog-only, would not function alter December 31, 2007, and that his OnStar service was

terminated as of January I, 2008 He was further advised that Saab would not repair, replace or

upgrade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStai service

Facts As To Representative Plaintiff Imbierowicz

157 In 2003, Ms Imbierowicz purchased a new 2003 Saab 9-3 from an authorized Saah

dealer with manufacturer installed OnStar telematic equipment At the time of purchase,

Plaintiff Imbierowicz was not told I) the type of telematics equipment in het vehicle, 2) that the

equipment would fail after December 31, 2007, 3) that the Manufacture' would not fix, icpair or

upgrade analog-only devices, and 4) that she would have to pay to upgrade analog/digital-ready

equipment

158 In 2007, by form letter, OnStai advised Ms lmbierowicz that her OnStai equipment


34


ed as of January 1, 2008 She was further advised that Saab would not repair, replace or

upgrade her OnStar equipment At the time, Plaintiff was a subscnber to the OnStar service

Facts As To Representative Plaintiff Kuller

159 On October 16, 2003, Mr Kuller purchased a new 2004 Acura RL with

manufacturer installed OnStai telernatic equipment from Hinshaw's Acura, located in Fife,

Washington At the time of purchase, Plaintiff Kuller was not told 1) the type of telemancs

equipment in his vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the

Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that he would have to


160 In 2007, by form letter, OnStar advised Mt Kuller that his OnStar equipment was

analog-only, would not function after December 31, 2007, and that his OnStar service was

terminated as of January I, 2008 He was further advised that Acura would not repair, replace or

upgrade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStai service

Facts As To Repr

tatrve Plaintiff Allenson

161 In August 2003, Mr Allenson purchased a new 2003 Aetna TL with manufacturer

installed OnStar telematic equipment from Acura of Westchester, located in Latchmont, New

York At the time of purchase, Plaintiff Munson was not told I) the type of telematics

equipment in his vehicle, 2) that the equipment would tail after Decembei 31, 2007, 3) that the



162 In 2007, by form letter, OnStar advised Mr Allenson that his OnStat equipment

was nalog-only, would not function after December 31, 2007, and that his OnStai uti vice was

35

Case 2 07-md-01867-SFC. Document Filed 04130/200 9 Page 36 of 76

terminated as of January 1, 2008 He was further advised that Acura would not repair, replace or

upgrade hi OnStar equipment At the time, Plaintiff was a subsuiber to the OnStar service

Facts As To Representative Plaintiff Golish

163 On May 15, 2005, Mt Golish purchased a new 2005 Volkswagen Phaeton with

manufacturer installed OnStar telematic equipment from Commonwealth VW in Costa Mesa,

California At the time of purchase, Plaintiff Golish was not told I) the type of telematics

equipment to his vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the



164 In 2007, by form letter, OnStar advised Mr Golish that his OnStar equipment was

a a og-only, would not function after December 31, 2007, and that his OnStai service was

terminated as of January 1, 2008 He was further advised that Volkswagen would not repair,

replace or upgrade his OnStai equipment At the time, Plaintiff was a subsei ihei to the OnStai

service

DELETED SECTION

165 DELFT ED

166 DELETED

Facts As To Representative Plaintiff Va mos

167 On February 28, 2004, MI Vamos purchased a new 2004 Volkswagen Passat

Wagon with manufacturer installed OnStar telematic equipment from VW of Onenta, located in

Oneonta, New York At the time of purchase, Plaintiff Vamos was not told I) the type of

telem ties equipment to his vehicle. 2) that the equipment would tail diet December 31, 2007,

36

Case 2 07-md 67-SFC Document 113 Filed 04/30/2009 Page 37 of 76



168 In 2007, by form letter, OnStar advised Mr Vamos that his OnStar equipment was



replace or upgrade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStar

set vice

Facts As To Representative Robert Schatt

169 On September 30, 2003, Mr Schatz purchased a new 2004 Audi A4 from

McDonald Automotive, located in Littleton, Colorado The Audi had OnStar telematic

equipment as a manufacturer installed option, with a manufacturer sticker puce of $750 At the

iimc of purchase, Plaintiff Schatz was not told I) the type of telematics equipment in his

2) that the equipment would fail after December 31, 2007, 3) that the Manufacturer

would not fix, repair or upgiade analog-only devices, and 4) that he would have to pay to

upgt ade analog/digital-ready equipment

170 In 2007, by lorm leitei, OnStai advised MI Schatz that his OnStai equipment was

analog-only, would not function after December 31, 2007, and that his OnStat service was

terminated as of January I, 2008 He was further advised that Audi would not repair, replace or

upgiade his OnStar equipment At the time, Plaintiff was a subsenbei to the OnStar service

Facts As To Representative Plaintiff forum

171 in January 2004, Mr Borum purchased a new 2004 Subaru Outback with

manufacturer installed OnStat telematle equipment holm RK Cheviolet & Subaru, located in

Virginia Beach, Virginia At .the time of purchase, Plaintiff Boi um was not told 1) the type of

37

Case 2 7 d-01867-SFC Document 113 Filed 04/30/2009 Page 38 of 76

teleinatics equipment in his vehicle, 2) that the equipment would fad after December 31, 2007,



172 In 2007, by form letter, OnStar advised Mr Borum that his OnStar equipment was


lei minated a% of January 1, 2008 He was further advised that Subaru would not repair, replace

or upgrade his OnStar equipment Ai the time, Plaintiff was a subscriber to the OnStar service

Facts As To Repre tative Plaintiffs Erdenberger

173 On September 2, 2003, Mr and Mrs Erdenberger purchased a new 2003 Subaru

gacy with manufacturer instance OnStar telematic equipment from Glanzakinn Subaru,

located in Jenkintown, Pennsylvania At the time of purchase, Plaintiffs Erdenberger were,not

told 1) the type of telemaucs equipment in their vehicle, 2) that the equipment would fail after

December 31, 2007, and, 3) that the Manufactuter would not fix, repair of upgrade analog-only

devices

174 In 2007, by form 'cite'. OnStai advised Mr and Mis Erdenberger that their OnStai

equipment was analog-only, would not function aftei December 31, 2007, and that their OnStar

service was terminated as of January 1, 2008 They were further advised that Subaru would not

repair, ieplace or upgrade their OnStar equipment At the time, Plaintiffs were subscribers to the

OnStar service

Facts As To Representative Plaintiff Kemp

175 On February 13, 2004, MI Kemp purchased a new 2004 Subaru Outback with

manufacturer installed OnStar telematic equipment from Kendall Subaru, located in Eugene,

Oregon At the tune of purchase, Plaintiff Kemp was not told 1) the type of telematics

38



Manufacturer uld not fix, repair or upgrade analog-only devices, and 4) that he would have to


176 In 2007, by form letter, OnStar advised Mr Kemp that his OnStar equipment was


terminated as of January 1, 2008 He was further dvised that Subaru would not repair, replace

or upgrade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff' Reishman

177 In May 2004, Mr Reishman purchased a new 2004 Audi A8 with manufacturer

installed OnStar telematic equipment from Bert Wolfe Audi, located in Charlestown, West

3 irginia At the time of purchase, Plaintiff Reishman was not told 1) the type of telematies

equ ipment in his vehicle, 2) that the equipment would fail alter Decernbei 31, 2007, 3) that the

vlanufactuiei would not fix, repair or upgrade analog-only devices, and 4) that he would have to

pay to upgiade analogicligital-icady equipment

178 In 2007, by form lettei, OnSuu advised Mr Reishman that his OnStar equipment

was analog-only, would not function alter December 31, 2007, and that his OnStar service was

terminated as of Januai y 1, 2008 He was fuither advised that Audi would not repair, replace or

upgi.ide his OnStai equipment At the time, Plaintiff was a subsenbe, to the OnStar service

Facts As To Representative Plaintiff Rhodes

179 On March 29, 2004, plaintiff Janice Rhodes lease-purchased a new Chevrolet

Avalanche with manufacture' installed OnStat telematic equipment from Kool Chevrolet, an

authorized GM dealer in Grand Rapids, Michigan The purchase was completed on December 8,

2006 At the time, Plaintiff Rhodes was not told I) the type of tele atics equipment in her

39


vehicle, 2) that the equipment would fail after December 31, 2007, and 3) that the Manufacturer

would not fix, repair, or upgrade analog-only devices

180 In 2007, OnStar advised Ms Rhodes by form letter that her OnStar equipment was

analog-only, would not function after December 31, 2007, and that her service would terminate

as of January I, 2008 She was further advised that GM would not repair, replace or upgrade her

OnStar equipment At the time, Ms Rhodes was a subscriber to the OnStar service

Facts As to Representative Plaintiffs Roberti

181 On March 21, 2004, the Rubertts purchased a new 2004 Subaru Outback from

Appleway Automotive Group in Spokane Washington Their vehicle came equipped with

OnStar telematic equipment At the tune, the Rubertts were not told I) the type of telematics

equipment in then vehicle, 2) that the equipment would fail after December 31, 2007, and 3) that

the Manufacturer would not fix, repair, 01 upgrade analog-only devices

182 In 2007, OnStar advised the Rubertts by form letter that their OnStai equipment

was analog-only, would not function idle' December 31, 2007, and that their service would

terminate as of January I, 2008 They were further advised that GM would not repair, replace or

upgrade their OnStai equipment At the lime, the Rubbers were subscribeis to the OnStar

set vice

183 From the lime of purchase until about Decembei 31, 2007, the Rubertts were •

OnStar subscnbers

184 As OnStar subscnbers, the Rubertts would from time to time purchase prepaid

minutes from OnStar

185 On December 12, 2007, the Rubertts purchased 30 Prepaid Minutes for the sum of

$17 62 OnStar charged the purchase o the Rubertts' credit card

40


186 On or about January I, 2008, the, Rubertts' OnStar analog service and equipment

ceased to function At the nine, the Rubents had 34 Prepaid Minutes remaining in their account

187 Since January I, 2008 the Rubertts have been unable to upgrade or repair their

analog OnStar equipment

188 At no time prior to January 1, 2008 did OnStar notify the Rubertts that they would

lose any Prepaid Minutes that were not used prior to their analog Onstar service and equipment

ceasing to function

189 The Rubertts have asked OnStar to reimburse them for the cost of their unused

Prepaid Minutes, but OnStar has failed and refused to do so

Estoppel From Pleading and Tolling of Applicable Statutes of Limitation

190 Any applicable statute of limitations that might otherwise bar Plaintiffs' and Class

members' claims should be tolled because notwithstanding the exercise of due diligence,

Plaintiffs and the Class could not reasonably have been expected to learn of discover the fact that

Defendants had concealed material information conceining the telematic equipment Therefore,

the claims bemg asserted by Plaintiffs and the Class present the archetypical scenario in which

the discovery rule is applicable

191 Defendants are also estopped from relying on any statutes of limitation by virtue of

their acts of fraudulent concealment

192 By reason of the FCC's proposed rule making and the Manufacturer Defendants

and OnStar's participation in those rule making proceedings, Manufacturer Defendants and

OnStar knew of should have known that analog OnStar equipment would not function after

February I8, 2008 and that they intended to shut down OnStar service as of December 31, 2007

41


Notwithstanding this knowledge, Manufacturer Defendants and OnStar concealed from owners

and lessees of OnStar equipped vehicles the Impending failure of their OnStar equipment

Class Action Allegations

193 Plaintiffs bring this action individually and on behalf of the following classes

GM Class

All individuals and entities in the United States who, as of December 31, 2007, either

owned or leased a GM vehicle originally sold or leased on or after August 8, 2002 and equipped

with analog-only or analog/digital-ready OnStar equipment which had not been upgraded or who

paid for art upgrade on or before December 31, 2007

VW Class


owned or leased a VW vehicle originally sold or leased on or after August 8, 2002 and equipped

with analog-only of analog/digital-ready OnStar equipment which had not been upgraded or who

paid for an upgiade on or betoie Decetubei 31, 2007

Honda Class


owned or leased a Honda vehicle originally sold or leased on or after August 8, 2002 and

equipped with analog-only at analog/digital-ready . OnStar equipment which had not been

upgraded or who paid for an upgrade on or before December 31, 2007

Subaru Class


owned or leased a Subaru vehicle originally sold or leased on or after August 8, 2002 and

42


equipped with analog-only or analog/digital-ready OnStar equipment which had not been


OnStar Class

All individuals and entities in the United States who were OnStar subscribers and, as of

December 31, 2007, owned or leased a vehicle originally sold or leased by GM, VW, Honda or

Subaru on or after August 8, 2002 and equipped with analog-only or analog/digital-ready OnStar

equipment which had not been upgraded or who paid for an upgrade on or before December 31,

2007

Lost Prepaid Minute Class (Against OnStar Only)

All individuals and entities in the United States who, as of December 31, 2007, I) were

OnStar subscribers, 2) owned or leased a motor vehicle with analog-only of analog/digital-ready

OnStar equipment, and 3) had unused Prepaid Minutes on account with OnStar

194 Excluded from all Classes are OnStar, GM, VW, Subaru and Honda, and any of

then respective subsidiai les, affiliates, officers and directors, or entities in which any Defendant

has a controlling interest

195 Plaintiffs reserve the right to modify the Class definitions at any time up to and

including trial

196 Numerosity The Classes are so numerous that ioindet of all members is

impracticable

GM

GM sold and installed as original factory'equipmem OnStai equipment to

persons in the United States who purchased or leased Chevrolet, Pontiac, Oldsmobile, Buick,

Cadillac, GMC, Saturn and Saab model vehicles

43


(b) There are over 450,000 OnStar subscribers who own or lease GM vehicles

equipped with analog-only equipment who have received notice of termination, who will have

stranded investments in then motor vehicles, and who may be stranded on the highways and

exposed to an increased risk of serious personal injury and harm if GM does not repair and/or

replace their analog OnStar equipment or arrange for continued OnStar service

(c) There are approximately 1,500,000 OnStar subscribers who own or lease

GM vehicles with analog equipment who will require costly upgrades for then equipment to

function and to receive service after December 31, 2007

VW

(d) VW sold and installed as original factory equipment OnStar equipment to

persons in the United States who pui chased or leased Audi and Volkswagen model vehicles

(e) Plaintiffs believe that there are thousands of OnStar subscribeis who own

or lease VW vehicles equipped with analog-only equipment who have e ved notice of

termination, who will have stranded investments in then motor vehicles, and who may be

stranded on he highways and exposed to an increased iisk of senous personal minty and harm if

VW does not iepair and/or replace their analog OnStar equipment or arrange toi continued

OnStai service Indeed, an Affidavit from David DiMusto, an OnStar OEM Account Manager,

states that Audi sold 22,300 vehicle with analog-only OnStar equipment awing the relevant time

period

(0 Plaintiffs believe that there ale thousands of OnStar subscribers who own

or lease VW vehicles with analog equipment who will require costly upgrades for their

equipment to function and to receive service after December 31, 2007

44


Subaru

(g) Subaru sold and installed as original factory equipment OnStar equipment

to persons in the United States who purchased or leased Subaru motor vehicles

(h) Plaintiffs believe that there are thousands of OnStar subscribers who own

r tease Subarus equipped with analog-only equipment who have received notice of termination,

who will have stranded investments m their motor ehicles, and who will be stranded on the

highways and exposed to an increased risk of serious personal injury and harm if Subaru does

ot repair and/or replace their analog OnStar equipment or arrange for continued OnStar service

(I) Plaintiffs believe that there are thousands of OnStar subscribers who own

or !ease Subaru% with analog equipment who will iequite costly upgrades for their equipment to

itinLtton and to receive service aftei December 31, 2007

Honda

I londa sold and installed as original factory equipment On Star equipment

to persons in the United States who purchased or leased Honda motor vehicles

(k) Plaintiffs believe that there are thousands of OnStar subscnbeis who own

or lease Hondas equipped with analog-only equipment who have received notice of termination,

who wi11 have stranded investments in their motor vehicles, and who will be stranded on the

highways and exposed to an increased risk of serious personal injury and harm if Honda does not

repair and/or replace their analog OnStar equipment or arrange for continued OnStar service

(1) Plaintiffs believe that there are thousands of OnStar subscnbets who own

of lease llondas with analog equipment who will require costly upgrades for their equipment to


45


OnStar

(m) believe there are millions of persons who were OnStar

subscribers and, as of December 31, 2007, owned or leased a vehicle originally sold or leased by

GM, VW, Honda or Subaru on or after August 8, 2002 and equipped with analog-only of

analog/digital-ready OnStar equipment which had not been upgraded or who paid for an upgrade

on or before December 31,2007

Lost Prepaid Minutes

(n) Plaintiffs believe that there are thousands of OnStar subscribers with

analog-only or analog/digital-ready who had unused Prepaid Minutes when their analog OnStar

equipment ceased to function on or about January 1, 2008

197 Commonality There are numerous questions of law and fact that am common to all

Class members and that predominate over individual questions, if any

(a) Common questions of fact include but are not limited to

All Class members purchased or leased a vehicle with analog

Onstar equip e

(ii) OnStar equipment is a consumer product for all class membeis

(m) All Class membeis' OnStar equipment was defective and not

suited for use with the On Sta ystem

(iv) All Class members' OnStar equipment will not function after

December 31,2007

(v) Each Manufacturer Defendant and OnStar made the same or

similar express and implied representations and warranties to all Class members

46


(vi) Each Manufacturer Defendant maintained the same or similar

customs, policies and practices regarding service and repairs for safety components

(vii) Each Manufacturer Defendant and OnStar concealed and failed to

disclose the same mfonnation regarding the defects in its analog OnStar equipment

(viii) Each Manufacturer Defendant and OnStar concealed and failed to

disclose termination of analog service to their subscribers with analog OnStar equipment

(ix) All Class members were given the same or similar notices of

termination of analog service

(x) Each Manufacturer Defendant ieluses to provide Class members

with repairs, replacements, devices or other means to receive OnStar digital service

All Class members have suffered the same or similar damage as a

result of Defendants' conduct

(xii) All class members with Piepaid Minutes lost the value of their

prepaid 'mutes when their OnStar service and equipment ceased to function,

(ion) OnStai concealed and failed to disclose to all OnStar subscribers

with Prepaid. Minutes that they would lose the value of their Prepaid Minutes if they were not

used prior to December 31, 2007,

(xiv) OnStar has failed to and iefused to provide refunds to any class

member with unused Piepaid Minutes,

(xv) All Defendants concealed and failed to disclose that they would

not repair or upgrade analog only OnStar equipment,

(xvi) All Defendants concealed and failed to disclose that they would

charge to repair or upgrade analog/digital ready OnStar equipment

47


xvii) OnStar concealed and failed to disclose that it would not provide

refunds to OnStar subscribers with unused Prepaid Minutes

(b) Common questions of law include but are not limited to

(I)

Is Michigan law applicable to all Class members and all claims?

(n) Did all Manufacturer Defendants and OnStar engage in unfan and

deceptive trade practices under the Michigan Consumer Protection Act ("MCPA")?

(in) Did each Manufacturer Defendants and OnStar fail to disclose

and/or omit material facts relating to their OnStar equipment')

(iv) Did each Manufacturer Defendant breach its express warranties?

(v) Did each Manufacturer Defendant breach its implied waiianties of

meichantabrlity?

(vi) Did all Manufacturer Defendant breach its implied wallantics of

fitness for particular purpose?

(vii) Are the Manufacturer Defendants and OnStar legall y iesponsible

for the Class' damages?

(y in) Alternatively, did each Manufacturer Defendant engage in unfair

and deceptive tiade practices under the laws of each state?

(ix) Did the Defendants' representations, omissions • and practices

violate the Michigan Consumer Protection Act?

(x) Did the Defendants' representations, omissions and piactices

violate the consumer protection laws of vat lowr other states')

(xi) Ate the du rational limitations on warranties of GM, Honda, Subaiu

and VW unconscionable?

48


(xii) With respect to class members with claims for lost Prepaid

Minutes

(1) Did OnStar breach its implied contract?

(2) Was OnStar unjustly enriched?

(3) Is OnStar liable for equitable or legal restitution?

(4) Is OnStar liable for money had and received?

(5) Did OnStar's representations, omissions and practices



violate the consumer protection laws of various other states?

198 Typicality Plaintiffs' claims are typical of the claims of Class members Plaintiffs

are members of the Class Plaintiffs are asserting the same rights, making the same claims, and

seeking the same rebel for themselves and for all other Class members

199 Adequate and Fair Representation Plaintiffs will fairly and adequately represent

and protect the interests of the class Plaintiffs have no interests that conflict with or winch are

adverse to the interests of other class members Plaintiffs have retained qualified counsel who

are able and experienced in class action litigation

200 Fairness and Efliciency A class action is a fair and efficient method to adjudicate

this controversy

(a) Common questions of law and fact predominate over individual questions

(b) The claims of Plaintiffs and the Class are based on the same common

nucleus of operative facts Plod of Plaintiffs' claims will effectively piove the claims of al l other Class members

49


(c) Resolution of the claims of the Class will depend on the application of

common principles of law

(d) A class action will permit a large number of relatively small chums

involving similar facts and legal issues to be resolved efficiently in one proceeding based on

common proof

(e) This cavt is manageable as a class action in that

The material evidence is relatively simple and centialized

(11) Manufacturer Defendants and OnStar maintain computer and

business records which will enable Plaintiffs to identify Class members and establish liability and

damages

(iii) Damages for Class members can be calculated in the same or

similar manner

(iv) The claims of individual Class members are not sufficiently large

enough to support litigation on an individual, ciae-by-case basis

(v) A class action will result in an orderly and expeditious

administration of claims and will foster economies of time, effort and expense

(vi) A class action will contribute to unilormity of decisions

concerning Defendants' conduct

(vii) This class action is the best available method, and indeed the only

realistic method, by which Plaintiffs and the Class can seek redress for the harm caused by

Defendants

50


Count 1 Plaintiffs and The Classes v. All Defendants

Violations Of The Michigan Consumer Protection Act

201 Plaintiffs incorporate all other paragraphs of the Complaint by reference

202 As Plaintiffs and all Class members used their Manufacturer Defendants' vehicles

and OnStar equipment and service for personal, family and household purposes, the

Manufacturer Defendants and OnStar engaged in trade or commerce within the meaning of the

MCPA §445 902(g)

203 Plaintiffs and all other Class members who purchased vehicles manufactured by

Manufacturer Defendants are consumers and each of the Manufacturer Defendants and OnStai are

sellers and theiefore subject to the MCPA

204 Manufacturer Defendants' and OnStar's statements, representations, omissions, and

practices made in connection with their sale or lease of OnStar equipment and sel vice as alleged

herein were in violation of the following sections of the MCPA § 445 903

a § 445 903(c) by representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they do not have or that a person has sponsorship, approval, status, affiliation, or connection, which he does not have

§ 445 903(n) by causing a probability of confusion or of misunderstanding as to the legal rights, obligations or remedies of a party to a transaction

c § 445 903(p) by disclaiming or limiting the implied warranty of merchantability and fitness for use, without clearly and conspicuously disclosing a disclaimer

d § 445 903(s) by failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer

e 445 903(bb) by making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affaii s to be other than it actually is

51


t § 445 903(cc) by failing to reveal facts which are material to the transaction in light of representations of fact made in a positive manner

g §445 903(g) by failing to advertise or represent goods and services with intent not to dispose of them as advertised and represented

h §445 903(y) by failing to provide promised benefits and making gross discrepancies between oral and written representations

205 Defendants' unilateral decision to render the Class' OnStar systems obsolete

• effective January I, 2008, to wait to disclose to customers that their analog systems will be

obsolete and that they will be without OnStar service,. their refusal to upgrade or wow analog

OnStar systems without charge, and their refusal to compensate Class members also amounts to

unfair, unconscionable and/or deceptive busmess practices in violation of the MCPA

206 Defendants' violations of the MCPA proximately caused damages to Plaintiffs and

Class members who purchased or leased vehicles manufactured by GM, VW, I londa and Subaru

and will cause them to suffer imminent harm and loss, including but not limited to

(a) the amount paid for their OnStar equipment and pi epaid minutes,,

(b) the cost lor repair, replacement or upgrade,

(c) additional tees and costs to renew service, and

(d) their inability to obtain OnStar service after December 3I, 2007

WHEREFORE, Plaintiffs, individually and on behalf of all Class mmembets, request

judgment in then favor and against each Defendant, jointly and severally with OnStar, and

icquest the following relief

(a) ceinfication of the Class, the appointment of Plaintiffs as class

representatives, and the appointment of Plaintiffs' counsel as class counsel,

(b) compensatory damages for the Class to he determined at it ial, together

with interest, costs and attorneys fees,

52


(c) exemplary damages, and

(d) such other relief as may be Just, necessary or appropriate

COUNT I — A Plaintiffs and the Classes v. OnStar

Violation of the Michigan Consumer Protection Act Lost Prepaid Minutes

207 Each of the preceding paragraphs is incorporated by reference as though fully set

forth herein

208 OnStar's statements, representations, omissions and practices made in connection

with the sale of Prepaid Minutes were in violation of the following sections of the MCPA

(a) Section 445 903(c) by representing that Prepaid Minutes have

chat acteristics, uses, benefits or quantities, which they do not have

(b) Section 445 903(n) by causing a probability of confusion or of

misunderstanding as to the legal rights, obligations or remedies of a party to a transaction for the

purchase of Prepaid Minutes

(c) Section 445 903(cc) by failing to reveal facts which are material to the

transaction for the purchase of Piepaid Minutes in light of tepresentations of tact made in a

positive manner

(d) Section 445 903(g) by adveitising or representing Prepaid Minutes with

intent not to dispose of them as advertised and represented

209 OnStar's decision to sell Prepaid Minutes to subscribers with analog-only or

analog/digital-ready equipment without notice that the subscribers would lose those minutes after

December 31, 2007, and OnStar's lefusal to provide refunds, amount to unfair, unconscionable

and/or deceptive business practices in violation of the MCPA

53


210 OnStar's violations of the MCPA proximately caused damages to Plaintiffs and

class members who purchased Prepaid Minutes and will cause them to suffer imminent harm and

loss, including but not limited to the amount paid for Prepaid Minutes

WHEREFORE, Plaintiffs individually and on behalf of all class members with analog-

only or analog/digital-ready equipment and unused Prepaid Minutes, request judgment in their

favor and against OnStar, and request the following relief

(a) certification of the Class, the appointment of Plaintiffs as class

representatives and the appointment of Plaintiffs' counsel as class counsel,

(b) compensatory damages for the Class to be determined at teal, together

with interest costs and attorney's fees,

(c) exemplary damages except with respect to damage% caused to Plaintiffs

n11(1 members of the Class in the State of New York (per February 19, 2009 Opinion and Older

GI antmg In Part And Denying In Part Defendants' Motions to Dismiss),

(d) such other rebel as may be just, necessaiy or appiopi late

Count II Plaintiffs and the Classes v. All Defendants Unfair and Deceptive Trade Practices In

Violation Of All States' Consumer Protection Acts


forth herein

212 Alternatively, each Manufacturer Defendant's and OnStar's actions, as complained

of herein, constitute unfair competition or unfair, unconscionable, deceptive of fraudulent acts or

pi acmes in violation of various state consumer protection statutes listed below

(a) Each Manufacturer Defendant and OnStar have engaged in unfair

competition of unlaii ca deceptive acts or practices in violation of Ala Code § 8-19-I, el sec] ,

54


(b) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Alaska Stat Code 45 50 471,

el seq ,

(c) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ariz Rev Stat § 44-1522, et

seq ,

d) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ark Code § 4-88-101, et seq ,

(c)

Each Manufactiner Defendant and OnStar have engaged in unfair

competition or untan or deceptive act% or practices in violation of Cal Bus & Prof Code §

17200, er seri and the Consumers legal Remedies Act, Cal Bus & Prof Code § 1750, et seq ,

(f) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts of practices or have made false representations in:

violation of Colo Rev Stat § 6-1-105, et seq ,

(g) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts of practices in violation of Conn Gcn Stat § 42-I I0b, et

seq

(h) Each Manutactuicr Defendant and OnSiar have engaged in unfair

competition or union or deceptive acts or practices in violation of 6 Del Code § 2511, et seq ,

Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices or made false tepiesentation% in violation tif

D C Code § 28-3901, et seq ,

55


(1) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Fla Stat § 5W 201, et seq ,

(k) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ga Stat § 10- 1 -392, et seq ,


competition or unfair or deceptive acts or practices in violation of Haw Rev Stat § 480, et seq ,

(m) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Idaho Code § 48-601, et seq ,

(n) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of the Illinois Consumer Fraud

and Deceptive Business Pi acmes Act, 815 ILCS § 505/I, et 4eq ,

(o) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of hid Code Ann § 24-5-05 I,

et ice',

(p) Each Manufacturer Defendant and OnStar have engaged in un a ir

ti on or unlan or deceptive acts of practices in violation of Iowa Code § 714 lb, et seq

(q) Each Manufacturer Defendant and OnStai have engaged in unfan

corn on or unfair or deceptive acts or practices to violation of Kan Stat § 50-623, et ,seq .

(r) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ky Rev Stat § 367 110, et

seq ,

56


(s) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of La Rev Stat § 51 1401, et

seq ,

(t) Each Manufacturer Defendant and OnStai have engaged in unfair

competition or unfair or deceptive acts or practices in violation of 5 Me Rev Stat § 207, et seq ,

(u) Each Manufacturer Defendant and OnStar have has engaged in unfair

competition or unfair or deceptive acts or practices in violation of Md Cont Law Code § 13-

er seq ,

(v) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive act', or practices in violation of Mass Gen L Ch 93A, et

eq

(w) Each Manufactuier Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practiLes in violation of Minn Stat § 325F 67, et seq ,

(x) Each Manufactuier Defendant and OnStar have engaged in unfair

competition or unlan or deceptive acts or practices in violation of Miss Code Ann § 75-24-1, el

seq ,

(y) Each Manufacturer Defendant and OnStar have engaged in unfau

competition or unfair or deceptive acts of practices in violation of Vernon's Mo Rev Stat §

407 010, et seq ,

(z) Each Manufactuier Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Mont Code § 30-14-101, et

seq,

57


(aa) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts oi practices in violation of Neb Rev Stat § 59-1601, et

seg ,

(bb) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts of practices in violation of Nev Rev Stat § 598 0903, es

seq ,

(cc) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N 1-1 Rev Stat § 358-A I, et

seg ,

(dd) Each Manufacturer Defendant and OnStar have engaged in unfair

competition oi unfair, unconscionable of deceptive acts or practice ,. in violation of N J Stat

Ann § 56 8-1, et seq ,

(ee) Each Manufacturer Defendant and OnStar have engaged in unfair

competition oi unfaii or deceptive act', oi practices in violation of N M Stat Ann § 57-12-I et

seq ,

(It) Each Manufacture' Defendant and OnStar have engaged in unfair

competition or nfair or deceptive acts oi practices in violation of N Y Gen Bus Law § 349, el

seg ,

(gg) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N C Gen Stat § 75-I 1, et

seg

58


(hh) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N D Cent Code 51-15-01,

et seq ,

(a) Each Manufacturer Defendant and OnStai have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ohio Rev Stat § 1345 01, el

seq ,

(A) Each Manufacturer Defendant nd OnStar have engaged in unfair

competition or unfair or deceptive acts or practices or made false representations in violation of

Okla Stat tit 15 751, et req ,

(kk) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Or Rev Stat § 646 605, el

seq ,

(II) Each Manufacturer Delendant and OnStat have engaged in unfair

competition or unfair or deceptive acts or practices in violation of 73 Pa Stat 201-I, el seq .

(mm) Each Manufacturer Defendant and OnStar have engaged in- unfair

competition or unfair or deceptive acts of practices in violation of R I Gen Laws 6-13 I-I, el

req

(nn) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of S C Code Laws 39-5-10, el

seq ,

(oo) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of S D Code Laws § 37-24-1, el

seq , -

59

Case 2 07-md-01867 -SFC Document 113 Filed 04/30/2009 Page 60 of 76

(pp) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Tenn Code k 47-18-101, et

req ,

(c1(1) Eac Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive or practices in violation of Tex Bus & Corn Code * 17 41, el

req ,

(rr) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or pi acmes in violation of Utah Code Ann * 13-1 1-1, et

seq.

(ss) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or dec ptive acts or practices in violation Vt Stat Ann tit 9, § 245 1, et

seq,

(tt) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfan or deceptive acts or practices in violation of Va Code tz, 59 1-196, ,et

(uu) Each Manufacturer Defendant and OnStar have engaged in unfair

competition ca unfair, deceptive or fraudulent acts or practices in violation of Wash Rev Code

§ 19 86 010, er seri ,

(vv) Each Manufacturer Defendant and OnStar have engaged in unfair

competition oi unfair or deceptive acts or practices in violation of W Va Code § 46A-6-101 , et

seq,

(ww) Each Manufacturer Defendant and OnStar have engaged in unfair

competition oi unfair at deceptive acts or practices in violation of Wis Stat § 100 20, et sec/ ,

and

60


(xx) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Wyo Stat § 40-12-100,et seq

213 Defendants' violations of the state consumer protection statutes listed above

proximately caused damage to Plaintiffs and members of the Class

WHEREFORE, Plaintiffs, individually and on behalf of all Class members, request

judgment in their favor and against all Defendants, and request the following relief

(a) certification of the Plaintiff Class, the appointment of Plaintiffs as Class


(b) compensatory damages for the Class to be determined at trial, together

with interest, costs and attorney

(c) exemplary damages, except with respect to damages caused to Plaintiffs

and members of the Class in thc State of New York, and

(d) such other relief as may be just, necessary or appropriate

Count III Plaintiffs and the Classes v. All Manufacturer Defendants

Breach of Express Warranty


215 Each Manufacture! Defendant expressly warranted to Plaintiffs and all other Class

members who puichased or leased their vehicles that the OnStar equipment in their vehicle

would be free of detects in workmanship and materials during the warranty penod, and that the

Manufacturer Defendant would repair or replace such defective equipment at no cost to Plaintiffs

and all other Class membeis

61


216 The OnStar equipment in all of the Manufacturer Defendants' vehicles purchased or

leased by plaintiff and other Class members was covered by their new motor vehicle warranties

The OnStar equipment in many Class members' vehicles was covered by an extended warranty

217 At the time that Class members were given notice that their OnStar equipment was

defective, numerous Class members were within the mileage and term of then ongmal and

extended warranties

218 The OnStar equipment sold and delivered to Plaintiffs and all other Class members

was manufactured with faulty and defective workmanship and materials, are defective, and will

not function and will not perform its intended purpose during the warranty period

219 The OnStar equipment would not function during the reasonable life expectancy of

plaintiffs' vehicles

220 The duiational limitations in the Manufacture) Defendants' warranties with respect

to analog OnStar equipment was unreasonable

221 The durational limitations in the Manufactinei Defendants' warranties with respect

to analog OnStar equipment unconscionable, invalid and unenforceable

222 Contrary to their warranties, each Manufacturer Defendant has expressly

implicitly given notice to Plaintiffs and all other OnStar subscribers who purchased or leased

their vehicles that it will not repair of replace their defective OnStar equipment so that it will

operate on digital cellular networks, at no cost to Plaintiffs and the Class, and continue to refuse

to do so

223 Each Manufacturer Defendant breached its express warranties to Plaintiffs and all

other Class mber% to wpm and/or replace OnStar equipment so that it is in good operational

condition and repair and suitable for use in the OnStar system

62


224 The Manufacturer Defendants' breach of these express warranties proximately

caused damages to Plaintiffs and members of the Class


Ricigment in their favor and against the Manufacturer Defendants, and request the following

fC fel

certification of the Plaintiff Class, the appointment of Plaintiffs as Class

and the appointment of Plaintiffs' counsel as Class counsel,

(b) compensatory damages for the Class to be determined at tnal, together

with interest, costs and attorneys fees,

(c) such other relief as may be just, necessai y or appropriate

Count IV Plaintiffs and the Classes v. All Manufacturer Defendants

Breach Of Implied Warranties


226 At the time of contracting, each Manufacturer Defendant unplicdly warranted to

Plaintiffs and to all other Class members who purchased or leased their vehicles that their OnStar

nt was of merchantable quality and suitable foi ordinal) , use

227 The OnStar equipment sold, leased and delivered to Plaintiffs and all other Class

members was not of merchantable quality and was not suited for ordinary use

228 The OnStar equipment would not function during the reasonable hie expectancy of

Iffs' vehicle%

229 To the extent that the Manufacturer Defendants attempt to limit the duration of

implied warranties to the duration of their express warranties or for any period shorter than the

reasonable lite expectancy of the vehicle, such limitations are unreasonable

63




reasonable life expectancy of the vehicle, such limitations are unconscionable, invalid and

unenforceable for the I casons set forth above

231 Each Manufacturer Defendant breached its implied warranty of merchantability of

its OnStai equipment to Plaintiffs and all Class members who pm chased or leased their vehicles

232 Each Manufacturer Defendant breached its implied warranty of fitness for a

particular purpose of its OnStar equipment to Plaintiffs and all Class members who purchased or

leased their vehicles

233 Each Manufacturer Defendant bleached its implied warranty of fitness for a

particular purpose of its OnStai equipment to Plaintiffs and all Class menthe's who purchased or

leased then vehicles

234 Each Manufacturer Defendant's breach of warranties proximately caused damages

to Plaintiffs and all Class members who puichased or leased then vehicles


judgment in their favor and against the Manufacturer Defendants, and request the following

telief



(b) compensatory damages for the Class to be determined at tnal, together

with Intel est, costs and attorneys' fees,

(c) such other relief as may be just, necessary or appropriate


Count V Plaintiffs and the Classes v. MI Manufacturer Defendants

Violation of The Magnuson-Moss Warranty Act

235 Plaintiffs incorporate all other paragraphs of this Complaint by reference

236 OnStar equipment is a consumer product used for personal, family or household

purposes

237 Each Manufacturer Defendant is a supplier and/or warrantor within the meaning of

the Magnuson-Moss Warranty Act, 15 U S C § 2301

238 Each Manufacturer Defendant has failed to comply with its obligations under its

written and implied promises, warranties and representations despite having a reasonable

opponunny to do so

239 Plaintiffs and the Classes are therefore entitled to recover compensatory damages

together with inteiest, reasonable attorney's fees and costs


judgment in their favor and against each Manufacturer Defendant and request the following

relict

certilication of the Class, the appointment of Plaintiffs as class

lepiesentatives, and the appointment of Plaintiffs' counsel as class counsel,

(b) compensatory damages fo p the Class to be determined at trial, together

with interest, costs and attorneys' fees, and

(c) such other relief as may be just, necessary or appiopnate

65


COUNT VI Breach of Contract

Damages for Lost Prepaid Minutes


forth herein

241 OnStar broke its agreement by selling Prepaid Minutes to class members with

analog-only or analog/digital-ready equipment and refusing to refund them the cost of unused

Prepaid Minutes when their OnStar service and equipment ceased to function

242 Class members with analog-only or analog/digital-ready equipment and unused

Pr epaid Minutes are entitled to restitution


Prepaid Minutes are entitled to the return and refund of money they paid

244 WHEREFORE, Plaintit ts, individually and on behalf of all class members with

analog-only or analog/dignal-ready equipment and unused Prepaid Minutes, request judgment rn

their favor and against OnSiar and request the following relief

(a) certification of the Class, the appointment of plaintiffs as class

representatives and the appointment of plaintiffs' counsel as class counsel,

(b) compensatory damages for the Class to be determined at tr ial, together


(c) such other 'chef as may be Just, necessary or appropriate

COUNT VII Unjust Enrichment

Damages For Lost Pre paid Minutes


forth helm

66



Prepaid Minutes have conferred a substantial monetary benefit on OnStar


Prepaid Minutes have been unable to use their Prepaid Minutes and therefore suffered substantial

financial loss

248 OnStar has retained substantial monetary benefit from the class members who have

or had analog-only or analog/digital-ready equipment and unused Prepaid Minutes remaining

when OnStar's analog equipment ceased to function

249 OnStar has been unjustly enriched


Prepaid Minutes are entitled to equitable restitution and/or damages

WHEREFORE, plaintiffs individually and on behalf of all class members with analog-


favor and against OnStar and request the following relief

(a) certification of the Class, the appointment of plaint!tfs as class


(b) compensatory damages for the Clas ., to be determined at trial, together

with interest costs and attorney'', tees,

(c) such other ielief as may be just, necessary or appropriate

67


JURY DEMAND

Plaintiffs demand a Jury trial of 12

Respectfully submitted,

Dated April 30, 2009 /s/ David H Fink David H Fink (P28235) E Powell Miller (P39487) Marc L Newman (P5I393) The Miller Law Firm PC Interim Lead Counsel foi Plaintiffs 950 W University Dr, Suite 300 Rochester, MI 48307 248-841-2200 dhf@millerlawpc corn www millerlawpc corn

Jeffrey L Kodi off John A Macoretta Spector Roseman & Kodroff PC 1818 Mai ket St , Suite 2500 Philadelphia, PA 19103 215-496-0300 jkodroff@srk-law corn jmaeoretta@srk-law corn

C Donald Amaingbo Amamgbo & Assoc, 1940 Embai cadero Oakland, CA 94606 510-434-7800 Donald@amanigholaw com

N Albert Bacharach, Ji 115 NE 6th Avenue Gainesville, FL 32601 352-378-9859 n a bacharach@att net

John W Barrett Jonathan R Marshall Bailey & Glasser LLP 227 Capitol Street Charleston, WV 25301

68


jbarrett@baileyglasser corn

Mark R Bendure Bendure & Thomas 645 Griswold, Suite 4100 Detroit, MI 48226 313-961-1525 bendurelaw@cs corn

Larry W Bennett Giannarco Mullins 101 W Big Beaver Rd, 10th Fl Troy, MI 48084 248-457-7037 lbennett@grahpc corn

Philip Bohrer Scott Brady Bohrer Law Firm LLC 8712 Jefferson Hgwy, Suite B Baton Rouge, LA 70809 225-925-5297 phil@bohrerlaw corn scott@bradylawfinnlIc coin

Patrick E Calferty 101 N Main Street, Suite 450 Ann Arbor, MI 48104 734-769-2144 pca 1 terty@cal lertyfaucher corn

Marc C Calaban 6451 Drexel Avenue Los Angeles, CA 90048 310-717-2484 mccainhan @yahoo corn

Edward W Cochren 20030 Marchmont Road Shaker Heights, 01-144122 216-751-5546 edwardcochren@udelphia net

Lanny H Darr Schrempf, Blame, Kelly, Naap

69

Case 2 •07-md-01867-SFC Document 113 Filed 04/30/2009 Page 70 of 76

307 Henry Street, Suite 415 Alton, IL 62002 618-465-2311 Idarr@sbkdlaw corn

Daniel A Edelman Edelman Combs Latturner 120 S LaSalle St , Suite 1800 Chicago, IL 60603 312-739-4200 dedelman@edcombs coin courtecl@edcombs corn tgoodwin@edcombs corn zjacobs@edcombs corn

Marc Edelson 45 W Court Sh eet Doylestown, PA 18901 (215) 230-8043 medelson@edelson-law coin

Fredenc S Fox Larry D King Donald R Hall Kaplan Fox & Kilsheimer LLP 850 Thud Ave , 14th Floor New York, NY 10022 212-687-1980 ffox@kaplanfox com lking@kaplanfox corn dhall@kaplanfox corn

Philip Stephen Fuoco Joseph A Osetchen 24 Wilkins Place Haddonfield, N l 08033 856-354-1100 pfuoco@msn corn josefchen@msn corn

Enc H Gibbs Daniel T LeBcl Girard Gibbs LLP 601 California Stiect, 14th Fl San. Francisco, CA 94108 415-981-4800

70


chg@girardgibbs coin dtl@girardgibbs coin

Steven E Goren Goren Goren & Harris PC 30400 Telegraph Rd, Suite 470 Bingham Farms, MI 48025 248-540-3100 sgoren@gorenlaw corn

Mary Ellen Gurewitz 1000 Farmer Detroit, MI 48226-2899 313-965-3464 megurewith@sachwaldman corn

Greg Hat if Law Offices of Herbeit Hafif 269 W Bonita Avenue Claremont, CA 91711 909-624-1671 ghafif@hafif corn

Daniel Harris 150 N Wacker Dr , Suite 3000 Chicago, IL 312-960-1802 lawolficedh@yahoo coin

Dennis J Johnson Johnson & Perkinson 1690 Williston Road S Burlington, VT 05403 802-862-0030 diohnson@jpclasslaw coin

Franklin D Julian, Jr 1620 S Bend Ave South Bend, IN 46617 574-247-1234 fdi@theverdict Lom

Roy A Katriel, Esq The Kati lel Law Firm 1101 30th St , NW Suite 500 Washington, DC 20007

71


202-625-4342 rak@katnellaw com

Irwin B Levin Richard E Shevitz Vess A Miller One Indiana Square, Suite 1400 Indianapolis, IN 46204 317-636-6481 ilevm@cohenandnulad corn rshevitz@cohenandmalad corn vrruller@cohenandinalad com

Jonathan K Levine 601 California St, Suite 1400 San Francisco, CA 94108 415-981-4800 ikl@ girardgibbs com

Peter L Masnik Kalikman & Masnik 30 Washington Avenue Haddonfield, NJ 08033 856-428-5222 PMasnik @aol corn

Gary E Mason The Mason Law Fn m PC 1225 19th St NW, Suite 500 Washington, DC 20036 202-429-2290 gmason@masonlawdc corn

Kevin L Oufnac Kahn Gauthier Swick 650 Poydrac St , Suite 2150 New 011eans, LA 70130 504-455-1400 Kevin oufnac@kgscounccl corn

Mario A Pacella Strom Law Firm LLC 2110 Belthne Blvd, Suite A Columbia, SC 29204 803-252-4800 inpacella@stromlaw corn

72


Ethan Preston Kamber Edelson LLC 53 W Jackson Blvd, Suite 1530 Chicago, IL 60604 epreston@kainberedelson corn

Michael F Ram Levy Ram & Olson 639 Front St 4th Fl San Francisco, CA 94111 415-433.4749 mfr@lrolaw corn

Paul S Rothstein 626 NE 1 st Street Gainesville, FL 32601 352-376-7650 psi @rothsteinforjustice corn

Peter Safirstctn, Andrew Moi gam Jennifer Czeisler (Milberg Weiss) I Pennsylvania Plaza New York, NY 10119-0165 212-594-5300 psa first= @ milbci gweiss coin amorganti @milbei gweiss corn icleisler@milbergweiss corn

Fred W Schultz 320 W 8th St , Suite 100 Bloomington, IN 47401 866-685-6800 fred@greeneschultz corn

Ronald J Smolow Michael I-1 Landis Srnolow & Landis LLC 204 Two Neshammy Interplex Trevose, PA 19053 215-244-0880 smolow@smolowlandis coin

mlandis@smolow lands coin

73


Stephen M Sohmer Sohmer Law Firm LLC One Passaic Avenue Fairfield, NJ 07004 973-227-7080 counsel@sohmerlawfirm corn

Carol L Solomon Gergel Nickles & Solomon PA PO Box 1866 Columbia, SC 29202 803-779-8080 csolomon@gnslaw corn

Kim D Stephens Beth E Terrell Tousley Brain 1700 Seventh Ave , Suite 2200 Seattle, WA 98101 206-682-2992 kstephens@tousley corn, bteirell@tousley corn

J Preston Strom, Ji Marto A Pacella 2110 Maine Blvd, Suite A Columbia, SC 29204 803-252-4800 petestiorn@stromlaw corn, mpacella@snomlaw corn

Francis E Sweeney Jr 323 W Lakeside Ave, Suite 450 Cleveland, OH 44113 2 16-928-9288 skip900@roadrunnet corn

Reginald Ten ell, Esq Terrell Law Group 223 25th Street Richmond, CA 94804 510-237-9700 ReggieT2@aol corn

Frank II Tomlinson 15 N 21st St , Suite 302

74


Birmingham, Al 35203 205-326-6626 htomhnson@bellsouth net

Joe R Whatley, Jr 1540 Broadway, 37th Fl New Yolk, NY 10036 212-447-7070 jwhatley@wdklaw corn

Bnan C Witter Vincent DiTommaso Peter S Lubin DiTommaso Lubin 17200 W 22nd St • Oakbrook Terrace, IL 60181 630-333-0004 bcw@ditommasolaw corn vh@ditommasolaw corn psl@ditommasolaw corn

John P Wollf Christopher K Junes Keogh Cox & Wilson LTD 701 Main Street Baton Rouge, LA 70802 225-383-3796 Iwollf@kcwlaw corn ciones@kcwlaw corn

Leroy H Wulfineier Cox Hodgman 101 W Big Beaver Rd, 10th Fl Troy, Mi 48084 248-457-7077 Iwullmerer@chglaw corn

Lance Young 43311 Joy Road #244 Canton, Ml 48187 734-446-6932 younglc.y@hotmail corn

75

Case 2 07-md-01867-SFC Document 113 Ftled 04/30/2009 Page 76 of 76

CER IFICATE OF SERVICE

hereby certify that on April 30, 2009, I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will send such notification to all ECF attorneys

of record Pursuant to the Court's Case Management Order No I dated January 25, 2008 at §

XIII, service is not required on any party not registered for ECF

/s/ David H Fink David H Fink (P28235) E Powell Miller (P39487) Darryl G Bressack (P67820) THE MILLER LAW FIRM, P.C. Interim Lead Counsel for Plaintiffs 950 W University Dive, Suite 300 Rochestei, Michigan 48307 (248) 84 I -2200

Exhibit D

Proof of Claim No. 51092

Name IRVINE, JOHN GIRARD GIBBS Si DEBARTOLOISED 801 CALIFORNIA ST STE 1400 SAN FRANCISCO, CA 94108-2819

Check ibis box to indicate that this claim amends a previously filed clam

Court Claim Number (If known)

aid not onsinraw expense arising ofter es of auerring a down sorer II uSC N 5) All other requcia for Mom' o d puriliwu to 1I CI S C 5 503

60676

_..f...s.„.APS0708151508 111111111111 111101111111111111111111111111 1111111111 11111111111111111111

-- 1̀T) STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK PROOF OF CLAIM Name of Debtor (Check Only One) IgMotors Liquidation Company (likia General Motors Corporation) OIMLCS, LLC (Ma Saturn, LLC) OMLCS Distribution Corporation (f/Ida Saturn Distnbution Commotion) CIMLC of Harlem, Inc Okla Chevrolet-Saturn of i tartan, Inc )

Case No 09-50026 (REG) 09-50027 (REG) 09-50028 (KEG) 09-13558 (REG)

Your Claim is $sthaduted As Follows,

Motors Liquidation Company

Unsecured Unknown

Contingent! Unlicandated !Disputed

CITY Q90

Itiov 25 2009 "2

Telephone number Email Address Name and ad

number

y or should be sent different

FILED - 51092 MOTORS LIQUIDAll ION COMPANY

F1KIA GENERAL MOTORS CORP

SDNY q 09,50026 (REG)

Filed on

Check this box if you are aware that anyone else has filed a proof of claim relating to your claim Attach copy of statement giving particulars

C) Check this box if you are the debtor or ounce in this case

If an amount is identified above, you have a claim scheduled by one of die Debt= as shows (This scheduled innosint of your claim nay be an amendment lo a pnessiusly scheduled maim ) If you agree with die amount and pnoruy of your claim as rebuked by the Debtor sad you have no other el.unt swum ilia Debtm you do not need to Meths pivot et dim form, lk if amount shoom s hued as DI,SPUTI D.UNLIQULDATIA or CONTINGENT, a proof of dean MUST be Med in order to meson my dumb:Moo in respect of your clam If you have already filed a proof of claw w

=MUM walla diskcat lashaaa Yes need not Me Mom

Amount of Claire as of Date Case Filed, June 1, 2009—

S 543 00 Wall or pea ofyour claim is seamed, complete nem 4 below, howeve% if domtcaanplmaim4 If all apart of your claims entitled to pool*, complete item 5 If dl or part of yourdium asserted powers m II USC § 503(bX9), complete mein 5

Check this box if claim includes interest or other charges in addition to the principal amount of claim Attach Itemized statement of interest or c harges

Claim See Attac men ion V2 as reverse tide )

3 Last four digits of any number by whisk creditor identities debtor

3a Debtor may have scheduled account as (See manic:nom V3a on miens; ode )

4 Secured Chum (Sec outrun= 04 on reverse ode ) Check the appropriate box if your claim is secured by a lien on property or a tight of setoff and provide the requested information

Nature of property or right of setoff C) Real Estate CI Motor Vehicle d Equipment O Other Describe

Value of Property 5 Annual Interest Rate %

Arsount of errearage and other charges as of time cast filed minded in secured claim, If any S

Basis for perfection

Amount of Secured Claim S Amount Unsecured 5

4. Credits The amount of payments on this claim has been credited for the purpose of making this proof of claim 7. Documents Attach redacted copies of any documents that support the chum, such as premiums), notes, purchase orders, IIIVOICES, itemized statements or nutmeg accounts, conbects, lod gments. mortgages, and security agreements You may also attach a summary Attach redacted copies of doeuments providing evidence of perfection of a secunty Weald You may also attach a summary (See instruction land definition of "redacted on reverse side) DO NOT SEND ORIGINAL DOCUMENTS ATTACHED DOCUMENTS MAY BE DESTROYED AFTER SCANNING

if the documents are not available, please explain in an attachment

Amount of Claim Entitled to Priority under 11 U S C § 507(a) Vim portion of your claim fall' m one elite fallowing categories, check the has sad state the amount

Specify the priority of the chum • Domestic support obligations under

USC 5 507(aX I XA) or (aXIX1i) (3 Wages, saltines, or commissions (up

to 510,9501 earned within 180 days before filing of the bankruptcy petit= or cessation of the debtor's busman, whichever is earlier— 11 U S C 5 507('X4)

O Contributions to an employee benefit plan — 11 U S C 507(10)

O Up to 52,425* of deposits toward purchase, lease, or rental of property or services for personal, Candy, or honsehold me-11USC § 507(aX7)

Ci Taxes or penalises owed to governmental units —11 U S C

507(aXII) O Value of goods received by the

Debtor within 20 days before the date of commencement of the case - II USC 5 503(b)(9) (§ 507(a)(2))

13 Other Specify applicable paragraph of 11 US C 507(a)(__)

Amount entitled to priority

•Anwunts are subject toaryistarient on 4/1/I0 and every 3 years thfreafrr with respect to cases commenced on or after the date of adjustment

Signature The person filing this claim must sign it Sign and print name and title, Wetly, of the creditor or other person audionzed to file tits claim and state address and telephone number if different from the notice address above bath copy of power of attoaeilLaer

it111014) 4.

MN fob .fort' r,tumio

FOR COURT USE ONLY

Pertain" for ettoigfraudalent claim Fine of up to S500,000 or imprisonment for up to 5 yens, or both 18U S C §§ 132 and 3571 Modified ere (cco ( t vos)

INSTRUCTIONS FOR PROOF OF CLAIM FORM The instructions and definitions below are general explanations of the law In certain circumstances such as bankruptcy cases notfded voluntarily by the debtor, there may be exceptions to theta general rules The attorneys for the Debtors and their court-appointed claims agent. The Garden City Group lire are not authorized and are not providing you with any legal advice

A SEPARATE PROOF OF CLAIM FORM MUS r BE FILED AGAINST EACH DEBTOR PLEASE SEND YOUR ORIGINAL, COMPLETED CLAIM FORM AS FOLLOWS IF BY MAIL THE GARDEN CITY GROUP, INC, ATTN MOTORS LIQUIDATION COMPANY CLAIMS PROCESSING, PO BOX 9386, DUBLIN, OH 43017-4286 IF BY HAND OR OVERNIGHT COURIER THE GARDEN CITY GROUP, INC, ATTN MOTORS LIQUIDATION COMPANY CLAIMS PROCESSING, 5151 BLAZER PARKWAY, SUITE A, DUBLIN, OH 43017 PROOFS OF CLAIM MAY ALSO BE HAND DELIVERED TO THE UNITED STA1 ES BANKRUPTCY COURT, SONY, ONE BOWLING GREEN, ROOM 534, NEW YORK, NEW YORK 10004 ANY PROOF OF CLAIM SUBMITTED BY FACSIMILE OR E-MAIL WILL NOT BE ACCEPTED

THE GENERAL AND GOVERNMENTAL BAR DATE IS NOVEMBER 30, 2009 Al 5 00 PM (PREVAILING EAST ERN TIME)

Court, Name of Debtor, and Case Number These chapter I I cases were commenced in the United States Bankruptcy Court for the Southern Deana of New York on Juno 1, 2009 You should select the debtor against which you me asserting your claim A SEPARATE PROOF OF CLAIM FORM MUST BE FILED AGAINST EACH DEB TOR

Creditor's Name and Address Fill in the name of the person or entity asserting a claim and the name and address of the person who should receive notices issued dunng the bardoupicy case Please illundc us with a valid email address A separate space is provided for the payment address if it diffeas from the notice address The creditor has a continuing obligation to keep the court informed of its currant address See Reknit Rube of Bankruptcy Procedure (FRBP) 2002(g)

1 Amount of Claim as or Date Case Filed Slate the total amount owed to the creditor on the date of the bankruptcy filing Follow the mstructions concerning whether to complete lams 4 and 5 Check the box if interest or other charges are included in the Claim

2 Rests for Claim State the type of debt or how it was incurred Examples include goods sold, money loaned, services perforated, personal injury/wrongful death, car Ion, mortgage note, and credo card If the claim is based on the delivery of health aim goods or services, limit the disclosure of the goods or services to as to avoid embarrassment or the disclosure of confidential health care Information You may be required to provide additiooal disclosure if the debtor, trustee or another party in interest files an objection to your claim

3 Last Four Digits of Any Number by Which Creditor Identifier Debtor only the last four digits of the debtor a account or other number used by the

creditor to identify the debtor, if any

3. Debtor May Have Scheduled Account As Use this space to report a change in the creditor's mine, n aansfe other information that clarifies a difference between this proof of claim and the cla as scheduled by the debtor

4 Secured Claim Check the appropriate box and provide the requested information if the claim is idly or partially secured Skip this section if the claim is entirely unsecured (See DEFINITIONS, below ) State the type and the value of property that secures the claim, attach comes of lien documentation, and state annual interest rate and the amount past due on the claim as of the date of the bankrimtcy filing

5 Aerosol of Claim Entitled to Priority Under 11 U S C § 507(a) If any portion of your claim falls in one or more of the listed categories, check the a PProcneie bor(es) and state the amount entitled to pnonty (See DEFINITIONS, below ) A claim may be partly priority and partly non-pnonty for example, in some of the categortes, the law linens the amount entitled to priority

For claims pursuant in II USC § 503(bX9), indicate the amount of your claim imamg from the value of any goods received by the debtor within 20 days before June I, 2009, the date of commencement of these cases (See DEFINITIONS, below) Attach documentation supporting such claim

6 Credits An authorized signature on this prof of claim serves as an acknowledgment that when calculating the amount of the claim, the creditor gave the Debtor credit for any payments received toward the debt

7 Documents Attach to this proof of claim Conn redacted copies documenttng the existence of the debt and of any lien inciting the debt You may also attach a summary You must rho attach copies of documents that evidence perfection of any security interest You may also attach a summary FRLIP 3001(c) and (d) If the claim is based on the delivery of health care goods or services, sea instruction 2 Do not send original documents, as attaehments may be destroyed after scanning

Dale and Signature The person filing this proof of claim must sign and date It FRBP 9011 If the claim is filed electronically, FRBP 5005(a)(2) authorizes courts to estabhsh local rules specifying what constitutes a signature Pant the name and tale, if arty, of the creditor or other person autbonzed to file this claim State the tiler's address and telephone number if Went from the Address given on the top of the form for proposes of receiving notices Attach a complete copy of any power of attorney Cnnunal penalties apply for making a false statement on • prof of claim

F ONS ORMATION

Debtor A debtor is the person, corporation, or other entity that has filed a bankruptcy case !tie Debtors as these Chapter 1 I cases are

otors Liquidation Company General Motors Corporation)

LLC ban, LLC)

LCS Distribution Corporation (Uk/a Saturn Distribution Corporation) MLC of Harlem, Inc (filtla Chevrolet-Saturn of I farlern, Inc )

. Creditor A creditor is the person, corporation, or other entity owed a dad by the debtor on the date of the bankruptcy filing

Claim A claim is the creditor's right to receive payment on a debt that was wed by the Debtor on the date of the bankruptcy tiling See

U S C § 101(5) A claim may be seemed or unsecured

Proof of Claim A proof of claim 'Worm used by the creditor to indicate the amount of the debt owed by the debtor on the date of the bankruptcy filing The creditor must file the form with The Garden City Group, Inc as described in the instructions above and in the Bar Date Notice

Secured Claim Under 11 U S C § 506(a) A secured claim is one backed by a hen on property of the debtor The claim is secured so long as the creditor has the ngbt to be

paid from the property prior to other creditors The amount of the secured dawn cannot exceed the value of the property Any amount owed to the creditor in excess of the value of the property is an unsecured clean Examples of liens on property trick& a mortgage on real estate or a sceunty interest in a car A lien may be voluntarily granted by a debtor or may be obtained through a court proceeding In sonic stales, a court judgment is a lien A claim also may be secured lithe creditor owes the debtor money (has a right to seta!)

Section 503(bX9) Claim A Section 503(bX9) claim is a claim for the value of any goods received by the debtor within 20 days before the date of commencement of a bankruptcy case in which the goods have been sold to the debtor m the ordinary course <Winch debtor's business

Unsecured Claim An unsecured claim as one that does not meet the requirements of a secured claim A Clan may be partly unsecured if the amount of the claim exceeds the value of the property on which the creditor has a lien

Claim Entitled to Priority Under 11 U S C 507(a) Priority claims arc certain categones of unsecured chums that are paid from the available money or property In a bankruptcy case beans other unsecured claims

Redacted A document has been redacted when the person filing It has masked, edited out, or otherwise deleted, certain information A creditor should redact and use only the last four digits of any social-securuy, indivtduel's

tax-identification, or financial-account number, all but the initials of a minor's name and only the year of any person's date of birth

Evidence of Parke Evidence of perfection may include a mortgage, lien, certificate of tole, financing statement, or other document showing that the hen has been filed or monied

Acknowledgment of Filing of Claim To receive acknowledgment of your filing from The Garden City Group, Inc , please provide a calf-addressad, stamped envelope and a copy of this proof of churn when you submit the original claim to The Garden City Group, Inc

Offers to Purchase a Claim Certain counts are in the busmen ofpurchasing claims for an amount less that the face value of the damns Otte or more of there moues may connect the creditor and offer to purduse the claim Some of the written communications (mm them entities may cosily be confused with official court documentation or carrunumeations from the debtor These entities do not represent the bankruptcy court or the debtor The creditor has no obligation to sell its claim However, if the creditor decides to sell its claim, any transfer of such clean is subject to FRBP 3001(e), any applicable ProYouni of the Bankruptcy Code (1I USC 101 et seq ), and any applicable orders of the bankruptcy coon

Addltlonel termination If you have any questions with respect to this claim form, plea contact AIR Partners at 1 (800) 414-9607 or by e-mail at clannuanioloraliquidatton cam

09-50026 (REG)

09-50027 (REG)

09-50028 (REG)

09-13558 (REG)

GENERAL MOTORS ON-STAR PRODUCTS LIABILITY LITIGATION PROOF OF CLAIM

In re Motors Liquidation Company — 09-50026 (REG)

Debtor. Motors Liquidation Company (f/k/a General Motors Corporation)

Total Amount of Claim Unliquidated (approximately $549 00)1

Treatment of Claim Pre-petition/Unsecured

Exhibits to Claim

1 Second Master Amended Class Action Complaint

2 August 3, 2009 Invoice for Purchase of Digital Upgrade Package

Basis for. Claim

1 The On-Star Products Liability Litigation

John Irvine is a plaintiff in a putative class action against the On-Star Corporation and various automobile manufacturer defendants Including General Motors Corporation (MDL Case No 07-1867, U S District Court for the Eastern District of Michigan) ("On-Star Litigation"). The claims in the On-Star Litigation generally assert that the defendants violated various consumer protection and warranty laws by selling consumers analog-wireless On-Star telemahcs equipment in their vehicles that would become obsolete in 2008 unless they were able to purchase a digital-wireless upgrade [See Exhibit 1.] John Irvine owns a 2002 Cadillac Seville SLS that contained analog-wireless On-Star telematics equipment On or about August 6, 2006, John Irvine paid $549 00 to purchase a digital-upgrade package for his vehicle. [See. Exh 2.]

1 Claimant reserves the right to amend this claim after the date of filing of this proof of claim

EXHIBIT 1


UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

IN RE GENERAL MOTORS ONSTAR LITIGATION

Master File No 07-1867

THIS DOCUMENT RELATES TO All Actions

SECOND MASTER AMENDED CLASS ACTION COMPLAINT

Introduction

Plaintiffs bring this class action a s tnst General Motors Corporation ("GM"),

American Honda Motor Company ("Honda"), Subaru of America ("Subaru") and Volkswagen of

America ("VW") (collectively the "Manufacturer Defendants") and OnStar Corporation

("OnStar") due to the failure of analog OnStar equipment in their vehicles and the resulting

termination of OnStar service

2 OnStar is a unique in-vehicle telecommunication safety system that provides

automatic crash notification to emergency responders, stolen vehicle location, remote door

unlock and remote diagnostics in the event of problems with airbags, anti-lock brakes or other

systems According to On Star

[OnStar provides] critical communications links among members of the public, emergency medical service providers and emergency dispatch providers, public safety, fire service and law enforcement officials, and hospital emergency and trauma care facilities

* * *

The life-saving benefits of OnStar are intended not only for initial vehicle purchasers but also for subsequent owners over the life of the vehicle


3 In August 2002, the Federal Communications Commission ("FCC") ruled that

cellular telephone companies need not continue to carry analog cellular signals The FCC

allowed for a "sunset" period to allow companies whose products were reliant upon analog

signals to transition to digital equipment

4 In 2002 the Defendants' OnStar equipment relied on analog cellular signals to

function

5 All of the Defendants knew by August 2002 that their analog-based OnStar

equipment would stop working on February 8 2008 Despite the knowledge that their

equipment would stop working in 2008, Defendants continued to sell analog equipment to

customers without notifying those customers that the equipment would cease to function

Defendants intentionally concealed from consumers the material fact that their equipment would

stop working on February 18, 2008

6 After selling consumers equipment they knew would stop working, Defendants

belatedly began warning consumers that their equipment was going to stop working by February

2008 Defendants required those customers whose equipment could be upgraded to a digital

signal to pay to for such upgrades to keep their OnStar equipment working

7 Because of Defendants' intentional concealment of the material fact that the

equipment they sold to consumers would stop working in 2008, hundreds of thousands of

consumers across the country either have equipment that is now useless or have paid to purchase

new digital equipment

8 As a result of the Defendants' actions, Plaintiffs and thousands of other owners and

lessees of OnStar equipped vehicles have lost the benefits of this safety system and are exposed

to an increased risk of serious personal injury and harm, or were forced to pay for upgrades to


keep then- systems functioning Plaintiffs seek damages for themselves and all others stmilarly

situated

The Parties

Plaint'

9 Plaintiff Jack Jacovelli is a citizen and resident of New Jersey His address is 5

Dorado Road, Laurel Springs, NJ

10 Plaintiff Janice Rhodes is a citizen and resident of Michigan Her address is 3151

Kendalwood Court, Grand Rapids, Michigan

11 Plaintiffs Betty and Melvin Rubertt ("Rubertts") are citizens and residents of

Washington Their address is 3308 E 21" Street, Spokane, Washington

12 Plaintiff Bruce Johnson is a citizen and resident of the State of Washington His

address is P 0 Box 670 Edmonds, Washington

13 Plaintiff Walter Rochow is a citizen and resident of Connecticut His address is 25

Hamden Hills Drive, Hamden, Connecticut

14 Plaintiff Irene Nary is,a citizen and resident of Ohio Her address is 31 Periwinkle

Drive, Olmsted Falls, Ohio

15 Plaintiffs Susan Nelson and Norman Nelson ("Susan and Norman Nelson") are

citizens and residents of California Their address is 6405 B nsall Dr , Malibu, California

16 Plaintiff David Busch is a citizen and resident of New York His address is 43

Moffat Road, Washingtonville, New York

17 Plaintiffs Marhjory Gill and Larnell Gill are citizens and residents of California

Their address is 4081 Bairnsdale Way, Sacramento, California


18 Plaintiff John Irvine is a citizen and resident of California His address is 3622

DCin1-...:ey Lane, Concord, California

19 Plaintiff Sandra Williams is a • citizen and resident of California Her address is

3 IC 32'd Avenue, Oakland, California

20 Plaintiff Carey Stein is a citizen and resident of llinois Her address is 1000

Poo wine Road, Riverwoods, Illinois

21 Plaintiff Wanda Hoover is a citizen and resident of Illinois Her address is 1912 W

How:, Avenue, Apt 20, Chicago, Illinois

22 Plaintiff Cheryl Nicholas is a citizen and resident of Louisiana

23 Plaintiff Sharon Schueter is a citizen and resident of Missouri Her address is 1410

Surnini.-zhaven Drive, Si Louis, Missouri

24 Plaintiffs • Michael and Jacqueline Tchoukaleff are citizens and residents of Illinois

They address is 1506 Paris Drive, Godfrey, Illinois

25. Plaintiff Bradley Reich is a citizen and resident of Colorado His address is 3713 S

Arld ,,:•3 Way, Aurora, Colorado

26 Plaintiff Angela Imbierow icz is a citizen and resident of Illinois Her address is

130 W 22'1 Street, Oakbrook, Illinois

27 Plaintiff John C Kuller is a citizen and resident of Washington His address is 581

Pinecrest Drive, Port Townsend, Washington

28 Plaintiff Charlie Al lenson is a citizen and resident of New York His address is 315

E 68 Ii ' Street, 7F, New York, New York

29 Plaintiff Robert Golish is a citizen and resident of California His address is 501 N

Clemenne, Anaheim, California

4


30 DELETED

31 Plaintiff Mark Vamos is a citizen and resident of Texas His address is 5112 Victor

Street, Dallas, Texas

32 Plaintiff Robert Schatz is a citizen and resident of Colorado His address is 5678

Allure Street, Arvada, Colorado

33 Plaintiff Christian P Borum is a citizen and resident of Virginia Her address is 257

E 40th Street, Norfolk, Virginia

34 Plaintiffs Gordon and Ann Erdenberger are citizens and residents of Pennsylvania

Their address is 220 Farm Lane, Doylestown, Pennsylvania

35 Plaintiff Marie Kemp is a citizen and resident of Oregon His address is 3355 N

Delta Highway #9, Eugene, Oregon

36 Plaintiff R S Reishman is a citizen and resident of West Virginia He resides in

Kanawha County

Defendants

37 Defendant GM is a Delaware corporation with its principal place of business and

national headquarters located at 300 Renaissance Center, Detroit, Michigan GM designs, tests,

manufactures, markets, advertises, warrants, distributes, sells or leases cars, trucks and sports

utility trucks under several prominent brand names, including, but not limited to GMC,

Chevrolet, Pontiac, Oldsmobile, Buick, Cadillac, Saturn and Saab throughout the United States

38 Defendant VW is a corporation engaged in the sale and distribution of motor

vehicles in the United States under various brands and models including Audi and Volkswagen

Phaetons and Passats Audi of America is a wholly-owned subsidiary of VW At the time of the


filing of the Amended Master Class Action Complaint VW maintained corporate headquarters in

Auburn Hills, Michigan VW now maintains corporate headquarters in Herndon, Virginia

39 Defendant Honda is a corporation engaged in the sale and distribution of motor

vehicles in the United States under various brands, including "Acura" Honda maintains

corporate headquarters at 1919 Torrance Boulevard, Torrance, California

40 Defendant Subaru is the exclusive United States marketer of Subaru products

manufactured by Fuji Heavy Industries Ltd of Japan Subaru is headquartered in Cherry 1-1111,

New Jersey GM owned 20 percent of Pup Heavy Industries from 1999-2005.

41 Defendant OnStar is a wholly owned subsidiary of GM and was at all times

expressly and impliedly controlled and directed by GM OnStar also maintains headquarters in

Detroit, Michigan

42 At all relevant times, OnStar engaged in co-ventures with each of the Manufacturer

Defendants with respect to the sale and distribution of OnStar equipment

43 At all relevant times, Defendants acted by and through their agents, servants,

workers and employees who were then and there acting within the course and scope of their

permission, agency, employment and authority, in furtherance of Defendants' businesses, and

otherwise on behalf of Defendants

Jurisdiction and Venue

44 Plaintiffs bring this action seeking class-action status and alleging violations of the

Michigan Consumer Fraud Act, violations of the consumer fraud laws of each of the 50 states,

breach of express and implied warranties, and violations of the Magnuson-Moss Warranty Act

This Court has jurisdiction over these claims pursuant to 28 U S C 1332 (d)

6


45 Venue is proper in this Distnct because Defendants GM, VW and OnStar are

headquartered in this District and many of the acts and transactions giving rise to the violations

of law alleged herein occurred within and emanated from Defendants' offices in this District

Specifically, the marketing and sales materials discussing OnStar, and containing the material

misstatements and omissions alleged herein, were designed, developed and approved by GM,

VW and OnStar personnel at facilities in this District

46 Additionally, the OnStar subscription agreements expressly provide that Michigan

law will apply

Background

47 In the 1990s OnStar developed the OnStar telematic system

48 The OnStar telemauc system is a cellular communicanon and global positioning

device that is incorporated into motor vehicles as factory installed equipment The OnStar

system enables occupants of vehicles with OnStar equipment and service to receive emergency

service and information anywhere in the United States and portions of Canada OnStar describes

the system on its website this way

OnStar's in-vehicle safety, security, and mformation services use Global Positioning System (GPS) satellite and cellular technology to link the vehicle and driver to the OnStar Center At the OnStar Center, advisors offer real-time, personalized help 24 hours a day, 365 days a year

http //www onstar.com/us english/jsp/explore/onstar basics/technology is

2

49 OnStar has developed and operated the OnStar system ughout the United States

and Canada since about 1998


50, At all relevant times, each of the Manufacturer Defendants maintained the policy

and practice of manufacturing and selling OnStar equipped vehicles and providing service and

parts for safety components through a network of authorized dealers

51 OnStar equipment and service for Manufacturer Defendants' vehicles is unique and

is not available from other sources or as an after-market product

52 By December 2006 there were approximately two and a half million OnStar

subscribers who owned or leased vehicles manufactured by Defendants GM, VW, Honda and

Subaru with analog equipment.

The Types Of OnStar Equipment Sold BtDefendan4s,

53 OnStar's cellular system used both the Advanced Mobile Phone System ("AMPS")

and the Code Division Multiple Access ("CDMA") cellular standards. AMPS is analog, CDMA

is digital Although the two standards are not compatible, by 2001 most cellular equipment e,

cell phones) had both capabilities and could switch back and forth, depending on the kind of

signal available

54 OnStar and the Manufacturer Defendants touted and sold analog OnStar systems as

standard and optional equipment that would provide added safety, security and convenience

When sold as optional equipment, customers would be charged fees of several hundred dollars

for the OnStar equipment

55 At various times, OnStar capable vehicles were equipped with three types of

wireless cellular equipment . a) Analog-Only, b) Analog/Digital-Ready, and c) Dual-Mode

(Analog/Digital)

56 Vehicles with analog-only equipment were manufactured to operate only on analog

wireless networks The Manufacturer Defendants are not offering their customers any

8


opportunity to upgrade analog-only equipment to operate on digital networks Analog-only

telematics systems ceased working on or about December 31, 2007

57 Vehicles with analog/digital-ready equipment have wiring and sensors that permit

the vehicle to operate on digital networks by replacing the communications module with dual-

mode (analog/digital) modules All Manufacturer Defendants are charging their customers to

upgrade their analog/digital-ready equipment

58 At the time of purchase, the Manufacturer Defendants did not disclose to Plaintiffs

and other purchasers and lessees the type of OnStar equipment installed in their vehicles Thus,

Plaintiffs and class members did not know that the OnStar equipment in their vehicles was

analog-only and would not function on digital cellular systems, or that their equipment was

analog/digital-ready and would not function on digital cellular systems without substantial

penditure

Defendants Knew That Analog OnStar Systems Would be Inoperable as of February 2008

59 On May 17, 2001, the FCC proposed eliminating the requirement that wireless

phone tamers operate analog-based networks, and allowing carriers to provide only digital-

based networks Notice of Proposed Rule Malang, 16 FCC Red 11169 (May 17, 2001)

60 Defendants were aware of the FCC's proposed rule change and understood that

such a rule change would result in wireless carriers ceasing to provide analog networks

61 Despite this, Defendants chose to not disclose to their customers that their vehicles

had analog OnStar systems that would be rendered inoperable and/or obsolete once this switch to

a digital network infrastructure took place Instead, Defendants pocketed the money for the sale

of the OnStar equipment and the monthly subscription fees, all the while omitting this material

fact

9


The Defendants' Statements to the FCC

62 Defendants' knowledge of the impending switch to a digital network infrastructure

and Its adverse impact on OnStar users is evidenced by the fact that OnStar and the Manufacturer

Defendants made vanous presentations and submissions to the FCC concerning the elimination

of analog service

63 Indeed, GM and OnStar filed comments and objections to the FCC's proposal on

July 2, 2001 and August 1, 2001 These comments reveal GM and OnStar's knowledge that a

shift away from analog service would harm their customers

64 On or about March 29, 2002, OnStar submitted to the FCC a document entitled,

Ex Parte Submission, In the Matter of the Year 2000 Biennial Regulatory Review —

Amendment of Pan 22 of the Commission's Rules to Modify or Eliminate Outdated Rules

Affecting Cellular Radio Telephone Service And Other Commercial Mobile Radio Services, WT

Docket No 01-108 "

65 In its March 29, 2002 Ex Parte submission, OnStar explicitly recognized that a shift

to a digital network infrastructure (to the exclusion of analog network capability), as was being

contemplated at the time, would adversely affect OnStar customers In this regard, OnStar

ted to the FCC that

If the Commission uses this proceeding to establish or propose a phase out AMPS, OnStar urges the Commission to take into account the consequences for the initial owners as well as the second and subsequent owners of the fleet of vehicles with installed analog systems By the end of model Year 2006, Onstar estimates the industry installed analog base is likely to be six to seven million vehicles Onstar believes any Commissron action establishing a phase out for the analog compatibility requirement should permit these consumers the maximum opportunity to secure the safety, security and other benefits from their investment before implementing regulatory changes that could potentially strand that investment Existing embedded analog systems are not susceptible to being easily replaced with digital technology and compatible antennas


With the ownership of a new vehicle averaging three to four years for lessees, and six to seven years for purchasers, the five-year time frame proposed by some commentators in this proceeding is insufficient to allow even the first owners of 2005 or 2006 model year vehicles with analog systems any substantial benefit from the safety and security features provided by their embedded telematics systems (emphasis added)

66 Following that Ex Parte submission, representatives from OnStar met with

representatives from the FCC to discuss the adverse impact that would be borne by owners and

lessees of vehicles equipped with analog OnStar equipment if a complete switch to an

exclusively digital network infrastructure were to happen As a follow-up to one of these

meetings, OnStar submitted a letter to the FCC, memorializing the discussions between On Star

and FCC personnel In that May 21, 2002 letter, OnStar again reiterated that

In addition, OnStar expressed the belief that any change to the analog compatibility standard should also take into account the investment of the owners of the current fleet of vehicles with analog systems OnStar reiterated its recommendation that the Commission should not take action that would potentially strand that consumer investment before the owners have an opportunity to benefit from the investment for a reasonable period of tune considering the average ownership and lease penods of vehicles over their product life

67 Further, OnStar's comments to the FCC acknowledged that the average car had a

lifespan of 8-9 years, and that almost 40 percent of vehicles on the road were over 10 years old

OnStar also acknowledged that the "life saving benefits of OnStar are intended not only for

initial vehicle purchasers but for subsequent owners over the life of the vehicle " On Star stated

that its analog equipment would not work without an analog wireless phone network

68 On July 30, 2002 the President of GM North America, Gary Cowger, wrote to the

FCC to say that GM and OnStar were moving to digital equipment, but that the transition would

take at least three years


69 Mr Cowger then addressed the "difficult issue of a legacy fleet" and advised that,

due to the cost and practicability, retrofitting future and current vehicles "appears impractical "

70 While GM, through OnStar, told these important facts to the FCC, GM elected not

to tell its customers GM never told its customers that their equipment was analog-only and

would not operate over digital only cellular networks Instead, GM continued to sell its vehicles

with analog telematic equipment and with the promise that its OnStar product would continue to

provide "emergency services "

71 Furthermore, on July 31, 2002, a News Release from GM touted the benefits of a

new version of OnStar by stating that "the next-generation GM automatic crash notification

system linked with OnStar will assist even more customers by taking this potentially life-saving

service beyond air bag deployments " GM's news release did not mention the fact that its new

system was still analog and would not operate after 2007 That critical fact was not revealed to

GM's customers

Volkswagen and Honda Statements to FCC:

72 Volkswagen/Audi and Honda also filed comments and objections in attempt to

persuade the FCC to abandon its proposed May 17, 2001 Rule Change

73 On May 2, 2002, Audi filed comments with the FCC asserting that "Audi believes

initial and subsequent owners of these vehicles should have a reasonable opportunity to benefit

from their investment in the safety and secunty features of these vehicles before the Commission

takes any action that could have the potential effect of stranding their Investment " Ex Pane

Submission, In the Matter of the Year 2000 Biennial Regulatory Review — Amendment of Part 22

of the Commission's Rules to Modify or Eliminate Outdated Rules Affecting Cellular Radio

Telephone Service and Other Commercial Mobile Radio Services, WT Docket No OI-108

12

Case 2 07-md-01867-SFC Document 113 Filed 04)30)2009 Page 13 of 76 .

74 Thus, Audi argued that if the FCC adopted the May 17, 2001 Rule Change, its

customers who purchased the analog-based OnStar equipment would not be receiving the

benefits of the equipment that they bargained for, as the Rule Change would have the "effect of

stranding their investment "

75 Likewise, on June 24, 2002, Florida filed comments with the FCC stating that

"Honda believes that both the first and subsequent owners of vehicles with embedded telematics

systems should have a reasonable opportunity to benefit from the safety and security features in

which they have invested, prior to any Commission action " Ex Parte Submission, In the Mailer

of the Year 2000 Biennial Regulatory Review — Amendment of Part 22 of the Commission's

Rules to Modify or Eliminate Outdated Rules Affecting Cellular Radio Telephone Service and

Other Commercial Mobile Radio Services, WT Docket No 01-108

76 Thus, Honda also acknowledged m June 2002 that its customers with analog-based

equipment would not be receiving the full benefits of OnStar

The FCC Rule Change is Announced

77 On August 24, 2002 the FCC issued a Report and Order announcing that it would

modify its rules to eliminate the requirement that wireless carriers provide analog service tor

mobile phone networks The FCC provided for a 5 year transition period, which ended on

February 18, 2008

78 The FCC Order made it clear that analog service would not be available after

February 2008 The FCC"stated that the purpose was to switch all cellular service to digital and

provided for a 5-year sunset provision to allow sufficient time to accomplish this goal For

example, the FCC stated

We need not keep in place a twenty year-old technical standard to ensure roamin g, as we are confident that demand from consumers for ubiquitous

13


access generally will provide sufficient incentive to cellular earners to resolve problems relating to roaming and interoperability

***

. the elimination of the cellular analog requirement will mcrease the demand for the development and commercial implementation of multimode/multiband handsets, a process that is already occumng

79 In fact, CTIA (the cellular providers trade association) as well as AT&T and

Cingular specifically told the FCC that " due to the growth of the mobile telephony services

market and increased competitiveness, the analog standard has served its original purposes and is

no longer necessary " They based their position on the fact that the previous rule requiring

analog cellular service had significant costs and creates inefficiency

80 No ruling of the FCC or any other agency regulates whether any of the

Manufacturer Defendants or OnStar is permitted to sell an analog OnStar system without

disclosing that the system may be rendered obsolete or inoperable by Defendants' actions

81 Thus, by August 24, 2002, each Manufacturer Defendant and OnStar knew of the

FCC ruling, and thus knew or should have known that its analog OnStar equipment was certain

to become useless and would stop working on February 18, 2008, was not fit for its ordinary and

intended use, and would not perform in accordance with the advertisements, marketing matenals

and warranties they disseminated, nor with the reasonable expectations of ordinary consumers

82, However, even though all of the Manufacturer Defendants knew that their

equipment would become useless in a relatively short period, they intentionally failed to advise

their customers and concealed from them that their OnStar equipment was analog and would not

work as of a date certain, or would require a costly upgrade to function and remain operable

Defendants continued to equip their vehicles with, and provide customers, analog equipment, all

14


the while touting OnStar as an important safety feature, and with knowledge that they would not

provide or make available compatible equipment, upgrades or repairs

83 On its website OnStar admits that it was aware of the FCC rule change and the

pending loss of analog service In the FAQ (Frequently Asked Questions) section, OnStar lists

the question "Why Didn't OnStar Begin to Utilize Digital Technology Sooner " OnStar's

answer is not that it did not realize that analog technology would not be available, rather,

OnStar's answer is that at the time of the FCC ruling there were competing digital technologies,

and that OnStar could not determine which one would prevail

http //www onstar com/us enghsh/isp/explore/onstar basics/helpful info sp7infoview=tech equip

Defendants' Affirmative Representations And Warranties

84 At the time of purchase or lease, Manufacturer Defendants expressly and impliedly

represented to Plaintiffs and the Class that their OnStar equipment would provide safety and

security and would function and be available for the life of their vehicles

85 OnStar, along with the Manufacturer Defendants, designed and prepared "OnStar

Owner's Guides" for each Manufacturer Defendants' dealers to distribute with OnStar equipped

vehicles at the time of purchase

86 In the OnStar Owner's Guide, OnStar and the Manufacturer Defendants represented

that

(a) On Star is a safety device that "uses sophisticated technology to

provide the communications link and seamless integration into their vehicle" so that OnStar

"Advisors" can provide plaintiffs with "a range of helpful services to protect {Plaintiffs! and

[their] vehicle",

15


(b) OnStar I put "Safety, Secunty and Convenience at [plaintiff

Fingertips",

(c) "The ease of the hands-free communications service allows

[plaintiff] to enjoy an even greater level of fety, secunty and convenience while driving",

(d) OnStar's service center and Advisors are available "24 hours a

day, seven days a week Even on weekends and holidays, there is always someone ready to

help",

(e) Plaintiffs can renew their Safe & Sound plan "for excellent

protection, 24/7, 365 days a year", and

(f) "If [Plaintiffs] purchased additional years [of service] or upgraded

[their] OnStar service, when [Plaintiffs] dispose of the vehicle, [Plaintiffs] may transfer the

remaining service to the new owner"

87 At vanous times, OnStar also told its customers that OnStar hardware was

warranted as part of the manufacturer's new vehicle limited warranty

GM's Warranties

88 At the time of purchase or lease, GM provided all Plaintiffs and Class members

with a "Bumper to Bumper" warranty covenng "the complete vehicle" for three years or 36,000

miles, whichever occurs first These warranties were expressly extended to subsequent owners

and lessees

89 In its new vehicle and extended warranties, GM expressly represented and

nted to the purchasers, lessees, and subsequent owners and lessees that during the warranty

period GM would provide repairs, upgrades and, if necessary, replacement, to "correct any


16


90 In December 2006 GM's North American President, Troy Clark, affirmatively

stated that GM would not "walk away from its analog OnStar customers or leave them "in the

lurch " These statements expressly extended GM's various warranties for its analog OnStar

equipment

VW's Warranties

91 At the time of sale or lease, VW provided Plaintiffs and all Class members who

purchased or leased VW vehicles with a new car warranty These warranties provided owners

and lessees with the following

The New Vehicle Warranty period is 4 years or 50,000 miles, whichever occurs first

This warranty covers any repair correct a manufacturer's defec t material or workmanship

* * *

Repairs under this warranty are free of charge Your authorized Volkswagen dealer will repair the defective part or replace it with a new or remanufactured genuine Volkswagen part

92 The New Vehicle Warranty also specifically provided that "OnStar hardware is

warranted as part of the New Vehicle Limited Warranty"

93 At the time of purchase or lease, VW expressly and imphedly represented and

warranted to Plaintiffs and the Class that the OnStar equipment rn their vehicles was free of


Subaru's Warranties

94 At the time of sale or lease, Subaru provided Plaintiffs and all Class members who

purchased or leased Subaru vehicles with a new car warranty These warranties cover any

17


"repairs needed to correct defects in material or workmanship reported during the applicable

warranty period and which occurs under normal use" including "Subaru Optional Accessories

installed on the car prior to delivery " The "Basic Coverage" is for 3 years or 36,000 miles,

whichever conies first

95 In its new vehicle and extended warranties, Subaru expressly represented and

warranted to the purchasers, lessees, and subsequent owners and lessees that during the warranty

period Subaru would provide repairs, upgrades and if necessary, replacement, to "correct any


96 At the time of purchase or lease, Subaru expressly and impliedly represented and

warranted to Plaintiffs and the Class that the OnStar equipment in their vehicles was free of


Honda's Warranties

97 At the time of sale or lease, Honda provided Plaintiffs and all Class members who

purchased or leased Acura vehicles with a new car warranty The Acura warranty stated

'lime and Mileage Period

This warranty begins on the date the vehicle is put into use

Your vehicle is covered for 4 years or 50,000 miles, whichever conies first

Warranty Coverage

Acura will repair or replace any part that is defective in material or workmanship under normal use All repairs/replacements made under his warranty are free of charge The replaced or repaired parts are covered only until this New Vehicle Warranty expires

Accessory Limited Warranty

This warranty applied to any accessory distributed by American Honda and purchased from an Acura automobile dealer in the United States, Puerto Rico, or the U S Virgin Islands

18

•

Case 2:07-md-01867-SFC Document 113 Filed 04/30/2009 Page 19 of 76


Accessories Installed Prior to Retail Sale:

This warranty begins on the same date as the New Vehicle Limited Warranty (see page 11) All accessories are covered for the length of the New Vehicle Limited Warranty 4 years or 50,000 miles, whichever comes first

* * *

Warranty Coverage

Acura will repair or replace any Acura accessory that is defective in material or workmanship under normal use Acura will decide if an accessory will be repaired or replaced If the accessory was installed by an Acura dealer, all parts and labor costs are covered lithe accessory was installed by someone else, the cost of all parts to repair or replace it are covered by Acura, but you must pay the labor cost

98 At the time of purchase or lease, each Manufacturer Defendant expressly and

impliedly represented and warranted to Plaintiffs and the Class that the OnStar equipment in

their vehicles was free of defects and would be suitable for use in the OnStar system

99 Each Manufacturer Defendant's implied warranties included its custom and practice

of providing repair parts and service for defective safety components for the reasonable life of a

vehicle This custom and practice was part of Plaintiffs' bargain to purchase their vehicles

100 Thus, the OnStar equipment in Plaintiffs' vehicles and the vehicles of all Class

members was covered by their new vehicle warranties and various implied warranties

Unreasonableness And Unconscionabilitv Of Durational Limitations On Manufacturers' Warranties

101 The Manufacturer Defendants' limitations on their express and implied warranties

were unreasonable and unconscionable in that

(a) OnStar is a safety device

19


(b) The Manufacturer Defendants knew at the tune of sale th analog-only

OnStar equ pment would cease functioning at the latest, February 18, 2008

(c) The Manufacturer Defendants knew at the time of sale that analog/digital

dual mode equipment would pease functionmg at the latest, February 18, 2008

(d) Plaintiffs reasonably anticipated that safety features provided by the

equipment would last the life of the vehicle

(e) Plaintiffs reasonably believed that the safety features provided by the

equipment could be repaired and/or upgraded and that Defendants would make replacement parts

and service available at least for the anticipated reasonable life of the vehicle, which was

typically 8-10 years.

(1) The Manufacturer Defendants knew of Plaintiffs' reasonable expectations

(g) The Manufacturer Defendants intentionally and knowingly concealed

from Plaintiffs at the time of sale that analog-only OnStar devices would fail and could not be

repaired

(h) The Manufacturer Defendants knew at the time of sale that the failure of

analog-only OnStar equipment would remove a safety function of the vehicle and increase the

nsk of personal injury and property damage to Plaintiffs

(i) The Manufacturer Defendants knew at the time of sale that OnStar analog

devices were not merchantable and not fit for their intended purpose

(i) The Manufacturer Defendants and OnStar refused to make after-market

parts and upgrades available to convert the equipment from analog to digital

at

20


(k) It was unconscionable for the Manufacturer Defendants to conceal this

material information about a safety feature and at the same tune limit the duration of their

warranties

(1) The durational limitations were imposed on a take-it-or-leave-it basis and

were not the product of negotiation

(m) Plaintiffs and the class are less sophisticated in business and telematics

technology than Defendants

(n) There was great economic disparity between the parties Plaintiffs had

weak bargaining power vis-A-vis Defendants and did not have access to relevant facts which

were concealed from them

(o) Plaintiffs could not obtain repairs or upgrades from analog to digital

equipment from any other source The Manufacturer Defendants were the sole source of repairs

and/or upgrades to digital, but refused to make them available to Plaintiffs

(p) The durational hmitations were substantively unfair and one sided They

were imposed by the Manufacturer Defendants based on undisclosed material information

known to defendants but concealed from Plaintiffs

(q) The durational limitations unreasonably favored the Manufacturer

Defendants

(r) The durational limitations constitute overreaching

Defendants' Refusal to Honor their Warranties

102 Plaintiffs and all Class members purchased and /eased their vehicles and purchased

OnStar service for personal, family and household use

21

Case 2 07-md-01867-SFC Document 113 Fired 04/30/2009 Page 22 of 76

103 Plaintiffs and the Class have performed all of their obligations with respect to their

On Star accounts

104 Plaintiffs and all Class members purchased the same or similar defective and

unsuitable analog OnStar equipment, received the same representations, have the same express

and rnplied agreements for OnStar equipment and warranties, received the same notices of

termination, and have or will sustain the same or similar damages


vehicles was manufactured with poor workmanship, and at the time of purchase and/or lease was

faulty, defective and dysfunctional These defects and poor workmanship occurred and

manifested themselves during the relevant warranty period and were made known to

Manufacturer Defendants' during the relevant warranty penod


vehicles is not suited for its intended purpose and us unmerchantable

107 Defendants have refused to provide Plaintiffs and all Class members with OnStar

and security products as promised, and have failed and refused to provide necessary

repairs

108 Contrary to the Manufacturer Defendants written warranties, the. Manufacturer

Defendants and OnStar have stated on the OnStar website that they do not believe the imminent

failure of the analog OnStar equipment is covered under any applicable warranty

Defendants Required Plaintiffs and the Class to Pav for the Fix

109 Beginning in about January 2007, OnStar and the. Manufacturer Defendants began

110 dying Plaintiffs and the Class that their vehicles had analog equipment and that unless their

22


vehicles were upgraded, their equipment would cease to function and OnStar service would

terminate after December 31, 2007

110 All Manufacturer Defendants and OnStar continued to mislead customers by

claiming that certain vehicles, with analog-only equipment, could not be upgraded to digital

telematics when, in fact, they knew uch vehicles could be upgraded, but chose not to incur the

costs associated with an upgrade

111 OnStar's Internet website advised owners, lessees and subscribers with analog-only

equipment that their systems would not function because "a decision was made [by General

Motors] to support a different network in the cellular industry "

112 When the Defendants belatedly began to inform Plaintiffs and the Class of the

imminent failure of their OnStar equipment, those vehicle owners and lessees with analog/

digital-ready equipment were advised that they could continue to receive OnStar service by

upgrading to analog/digital dual mode equipment for a fee of $15 and entenng into a service

agreement for additional years

113 Even though analog cellular service would be available throughout the country for a

period after January 1, 2008, Defendants unilaterally decided to terminate OnStar service and

effectively disable the OnStar equipment in plaintiffs' vehicles and the vehicles of all Class

members as of January 1, 2008

114 All class members are either original purchasers or lessees, or are successors and

assignees of the original purchasers and lessees with respect to the rights and claims asserted

herein

115 Plaintiffs believe that Defendants have acted in the same or similar manner with

respect to all Class members

14

23


116 Solely as a result of Defendants' conduct, Plaintiffs and all Class members were

damaged including, tnter alit', costs and expenses to replace and/or repair the analog OnStar

equipment in their vehicles to function with digital cellular service

Facts With Respect to Lost Prepaid Minutes

117 Many OnStar subscribers exercised the option offered by OnStar to prepay for a set

amount of cellular phone service, or minutes; on their OnStar equipment Class members with

analog-only or analog/digital-ready equipment who had prepaid minutes as of December 31,

2007, when analog service was cut off, lost the value of those minutes OnStar has refused to

credit Class members who lost prepaid minutes due to the cessation of analog service

118 In 2007 and for many years prior, OnStar offered subscribers the option to prepay

for a set number of cellular telephone minutes ("Prepaid Minutes") for use on their OnStar

equipment

119 Subscribers paid for Prepaid Minutes by authorizing OnStar to charge their credit

cards for the purchase

(a) The transaction would appear on the subscriber's credit card statement

OnStar did not provide the subscnber with a paper receipt or record of the transaction, nor any

statement showing the status of the account

(b) After a subscriber purchased Prepaid Minutes, OnStar assigned the

minutes to the subscriber's account and tracked the usage

(c) When the subscriber's Prepaid Minutes were nearly exhausted, OnStar

sent an electronic message to the subscriber's OnStar equipment information screen that their

Prepaid Minutes e low and that the subscriber could purchase additional Prepaid Minutes, in

various amounts, and at various prices

24


(d) When analog service was available, subscribers could determine the status

of their account by calling OnStar or by pressing a button on the OnStar device in their motor

vehicle Subscribers with analog-only or analog/digital-ready equipment no longer have access

to their OnStar account information They presently have no means of obtaining information

about the status of their account and the number of or dollar amount of unused minutes This

Information is in OnStar's exclusive possession and control

120 Many OnStar subscribers exercised the option to purchase Prepaid Minutes

121 Many thousands of class members with analog-only and analog/digital-ready

equipment lost the value of unused Prepaid Minutes in their accounts when OnStar terminated

analog service as of January 1, 2008

122 OnStar gave subscribers no prior notice that if they did not use their Prepaid

Minutes before termination of analog service, their Prepaid Minutes would be lost

123 OnStar failed to disclose to its analog-only or analog/digital-ready subscribers that

unused minutes would be lost and that they would not be entitled to refunds when OnStar analog

service was no longer available

124 In the event that OnStar gave subscribers such disclosures, they were so

inconspicuous, confusing and/or misleading that Plaintiffs could not reasonably understand the

disclosures' purpose or meaning Such disclosures, if any, were substantively and procedurally

unconscionable and invalid

125 OnStar has refused to refund class members with analog-only or analog/digital-

ready equipment who lost Prepaid Minutes due to the cessation of analog service

25

Case 2 07-rnd-01867-SFC Document 113 Filed 0413012009 Page 26 of 76

Facts As To Representative Plaintiff Johnson

126 In March 2005, Plaintiff Bruce Johnson Purchased a Buick Park Avenue sedan with

manufacturer-installed OnStar telematic equipment from Liberty Buick, an authorized GM

dealer in Peoria, Arizona At the time of purchase, Plaintiff Johnson as not told 1) the type of

telernaties equipment in his vehicle, 2) that the equipment would fail after December 31, 2007,


would have to pay to upgrade analog/digital-ready equipment Mr Johnson also purchased an

Tided GM warranty for the vehicle His extended warranty was expressly extended to

subsequent owners and lessees He has continuously subscribed to the OnStar service since

acquiring this vehicle

127 By form letter dated February 12, 2007, GM, through its OnStar subsidiary, advised

Mr Johnson that his OnStar equipment was "analog-only," meaning that it was not capable of

receiving or transrmtting digital signals, that it would not function and would be completely

inoperable after Dece ber 31, 2007 GM further advised that it would not repair, modify or

replace his OnStar equipment

128 On February 12, 2007 Mr Johnson's Buick had less than 36,000 miles and was less

than three years old

Facts as to Representative Plaintiff Jacovelli

129 Plaintiff Jack Jacovelli purchased two GM vehicles, both through DeSimone

Cadillac in Marlton, NJ, an authorized GM dealer He purchased a 2002 Cadillac DTS on or

about September 2003 and a 2005 Cadillac STS on or about June 2006 At the time of purchase,

Plaintiff Jacovelli was not told 1) the type of telematics equipment in his vehicles, 2) that the

equipment would fail after December 31, 2007, 3) that the Manufacturer would not fix, repair or

26


upgrade analog-only devices, and 4) that he would have to pay to upgrade analog/digital-ready

equipment He has continuously subscnbed to the OnStar service since acquiring these vehicles

130 In 2007, by form letters, GM, through its OnStar subsidiary, advised Mr Jacovelli

that with respect to his 2002 Cadillac DTS, his hardware was analog-only, would not function

after December 31, 2007, and that his OnStar service was terminated as of January 1, 2008 He

was further advised that GM would not repair, replace or upgrade his OnStar equipment in this

vehicle With respect to his 2005 Cadillac STS, GM advised Mr Jacovelli that his hardware was


subscription fee, and that without the upgrade and additional payment, Mr Jacovelli's OnStar

equipment would not work after December 31, 2007 He was further advised that GM would not

repair, replace or upgrade his OnStar equipment without charge At the time, Plaintiff was a

subscriber to the OnStar service

Facts As To Representative Plaintiff Rochow

131 On or about August 19, 2003, Mr Rochow purchased a 2004 Buick Park Avenue

with manufacturer-installed OnStar telematic equipment from a GM dealer n Connecticut At

the time of purchase, Plaintiff Rochow was not told 1) the type of telematics equipment in his


would not fix, repair or upgrade analog-only devices, and 4) that he would have to pay to

upgrade analog/digital-ready equipment He has continuously subscribed to the OnStar service


27

Case 2 07-md-01867-SFC Document 113 Filed 04)30/2009 Page 28 of 76

132 By form letter dated March 20, 2007, OnStar advised Mr Rochow that his OnStar

equipment was analog only, would not function after December 31, 2007 and that his service

would be terminated as of that date He was further advised that GM would not repair, replace or

upgrade his OnStar equipment

Facts As To Representative Plaintiff Nary

133 On or about October 28, 2003, Ms Nary purchased a 2003 Buick Park Avenue with

manufacturer-installed OnStar telematic equipment from Spitzer Buick-Cadillac in Parma, Ohio

At the time of purchase, Plaintiff Nary was not told 1) the type of telematics equipment in her


would not fix, repair or upgrade analog-only devices, and 4) that she would have to pay to

upgrade analog/digital-ready equipment She has continuously subsenbed to the OnStar service


134 By form letter dated February 12, 2007, OnStar advised Ms Nary that her OnStar

equipment was analog-only, would not function after December 31, 2007 and that her OnStar

service was terminated as of January 1, 2008 She was further advised that GM would not repair,

replace or upgrade her OnStar equipment

Facts As To Representative Plaintiffs Nelson

135 In July 2004, Plaintiffs Susan and Norman Nelson purchased a new 2004 Cadillac

Escalade with manufacturer-installed OnStar telematic equipment from Rydell GM Auto Center.

in Grand Forks, North Dakota They also purchased an extended warranty on the vehicle at that

which is still in effect At the time of purchase, Plaintiffs Nelson were not told I) the type

of telematics equipment in their vehicle, 2) that the equipment would fail after December 31,

2007, 3) that the Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that

28


they would have to pay to upgrade analog/digital-ready equipment They have continuously

subscribed to the OnStar service since acquiring this vehicle

136 By form letter dated April 24, 2007, addressed to Plaintiff Susan Nelson, GM,

through its OnStar subsidiary, advised these Plaintiffs that the hardware on their 2004 Escalade

was analog and will not operate on a digital network unless it is upgraded for an additional cost

of $15 00, plus a new subscription fee of $199 Without the upgrade and additional payment, the

letter stated that the OnStar equipment would cease to operate after December 31, 2007

Facts as to Representative Plaintiff Busch

137 On March 9, 2004, Mr Busch purchased a new 2004 Volkswagen Passat from

H Hieart Chevrolet in Kingston, New York, an authorized Volkswagen dealer The car had OnStar

teleinatic equipment as a manufacturer installed option, with a manufacturer sticker price of

5;699 At the time of purchase, Plaintiff Busch was not told 1) the type of telematics equipment

In his vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the



138 In 2007, by form letter, OnStar advised Mr Busch that his OnStar equipment was




sr ice

Facts As To Representative Plaintiffs Gill

139 On February 6, 2003, Mr and Mrs Gill leased a new 2003 Acura 3 5 RL with

manufacturer installed OnStar telematic equipment from Acura of Serramonte, located in Colma,

29


California At the time of purchase, Plaintiffs Gill were not told . 1) the type of telematics

equipment in their vehicle, 2) that the equipment would fad after December 31, 2007, 3) that the

Manufacturer would not fix, repair or upgrade analog-only devices; and 4) that they would have


140 In 2007, by form letter, OnStar advised Mr and Mrs. Gill that their OnStar


service was terminated as of January 1, 2008. They were further advised that Acura would not

repair, replace or upgrade their OnStar equipment At the time, Plaintiffs were subscnbers to the

OnStar service

Facts As To Representative Plaintiff Irvine

141 On September 11, 2002, Mr Irvine purchased a new 2002 Cadillac Seville with

manufacturer installed OnStar telematic equipment from Wayne Stead Cadillac, located in

Walnut Creek, California At the time of purchase, Plaintiff Irvine was not told 1) the type of

Lelernaucs equipment in his vehicle, 2) that the equipment would fail after December 31, 2007,



142 In 2007, by form letter, OnStar advised Mr Irvine that his hardware was analog but

could be upgraded to digital for an additional cost of $15 and an additional subscription fee, and

that without the upgrade and additional payment, Mr Irvine's OnStar equipment would not work

after December 31, 2007 and that his OnStar service was terminated as of January 1, 2008 He

was further advised that GM would not repair, replace or upgrade his OnStar equipment without

charge At the time, Plaintiff was a subscriber to the OnStar service

30


Facts As To Representative Plaintiff Williams

143 On October 20, 2002, Ms. Williams purchased a new 2003 GMC Envoy with

manufacturer installed OnStar telematic equipment from Manna Pontiac & GMC, located in San

Leandro, California At the time of purchase, Plaintiff Williams was not told 1) the type of

telematics equipment in her vehicle, 2) that the equipment would fail after December 31; 2007,



144 In 2007, by form letter, OnStar advised Ms Williams that her hardware was analog

btzt could be upgraded to digital for an additional cost of $15 and an-additional subscription fee,

and that without the upgrade and additional payment, Ms William's OnStar equipment would

no( work after December 31, 2007 and that her OnStar service was terminated as of January I,

2C-08 She was further advised that GM would not repair, replace or upgrade her OnStar

Nulprnent At the time, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff Stein

145 In September 2004, Ms Stein leased a new 2004 Cadillac CTS with manufacturer

installed OnStar telematic equipment from Wed Cadillac, located in Libertyville, Illinois At the

time of purchase, Plaintiff Stem was not told 1) the type of telematics equipment in her vehicle,

2) that the equipment would fail after December 31, 2007, 3) that the Manufacturer would not.

fix, repair or upgrade analog-only devices, and 4) that she would have to pay to upgrade

analog/digital-ready equipment

146 In 2007, by form letter, OnStar advised Ms Stein that her OnStar equipment was


31




Facts As To Representative Plaintiff Hoover

147 On November 9, 2002, Ms Hoover purchased a new 2002 Oldsmobile Intrigue

GLS with manutacturer installed OnStar telemanc equipment from Martino Motor Sales, located

in Lansing, Illinois At the time of purchase, Plaintiff Hoover was not told 1) the type of

telematics equipment in her vehicle; 2) that the equipment would fail after December 31, 2007,



148 In 2007, by form letter, OnStar advised Ms Hoover that her OnStar equipment was




Facts As To Representative Plaintiff Nicholas

149 On October 22, 2002, Ms Nicholas purchased a new 2003 Che t Trailblazer

with manufacturer installed OnStar telemauc equipment from Graves Chevrolet, Baker,

Louisiana At the time of purchase, Plaintiff Nicholas was not told 1) the type of telematics

equipment in her vehicle, 2) that the equipment would fail after December 31, 2007, 3) that the

Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that she would have


150 In 2007, by form letter, OnStar advised Ms Nicholas that her OnStar equipment


32




Facts As To Representative Plaintiff_Schneter

151 On November 28, 2002, Ms Schueter purchased a new 2002 GMC Yukon XLT

with manufacturer installed OnStar telemanc equipment from Frank Bommanto Olds, located in

Missouri At the time of purchase, Plaintiff Schueter was not told 1) the type of

telematics equipment in her vehicle, 2) that the equipment would fail after December 31, 2007,



152 In 2007, by form letter, OnStar advised Ms. Schueter that her OnStar equipment



upgrade her OnStar equipment At the tune, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiffs Tchoukaleff

153 On November 15, 2003, Mr and Mrs Tchoukaleff purchased a new 2004 Cadillac

Escalade with manufacturer installed OnStar telernattc equipment from Jim Lynch Cadillac in

Hazelwood, Missouri

154 At the time of purchase, Plaintiffs Tchoukaleff were not told' 1) the type of

telemancs equipment in their vehicle, 2) that the equipment would fall after December 31, 2007,

3) that the Manufacturer would not fix, repair or upgrade analog-only devices, and 4) that they

would have to pay to upgrade analoglchgtakeady equipment By form letter, OnStar advised

Mr and Mrs Tchoukaleff that, with respect to their 2004 Cadillac Escalade, their hardware was


33

Case 2:07-md-01867-SFC Document 113 Filed 04/30/2009 Page 34 of 76

subscription fee, and that without the upgrade and additional payment, their OnStar equipment

would not work after December 31, 2007 At the tune, Plaintiffs were subscribers to the OnStar

service

Facts As To Representative Plaintiff Reich

155. In 2003, Mr Reich purchased a new 2003 Saab 9-3 with manufacturer installed

OnStar telernatic equipment from Mike Shaw Buick/Saab in Denver, Colorado At the time of

purchase, Plaintiff Reich was not told' 1) the type of telematics equipment in his vehicle, 2) that

the equipment would fail after December 31, 2007, 3) that the Manufacturer would not fix, repair

or upgrade analog-only devices, and 4) that he would have to pay to upgrade analog/digital-ready

equipment

156 In 2007, by form letter, OnStar advised Mr. Reich that his OnStar equipment was


terminated as of January I, 2008 He was further advised that Saab would not repair, replace or

upgrade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff Imbierowicz

157 In 2003, Ms Imbierowicz purchased a new 2003 Saab 9-3 from an authorized Saab

dealer with manufacturer installed OnStar telematie equipment At the time of purchase,

Plaintiff Imbierowicz was not told 1) the type of telematics equipment in her vehicle, 2) that the

equipment would fail after December 31, 2007, 3) that the Manufacturer would not fix, repair or

upgrade analog-only devices, and 4) that she would have to pay to upgrade analog/digital-ready

equipment

158 In 2007, by form letter, OnStar advised Ms Imbierowicz that her OnStar equipment


34


terminated as of January 1, 2008 She was further advised that Saab would not repair, replace or


Facts As To Representative Plaintiff Kuller

159 On October l6, 2003, Mr Kuller purchased a new 2004 Acura RL with

manufacturer installed OnStar telematic equipment from Hinshaw's Acura, located in Fife,

Washington At the time of purchase, Plaintiff Kuller was not told 1) the type of telematics




160 In 2007, by form letter, OnStar advised Mr Kuller that his OnStar equipment was


terminated as of January 1, 2008 He was further advised that Acura would not repair, replace or


FacttiAs To Representative Plaintiff Allenson

161 In August 2003, Mr Allenson purchased a new 2003 Acura TL with manufacturer

installed OnStar telernatic equipment from Acura of Westchester, located in Larchmont, New

York At the time of purchase, Plaintiff Allenson was not told 1) the type of telematics




162 In 2007, by form letter, OnStar advised Mr Allenson that his OnStar equipment

was analog-only, would not function after December 31, 2007, and that his OnStar service was

35


terminated as of January 1, 2008 He was further advised that. Acura would not repair, replace or


Facts As To Representative Plaintiff Golish

163 On May 15, 2005, Mr Golish purchased a new 2005 Volkswagen Phaeton with

manufacturer installed OnStar telematic equipment from Commonwealth VW in Costa Mesa,

California At the time of purchase, Plaintiff Golish was not told 1) the type of telematics




164 In 2007, by form letter, OnStar advised Mr. Golish that his OnStar equipment was

analog only, would not function after December 31, 2007, and that his OnStar service was


replace or upgrade his OnStar equipment At the tune, Plaintiff was a subscnber to the OnStar

se rv ice

DELETED SECTION

165 DELETED

166 DELETED

Facts As To Representative Plaintiff Vamos

167 On February 28, 2004, Mr Vamos purchased a new 2004 Volkswagen Passat

Wagon with manufacturer installed OnStar telematic equipment from VW of Onenta, located in

Oneonta, New York At the time of purchase, Plaintiff Vamos was not told 1) the type of

telematics equipment in his vehicle, 2) that the equipment would fail after December 31, 2007,

36




168 In 2007, by form letter, OnStar advised Mr Vamos that his OnStar equipment was




service

Facts As To Re presentative Robert Schatz

169 On September 30, 2003, Mr Schatz purchased a new 2004 Audi A4 from

McDonald Automotive, located in Littleton, Colorado The Audi had OnStar telematic

equipment as a manufacturer installed option, with a manufacturer sticker price of $750 At the

time of purchase, Plaintiff Schatz was not told 1) the type of telematies equipment in his

vehicle, 2) that the equipment would fail after December 31, 2007; 3) that the Manufacturer

would not fix, repair or upgrade analog-only devices, and 4) that he would have to pay to

upgrade analog/digital-ready equipment

170 In 2007, by form Ietter, OnStar advised Mr Schatz that his OnStar equipment was


terminated as of January 1, 2008 He was further advised that Audi would not repair, replace or

upgrade his OnStar equipment At the time,Plain tiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff Borum

171 In January 2004, Mr Borum purchased a new 2004 Subaru Outback with

manufacturer installed OnStar telematic equipment from RK Chevrolet & Subaru, located in

Virginia Beach, Virginia At the time of purchase, Plaintiff Borum was not told I) the type of

37

Case 2 07-md-01867-SFC Document 113 Fried 04/30/2009 Page 38 of 76

telematics equipment in his vehicle: 2) that the equipment would fail after December 31, 2007,



!72 In 2007, by form letter, OnStar advised Mr Borum that his OnStar equipment was


terminated as of January 1, 2008 He was further advised that Subaru would not repair, replace.

or upgrade his OnStar equipment At the Ume, Plaintiff was a subscriber to the OnStar service

Facts As To Re presentative Plaintiffs Erdenberger

173 On September 2, 2003, Mr and Mrs Erdenberger purchased a new 2003 Subaru

gacy with manufacturer installed OnStar telemauc equipment from Glanzmann Subaru,

located in Jenkintown, Pennsylvania At the time of purchase, Plaintiffs Erdenberger were not

:old 1) the type of telematics equipment in their vehicle, 2) that the equipment would fail after

December 31, 2007, and, 3) that the Manufacturer would not fix, repair or upgrade analog-only

devices

174 In 2007, by form letter, OnStar advised Mr and Mrs Erdenberger that their OnStar


service was terminated as of January 1, 2008 They were further advised that Subaru would not

repair. replace or upgrade their OnStar equipment At the time, Plaintiffs were subscnbers to the

OnStar service

Facts As To Representative Plaintiff Kemp

175 On February 13, 2004, Mr Kemp purchased a new 2004 Subaru Outback with

manufacturer installed OnStar telematic equipment from Kendall Subaru, located in Eugene,

Oregon At the time of purchase, Plaintiff Kemp was trot told 1) the type of telematics

38





176 In 2007, by form letter, OnStar advised Mr Kemp that his OnStar equipment was


terminated as of January 1, 2008 He was further advised that Subaru would not repair, replace

or upgrade his OnStar equipment At the time, Plaintiff was a subscriber to the OnStar service

Facts As To Representative Plaintiff Reishman

177 In May 2004, Mr Reishman purchased a new 2004 Audi A8 with manufacturer

installed OnStar telematic equipment from Bert Wolfe Audi, located in Charlestown, West

Virginia At the time of purchase, Plaintiff Reishman was not told 1) the type of telematics


Manufacturer would not fix, repair or upgrade analog-only devices; and 4) that he would have to


178 In 2007, by form letter, OnStar advised Mr Reishman that his OnStar equipment

was analog-only, would not function after December 31, 2007, and that his OnStar service was

terminated as of January 1, 2008 He was further advised that Audi would not repair, replace or


Facts As To Representative Plaintiff Rhodes

179 On March 29, 2004, plaintiff Janice Rhodes lease-purchased a new Chevrolet

Avalanche with manufacturer installed OnStar telematic equipment from Kool Chevrolet, an

authorized GM dealer in Grand Rapids, Michigan The purchase was completed on December 8,

2006 At the time, Plaintiff Rhodes was not told I) the type of telematics equipment in her

39


vehicle; 2) that the equipment would fail after December 31, 2007, and 3) that the anufacturer

would not fix, repair, or upgrade analog-only devices

180 In 2007, OnStar advised Ms Rhodes by form letter that her OnStar equipment was

analog-only, would not function after December 31, 2007, and that her service would terminate

as of January 1, 2008 She was further advised that GM would not repair, replace or upgrade her

OnStar equipment At he time, Ms Rhodes was a subscriber to the OnStar service

Facts As to Representative Plaintiffs Rubertt

181 On March 21, 2004, the Rubertts purchased a new 2004 Subaru Outback from

Appleway Automotive Group in Spokane Washington Their vehicle came equipped with

OnStar telematic equipment At the time, the Rubertts were not told I) the type of telemaucs

eqinpinent in their vehicle, 2) that the equipment would fail after December 31, 2007, and 3) that

the Manufacturer would not fix. repair, or upgrade analog-only devices

182 In 2007, OnStar advised the Rubertts by form letter that their OnStar equipment

log-only, would not function after December 31, 2007, and that their service would

terminate as of January I, 2008 They were further advised that GM would not repair, replace or

trade their OnStar equipment At the time, the Rubberts were subscribers to the OnStar

service

183 From the time of purchase until about December 31, 2007, the Rubertts were

OnStar subscribers

184 As OnStar subscribers, the Rubertts would from time to time purchase prepaid

minutes from OnStar

185 On December 12, 2007, the Rubertts purchased 30 Prepaid Minutes or the sum of

$17 62 OnStar charged the purchase to the Rubertts' credit card

40


186 On or about January 1, 2008, the Rubertts' OnStar analog service and equipment

ceased to function At the time, the Rubertts had 34 Prepaid Minutes remaining in their account

187 Smce January 1, 2008 the Rubertts have been unable to upgrade or repair their

analog On Star equipment

188 At no time prior to January 1, 2008 did OnStar notify the Rubertts that they would

lose any Prepaid Minutes that were not used prior to their analog Onstar service and equipment

ceasing to function

189 The Rubertts have asked OnStar to reimburse them for the cost of their unused

Prepaid Minutes, but OnStar has failed and refused to do so

Estoppel From Pleading and Toiling of A pplicable Statutes of Limitation

190 Any applicable statute of limitations that might otherwise bar Plaintiffs' and Class

members' claims should be tolled because notwithstanding the exercise of due diligence,

Plaintiffs and the Class could not reasonably have been expected to learn or discover the fact that

Defendants had concealed material information concerning the telematic equipment Therefore,

the claims being asserted by Plaintiffs and the Class present the archetypical scenano in which

the discovery rule is applicable

191 Defendants are also estopped from relying on any statutes of limitation by virtue of

their acts of fraudulent concealment

192 By reason of the FCC's proposed rule making and the Mitnufa urer Defendants

and OnStar's participation in those rule making proceedings, Manufacturer Defendants and

OnStar knew or should have known that analog OnStar equipment would not function after

February 18, 2008 and that they intended to shut down OnStar service as of December 31, 2007

41


Notwithstanding this knowledge, Manufacturer Defendants and OnStar concealed from owners

and lessees of OnStar equipped vehicles the impending failure of their On Star equipment

Class Action Allegations

193 Plaintiffs bring this action individually and on behalf of the following classes.

GM Class


owned or leased a GM vehicle originally sold or leased on or after August 8, 2002 and equipped


paid for. an upgrade on or before-December 31, 2007

VW Class

All individuals. and entities in the United States who, as of December 31, 2007, either

owned or leased a VW vehicle originally sold or leased on or after August 8, 2002 and equipped


paid for an upgrade on or before December 31, 2007

Honda Class

All individuals and entities in the United, S ates who, as of December 31, 2007, either

owned or leased a Honda vehicle onginally sold or leased on or after August 8, 2002 and



Subaru Class


owned or leased a Subaru vehicle originally sold or leased on or after August 8, 2002 and

42




OnStar Class

All individuals and entities in the United States who were OnStar subscribers and, as of

December 31, 2007, owned or leased a vehicle originally sold or leased by GM, VW, Honda or

Subaru on or after August 8, 2002 and equipped with analog-only or analog/digital-ready OnStar

equipment which had not been upgraded or who paid for an upgrade on or before December 31,

2007

Lost Prepaid Minute Class (Against OnStar Only)

All individuals and entities in the United States who, as of December 31, 2007, 1) were

OnStar subscribers, 2) owned or leased a motor vehicle with analog-only or analog/digital-ready

OnStar equipment, and 3), had unused Prepaid Minutes on account with OnStar

194 Excluded from all Classes are OnStar, GM, VW, Subaru and Honda, and any of

their respective subsidianes, affiliates, officers and directors, or entities in which any Defendant

has a controlling interest

195 Plaintiffs reserve the right to modify the Class definitions at any time up to and

including trial

196 Numerosity The Classes are so numerous that joinder of all members is

impracticable

GM

(a) GM sold and installed as original factory equipment OnStar equipment to

persons in the United States who purchased or leased Chevrolet, Pontiac, Oldsmobile, Buick,

Cadillac, GMC, Saturn and Saab model vehicles

43


(b) There are over 450,000 OnStar subscribers who own or lease GM vehicles

equipped with analog-only equipment who have received notice of termination, who will have

stranded investments in their motor vehicles, and who may be stranded on the highways and

exposed to an increased risk of senous personal injury and harm if GM does not repair and/or

replace their analog OnStar equipment or arrange for continued OnStar service

(c) There are approximately 1,500,000 OnStar subscribers who own or lease

GM vehicles with analog equipment who will require costly upgrades for their equipment to


(d) VW sold and mstalled as original factory equipment OnStar equipment to

persons in the United States who purchased or leased Audi and Volkswagen model vehicles

(e) Plaintiffs bebeve that there are thousands of OnStar subscribers who own

or lease VW vehicles equipped with analog-only equipment who have received notice of

termination, who will have stranded investments in their motor vehicles, and who may be

stranded on the highways and exposed to an increased risk of serious personal injury and harm if

VW does not repair and/or replace their analog OnStar equipment or arrange for continued

OnStar service Indeed, an Affidavit from David DiMusto, an OnStar OEM Account Manager,

states that Audi sold 22,300 vehicle with analog-only OnStar equipment during the relevant time

period

(t) Plaintiffs believe that there are thousands of OnStar subscribers who own

or lease VW vehicles with analog equipment who will require costly upgrades for their

equipment to function and to receive service after December 31, 2007


Subaru

(g) Subaru sold and installed as original factory equipment OnStar equipment

to persons in the United States who purchased or leased Subaru motor vehicles

(h) Plaintiffs believe that there are thousands of OnStar subscribers who own

or lease Subarus equipped with analog-only equipment who have received notice of termination,

who will have stranded investments in their motor vehicles, and who will be stranded on the

highways and exposed to an increased risk of serious personal injury and harm if Subaru does

not repair and/or replace their analog OnStar equipment or arrange for continued OnStar service

(0 Plaintiffs believe that there are thousands of OnStar subscribers who own

or lease Subarus with analog equipment who will require costly upgrades for their equipment to


Honda

(1) Honda sold and installed as original factory equipment OnStar equipment

to persons in the United States who purchased or leased Honda motor vehicles

(k) Plaintiffs believe that there are thousands of On Star subscribers who own

or lease Hondas equipped with analog-only equipment who have received notice or termination,

who will have stranded investments in their motor vehicles, and who will be stranded on the

highways and exposed to an increased risk of serious personal injury and harm if Honda does not

repair and/or replace their analog OnStar equipment or arrange for continued OnStar service

(I) Plaintiffs believe that there are thousands of OnStar subscribers who own

or lease Hondas with analog equipment who will require costly upgrades for their equipment to


45


OnS

(m) Plaintiffs believe there are millions of persons who were OnStar

subscribers and, as of December 31, 2007, owned or leased a vehicle onginally sold or leased by

GM, VW, Honda or Subaru on or after August 8, 2002 and equipped with analog-only or

analog/digital-ready OnStar equipment which had not been upgraded or who paid for an upgrade

on or before December 31, 2007

Lost Prepaid Minutes

(a) Plaintiffs believe that there are thousands of OnStar subscribers with

analog-only or analog/digital-ready who had unused Prepaid Minutes when their analog OnStar

equipment ceased to function on or about January 1, 2008

197 Commonality There are numerous questions of law and fact that are common to all

Class members and that predominate over individual questions, if any

(a) Common questions of fact include but are not limited to

All Class members purchased or leased a vehicle with analog

Onstar equipment

(u) OnStar equipment is a consumer product for all class members

(m) All Class members' OnStar equipment was defective and not

suited for use with the OnStar system

(iv) All Class members' OnStar equipment will not function after

December 31, 2007

(v) Each Manufacturer Defendant and OnStar made the same or

similar express and implied representations and warranties to all Class members


(vi) Each Manufacturer Defendant maintained the same or similar

customs, policies and practices regarding service and repairs for safety components

(vii) Each Manufacturer Defendant and OnStar concealed and failed to

disclose the same information regarding the defects in Its analog OnStar equipment

(viii) Each Manufacturer Defendant and OnStar concealed and failed to

disclose termination of analog service to their subscribers th analog OnStar equipment

(ix) All Class members were given the same or similar notices of

termination of analog service

(x) Each Manufacturer Defendant refuses to provide Class members

with repairs, replacements, devices or other means to receive OnStar digital service

(xi) All Class members have suffered the same or similar damage as a

result of Defendants' conduct

(xi) All class members with Prepaid Minutes lost the value of their

prepaid minutes when their OnStar service and equipment ceased to function,

(mu) OnStar concealed and failed to disclose to all OnStar subscribers

with Prepaid Minutes that they would lose the value of their Prepaid Minutes if they were not

used prior to December 31, 2007,

(xiv) OnStar has failed to and refused to provide refunds to any class

member with unused Prepaid Minutes,

(xv) All Defendants concealed and failed to disclose that they would

not repair or upgrade analog only OnStar equipment,

(xvi) All Defendants concealed and failed to disclose that they would

charge to repair or upgrade analog/digital ready OnStar equipment

47


(xvii) OnStar concealed and failed to disclose that it would not provide

refunds to OnStar subscribers with unused Prepaid Minutes

(b) Common questions of law include but are not limited to

(i) Is Michigan law applicable to all Class members and all claims?

(n) Did all Manufacturer Defendants and OnStar engage in unfair and

deceptive trade practices under the Michigan Consumer Protection Act ("MCPA")?

(iii) Did each Manufacturer Defendants and OnStar fail o disclose

and/or omit material facts relating to their OnStar equipment?

(iv) Did each Manufacturer Defendant breach its express warranties?

(v) Did each Manufacturer Defendant breach its implied warranties of

merchantability?

(vi) Did all Manufacturer Defendant breach its implied warranties of

fitness for particular purpose?

(vu) Are the Manufacturer Defendants and OnStar legally responsible

for the Class' damages?

(y in) Alternatively, did each Manufacturer Defendant engage in unfair

and deceptive trade practices under the laws of each state?

(ix) Did the Defendants' representations, omissions and practices


(x) Did the Defendants' representations, omissions and practices


(xi) Are the durational limitations on warranties of GM, Honda, Subaru

and VW unconscionable?

48

Case 2'07-md-01867-SFC Document 113 Filed 04/30/2009 Page 49 of 76

(xn) With respect to class members with claims for lost Prepaid

Minutes

(1) Did OnStar breach its implied contract?

(2) Was OnStar unjustly ennched?

(3) Is OnStar liable for equitable or legal restitution9

(4) Is OnStar liable for money had and received?





198 Typicality Plaintiffs' claims are typical of the claims of Class members Plaintiffs

are members of the Class Plaintiffs are asserting the same rights, making the same claims, and

seeking the same relief for themselves and for all other Class members

199 Adequate and Fair Representation Plaintiffs will fairly and adequately represent

and protect the interests of the class Plaintiffs have no interests that conflict with or which are

adverse to the interests of other class members Plaintiffs have retained qualified counsel who

are able and experienced in class action litigation

200 Fairness and Efficiency A class action is a fair and efficient method to adjudicate

this controversy

(a) Common questions of law and fact predominate over individual questions

(b) The claims of Plamtiffs and the Class are based on the same common

nucleus of operative facts Proof of Plaintiffs' claims will effectively prove the claims of all

other Class members

49


(c) Resolution of the claims of the Class will depend on the application of

common principles of law

(d) A class action will permit a large number of relatively small claims

involving similar facts and legal issues to be resolved efficiently in one proceeding based on

common proof

(e) This case is manageable as a class action in that

The matenal evidence is relatively simple and centralized

(u) Manufacturer Defendants and OnStar maintain computer and

business records which will enable Plaintiffs to identify Class members and establish liability and

damages

(iii) Damages for Class members can be calculated in the same or

similar manner

(iv) The claims of individual Class members are not sufficiently large

enough to support litigation on an individual, case-by-case basis

(v) A class action will result in an orderly and expeditious

administration of charms and will foster economies of time, effort and expense

(vi) A class action will contribute to uniformity of decisions

concerning Defendants' conduct

(vii) This class action is the best available method, and indeed the only

realistic method, by which Plaintiffs and the Class can seek redress for the harm caused by

Defendants

50


Count I Plaintiffs and The Classes v. All Defendants

Violations Of The Michigan Consumer Protection Act


202 As Plaintiffs and all Class members used their Manufacturer Defendants' vehicles

and OnStar equipment and service for personal, family and household purposes, the

Manufacturer Defendants and OnStar engaged in trade or commerce within the meaning of the

MCPA §445 902(g)

203 Plaintiffs and all other Class members who purchased vehicles manufactured by

Manufacturer Defendants are consumers and each of the Manufacturer Defendants and OnStar are

and therefore subject to the MCPA

204 Manufacturer Defendants' and OnStar's statements, representations, omissions, and

made in connection with their sale or lease of OnStar equipment and service as alleged

herein were in violation of the following sections of the MCPA § 445 903

a.§ 445 903(c) by representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they do not have or that a person has sponsorship, approval, status, affiliation, or connection, which he does not have

b § 445 903(n) by causing a probability of confusion or of tr usunderstandtng as to the legal rights, obligations or remedies of a party to a transaction

c § 445 903(p) by disclaiming or limiting the implied warranty of merchantability and fitness for use, without clearly and conspicuously disclosing a disclaimer

d § 445 903(s) by failing to reveal a material fact, the omission of which tc rids to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer

e § 445 903(bb) by making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is

51

Case 2 07-rnd-01867-SFC Document 113 Filed 04/30/2009 Page 52 of 76

f § 445 903(cc) by failing to reveal facts which are material o the transaction in light of representations of fact made in a positive manner

g §445 903(g) by failing to advertise or represent goods and services with intent not to dispose of them as advertised and represented

h §445 903(y) by fading to provide promised benefits and making gross discrepancies between oral and written representations

205 Defendants' unilateral decision to render the Class' OnStar systems obsolete

effective January 1, 2008, to wait to disclose to customers that their analog systems will be

obsolete and that they will be without OnStar service, their refusal to upgrade or repair analog

OnStar systems without charge, and their refusal to compensate Class members also amounts to

unfair, unconscionable and/or deceptive business practices in violation of the MCPA

206 Defendants' violations of the MCPA proximately caused damages to Plaintiffs and

Class members who purchased or leased vehicles manufactured by GM, VW, Honda and Subaru

and will cause them to suffer imminent harm and loss, including but not limited to

(a) the amount paid for their OnStar equipment and prepaid minutes,

(b) the cost for repair, replacement or upgrade,

(c) additional fees and costs to renew service, and

(d) their inability to obtain OnStar service after December 31, 2007


judgment in their favor and a inst each Defendant, Jointly and severally with OnStar, and

request the following relief




with interest, costs and attorneys' fees,

52


(c) exemplary damages, and


COUNT I — A Plaintiffs and the Classes v. OnStar

Violation of the Mickgan Consumer Protection Act Lost Prepaid Minutes


forth herein

208 OnStar's statements, representations, omissions and practices made in connection

with the sale of Prepaid Minutes were in violation of the following sections of the MCPA

(a) Section 445 903(c) by representing that Prepaid Minutes have

characteristics, uses, benefits or quantities, which they do not have

(b) Section 445 903(n) by causing a probability of confusion or of

misunderstanding as to the legal rights, obligations or remedies of a party to a transaction for the

purchase of Prepaid Minutes

(c) Section 445 903(ec) by failing to reveal facts which are material to the

transaction for the purchase of Prepaid Minutes in light of representations of fact made in a

positive manner

(d) Section 445 903(g) by advertising or representing Prepaid Minutes with

intent not to dispose of them as advertised and represented

209 OnStar's decision to sell Prepaid Minutes to subscribers with analog-only or

analog/digital-ready equipment without notice that the subscribers would lose those minutes after

December 31, 2007, and OnStar's refusal to provide refunds, amount to unfair, unconscionable

and/or deceptive business practices in violation of the MCPA

53


210 OnStar's violations of the MCPA proximately caused damages to Plaintiffs and

class members who purchased Prepaid Minutes and will cause them to suffer imminent harm and

loss, including but not limited to the amount paid for Prepaid Minutes

WHEREFORE, Plaintiffs individually and on behalf of all class members with analog-


favor and against OnStar, and request the following relief


representatives and the appointment of Plaintiffs' counsel as class counsel,



(c) exemplary damages except with respect to damages caused to Plaintiffs

and members of the Class in the State of New York (per February 19, 2009 Opinion and Order

Granting In Part And Denying In Part Defendants' Motions to Dismiss), and

(d) such other relief as may be just, necessary or appropnate

Count II Plaintiffs and the Classes v. All Defendants Unfair and Deceptive Trade Practices In

Violation Of All States' Consumer Protection Acts


forth herein

212 Alternatively, each Manufacturer Defendant's and OnStar's actions, as complained

of herein, constitute unfair competition or unfair, unconscionable, deceptive or fraudulent acts or

practices in violation of various state consumer protection statutes listed below


competition or unfair or deceptive acts or practices in violation of Ala Code § 8-19-1, et seq ,

54


(b) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Alaska Stat Code § 45 50 471,

et seq ,

(c) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ariz Rev Slat § 44-1522, et

seq,

(d) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ark Code § 4-88-101, et seq ,

(e) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices m violation of Cal. Bus & Prof Code §

17200, et seq and the Consumers legal Remedies Act, Cal Bus & Prof Code § 1750, et seq ,


competition or unfair or deceptive acts or practices or have made false representations

violation of Cob Rev Stat § 6-1-105, et seq ,

(g) Each Manufacturer Defendant and OnStar have engaged in unfair

mpetition or unfair or deceptive acts or practices in violation of Conn Gen Stat § 42-110b, et

seq,

(h) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of 6 Del Code § 2511, et seq ,

( I) Each Manufacturer Defendant and OnStar have engaged in unfair


D C Code § 28-3901, et seq ,

55


(j) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Fla Stat § 501 201, et seq ,

(k) Each Manufacturer Defendant and OnStar have engaged in unfair

petition or unfair or deceptive acts or practices in violation of Ga Stat § 10-1-392, et seq ,


competition or unfair or deceptive acts or practices in violation of Haw Rev Stat § 480, et seq ,

(m) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Idaho Code § 48-601, et seq ,

(n) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices m violation of the Illinois Consumer Fraud

and Deceptive Business Practices Act, 815 ILCS § 505/1, a seq

(o) Each Manufacturer. Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Ind Code Ann § 24-5-0 5 1,

et seq ,

(p) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Iowa Code § 714 I b, et seq ,

(q) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Kan Stat § 50-623, a seq ,

(r) Each Manufacturer Defendant and OnStar have en ged in unfair

competition or unfair or deceptive acts or practices in violation of Ky Rev Stat § 367 i 10, et

seq,

56

Case 2 07- d 67-SFC Document 113 Filed 04/30/2009 Page 57 of 76

(s) Each, Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of La Rev Stat § 51 1401, et

seq ,

(t) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of 5 Me Rev Stat § 207, et seq ,

(u) Each Manufacturer Defendant and OnStar have has engaged in unfair

competition or unfair or deceptive acts or practices in violation of Md Corn Law Code § 13-

101, et seq,

(v) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Mass Gen L Ch 93A, et

seq ,

(w) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Minn Stat § 325F 67, et seq ,

(x) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Miss Code Ann § 75-24-1, et

seq

(y) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Vernon's Mo Rev Stat §

407 010, et seq ,

(z) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Mont Code § 30-14-101, et

seq,

57

Case 2 07-md-01867-SFC Document 113 Fired 04/30/2009 Page 58 of 76

(aa) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Neb Rev Stat § 59-1601, et

seq ,

(bb) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Nev Rev Stat § 598 0903, et

seq

(cc) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or prances in violation of N H Rev Stat § 358-A 1, et

seq ,

(dd) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair, unconscionable or deceptive acts or practices in violation of N 1. Stat

Ann § 56 8-1, et seq ,

(ee) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N M Stat Ann § 57-12-1 a

seq ,

(ft) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N Y Gen Bus Law § 349, et

seq ,

(gg) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N C Gen Stat § 75-1 1, et

seq

•


(hh) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of N D Cent Code § 51-15-01,

et seq ,


competition or unfair or deceptive acts or practices in violation of Ohio Rev Stat § 1345 01, et

seq



Okla Stat tit 15 § 751, et seq

(kk) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Or Rev Stat § 646 605, et

seq ,


competition or unfair or deceptive acts or practices in violation of 73 Pa Stat 201-1, et seq ,

) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of R I Gen Laws § 6-13 1-1, er

seq ,

(nn) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of S C Code Laws § 39-5-10, et

seq ,

(oo) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of S D Code Laws § 37-24-1, et

seq ,

59


(pp) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Tenn Code § 47-18-101, et

seq ,

(qq) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive or practices in violation of Tex Bus & Corn Code § 17 41, et

seq ,

(rr) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Utah Code Ann § 13-1 1-1, et

seq.

(ss) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Vt Stat Ann tit 9, § 245 1, et

Cu) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Va Code § 59 1-196„ et seq

(uu) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unlair, deceptive or fraudulent acts or practices in violation of Wash Rev Code

§ 19 86 010, et seq

(vv) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of W Va Code § 46A-6-101 , et

seq ,

(ww) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Wis Stat § 100 20, et seq ,

and

60


(xx) Each Manufacturer Defendant and OnStar have engaged in unfair

competition or unfair or deceptive acts or practices in violation of Wyo Stat § 40-12-100,et seq

213 Defendants' violations of the state consumer protection statutes listed above

proximately caused damage to Plaintiffs and members of the Class


judgment in their favor and against all Defendants, and request the following relief



(b) compensatory damages for the Class to be determined at teal, together


(c) exemplary damages, except with respect to damages caused to Plaintiffs

and members of the Class in the State of New York, and


Count III and the Classes v. All Manufacturer Defendants

Breach of Express Warranty,


215 Each Manufacturer Defendant expressly warranted to Plaintiffs and all other Class

members who purchased or leased their vehicles that the OnStar equipment in their vehicle

would be free of defects in workmanship and materials during the warranty period, and that the

Manufacturer Defendant would repair or replace such defective equipment at no cost to Plaintiffs

and all other Class members

61


216 The OnStar equipment n all of the Manufacturer Defendants' vehicles purchased or

leased by plaintiff and other Class members was covered by their new motor vehicle warranties

The OnStar equipment in many Class members' vehicles was covered by an extended warranty

217 At the time that Class members were given notice that their OnStar equipment was

defective, numerous Class members were within the mileage and term of their onginal and

extended warranties

218 The OnStar equipment sold and delivered to Plaintiffs and all other Class members

was manufactured with faulty and defective workmanship and materials, are defective, and will

not function and will not perform its intended purpose during the warranty period


plaintiffs' vehicles

220 The durational limitations in the Manufacturer Defendants' warranties with respect

to analog OnStar equipment was unreasonable

221 The durational limitations in the Manufacturer Defendants' warranties respect

to analog OnStar equipment was unconscionable, invalid and unenforceable

222 Contrary to their warranties, each Manufacturer Defendant has expressly or

implicitly given notice to Plaintiffs and all other OnStar subscribers who purchased or leased

their vehicles that it will not repair or replace their defective OnStar equipment so that it will

operate on digital cellular networks, at no cost to Plaintiffs and the Class, and continue to refuse

to do so

223 Each Manufacturer Defendant breached its express warranties to Plaintiffs and all

other Class members to repair and/or replace On Star equipment so that it is in good operational

condition and repair and suitable for use in the OnStar system

62

Case .2 07-md-01867-SFC Document 113 Filed 04/30/2009 Page 63 of 76

224 The Manufacturer Defendants' breach of these express warranties proximately

caused damages to Plaintiffs and members of the Class

WHEREFORE, Plaintiffs, Individually and on behalf of all Class members, request


relief


representatives, and the appointment of Plaintiffs' counsel as Class counsel,

(b) compensatory damages for the Class to be deternuned at tnal, together

with interest, costs and attorneys' fees;

(c) such other relief as may be just, necessary or appropnate

Count IV Plaintiffs and the Classes v. All Manufacturer Defendagts

Breach Of Implied Warranties


226 At the time of contracting, each Manufacturer Defendant impliedly warranted to

Plaintiffs and to all other Class members who purchased or teased their vehtcles that their OnStar

equipment was of merchantable quality and suitable for ordinary use

227 The OnStar equipment sold, leased and delivered to Plaintiffs and all other Class

members was not of merchantable quality and was not suited for ordinary use


plaintiffs' vehicle.;



reasonable life expectancy of the vehicle, such limitations are unreasonable

63




reasonable life expectancy of the vehicle, such limitations are unconscionable, invalid and

unenforceable for the reasons set forth above

231 Each Manufacturer Defendant breached its implied warranty of merchantability of

its OnStar equipment to Plaintiffs and all Class members who purchased or leased their vehicles







234 Each Manufacturer Defendant's breach of warranties proximately caused damages

to Plaintiffs and all Class members who purchased or leased their vehicles



relief







Count V Plaintiffs and the Classes v. All Manufacturer Defendants

Violation of The Magnuson-Moss Warranty Act

235 Plaintiffs incorporate all other paragraphs of this Complaint by reference

236 On Star equipment is a consumer product used for personal, family or household

purpo

237 Each Manufacturer Defendant is a supplier and/or warrantor within the meaning of

the Magnuson-Moss Warranty Act, 15 U S C § 2301

238 Each. Manufacturer Defendant has failed to comply with its obligations under its

written and implied promises, warranties and representations despite having a reasonable

opportunity to do so.

239 Plaintiffs' and the Classes are therefore entitled to recover compensatory damages

together with interest, reasonable attorney's fees and costs

WHEREFORE, Plaintiffs, individually and on behalf of ail Class members, request

judgment in their. favor and a inst each Manufacturer Defendant and request the following

relief


representatives, and the appointment of Plaintiffs' counsel as class counsel;


with interest, costs and attorneys' fees, and


se 2 07-md-01867-SFC Document 113 Filed 04/30/2009 Page 66 of 76

COUNT VI Breach of Contract

Damages for Lost Prepaid Minutes

240 Each of the preceding paragraphs is Incorporated by reference as though fully set

forth

241 OnStar broke its agreement by selbng Prepaid Minutes to class members with

analog-only or analog/digital-ready equipment and refusing to refund them the cost of unused

Prepaid Minutes when their OnStar service and equipment ceased to function


Prepaid Minutes are entitled to restitution


l rep id Minutes are entitled to the return and refund of money they paid

244 WHEREFORE, Plaintiffs, individually and on behalf of all class members with

analog - only or analog/digital-ready equipment and unused Prepaid Minutes, request judgment in

;her. favor and against OnStar and request the following relief






COUNT VII Unjust Enrichment

Damages For Lost Prepaid Minutes

245 Each of the preceding paragraphs is incorporated by reference as though ully set

forth herein

66



Prepaid Minutes have conferred a substantial monetary benefit on OnStar


Prepaid Mmutes have been unable to use their Prepaid Minutes and therefore suffered substantial

financial loss

248 OnStar has retained substantial monetary benefit from the class members who have

or had analog-only or analog/digital-ready equipment and unused Prepaid Minutes remaining

when OnStar's analog equipment ceased to function

249 OnStar has been unjustly enriched


Prepaid Minutes are entitled to equitable restitution and/or damages

WHEREFORE, plaintiffs individually and on behalf of all class members with analog-


favor and against OnStar and request the following relief


representatives and the appointment of plaintiffs' counsel as class counsel;





JURY DEMAND

Plaintiffs demand a jury trial of 12

Respectfully submitted,

/s/ David H Fink David H Fink (P28235) E Powell Miller (P39487) Marc L Newman (P5I393) The Miller Law Firm PC Intenm Lead Counsel for Plaintiffs 950 W University Dr, Suite 300 Rochester, MI 48307 248-841-2200 dhf@millerlawpc com www millerlawpc corn

Jeffrey L Kodroff John A Macoretta Spector Roseman & Kodroff PC 1818 Market St , Suite 2500 Philadelphia, PA 19103 215-496-0300 jkodroff@srk-law corn imacoretta@srk-law corn

Dated April 30, 2009

-C Donald Amamgbo Amamgbo & Assoc, 1940 Embarcadero Oakland, CA 94606 510-434-7800 Donald@amamgbolaw coin

N Albert Bacharach, Jr 115 NE 6th Avenue Gainesville, FL 32601 352-378-9859 n a bacharach@att net

John W Barrett Jonathan R Marshall Bailey & Glasser LLP 227 Capitol Street Charleston, WV 25301

68


jbarrett@baileyglasser com

Mark R Bendure Bendure & Thomas 645 Griswold, Suite 4100 Detroit, MI 48226 313-961-1525 bendurelaw@cs corn

Larry W Bennett Giarmarco Mullms 101 W Big Beaver Rd, 10th Fl Troy, MI 48084 248-457-7037 [email protected]

Philip Bohrer Scott Brady Bohrer Law Firrn LLC 8712 Jefferson Hgwy, Suite B Baton Rouge, LA 70809 225-925-5297 phil@bohrerlaw corn scott@bradylawfirrnlIc corn

Patrick E Cafferty 101 N Main Street, Suite 450 Ann Arbor, MI 48104 734-769-2144 pcafferty@caffeityfaucher corn

Marc C Calahan 6451 Drexel Avenue Los Angeles, CA 90048 310-717-2484 mccalahan@yahoo corn

Edward W Cochren 20030 Marchmont Road Shaker Heights, OH 44122 216-751-5546 edwardcochren@adelphia net

Lanny H Darr Schrempf, Blaine, Kelly, Na p


307 Henry Street, Suite 415 Alton, IL 62002 618-465-2311 Idarr@sbkdlaw corn

Daniel A Edelman Edelman Combs Lattumer 120 S LaSalle St , Suite 1800 Chicago, IL 60603 312-739-4200 dedelrnan@edcombs corn courtecl@edcombs corn tgoodwin@edcombs corn zjacobs@edcombs corn

Marc Edelson 45 W Court Street Doylestown, PA 18901 (215) 230-8043 medelson@edelson-law corn

Frederic S Fox Larry D King Donald R Hall Kaplan Fox & Kilsheimer LLP 850 Third Ave , 14th Floor New York, NY 10022 212-687-1980 ffox@kaplanfox corn Ilang@kaplanfox corn dhall@kaplanfox corn

Philip Stephen Fuoco Joseph A Osefchen 24 Wilkins Place Haddonfield, NJ 08033 856-354-1100 pfuoco@msn corn josefchen@msn corn

Eric H Gibbs Daniel T LeBel Girard Gibbs LLP 601 California Street, 14th Fl San Francisco, CA 94108 415-981-4800

70

Case 2 07-md-01867-SFC Document 113 Fried 04/30/2009 Page 71 of 76

ehg@girardgibbs coin dtl@girardgibbs corn

Steven E Goren Goren Goren & Hams PC 30400 Telegraph Rd, Suite 470 Bingham Farms, MI 48025 248-540-3100 sgoren@gorenlaw corn

Mary Ellen Gurewitz 1000 Farmer Detroit, MI 48226-2899 313-965-3464 megurewitz@ sach wald man corn

Greg Hafif Law Offices of Herbert Hafif 269 W Bonita Avenue Claremont, CA 91711 909-624-1671 gbafif@hafif corn

Daniel Harris 150 N Wacker Dr , Suite 3000 Chicago, IL 312-960-1802 lawofficedh@yahoo corn

Dennis J Johnson Johnson & Perkinson 1690 Williston Road S Burlington, VT 05403 802-862-0030 djohnson@ jpclasslaw corn

Franklin D Julian, Jr 1620 S Bend Ave South Bend, IN 46617 574-247-1234 fdj theverdict corn

Roy A Katnel, Esq The Katnel Law Firm 1101 30th St , NW Suite 500 Washington, DC 20007

71


202-625-4342 rak@katnellaw corn

Irwin B Levin Richard E Shevitz Vess A Miller One Indiana Square, Suite 1400 Indianapolis, IN 46204 317-636-6481 ilevin@cohenandrnalad corn rshevitz@cohenandmalad corn vmiller@cohenandmalad corn

Jonathan K Levine 601 California St, Suite 1400 San Francisco, CA 94108 415-981-4800 ikl@girardgibbs corn

Peter L Masnik Kalikman & Masnik 30 Washington Avenue Haddonfield, NJ 08033 856-428-5222 PMasnik@aol corn

Gary E Mason The Mason Law Firm PC 1225 19th St NW, Suite 500 Washington, DC 20036 202-429-2290 gmason @masonlawdc corn

Kevin L Oufnac Kahn Gauthier Swick 650 Poydras St , Suite 2150 New Orleans, LA 70130 504-455-1400 Kevin oufnac@kgscounsel corn

Mario A Pacella Strom Law Firm LLC 2110 Belthne Blvd, Suite A Columbia, SC 29204 803-252-4800 mpacella@stromlaw corn

72


Ethan Preston Kamber Edelson LLC 53 W Jackson Blvd, Suite 1530 Chicago, IL 60604 epreston@kamberedelson corn

Michael F Ram Levy Ram & Olson 639 Front St , 4th Fl San Francisco, CA 94111 415-433-4749 mfr@trolaw corn

Paul S. Rothstein 626 NE 1st Street Gainesville, FL 32601 352-376-7650 psr@rothsteinforjustice corn

Peter Safirstein, Andrew Morgnni Jennifer Czeisler (Milberg Weiss) 1 Pennsylvania Plaza New York, NY 10119-0165 212-594-5300 psafirstem@milbergweiss corn amorganti@milbergweiss corn jczeisler@ MI lbergwetss corn

Fred W Schultz 320 W 8th St , Suite 100 Bloomington, IN 47401 866-685-6800 fred@ greeneschultz corn

Ronald J Smolow Michael H Landis Smolow & Landis LLC 204 Two Neshammy Inte rplea Trevose, PA 19053 215-244-0880 rsmolow@smolowlandis corn mlandis@smolowlandis corn


Stephen M Sohmer Sohmer Law Firm LLC One Passaic Avenue Fairfield, NJ 07004 973-227-7080 counsel@sohmerlawfirm corn

Carol L Solomon Gergel Nickles & Solomon PA PO Box 1866 Columbia, SC 29202 803-779-8080 csolomon @ gnslaw corn

Kim D Stephens Beth E Terrell Tousley Brain 1700 Seventh Ave , Suite 2200 Seattle, WA 98101 206-682-2992 kstephens@tousley corn, bterrell@ tousley corn

J Preston Strom, Jr Mano A Pacella 2110 Belthne Blvd, Suite A Columbia, SC 29204 803-252-48(X) petestrom@stromlaw corn, mpacella@stromlaw corn

Francis E Sweeney Jr 323 W Lakeside Ave, Suite 450 Cleveland, OH 44113 216-928-9288 slap900@roadrunner corn

Reginald Terrell, Esq Terrell Law Group 223 25th Street Richmond, CA 94804 510-237-9700 ReggieT2@aol corn

Frank H Tomlinson 15 N 2Ist St , Suite 302

74


Birmingham, Al 35203 205-326-6626 htomlinson@bellsouth net

Joe R Whatley, Jr 1540 Broadway, 37th Fl New York, NY 10036 212-447-7070 jwhatley@wdklaw com

Brian C Witter Vincent DiTommaso Peter S Lubin DiTommaso Lubin 17200 W 22nd St Oakbrook Terrace, IL 60181 630-333-0004 bcw@ditommasolaw com vlt@ditommasolaw corn psl@ditommasolaw corn

John P Wolff Chnstopher K Jones Keogh Cox & Wilson LTD 701 Main Street Baton Rouge, LA 70802 225-383-3796 jwolff@kcwlaw corn ejones@kcwlaw corn

Leroy H Wulfmeier Cox Hodgman 101 W Big Beaver Rd, 10th Fl Troy, MI 48084 248-457-7077 Iwulfmeier@chglaw corn

Lance Young 43311 Joy Road #244 Canton, MI 48187 734-446-6932 younglcy@hotmailcorn

75

Case 2 07-md-01867-SFC Document 113 Filed 04 30 2009 Page 76 of 76

CERTIFICATE OF SERVICE

I hereby certify that on April 30, 2009, 1 electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will send such notification to all ECF attorneys

of record Pursuant to the Court's Case Management Order No I dated January 25, 2008 at

XIII, service is not required on any party not registered for ECF

/s/ David H Fink David H Fink (P28235) E Powell Miller (P39487) Darryl G. Bressack (P67820) THE MILLER LAW FIRM, P.C. Intenm Lead Counsel for Plaintiffs 950 W University Drive, Suite 300 Rochester, Michigan 48307 (248) 841-2200

EXHIBIT

OAR/AMMO

REDACTED rimen .• • • OM, • •Imw••••

110$

JOB # 1 101Pd. laBlft & PAM O.

SRC MOM fintit A1:3011/1033

••••• ************* • •••n•• 00000 •••••••n••• ....................... TOMS» * RIMEL MR'S $41.11.13 COLVOIET CNA=

TOTAL INVOICE 'um A. w ME two 70 . 1 YOUR saw= FIDIOUVIIRS1 • . • • .

......

m UM, Of3FiTRWHER 32.01

Akttat OP'

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iffickee Sfead Wifeelif‘tho %chat& 23910 N. MAIN 8T.

WALNUT CREEK CALWORNIA 9459e W415524% lkomsewa. (925) 934930in Ep. tot CA13411451500

Enc H Gibbs A. .1 De Bartolomeo Elizabeth C Pritzker GIRARD GIBBS LLP 601 California Street, Suite 1400 San Francisco, California 94108 Telephone: (415) 981-4800 Facsimile. (415) 981-4846

Court Appointed Class Counsel in General Motors Dex-CoollGasket Cases and General Motors Cases, Anderson v General Motors

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

la re: MOTORS LIQUIDATION COMPANY

Debtors

Chapter 11

Case No 09-50026

PROOF OF SERVICE

Anne on Goetz, hereby declare as follows

I am employed by Girard Gibbs, A Limited Liability Partnership, 601 California Street,

Suite 1400, San Francisco, California 94108. I am over the age of eighteen years and am not a

party to this action. On November 24, 2009, I served the within documents':

1 CLASS PROOF OF CLAIM FOR ANDERSON V. GENERAL MOTORS LITIGATION,

2. CLASS PROOF OF CLAIM FOR THE DEX-COOL LITIGATION;

3 PROOF OF CLAIM FOR JOHN IRVINE IN ON-STAR PRODUCT LIABILITY LITIGATION;

4 PROOF OF CLAIM FOR ROBERT GOLISH IN ON-STAR PRODUCT LIABILITY LITIGATION, AND

5. PROOF OF SERVICE

OD.

The Garden City Group, Inc 5151 Blazer Parkway, Suite A Dublin, Ohio 43017

XX by depositing the document(s) listed above in a sealed envelope with delivery fees provided for a Pnority Overnight delivery, and addressed as set forth below.

1 declare under penalty of perjury under the laws of the State of California that the above

is true and correct Executed on November 24, 2009, at San Francisco, California

Exhibit C Proof of Claim No. 51094docs.motorsliquidationdocket.com/pdflib/8173_50026.pdf · 90679...

Documents

Transcript of Exhibit C Proof of Claim No. 51094docs.motorsliquidationdocket.com/pdflib/8173_50026.pdf · 90679...