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In re Ford Motor Company Ignition Switch Products Liability Litigation

September 30, 1997

IN RE FORD MOTOR COMPANY IGNITION SWITCH PRODUCTS LIABILITY LITIGATION
MICHAEL WILKS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
FORD MOTOR COMPANY AND UNITED TECHNOLOGIES AUTOMOTIVE, INC., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge.

Introduction

The above-captioned actions represent two groups of putative class action suits in which the plaintiffs allege that defendants manufactured and distributed defective motor vehicle ignition switches that were installed in vehicles owned or leased by the plaintiffs. The ignition switch in question is found in approximately 23 million vehicles that were produced by defendant Ford Motor Company ("Ford") between the model years 1984 and 1993. The switches themselves were manufactured by defendant United Technologies Automotive, Inc. ("UTA"). Plaintiffs allege that these switches are defective because they have the propensity to short-circuit, allegedly causing damage from smoke or fires in over 2,000 vehicles.

In the first of the two groups of cases, plaintiffs Michael Wilks and others seek to represent a class of plaintiffs that purchased certain Ford vehicles in model years 1984 through 1993, and whose vehicles caught on fire as a result of the allegedly defective ignition switch. The court will refer to that case as the "Wilks case".

The second group of cases consists of a nationwide consolidation of twelve cases from various courts, each involving plaintiffs who own Ford vehicles of the subject 1984-93 model years who do not allege that their Ford vehicles have caught on fire as a result of the allegedly defective ignition switch. Most of these cases have been transferred to this court through the Judicial Panel on Multidistrict Litigation. The court will refer to this group of cases as the "MDL case." No named plaintiffs in the MDL case have actually sustained smoke or fire damage in their Ford vehicles. The various complaints comprising the MDL case have been consolidated by joint action of respective plaintiffs' counsel into the Consolidated First Amended Class Action Complaint (filed Nov. 22, 1996), which sets forth all causes of action raised by the MDL plaintiffs.

Presently before the court is a motion to dismiss the MDL case, made by the defendants pursuant to Fed. R. Civ. P. 12(b)(6). Defendant Ford had previously filed a motion for judgment on the pleadings in the Wilks case, but subsequently withdrew that motion. (See Notice of Withdrawal of Motion, dated Dec. 19, 1996). Thus, this Opinion will adjudicate claims in the MDL action only. For the reasons discussed below, the court will grant in part and deny in part defendants' motion to dismiss in the MDL case.

Background

The facts underlying these class action cases, which were set forth in this court's recent Opinion denying without prejudice plaintiffs' motion for class certification, *fn1 are as follows.

Plaintiffs contend that certain ignition switches manufactured by defendant UTA and installed in vehicles by defendant Ford were defective. All told, plaintiffs allege that UTA manufactured and Ford installed approximately 25 million ignition switches of the same or substantially identical design in every Ford vehicle during model years 1984 through 1992 except Taurus, Sable, and Probe, together with certain 1993 models produced before October 1992. Plaintiffs explain that as a result of that defect, a short circuit may be created in the switches, possibly leading to ignition of a fire. Plaintiffs allege that at least 2,000 vehicles have caught fire or sustained damage from melting or smoke as a result of the defective ignition switch. Such fires can allegedly occur while the vehicle is being driven or when the vehicle is parked and the engine is off. Plaintiffs allege that defendants knew or should have known of this alleged defect before the first of these switches was ever installed, and in any event by 1985 when the first consumer reports of related fires were allegedly made to Ford. Plaintiffs further allege that the faulty ignition switch can be replaced by a redesigned switch at a cost of about $75.00 per vehicle.

In 1992, administrative agencies in the United States and Canada began investigating reports of fires caused by the defective ignition switches. On November 29, 1995, Ford Motor Company of Canada, Ltd. ("Ford Canada") announced the recall of 248,000 vehicles to replace the ignition switch at no expense, with Ford Canada warning that the ignition switches in the recalled vehicles could short-circuit, leading to overheating, smoke, and possibly fire in the steering column area of the vehicle while in use or unattended. Ford Canada recalled only a fraction of the models having the allegedly faulty ignition switches, allegedly based on Ford Canada's analysis of the incident rates of reported problems, as stated in various Ford Canada documents. Ford Canada had allegedly received 261 reports of vehicle fires from 1988-91 model vehicles by November 1995, which it had analyzed before the recall in Canada.

On April 25, 1996, in the United States, defendant Ford voluntarily announced a recall of some of the models that purportedly contain the defective switch, consisting of approximately 8.3 million vehicles, allegedly comprising the largest single-manufacturer recall in U.S. history. Ford declined to recall the remaining 15 million vehicles having the same or similar ignition switch, in models allegedly having a lower (or null) rate of reported incidents according to Ford's analysis. The National Highway Traffic Safety Administration ("NHTSA") has not, to date, required Ford to recall additional model years of vehicles beyond Ford's April 25, 1996, recall.

Also in April 1996, plaintiff Wilks filed his complaint in this court. The court subsequently consolidated the Wilks case with another case, known as Art's Transportation, which also had been brought by plaintiffs who allege that a defective ignition switch had caused a fire in their Ford vehicles. As noted, there is no motion to dismiss or motion for judgment on the pleadings currently before the court in Wilks or Art's Transportation.

This court first became familiar with the legal claims brought by those plaintiffs who do not allege that their Ford vehicles ever caught on fire when defendant Ford removed to this court a complaint filed by plaintiff Yvette Veideman in New Jersey Superior Court. In June 1996, the Judicial Panel on Multidistrict Litigation began transferring to this court all similar "non-incident" claims that had been filed in federal courts across the country. See In re Ford Motor Co. Ignition Switch Products Liability Litigation, MDL No. 1112 (Order filed June 27, 1996). Those cases have been consolidated into this one "MDL" action. The MDL action is currently comprised of twelve cases which have been filed as class actions and transferred to this court from 11 districts nationwide. *fn2

In their initial consolidated MDL complaint, the named plaintiffs in the MDL case raised the following causes of action: 1) violation of state consumer fraud statutes, 2) strict products liability, 3) breach of contract and express warranty, 4) fraudulent concealment, and 5) breach of implied warranty of merchantability. The named plaintiffs in that initial consolidated complaint were residents of the following states: New Jersey, New York, California, and Mississippi. After the filing of the consolidated complaint, defendants filed motions to dismiss the claims brought by the named plaintiffs in the MDL case. Defendants contended that each of the plaintiffs named in the consolidated complaint had failed to state any valid causes of action under the laws of the state from which each plaintiff hailed.

At the ensuing oral argument concerning the motions to dismiss, the court raised the issue of whether the court had subject matter jurisdiction over the MDL case, specifically whether the plaintiffs in that case had satisfied the amount in controversy requirement of the federal diversity jurisdiction statute. See 28 U.S.C. § 1332. The court noted that the defective part at issue in the case is valued at $75, and that the plaintiffs in the MDL action had yet to suffer any personal injury or extensive property damage to their vehicles.

After the oral argument, the MDL plaintiffs responded to the subject-matter jurisdiction issue by amending the consolidated complaint to add a cause of action under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. The Magnuson-Moss claim was added by the MDL plaintiffs in a Consolidated Amended Class Complaint (Consolidated First Amended Class Action Complaint and Jury Demand, filed November 22, 1996)(hereinafter "Compl."). The complaint also named 113 additional plaintiffs, for a total of 119 proposed class representatives asserting Magnuson-Moss Warranty Act claims. Each of these newly added 113 plaintiffs resides in the state of Louisiana.

Following the amendment of the consolidated complaint, defendants filed supplemental motions to dismiss the complaint. Those motions contended, in part, that the named plaintiffs had not stated a cognizable cause of action under the Magnuson-Moss Act, and that the named plaintiffs from Louisiana had failed to state any viable causes of action under Louisiana law.

Defendants in both the MDL action and the Wilks action also moved to strike all class allegations in these cases, on the grounds that the named plaintiffs could not maintain a class action because they would not be able to provide proper notice to all putative class members. In an Order dated February 21, 1997, the court denied that motion without prejudice, determining that the motion was premature.

Similarly, the court has denied without prejudice the motions for class certification that were filed in the MDL and the Wilks actions. See In re Ford Motor Co. Ignition Switch Products Liab. Litig., No. 96-3125, 96-1814, 96-3918, ___F. Supp.___ (filed Aug. 28, 1997). The MDL plaintiffs had asked the court to certify two subclasses in the MDL case: one consisting of those plaintiffs whose Ford vehicles have sustained no damage and have been recalled *fn3 , and one consisting of those plaintiffs whose vehicles have sustained no damage and were not part of the April 1996 recall. *fn4

In this Opinion, the court addresses the pending motions to dismiss in the MDL case.

Discussion

I. Standards Governing Motions to Dismiss

A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). A court may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The question before the court is not whether the plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quoting Conley, 355 U.S. at 47).

II. The Choice of Law Issue

Before reaching the merits of defendants' motions to dismiss, the court will first address the threshold issue of which states' laws apply to the plaintiffs' state-law claims. The court has addressed this issue in its recent class certification Opinion in this case. In that Opinion, the court stated in pertinent part as follows:

Plaintiffs urge the court to apply the law of a single jurisdiction, which would alleviate the problems caused by variations in the laws of multiple jurisdictions. Defendants, however, argue that an application of the laws of all fifty states is required.

New Jersey choice of law principles require an interest analysis, in which the forum court compares the interests of the states whose laws are potentially involved in the underlying action and determines which state has the greatest interest in having its law applied. See Gantes v. Kason Corp., 145 N.J. 478 (1996). Plaintiffs argue that Michigan has the greater interest in having its law applied because Ford's headquarters are located in Michigan, the vehicles in question were manufactured there, decisions relating to the allegedly defective ignition switches were made there, and any misrepresentations, statements or advertisements regarding the Ford vehicles originated in Michigan. Further, plaintiffs claim that Michigan has an interest in regulating Ford's behavior and in making sure that it adheres to minimum levels of care expected of Michigan corporations.

Defendants maintain that a choice of law analysis leads to the conclusion that the laws of each plaintiff's home state must be applied because those states have interests that outweigh the interests of Michigan. The court agrees.

Each plaintiff's home state has an interest in protecting its consumers from in-state injuries caused by foreign corporations and in delineating the scope of recovery for its citizens under its own laws. These interests arise by virtue of each state being the place in which plaintiffs reside, or the place in which plaintiffs bought and used their allegedly defective vehicles or the place where plaintiffs' alleged damages occurred.

. . . Since the laws of each of the fifty states vary on important issues that are relevant to plaintiffs' causes of action and defendants' defenses, the court cannot conclude that there would be no conflict in applying the law of a single jurisdiction, whether it be Michigan, or New Jersey, as the plaintiffs suggest. Thus, the court will apply the law of each of the states from which plaintiffs hail. In re Ford, ___F. Supp. at ___, slip op. at 32-36. *fn5

The named plaintiffs bringing the consolidated amended complaint are residents of New Jersey, New York, California, Mississippi, and Louisiana. Thus, the court will apply the law of those states to determine whether the causes of action brought by these named plaintiffs are legally cognizable. *fn6

III. Statute of Limitations Issues

As a preliminary matter, the court declines to find at this time that plaintiffs' claims are time-barred by any applicable statutes of limitations. Plaintiffs claim that the statutes of limitations were tolled because plaintiffs could not discover the alleged defect during the applicable statutes of limitations, since the nature of the defect is latent, and since Ford allegedly concealed the existence, scope and magnitude of the defect. Given the court's determinations regarding choice of law issues, the existing briefing on the statute of limitations issue is inadequate, as the parties did not address the requirements for tolling of a statute of limitations in each of the states whose laws will be applied to plaintiffs' surviving claims. The court therefore declines to dismiss plaintiffs' claims on statute of limitations grounds. Should defendants choose to renew their statute of limitations motions, then the parties should submit briefing that addresses the law of the states under which plaintiffs' surviving claims are brought with regard to the tolling of a statute of limitations for the relevant causes of action.

IV. Plaintiffs Whose Vehicles Have Been Recalled

Defendants contend that the court should dismiss the claims of all of those plaintiffs whose Ford vehicles have been recalled. Defendants argue that those plaintiffs have failed to allege that they have suffered legally cognizable damage as a result of defendants' allegedly improper conduct. The court agrees.

Of the 119 named plaintiffs in the consolidated complaint, 44 are in plaintiffs' proposed "Subclass B," which consists of those "Class members who currently either own or lease . . . Ford Vehicles that were included in the safety recall announced by Ford on April 25, 1996." (Compl. ¶ 137). None of the members of Subclass B own a car in which the alleged ignition switch defect has manifested itself and caused an actual malfunction. Thus none of these plaintiffs have suffered any direct injury to their person or property as a result of the alleged defect. Through the safety recall, all members of subclass B are entitled to the installation of a replacement ignition switch free of charge.

Despite the absence of apparent damages, subclass B plaintiffs assert that they have a cause of action because the recall "has not adequately notified or compensated the members of Subclass B." (Compl. ¶ 191). Nowhere in the complaint do plaintiffs describe what injury Subclass B members have sustained that might require further compensation beyond the offer to install a replacement ignition switch free of charge. *fn7 Neither do they explain in what way the recall notice has been inadequate, or what injury has resulted from the alleged inadequacy. *fn8 Furthermore, throughout the briefing of both rounds of motions to dismiss, plaintiffs have failed to cite any law indicating that there are causes of action under which plaintiffs may recover from defendants even though they have not been damaged by defendants' conduct. It is a proposition too plain for citation that where no allegation of compensable harm has been made, there is no common law cause of action. *fn9

Although the Federal Rules of Civil Procedure do not require a claimant to set forth in detail the facts upon which he or she bases the claim, they do require a "`short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Because plaintiffs do not assert any actual existing injury, and do not point to any law under which they might recover despite an absence of injury, their pleadings fail to put defendants on notice regarding the grounds upon which the plaintiffs' claim rests. Subclass B plaintiffs' their claims are therefore dismissed with prejudice. *fn10

V. Plaintiffs Whose Vehicles Have Not Been Recalled

As defendants concede, those plaintiffs whose vehicles have not been recalled have properly alleged that they have suffered damages in that they possess vehicles that contain a defective ignition switch. The question before the court as to these plaintiffs is whether they have properly averred causes of action in all other respects. The court will resolve this question by analyzing the claims of each named plaintiff under the laws that govern their claims. See Section II, supra (discussing application of choice of law principles to these named plaintiffs). In this regard, the court will separately address each count of the consolidated complaint. For organizational reasons, the court will not discuss each count of the complaint in the same order set forth in the complaint itself.

A. Violation of Consumer Protection Statutes (Count 3)

The third count in the MDL complaint alleges that defendants violated various consumer protection statutes by fraudulently misinforming the public regarding the ignition switches. Plaintiffs allege in this count that defendants violated the New Jersey Consumer Fraud Act (N.J.S.A. § 56:8-1 et. seq.), as well as Michigan's consumer protection statutes (Mich. Comp. Laws Ann. § 445.901 et. seq.,), and the complaint further notes that "all 50 states have adopted statutes which contain similar statutory provisions and schemes to prohibit deceptive and unfair practices and to protect consumers, and almost all allow private rights of action under such statutes." (Compl. ¶ 204, 207). Although plaintiffs' complaint does not specify the statutes of each relevant state, the parties' briefs have set forth the relevant consumer protection statutes of each state whose law will govern these claims. Defendants have moved to dismiss the claims brought by the named plaintiffs in this count.

1. Failure to Plead Statutory Fraud Claims with Adequate Particularity under Rule 9(b)

First, defendants contend as a general matter that plaintiffs have not pled this count with the specificity required by Fed. R. Civ. P. 9(b). Rule 9(b) states, in relevant part that "[i]n all averments of fraud . . ., the circumstances constituting the fraud . . . shall be stated with particularity." Contrary to plaintiffs' contentions, this rule applies to statutory fraud claims as well as common law claims. See F.D.I.C. v. Bathgate, 27 F.3d 850, 876 (3d Cir. 1994)(applying Rule 9(b) to a New Jersey Consumer Fraud Act Claim). This rule is necessary to ensure that defendants are placed on notice of "the precise misconduct with which they are charged," and to "safeguard defendants against spurious charges of immoral and fraudulent behavior." Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984). As explained below, the court finds that the allegations in Count 3 that defendants violated consumer protection statutes through fraudulent misrepresentation or concealment were not plead with sufficient particularity.

The Third Circuit has not applied Rule 9(b) in a manner that requires the pleader to set forth fraud claims with excessive detail. Rather, the Third Circuit has advised courts applying Rule 9(b) to "`take account of the general simplicity and flexibility contemplated by the [Federal Rules of Civil Procedure].'" Seville Indus. Mach. Corp., 742 F.2d at 791. Nonetheless, to satisfy the requirements of Rule 9(b), plaintiffs must "inject precision and some sort of substantiation into their allegations of fraud." Id.

An allegation of fraud therefore must state with particularity facts showing (1) a knowing false representation or omission of material fact made with the intent that it should be relied upon, and (2) reliance by the plaintiff that (3) resulted in damages. See Christidis v. First Pennsylvania Mortg. Trust, 717 F.2d 96, 99 (3d Cir. 1983)(stating that Rule 9(b) requires the identification of the above elements in an action for false representation); Davis v. Grusemeyer, 996 F.2d 617, 624 n.13 (3d Cir. 1993)(stating that actions for fraudulent concealment are also subject to the heightened pleading requirements of Rule 9(b)); Yost v. General Motors Corp., 651 F. Supp. 656, 658 (D.N.J. 1986)(dismissing pursuant to Rule 9(b) plaintiff's action for common law fraud where plaintiffs failed to allege that defendant's representations were false, failed to plead facts showing detrimental reliance on the representations, and failed to substantiate claims that they sustained damages.)

From the plain language of the relevant consumer statutes, it appears that these elements of common law fraud - namely intentional misrepresentation, detrimental reliance and resultant damages - are also necessary elements of a private action under the consumer protection statutes under which plaintiffs bring their statutory fraud claims. See Cal. Civil Code § 1770(a)(7), 1780(a) (West 1996) *fn11 ; Miss. Code Ann. § 75-24-5(2)(g), § 75-24-15(1)(1996) *fn12 ; La Rev. Stat. Ann. § 51:1405, § 51-1409(A)(1997) *fn13 ; N.Y. Gen. Bus. Law § 349(a),(h)(McKinney 1996) *fn14 . As explained below, the court finds that although plaintiffs have plead with adequate particularity that defendants knowingly made misrepresentations and omissions of material fact, plaintiffs have failed to allege facts showing that they relied upon those misrepresentations and omissions and that they sustained damages as a result.

Contrary to defendants' assertions, plaintiffs have alleged with adequate particularity the knowing misrepresentations and omissions of material fact by defendants. In Seville, the court reversed the dismissal of fraud claim where plaintiff had described in detail the nature and subject of the alleged fraud, but had not described the date, place, time or precise words of the phone calls and letters alleged to have furthered the fraud. Seville Indus. Mach. Corp., 742 F.2d at 791. Like the plaintiffs in Seville, plaintiffs in the instant case have for the most part described with some particularity the nature of Ford's alleged misrepresentations to the public and the mediums through which these statements were made (see compl. ¶ 166, 171-181), as well as the contexts and means through which Ford allegedly concealed or suppressed or omitted to report the facts Ford allegedly knew about the defective ignition switches (see Compl. ¶ 154, 157-161, 171-181). Admittedly, some of plaintiffs' allegations are quite vague. For example, plaintiffs' contention that defendant Ford suppressed exposure of the extent of the defect by "persuading" NHTSA not to institute a recall (see Compl. ¶ 157-161) does not describe how defendants went about misinforming or persuading NHTSA. Nonetheless, the court finds that the allegations are plead with adequate particularity to afford defendants notice of the claims against them, and they do evidence a reasonable belief on the plaintiffs' part that their complaint has merit. Furthermore, to the extent that any of the allegations of fraud are unnecessarily vague, the court will permit the use of contention interrogatories pursuant to Fed. R. Civ. P. 33(c) to cure this problem.

The complaint is nonetheless deficient in that it fails to describe with any particularity how plaintiffs relied upon the alleged material misrepresentations and omissions of defendant, or how such reliance resulted in damages. With regard to plaintiffs' misrepresentation claims, the complaint fails to state what advertisement or other statement by Ford was heard or seen and then relied upon by each remaining plaintiff. Likewise with regard to the fraudulent concealment allegations, the complaint fails to allege what duty if any defendants had to disclose the material information at issue, or how each plaintiff acted in reliance on the absence of material disclosures.

The bulk of the misrepresentations and omissions alleged in the Consolidated Amended Complaint took place after many of the individual plaintiffs had purchased their Fords, and plaintiffs give no explanation of how these misrepresentations and omissions could have been detrimentally relied upon by those plaintiffs. The complaint's first specific allegation of misrepresentation or concealment by Ford is the allegation that Ford suppressed information regarding the magnitude of the ignition switch failure rate during NHTSA investigations that began in 1992. (Compl. ¶ 157-161). The complaint further alleges that Ford began a "media campaign" to "mislead the American public" in November 1995 and then again in April 1996, and that this campaign continues today. (Compl. ¶ 166, 171-73, 177-78). The complaint gives no explanation of how these misrepresentations and material omissions were relied upon by plaintiffs who purchased Fords after the misstatements or omissions were made. Neither does it specify what kinds of misleading statements or omissions were relied upon by plaintiffs who purchased their Fords prior to 1992. The mere allegation that Ford knew of the defect before installation of the switch began in 1984 (Compl. ¶ 154) does not by itself set forth with adequate particularity a claim of fraudulent concealment beginning in 1984, as plaintiffs have not alleged what duty defendants had to disclose this alleged knowledge, as is required for a claim of fraudulent concealment. See e.g., Swersky v. Dreyer and Traub and Morse, 219 A.D.2d 321, 326 (N.Y. Div. App. 1996)(fraudulent concealment requires "setting forth that the defendant had a duty to disclose material information"(citations omitted)); Chase Chemical Co., Inc. v. Hartford Accident & Indemnity Co., 159 Cal. App. 3d 229, 242 (Cal. Ct. App. 1984)("Fraud based on concealment or nondisclosure . . . is not actionable unless there is a duty to disclose"); VanZandt v. VanZandt, 86 So.2d 466, 470 (Miss. 1956)(an action for fraudulent concealment requires either a fiduciary relationship or an affirmative act of concealment).

Plaintiffs also fail to specify what damages resulted from their action in reliance on defendants' alleged misrepresentations and concealment. Instead, plaintiffs vaguely assert that "[t]he total amount of damages suffered by plaintiffs and members of the class as a result of the acts of defendants cannot be fully ascertained without access to defendants' records and will be proven at the time of trial." (Compl. ¶ 201). Plaintiffs make no effort to describe in even the vaguest of terms what kind of damage each individual plaintiff might have suffered. Neither do they explain why defendants would know what damages plaintiffs suffered where plaintiffs themselves do not know.

Since plaintiffs have failed to plead with any particularity the detrimental reliance and damage elements of their statutory fraud claims pursuant to Rule 9(b), all these claims in Count 3 shall be dismissed without prejudice. Since plaintiffs shall be permitted to amend the complaint accordingly, the court will - for the sake of completeness and expediency - ...


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