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In re Takata Airbag Products Liability Litigation

United States District Court, S.D. Florida, Miami Division

June 20, 2019

IN RE TAKATA AIRBAG PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO ALL ECONOMIC LOSS TRACK CASES Economic Loss No. 14-24009-CV-MORENO

          ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS BY DEFENDANTS FCA, GENERAL MOTORS, MERCEDES, AUDI. AND VOLKSWAGEN

          FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE.

         TABLE OF CONTENTS

         INTRODUCTION........................................................................................................................3

         BACKGROUND...........................................................................................................................4

         LEGAL STANDARD...................................................................................................................5

         ANALYSIS....................................................................................................................................6

         I. STANDING............................................................................................................................6

         A. Legal Standard...................................................................................................................7

         B. "Injury in Fact"..................................................................................................................8

         1. Mercedes and Volkswagen...........................................................................................8

         a) Manifestation of Defect...........................................................................................8

         b) Economic Injury....................................................................................................11

         2. General Motors...........................................................................................................12

         a) Manifestation of Defect.........................................................................................13

         b) Economic Injury....................................................................................................16

         C. "Fairly Traceable"...........................................................................................................18

         1. Volkswagen Sub-Class Claims and Audi Sub-Class Claims......................................18

         2. Remaining "Fairly Traceable" Arguments.................................................................22

         a) The Takata Plea Agreement..................................................................................22

         (1) Request for Judicial Notice............................................................................23

         (2) Plaintiffs' "Fairly Traceable" Allegations.....................................................25

         b) The Takata Letters................................................................................................28

         D. Conclusion.......................................................................................................................30

         II. JURISDICTION..................................................................................................................30

         A. Primary Jurisdiction and Preemption..............................................................................32

         B. Role of Bristol-Myers......................................................................................................33

         C. General Personal Jurisdiction..........................................................................................39

         1. Domestic Defendants..................................................................................................39

         a) Transferor Actions.................................................................................................40

         b) Direct-File Actions................................................................................................40

         2. Foreign Defendants - Transferor and Direct-File Actions.........................................41

         3. Conclusion..................................................................................................................42

         D. Specific Personal Jurisdiction.........................................................................................42

         1. Domestic Defendants in Direct-File Actions..............................................................43

         a) Florida Long-Arm Statute.....................................................................................43

         b) RICO Nationwide Service of Process Provision...................................................49

         (1) "Colorable" Claims........................................................................................51

         (2) Statutory Basis...............................................................................................51

         (3) Constitutional Basis.......................................................................................52

         2. Foreign Defendants in Transferor and Direct-File Actions........................................55

         a) Constitutional Due Process...................................................................................55

         b) Federal Long-Arm Statute....................................................................................62

         c) "Stream of Commerce" Theory.............................................................................65

         3. Conclusion..................................................................................................................72

         E. Jurisdictional Discovery..................................................................................................72

         F. Conclusion.......................................................................................................................75

         III. RICO.....................................................................................................................................75

         A. "Pattern of Racketeering Activity" - Section 1962(c)....................................................76

         B. "Conspiracy to Violate RICO" - Section 1962(d)..........................................................85

         IV. REMAINING CLAIMS IN DIRECT-FILE ACTIONS - PENDENT PERSONAL JURISDICTION..................................................................................................................92

         CONCLUSION...........................................................................................................................94

         INTRODUCTION

         This multidistrict litigation ("MDL") consolidates allegations of economic loss and personal injury related to airbags manufactured by defendants Takata Corporation and TK Holdings (collectively, "Takata") and equipped in vehicles manufactured by Defendants FCA U.S. LLC ("FCA"), General Motors Company, General Motors Holdings LLC, General Motors LLC (collectively, "General Motors"), Daimler AG, Mercedes-Benz USA, LLC (collectively, "Mercedes"), Audi Aktiengesellschaft, Audi of America, LLC (collectively, "Audi"), Volkswagen Aktiengesellschaft, and Volkswagen Group of America, Inc. (collectively, with Audi, "Volkswagen") (all automotive manufacturers collectively, "Defendants"). While the Court divided the MDL's component cases into two tracks-economic loss for plaintiffs alleging purely economic damages and personal injury for plaintiffs alleging damages to a person-this Order pertains only to economic loss cases.

         THIS CAUSE comes before the Court upon Defendant FCA's Motion to Dismiss (D.E. 2983), Defendant General Motors's Motion to Dismiss (D.E. 2981), Defendants Mercedes's and Volkswagen's Motion to Dismiss (D.E. 2988), and Defendant Mercedes's Separate Motion to Dismiss for Lack of Standing (D.E. 2982). Individually, the Motions seek to dismiss all claims alleged in three separate Amended Consolidated Class Action Complaints: Boyd v. FCA U.S. LLC ("Boyd”) (D.E. 2758); Whitaker v. General Motors Company, et al ("Whitaker") (D.E. 2759); and Puhalla v. Volkswagen Aktiengesellschaft, et al.[1] ("Puhalla") (D.E. 2762) (collectively, the "Amended Consolidated Class Action Complaints").

         THE COURT has thoroughly reviewed the Amended Consolidated Class Action Complaints, the Defendants' Motions to Dismiss, the Plaintiffs' Omnibus Response in Opposition (D.E. 3034) (the "Omnibus Response" or "Opposition"), and the Defendants' Reply memoranda (D.E. 3094, 3098, 3103). The Court also heard oral argument from the parties on certain issues raised in the moving papers. (See D.E. 3139). This Order pertains only to standing, personal jurisdiction, and the sufficiency of Plaintiffs' claims under the Racketeering Influenced and Corrupt Organizations Act ("RICO"). The Court reserves ruling on all other claims not discussed (including all claims advanced by the Automotive Recycler Plaintiffs). For the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART the Defendants' Motions to Dismiss.

         BACKGROUND

         Plaintiffs are consumers of Defendants' vehicles that are equipped with Takata airbags containing the propellant ammonium nitrate. Plaintiffs allege ammonium nitrate is an innately volatile and unstable propellant that imposes an unreasonable risk of serious foreseeable harm or death upon drivers of Defendants' vehicles. The crux of Plaintiffs' legal claims is that Defendants knew or should have known of these defects prior to installing the Takata airbags in their vehicles, and that Defendants concealed from, or failed to notify, the Plaintiffs and the general public of the full and complete nature of the defect, despite being aware of problems arising during the design and testing process, and through various rupture incidents and recalls. The Defendants vigorously contest both the constitutional bases for this Court to exercise jurisdiction, and the sufficiency of the allegations supporting Plaintiffs' substantive legal claims.

         LEGAL STANDARD

         "A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Detailed factual allegations are not required, but a pleading must offer more than "labels and conclusions" or "a formulaic recitation of the elements of the cause of action." Twombly, 550 U.S. at 555.

         Where a cause of action sounds in fraud, however, Federal Rule of Civil Procedure 9(b) must be satisfied in addition to the more relaxed standard of Rule 8. Under Rule 9(b), "a party must state with particularity the circumstances constituting fraud or mistake," although "conditions of a person's mind," such as malice, intent, and knowledge may be alleged generally. Fed.R.Civ.P. 9(b). "The 'particularity' requirement serves an important purpose in fraud actions by alerting defendants to the 'precise misconduct with which they are charged' and protecting defendants 'against spurious charges of immoral and fraudulent behavior.'" W. Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc., 287 Fed.Appx. 81, 86 (11th Cir. 2008) (quoting Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)).

         ANALYSIS

         Defendants move to dismiss the Amended Consolidated Class Action Complaints in their entirety on several justiciability grounds, and on grounds that Plaintiffs fail to adequately plead their substantive legal claims. This Order addresses: (1) the standing challenges brought by Mercedes, Volkswagen, and General Motors; (2) all the Defendants' personal jurisdiction attacks; and (3) all the Defendants' objections to the sufficiency of Plaintiffs' RICO claims. The Court will also address preemption and primary jurisdiction challenges made by Mercedes and Volkswagen, and the background issue of pendent personal jurisdiction. The Court will begin by deciding the extensively briefed standing and personal jurisdiction issues, and then proceed to rule on the sufficiency of Plaintiffs' RICO allegations. Then the Court will conclude by resolving the parties' pendent personal jurisdiction dispute.

         I. STANDING

         Mercedes and Volkswagen, and separately General Motors, move to dismiss in full on standing grounds the Puhalla and Whitaker Complaints. Mercedes and Volkswagen argue Plaintiffs fail to sufficiently plead the "injury in fact" and "fairly traceable" elements of the standing test established by the United States Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). General Motors limits its standing challenge to the "injury in fact" element. These Defendants also ask the Court to judicially notice several pieces of extrinsic evidence. For instance, Mercedes asks the Court to judicially notice the Takata Plea Agreement, and then conclude the Plaintiffs' alleged injuries are not "fairly traceable" to Mercedes's conduct because Takata pleaded guilty to defrauding several auto manufacturers. General Motors asks the Court to judicially notice three "Petitions for Inconsequentiality" that General Motors filed with the National Highway Traffic and Safety Administration ("NHTSA"), and then conclude Plaintiffs have not suffered an "injury in fact" because the alleged airbag inflator defects have not manifested in certain models of General Motors vehicles. In their Omnibus Response, Plaintiffs assert they have more than adequately alleged standing, and characterize Defendants' Motions as an attempt to relitigate prior rulings based upon selectively chosen, and heavily disputed, extrinsic evidence.

         A. LEGAL STANDARD

         Article III of the United States Constitution limits federal court jurisdiction to actual cases and controversies. See U.S. Const, art. Ill. § 2, cl. 1. "The standing doctrine is an aspect of this case or controversy requirement, and has its origins in 'both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.'" Cone Corp. v. Fla. Dep 't of Trans., 921 F.2d 1190, 1204 (11th Cir. 1991) (citing Flast v. Cohen, 392 U.S. 83, 94-101 (1968); quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Standing is jurisdictional, and thus a motion to dismiss for lack of standing is treated as a motion for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Stalley ex rel. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per curiam) (citing Cone Corp., 921 F.2d at 1232). The party invoking federal jurisdiction bears the burden of establishing standing. See Lujan, 504 U.S. at 561.

         Each element of standing "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Id. In a motion to dismiss, "general factual allegations of injury resulting from the defendant's conduct" may be sufficient to allege standing because on a motion to dismiss courts presume that general allegations embrace those specific facts that are necessary to support the claim. Id. (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990)).

         To establish Article III standing, a plaintiff "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). More specifically, constitutional standing requires: (1) that the plaintiff suffered an injury in fact-an invasion of a legally protected interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan, 504 U.S. at 560 (citations omitted).

         B. "INJURY IN FACT"

         1. Mercedes and Volkswagen

         Mercedes and Volkswagen[2] argue that the Plaintiffs have not established they suffered an "injury in fact" because the Plaintiffs only allege "possibly future injury," which is not a "certainly impending" injury. (D.E. 2988 at 65-66.) Mercedes and Volkswagen further argue that Plaintiffs fail to establish an economic injury in fact because "all Plaintiffs will receive a replacement inflator as soon as parts are available, at no cost to them." Id. at 65.

         a) Manifestation of Defect

         Mercedes and Volkswagen assert that there is no injury in fact because Plaintiffs do not allege that "any Takata inflator at issue in this case ruptured in any vehicle sold by Defendants," and thus, Plaintiffs "have alleged only non-actionable hypothetical harm." (D.E. 2988 at 65 (emphasis in original).)

         Upon close review of the Puhalla Complaint, the Court finds that Plaintiffs sufficiently allege an injury in fact. Plaintiffs allege that "[a] 11 Takata airbags at issue in this litigation share a common, uniform defect: the use of ammonium nitrate, a notoriously volatile and unstable compound, as the propellant in Defendants' defectively designed inflators." (D.E. 2762 at ¶ 4.) Plaintiffs then plead several issues with Takata airbags that were installed in Mercedes's and Volkswagen's vehicles, stemming from the use of ammonium nitrate. For example, Plaintiffs allege that: Mercedes had concerns about "module cover tearing," "cushion tearing," and "the module having integrity during and post-deployment"; Mercedes was aware Takata airbags had "performance problems plaguing the inflators" and had "difficulty meeting USCAR standards"; and Mercedes forwent "key performance variables" in order to approve Takata airbags. A/, at ¶¶ 182-84, 186.

         As to Volkswagen, Plaintiffs allege Volkswagen "had repeated quality issues with Takata," including "failed airbag modules during testing" and "airbag tearing." Id. at ¶¶ 163-64. Plaintiffs then plead that Volkswagen later "reported [the] torn airbag to Takata" and expressed concern "over a flame that occurred during testing, and apparent cushion ruptures." Id. at ¶ 164. Plaintiffs also allege incidents of Takata airbag issues during testing conducted by Volkswagen, such as "ammonium-nitrate inflators [coming] apart during bonfire testing" and "an inflator rupture[] in Brazil during testing." Id. at ¶¶ 165-66. Plaintiffs further allege "Takata also informed Volkswagen that a greater propellant surface area . . . could significantly increase the burn rate and inflator pressurization, to the point of rupture," and thus Volkswagen knew that Takata's ammonium-nitrate propellant "could be susceptible to long-term aging and degradation." Id. at ¶167.

         Notwithstanding Plaintiffs' allegations-that Mercedes and Volkswagen experienced a series of performance issues with Takata airbags installed in their vehicles, which were defective because they contained innately unstable ammonium nitrate-Mercedes and Volkswagen contend that the Plaintiffs merely allege "non-actionable hypothetical harm" because they do not allege that "any Takata inflator at issue in this case ruptured in any vehicle sold by Defendants." (D.E. 2988 at 65 (emphasis in original).) This argument attempts to relitigate the same manifestation of defect argument the Court already rejected earlier in this litigation. Previously, Mazda moved to dismiss certain claims arguing the plaintiffs did not allege that "any other Mazda model, or any Mazda vehicle for model years 2003-2007 . . . ever manifested the alleged defect." (See D.E. 608 at 210.) The Court rejected this argument and explained that "[i]f Takata had installed grenades in its airbags that may or may not explode on impact, a court would not require an explosion to demonstrate manifestation of a defect." In re Takata Airbag Prod. Liab. Litig., 193 F.Supp.3d 1324, 1335 (S.D. Fla. 2016). The point, the Court emphasized, was that the defective airbags might protect vehicle occupants, or may not protect vehicle occupants at all, or the airbags may create a more dangerous situation than having no airbag at all by expelling metal shrapnel. Id.

         In Tershakovec v. Ford Motor Co., the Court followed its ruling in In re Takata and declined to dismiss breach of express warranty claims at the motion to dismiss stage. 2018 WL 3405245, at *6 (S.D. Fla. July 12, 2018). The Court explained that it was "premature to dismiss claims at the motion to dismiss stage because of a plaintiffs failure to encounter the alleged defect," because "even though the[] Florida Plaintiffs did not experience [the defect], the alleged breach of express warranty could have manifested itself when their vehicles were assembled." Id. Thus, "the possibility of encountering [the defect]-as alleged-was not hypothetical, but a virtual certainty." Id.

         Here, Plaintiffs allege the airbags installed in Mercedes's and Volksagen's vehicles are defective because they contain innately unstable ammonium nitrate, and thus create an unreasonable and imminent risk of injury to vehicle occupants. Consistent with this Court's prior rulings in In re Takata and Tershakovec, the Court finds these allegations sufficiently plead injury in fact.

         b) Economic Injury

         Mercedes and Volkswagen also argue that Plaintiffs fail to allege any economic injury in fact. Specifically, Mercedes and Volkswagen argue Plaintiffs cannot have suffered an economic injury because the recall notices make clear that Plaintiffs "will receive a replacement inflator as soon as parts are available, at no cost to them." (D.E. 2988 at 65.)

         In the Eleventh Circuit, "[e]conomic harm and physical injury are well-established injuries-in-fact under federal standing jurisprudence." Adinolfe v. United Techs. Corp., 768 F.3d 1161, 1172 (11th Cir. 2014). Following Adinolfe, the Court in Melton v. Century Arms, Inc. denied a motion to dismiss for lack of standing where the plaintiffs alleged they suffered "economic harm such as overpayment, loss of value, or loss of usefulness emanating from the loss of their benefit of the bargain" stemming from an alleged manufacturing defect. 243 F.Supp.3d 1290, 1298-99 (S.D. Fla. 2017). And earlier in this litigation, the Court rejected the very argument advanced by Mercedes and Volkswagen here, ruling that the plaintiffs adequately pleaded an economic injury in fact. Previously, Takata moved to dismiss RICO claims arguing that the plaintiffs did not allege "any specific loss," and that "any loss related to the inflator defect [could] be alleviated if a consumer avail[ed] himself of a free replacement airbag offered as part of. . . [the] recall arrangement." In re Takata Airbag Prod. Liab. Litig., 2015 WL 9987659, at *2 (S.D. Fla. Dec. 2, 2015). The Court denied Takata's motion to dismiss on this ground, finding sufficient the plaintiffs' allegations that they overpaid for vehicles based on misinformation regarding vehicle safety, they overpaid for airbags within the vehicles, and the vehicles they purchased diminished in value after the public learned about the airbag defect. Id.

         Like their predecessors, the Plaintiffs here assert they suffered economic injuries and are entitled to damages comprising the value they overpaid for their vehicles based on misinformation about vehicle safety, and for the diminution in value of the vehicles following the negative publicity about vehicle safety. (D.E. 2762 at ¶¶ 18, 20.) Plaintiffs further allege they suffered a variety of other economic injuries including out-of-pocket expenses and costs associated with taking time off from work, paying for rental cars or other transportation arrangements, and child care. Id. at ¶ 36. Finally, each Plaintiff individually alleges they would not have purchased or leased a class vehicle if they knew about the airbag defect. See Id. at ¶¶ 39-127.

         In short, Plaintiffs' allegations are identical to those the Court previously found sufficient. Accordingly, the Court finds that Plaintiffs sufficiently allege an economic injury in fact as to Mercedes and Volkswagen.

         2. General Motors

         General Motors argues Plaintiffs have not established they suffered an injury in fact because they "do not (and cannot) allege a manifest defect." (D.E. 2981 at 54.) General Motors further argues Plaintiffs cannot establish an economic injury in fact because the Plaintiffs "whose vehicles did not manifest a defect [cannot] have cognizable claims based on allegations that the vehicles have a diminished resale value." Id. at 53.

         a) Manifestation of Defect

         Despite acknowledging that the Court "previously deferred ruling on manifest defect arguments until the summary judgment stage," General Motors maintains that Plaintiffs "do not (and cannot) allege a manifest defect" and thus "each and every plaintiff should be dismissed." Id. at 50, 54-55.

         Plaintiffs allege that General Motors "began equipping its vehicles with Takata's airbags in the early 2000s" and that "[a]ll Takata airbags at issue in this litigation share a common, uniform defect: the use of ammonium nitrate, a notoriously volatile and unstable compound, as the propellant in their defectively designed inflators." (D.E. 2759 at ¶¶ 6, 105.) Plaintiffs further allege Takata airbags made for General Motors's vehicles ruptured during testing on numerous occasions, see Id. at ¶¶ 110-11, 115-17, and that General Motors also experienced at least three field ruptures, which on one occasion left the driver "completely blind in one eye," id. at¶¶ 119, 121. Plaintiffs allege these ruptures, or "energetic disassemblies," involve "an explosion of the inflator that causes the inflator to break apart and fire metal particulate out of the airbag." Id. at ¶ 110. After reviewing the Whitaker Complaint, the Court finds-as it did with the allegations against Mercedes and Volkswagen-that Plaintiffs sufficiently allege injury in fact with respect to General Motors.

         General Motors maintains the allegations leveled against it "are different" from Mercedes and Volkswagen because, as set forth in General Motors's "Petitions for Inconsequentiality" filed with NHTSA, [3] "the Takata airbags in GMT900 vehicles have never ruptured and there is no indication any ever will." (D.E. 2981 at 51 (emphasis in original).) The GMT900 "is a specific vehicle platform that forms the structural foundation for a variety of GM trucks and sport utility vehicles, including the Chevrolet Silverado 1500, GMC Sierra 1500, Chevrolet Silverado 2500/3500, GMC Sierra 2500/3500, Chevrolet Tahoe, Chevrolet Suburban, Chevrolet Avalanche, GMC Yukon, GMC Yukon XL, Cadillac Escalade, Cadillac Escalade ESV, and Cadillac Escalade EXT."[4] General Motors does not, however, extend this argument to the Takata airbags installed in non-GMT900 vehicles-such as the Chevrolet Cruze, a vehicle the Plaintiffs allege suffered at least two field inflator ruptures, and which left one driver "completely blind in one eye." (D.E. 2759 at ¶ 121). And Plaintiffs also allege the Chevrolet Cruze is "subject to current or future recalls due to the Inflator Defect," along with several other vehicles manufactured by General Motors that extend beyond the GMT900 platform, such as the Buick LaCrosse, Cadillac XTS, GMC Terrain, Saab 9-3, Saturn Astra, and the Chevrolet Camaro, Equinox, and Malibu. Id. at ¶ 77.

         Again, General Motors's argument is essentially the same manifestation of defect argument advanced by Mazda earlier in this litigation. In moving to dismiss all damages claims for failure to allege manifestation of a defect, Mazda emphasized that the plaintiffs alleged "only one manifestation of an Inflator Defect in a Mazda vehicle-a December 31, 2014 incident in a 2008 Mazda 6-and that vehicle owner [was] not a named plaintiff." (D.E. 608 at 10.) Mazda further emphasized that the plaintiffs failed to allege "that any other Mazda model, or any Mazda vehicle for model years 2003-2007 ... ever manifested the alleged defect." Id.

         The Court declined to dismiss all claims for damages against Mazda because-regardless of whether ruptures occurred in certain vehicles-Plaintiffs' allegations were that ammonium nitrate was innately unstable; so "[b]y definition" this alleged instability would mean that the defective airbags might protect vehicle occupants, or may not protect vehicle occupants at all, or the airbags may even create a more dangerous situation than having no airbag at all by expelling metal shrapnel. In re Takata Airbag Prod. Liab. Litig., 193 F.Supp.3d at 1335. As such, because there was "no way to know whether the airbags at issue would perform satisfactorily in an accident," the Court refused to "require an explosion to demonstrate manifestation of a defect." Id; see also Tershakovec, 2018 WL 3405245, at *6 (denying motion to dismiss because "the alleged breach of express warranty could have manifested itself when the[] vehicles were assembled," and thus "the possibility of encountering [the defect]-as alleged-was not hypothetical, but a virtual certainty"); In re General Motors LLC Ignition Switch Litig., 257 F.Supp.3d 372, 458 n.30 (S.D.N.Y. 2017) ("[I]t would be perverse to require [plaintiff] to be involved in an accident to prove that her car manifested the defect.. . .") (citing In re Takata Airbag Prod. Liab. Litig., 193 F.Supp.3d at 1335)).

         Throughout this case, the Court has reapplied this rationale to other defendants seeking dismissal on similar grounds. See, e.g., In re Takata Airbag Prod. Liab. Litig., 255 F.Supp.3d 1241, 1258 (S.D. Fla. 2017) (rejecting Honda's manifestation of defect argument "[c]onsistent with the Court's Mazda Order"); In re Takata AirbagProd. Liab. Litig., 2017 WL 2406711, at *10 (S.D. Fla. June 1, 2017) (same as to Takata); In re Takata Airbag Prod. Liab. Litig, 2017 WL 775811, at *4 (S.D. Fla. Feb. 27, 2017) (same as to Ford); In re Takata Airbag Prod. Liab. Litig, 2016 WL 5848843, at *5 (S.D. Fla. Sept. 21, 2016) (same as to Toyota); In re Takata Airbag Prod. Liab. Litig, 2016 WL 6072406, at *10 (S.D. Fla. Oct. 14, 2016) (same as to BMW). And like all the previous plaintiffs, the Plaintiffs here allege that Takata airbags installed in General Motors's vehicles contain innately unstable ammonium nitrate, and thus create an unreasonable and imminent risk of injury to vehicle occupants. See supra. Accepting these allegations as true, the Court finds that Plaintiffs adequately plead injury in fact.

         Holding aside the Court's prior rulings, the significance of a petition for inconsequentiality is that, once granted, a manufacturer's vehicles and replacement equipment are "exempt[ed] . . . from the [National Traffic and Motor Vehicle Safety Act's] notice and remedy requirements." 49 C.F.R. § 556.1. But filing a petition does not "constitute a concession by the manufacturer of, nor will it be considered relevant to, the existence of a defect related to motor vehicle safety or a nonconformity." 49 C.F.R. § 556.4(c). And to date, the Court is not aware of any final ruling by NHTSA on General Motors's Petitions. So, General Motors attempts to dismiss itself from this litigation on the basis that one platform of its vehicles might be clear of recall obligations imposed by NHTSA. The Court declines to depart from its prior rulings on this basis.

         b) Economic Injury

         General Motors also asserts that Plaintiffs fail to allege any economic injury in fact. Unlike Mercedes and Volkswagen, General Motors argues that there is no economic injury in fact because the "plaintiffs whose vehicles did not manifest a defect [cannot] have cognizable claims based on allegations that the vehicles have a diminished resale value." (D.E. 2981 at 53.)

         In support, General Motors relies on Cahen v. Toyota Motor Corp., a Northern District of California case where the plaintiffs sought damages based on "the risk of future harm from the alleged product defect (that defendants' cars [were] susceptible to hacking by third parties)." 147 F.Supp.3d 955, 966 (N.D. Cal. 2015). General Motors correctly notes that Cahen found the risk that "vehicles might be hacked at some point in the future" insufficient to constitute a "credible risk of hacking." Id. at 969. But General Motors fails to note that Cahen made clear that its analysis was "not to say that a future risk of harm can never satisfy injury in fact analysis," because "[a]lthough a speculative future risk will not suffice, 'a credible threat of harm is sufficient to constitute actual injury for standing purposes.'" Id. at 968 (quoting Riva v. Pepsico, Inc., 82 F.Supp.3d 1045, 1052 (N.D. Cal. 2015)). In finding that the plaintiffs' risk of harm allegations lacked credibility, Cahen emphasized that the plaintiffs did not allege "that anybody outside of a controlled environment [had] ever been hacked." Id. at 969.[5]

         Here, unlike the alleged risk of future harm in Cahen, the Whitaker Complaint sets forth numerous allegations of a universal vehicle defect (i.e. the airbags are inherently dangerous because they contain innately unstable ammonium nitrate), which are further supported by numerous alleged instances of General Motors's vehicles experiencing airbag ruptures during testing and in the field. (See D.E. 2759 at ¶¶ 6, 110-11, 115-17, 119, 121.) Taking these allegations as true, the Court finds Plaintiffs credibly allege a risk of future harm sufficient to establish standing. See In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales Practices, &Prod. Liab. Litig., 295 F.Supp.3d 927, 950 (N.D. Cal. 2018) (noting that in contrast to the allegations in Cahen, "when a complaint includes concrete allegations of a current universal vehicle defect. . . those allegations plausibly and specifically support an overpayment theory of injury") (emphasis in original). And as explained above regarding Mercedes and Volkswagen, Plaintiffs' claims for economic damages resulting from the diminution of value caused by the allegedly defective Takata airbags installed in their vehicles, constitute an economic injury in fact for purposes of standing. See supra; In re Takata Airbag Prod. Liab. Litig., 2015 WL 9987659, at *2; Melton, 243 F.Supp.3d at 1298-99. Therefore, General Motors's Motion to Dismiss the Whitaker Complaint for lack of standing is DENIED.

         C. "FAIRLY TRACEABLE"

         Next, Mercedes and Volkswagen advance several arguments that the Plaintiffs have not pleaded that their injuries are "fairly traceable" to Mercedes's and Volkswagen's actions. Each argument is addressed in turn.

         1. Volkswagen Sub-Class Claims and Audi Sub-Class Claims

         First, Volkswagen argues the Court should dismiss any claims asserted against Volkswagen by purchasers or lessees of Audi vehicles, and any claims asserted against Audi by purchasers or lessees of Volkswagen vehicles, on grounds these Plaintiffs cannot establish their alleged injuries are "fairly traceable" to manufacturers that they did not purchase or lease vehicles from. (D.E. 2988 at 67-68.) In their Opposition, Plaintiffs argue their allegations-that "VW America, Audi AG, and Audi America are 'wholly owned subsidiaries]' of Volkswagen AG" and that Volkswagen and Audi "together 'engineered, designed, developed, manufactured or installed the Defective Airbags in the Volkswagen- and Audi-branded Class Vehicles [ ] and approved the Defective Airbags for use in those vehicles'"--are sufficient to confer standing. (See D.E. 3034 at 93 (quoting D.E. 2762 at ¶¶ 26-30).)

         In the Eleventh Circuit, "it is well-settled that prior to the certification of a class ... the district court must determine that at least one named class representative has Article III standing to raise each class subclaim." Prado-Steiman ex rel. Prado v. Bush,221 F.3d 1266, 1279 (11th Cir. 2000). This means "each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury ...


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