Ford Class Action Whittled a Bit

SAN FRANCISCO (CN) - A federal judge dismissed just part of a class action that claims Ford concealed known problems with its MyFord Touch "infotainment" system that could endanger drivers.

Lead plaintiff Jennifer Whalen claimed that the $1,795 MyFord Touch system was defective when sold. She said the defects are in the Microsoft software, which freezes and leaves drivers unable to defrost windows, operate the car's rearview camera or dial 911.

U.S. District Judge Edward Chen on Monday dismissed five specific claims with prejudice from the second amended complaint.

Chen dismissed a fraud claim for affirmative misrepresentation as "not sufficiently particularized," since it did not allege that Ford told a plaintiff the system was defect-free before he bought the car.

But Chen upheld claims for fraudulent omissions, rejecting Ford's argument that the claims lacked materiality. Chen found nothing in the amended complaint to suggest that a plaintiff who bought two vehicles equipped with the MyFord Touch system knew the first car's system defect was an isolated incident.

He dismissed claims under Iowa's Consumer Fraud Act because they did not obtain the requisite approval of the state's attorney general before filing suit, and he dismissed one plaintiff's claim for breach of express warranty.

"Plaintiffs have once again failed to cite any case - let alone any Iowa case law - that supports their contention that an individual can maintain a claim for breach of express warranty where that individual did not even give the defendant an opportunity to honor the terms of that warranty," Chen wrote.

But Chen upheld another express warranty claim because "Ford has not cited any case that squarely stands for the legal proposition it asserts; namely that a plaintiff must plead awareness of the terms of a clearly labeled express warranty that was provided to the consumer at the time of sale."

He dismissed a claim of breach of implied warranty, as "not sufficient to state a plausible claim for breach of any implied warranty against Ford under a third-party beneficiary theory."

The plaintiffs voluntarily dismissed claims of breach of contract.

Neither side could be reached for comment Wednesday.

Chen gave the plaintiffs 30 days to file an amended complaint.

They are represented by Adam Levitt, with Grant & Eisenhorfer in Chicago.

Ford's counsel is Randall Edwards, with O'Melveny & Myers in San Francisco.

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