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In re General Motors Corporation Dex-Cool Products Liability Litigation

February 16, 2007


The opinion of the court was delivered by: Murphy, Chief District Judge



This cause is before the Court on a motion for class certification (Doc. 84). For the following reasons, the motion is DENIED.


The matter before the Court concerns claims for breach of express warranties by Defendant General Motors Corporation ("GMC") brought pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act ("Magnuson-Moss Act"), Pub. L. No. 93-637, 88 Stat. 2183 (1975) (codified at 15 U.S.C. §§ 2301 - 2312 (1982) and other scattered sections of 15 U.S.C.). The claims have been centralized in this Court by order of the Judicial Panel on Multidistrict Litigation for coordinated or consolidated pretrial proceedings. A second amended consolidated class action complaint ("Consolidated Complaint") filed in this Court on November 8, 2005, is the operative complaint in these consolidated proceedings (Doc. 94). Federal subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 2310(d)(1)(B), inasmuch as the Consolidated Complaint identifies at least one hundred named Plaintiffs and, according to the uncontroverted allegations of the Consolidated Complaint, the amount in controversy, exclusive of interest and costs, exceeds $50,000, computed on the basis of all claims to be determined in the suit. See Doc. 94 ¶¶ 4-107, ¶ 2. See also 15 U.S.C. § 2310(d)(3)(B)-(C); In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106, 1114 n.2 (7th Cir. 1979); In re General Motors Corp. Dex-Cool Prods. Liab. Litig., No. CIVMDL-03-1562GPM, Civ. 05-10007-GPM, 2006 WL 644793, at *2 (S.D. Ill. Mar. 9, 2006). Cf. Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 957 (7th Cir. 1998).*fn1

Plaintiffs, who are owners and lessees of vehicles manufactured by GMC, assert that their vehicles have been damaged by Dex-Cool, a factory-installed engine coolant manufactured according to a proprietary specification written by GMC, in breach of written warranties made to them by GMC in the owner's manuals that accompanied their vehicles and elsewhere. The Consolidated Complaint alleges that in the owner's manuals GMC promised vehicle owners that factory-installed Dex-Cool would for a period of five years or 150,000 miles (or, for 1996 model year vehicles, 100,000 miles): (1) give freezing protection down to -35 degrees Fahrenheit (-37 degrees Celsius); (2) give boiling protection up to 265 degrees Fahrenheit (129 degrees Celsius); (3) protect against rust and corrosion; (4) help keep the proper engine temperature; and (5) let the warning lights and gauges work as they should. See Doc. 94 ¶ 118. Plaintiffs contend that the foregoing statements in the owner's manuals constitute an enforceable express warranty. See id.¶¶ 116-17.*fn2

Plaintiffs allege that, contrary to GMC's warranty, Dex-Cool damages vehicles in which it is installed in two ways. First, Plaintiffs assert that Dex-Cool, which is designed to prevent corrosion of engine parts by allowing corrosion to form and then chemically reacting with the corrosion to stop it, is incompatible with the cooling system in certain GMC 4.3-liter engine vehicles because the cooling system in those vehicles is not designed to remain full of coolant. See Doc. 94 ¶ 113; Doc. 86 at 6. Because Dex-Cool cannot protect component parts that are not in constant contact with the coolant, Plaintiffs contend, GMC's 4.3-liter V-6 engines factory-equipped with Dex-Cool are unreasonably prone to developing corrosive sludge inside the cooling system. See Doc. 86 at 6. Second, Plaintiffs contend, Dex-Cool is chemically incompatible with the intake manifold gaskets factory installed in GMC's 3.1-, 3.4- and 3.8-liter V-6 engines, eventually eroding the gaskets and leaking out. See 10-11. Plaintiffs allege that these defective conditions associated with Dex-Cool constitute a breach of GMC's express warranties to vehicle owners and lessees.

Pursuant to Rule 23(b)(3) and (c)(4)(A) of the Federal Rules of Civil Procedure, Plaintiffs ask the Court to declare on behalf of a class of GMC vehicle owners and lessees that GMC's representations concerning Dex-Cool set out in the owner's manuals for certain GMC vehicles constitute a "written warranty" within the meaning of the Magnuson-Moss Act, see 15 U.S.C. § 2301(6), and issue an injunction requiring GMC to honor that warranty. The proposed class is defined, with certain exceptions not material here, as follows:

All consumers (except those in California, Missouri, and Texas) who purchased or leased any of the following GM vehicles, model years 1995 through 2004, that were factory-equipped with a 3.1-, 3.4-, 3.8- or 4.3-liter V-6 engine and Dex-Cool: Chevrolet and GMC S/T Blazer, Jimmy, Sonoma, S10 pickup; GMC Envoy; Buick Century, Rendezvous, Riviera, Park Avenue Regal, and LeSabre; Chevrolet Lumina and Lumina APV, Venture, Malibu, Monte Carlo, and Impala; Oldsmobile Alero, Bravada, Cutlass, Silhouette, Ninety-Eight, Eighty-Eight, and Intrigue; and Pontiac Trans Port, Grand Am, Montana, Grand Prix, Aztek, Bonneville and Grand Prix.

See Doc. 85 at 7. Plaintiffs further request that the Court resolve on behalf of the proposed class the two following issues:

(1) Whether factory-equipped Dex-Cool is incompatible with the intake manifold gasket factory-installed in GM 3.1-, 3.4-, and 3.8-liter engine vehicles, model years 1995 through 2004 [Buick Century, Rendezvous, Park Avenue, Regal, and LeSabre; Chevrolet Venture, Malibu, Monte Carlo, Impala, Lumina and Lumina APV; Oldsmobile Alero, Cutlass, Silhouette, Ninety-Eight, Eighty-Eight, and Intrigue; and Pontiac Trans Port, Grand Am, Montana, Grand Prix, Aztek, Bonneville, and Grand Prix]; and

(2) Whether factory-equipped Dex-Cool is incompatible with the cooling system in GM 4.3-liter engine vehicles, model years 1995 through 2000 [Chevrolet and GMC S/T Blazer, Jimmy, Sonoma, S10 pickup; GMC Envoy; and Oldsmobile Bravada].

See 8. The parties have filed extensive written submissions with respect to the issue of class certification. The Court has reviewed those submissions carefully and conducted a hearing on class certification and now is prepared to rule.


A. Standing

At the outset the Court addresses GMC's argument that, because unnamed members of the proposed class have not been damaged, that is, incurred expenses for repairs to their vehicles for harm allegedly caused by Dex-Cool, they lack standing. Although this argument has no merit, standing is an issue that implicates the Court's subject matter jurisdiction, and therefore the Court will discuss the issue briefly. See Smith v. Wisconsin Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1142 (7th Cir. 1994) ("Standing and ripeness are jurisdictional prerequisites."). See also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (a federal court must satisfy itself that the plaintiffs have standing because it implicates constitutional limits on the court's power); Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006) ("[S]tanding remains . . . a limitation on the authority of a federal court to exercise jurisdiction."); Carolina Cas. Ins. Co. v. Pinnacol Assurance, 425 F.3d 921, 926 (10th Cir. 2005) (citing Steel Co., 523 U.S. at 96-97) ( "Because constitutional standing is necessary to the court's jurisdiction, as a general rule it must be addressed before proceeding to the merits."). Cf. Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979) (issues affecting a federal court's subject matter jurisdiction are "fundamentally preliminary").

Federal courts are, of course, courts of limited jurisdiction whose adjudicatory authority stems from Article III of the United States Constitution. See Abercrombie v. Office of Comptroller of Currency, 833 F.2d 672, 674 (7th Cir. 1987). Article III allows federal courts to hear only "Cases" and "Controversies," Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 495 (7th Cir. 2005) (quoting U.S. Const. art. III, § 2, cl. 1), and "[o]ne of [the] landmarks, setting apart the 'Cases' and 'Controversies' that are of the justiciable sort referred to in Article III . . . is the doctrine of standing." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). See also Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir. 2000) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)) ("The standing requirement inheres in Article III of the Constitution, which requires that a party seeking to invoke the jurisdiction of the federal courts must present an . . . actual case or controversy."). To have Article III standing a plaintiff must show three things: an "injury in fact," that is, a concrete, particularized, and actual or imminent harm, not one that is conjectural or hypothetical; a fairly traceable causal connection between the harm and a defendant's complained-of conduct; and a likelihood that requested relief will redress the harm. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). See also Johnson v. Allsteel, Inc., 259 F.3d 885, 887 (7th Cir. 2001) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)) ("To satisfy Article III's standing requirements, a plaintiff must allege that he has sustained 'personal injury [in-fact] fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'").*fn3

In this case the Consolidated Complaint alleges that all of the named Plaintiffs have suffered damage to their automobiles caused by Dex-Cool. See Doc. 94 ¶ 108. Additionally, the clear import of the allegations of the Consolidated Complaint is that all owners and lessees of vehicles factory-equipped with Dex-Cool, if they have not already incurred expenses for repairs for harm to their vehicles caused by Dex-Cool, are in imminent danger of incurring such expenses by reason of GMC's refusal to pay for the damage Dex-Cool is alleged inevitably to cause to vehicles in which it installed. These allegations of actual or imminent injury to all members of the proposed class are sufficient to satisfy the requirements of Article III standing. See Lujan, 504 U.S. at 560 (constitutional standing is premised on the "invasion of a legally protected interest which is . . . concrete and particularized . . . and . . . actual or imminent"); Heckler v. Mathews, 465 U.S. 728, 738 (1984) ("In order to establish standing for purposes of the constitutional 'case or controversy' requirement, a plaintiff . . . must show that he personally has suffered some actual or threatened injury[.]"). Whatever the merits of the claims before the Court, and this is an issue that is distinct, of course, from standing, see Family & Children's Ctr., Inc. v. School City of Mishawaka, 13 F.3d 1052, 1058 n.3 (7th Cir. 1994); South E. Lake View Neighbors v. HUD, 685 F.2d 1027, 1034 (7th Cir. 1982), the allegations of Plaintiffs' Consolidated Complaint are adequate to permit the Court to entertain the claims asserted therein. See Warth v. Seldin, 422 U.S. 490, 498 (1975) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.").

Finally, in the class-action context, standing is tested according to special rules. Generally standing in a class action is assessed solely with respect to class representatives, not unnamed members of the class. "Once threshold individual standing by the class representative is met, a proper party to raise a particular issue is before the court, and there remains no further separate class standing requirement in the constitutional sense." 1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 2:5 (4th ed. 2002 & Supp. 2006) (collecting cases). See also Bzdawka v. Milwaukee County, 238 F.R.D. 469, 473 (E.D. Wis. 2006) (noting that "[i]n a class action, the unnamed class members are 'passive' in contrast to the named plaintiff, who actively prosecutes the litigation on their behalf"; thus, "standing analysis is concerned with whether the named plaintiff is properly before the court."). Under the law of this Circuit, in fact, issues of class certification are to be resolved before issues of standing. The United States Court of Appeals for the Seventh Circuit has instructed that "class certification issues are . . . logically antecedent to Article III concerns, and themselves pertain to statutory standing, which may properly be treated before Article III standing." Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir. 2002) (quoting Ortiz v. Fibreboard Corp., 527 U.S. 815, 831 (1999)).

"Thus the issue about Rule 23 certification should be treated first." Id. As the Payton court recognized, standing in a class action is demonstrated by proving that the prerequisites for class certification under Rule 23 of the Federal Rules of Civil Procedure are met. Thus, standing is satisfied where it is shown that a class representative meets the requirements of Rule 23(a), particularly Rule 23(a)(3) and (a)(4). See Irving Trust Co. v. Nationwide Leisure Corp., 95 F.R.D. 51, 57 n.6 (S.D.N.Y. 1982) ("Generally, when the Rule 23(a) prerequisites are met, there will be standing, since those prerequisites demand that the plaintiff alleged injury resulting from a class wrong."); 1 Conte & Newberg, Newberg on Class Actions § 2:7 (unnamed class members "need not make any individual showing of standing, because the standing issue focuses on whether the plaintiff is properly before the court, not whether represented parties or absent class members are properly before the court."). As will be discussed in the next section of this Order, the Court concludes that Plaintiffs satisfy the requirements of Rule 23(a), so that standing is proper in this case.

B. Class Certification

1. Legal ...

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