VW Moves to Dismiss 3G Telematics Class-Action Claims for ‘Various Flaws’

Eileen Raposa's and Michael Raffo's consolidated class actions asserting claims over connected vehicle services that went dead after AT&T discontinued its 3G wireless services in February 2022 (see 2303030039) “suffer from various flaws that require dismissal,” said a Volkswagen Group of America (VWGoA) memorandum June 16 (docket 2:22-cv-06230) in U.S. District Court for New Jersey in Newark in support of its motion to dismiss. VWGoA simultaneously filed a motion to compel the Raposa and Raffo disputes to arbitration that, if granted, would render the motion to dismiss moot, it said.

The plaintiffs’ consumer protection claims under New Jersey, New York and Kentucky law “all fail to meet the applicable pleading standards,” said the memorandum. Their claims under New Jersey law also don’t satisfy “any of the required statutory elements,” and the statute doesn’t apply to transactions that occurred outside New Jersey, it said. Their warranty-based claims, “both express or implied and brought under New Jersey and Kentucky law,” also fail to state a claim, it said.

The applicable written warranties don’t provide a basis for the express warranty claims, and the Kentucky implied warranty claim “fails for lack of privity,” said the memorandum. The Magnuson-Moss Warranty Act claim fails for the same reasons, and because it can’t be brought on behalf of a class “if, as here, there are fewer than 100 named plaintiffs,” it said. The unjust enrichment claims under New Jersey, New York and Kentucky law “fail for failure to plead the lack of an adequate remedy at law” or lack of privity and the unavailability of such a claim when there’s an “applicable written contract,” as in New York and Kentucky, it said.

The plaintiffs’ claims “stem from the same basic allegation,” said the memorandum. They allege VWGoA marketed the connected services as a permanent feature of the vehicles despite knowing that 3G would eventually be rendered obsolete and the telematics services in the vehicles were compatible only with a 3G wireless network, it said. They also allege VWGoA failed to disclose that customers would lose functionality of the services when the 3G wireless network no longer operated, it said.

The consolidated amended complaint doesn’t “sufficiently allege” VWGoA engaged in unlawful conduct, said the memorandum. The complaint “arguably alleges both knowing omissions and affirmative acts,” it said. The omissions theory is predicated on the allegations VWGoA knew, but didn’t disclose, an AT&T shutdown of the 3G wireless network would result in the eventual loss of connected vehicle services. The affirmative misrepresentations theory is predicated on the allegations VWGoA marketed the services as a permanent feature, it said. But neither theory “is sufficiently pled under the relevant federal pleading standards, as there are no details whatsoever to support the claims,” it said.

For an omission to be actionable, “the defendant must know, before the plaintiff’s purchase, that a material fact exists and nonetheless conceal that fact from the plaintiff,” said the memorandum. The amended complaint “alleges only that VWGoA knew that wireless technology was likely to evolve and change, but so did the public at large,” it said.

VWGoA “had no duty” to disclose to buyers that their connected vehicle services would ultimately disappear due to AT&T’s 3G wireless sunset, said the memorandum. The complaint also fails to plead “an ascertainable loss,” it said. It sets forth “nothing more than conclusory, unsupported allegations insufficient to meet the burden for pleading ascertainable loss, it said. It alleges “only vaguely” that the putative class vehicles were less valuable than advertised, it said.