PITTSBURGH – A motorcycle manufacturer is once again attempting to dismiss a class action suit claiming it did not include an advertised anti-theft system on its products.
Michael Maiolo of Pittsburgh first filed suit in the U.S. District Court for the Western District of Pennsylvania on Dec. 8 versus BRP US, Inc. of Sturtevant, Wis.
“BRP US Inc. manufactures, markets and sells street-legal, three-wheel motorcycles such as the Can-Am Ryker. The product is marketed as coming with an anti-theft system known as DESS, or digitally encoded security system, a battery-less key containing an electronic circuit. DESS contains a pre- programmed chip that uses radio frequency to tell the vehicle’s immobilizer to start the engine,” the suit said.
“The owner’s manual received by purchasers tells them they will receive ‘Two RF D.E.S.S. keys…with the vehicle. Numerous purchasers of the 2022 model did not receive a DESS with their vehicles, even though they were promised this. The result is that the vehicles are susceptible to theft through the use of a simple magnet or any Can-Am DESS key. Purchasers were not offered discounts when they bought the vehicles without the expected security features. While some customers were provided with physical locks, this is not equivalent to the DESS keys.”
The suit added the failure to provide DESS keys has been attributed to the “global chip shortage,” but no firm timeline of when customers will receive their DESS keys has been provided.
“When customers contact defendant about the failure to provide them DESS keys, they are told this is a warranty-related issue they should take up with their dealerships. However, the dealerships tell customers that the lack of a DESS key is something that only defendant can address. As a result of the false and misleading representations, the various versions of the product are sold for no less than $8,999, excluding mandatory add-on charges, tax and sales,” the suit stated.
“The product is available to consumers from authorized dealers. Plaintiff purchased the product from an authorized dealer in July 2022. Plaintiff expected it would come with a DESS key, which was how it was advertised and is known as the security method for the Can-Am Ryker vehicles. Plaintiff was unable to use his vehicle in the manner he expected because, for instance, he could not leave it anywhere unattended, lest it be stolen. Plaintiff relied on the words, descriptions, statements, omissions, claims and instructions, made by defendant or at its directions, in digital, print and/or social media, which accompanied the product and separately, through in-store, digital, audio and print marketing.”
Maiolo explained that he paid over $14,000 for the product, which was more than he would have paid had he known it would not be delivered with the promised security system, or would not have purchased it.
“The value of the product that plaintiff purchased was materially less than its value as represented by defendant. Plaintiff chose between defendant’s product and products represented similarly, but which did not misrepresent their attributes, features, and/or components,” the suit said.
“Plaintiff intends to, seeks to, and will purchase the product again when he can do so with the assurance the product’s representations are consistent with its abilities, attributes and/or composition. Plaintiff is unable to rely on the anti-theft representations not only of this three-wheeled motorcycle, but other similar ones, because he is unsure whether those representations are truthful.”
On April 10, the defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted.
“Plaintiff’s complaint should be dismissed in its entirety for two overarching reasons. First, plaintiff lacks Article III standing to assert his claims because he has not suffered a concrete injury in fact that is real and not abstract. Plaintiff therefore cannot establish standing because: (i) all of his claims flow from an alleged risk of future vehicle theft which is merely speculative and has not actually occurred; and (ii) Plaintiff has not alleged an economic injury that is quantifiable. Second, plaintiff’s claims are not adequately pleaded as a matter of fact and, even if they were, they fail as a matter of law. Finally, to extent the Court does not dismiss plaintiff’s complaint in its entirety, the Court should strike the class allegations included in the complaint, which are facially deficient and demonstrate that no class could ever be certified,” the motion stated.
“Specifically, plaintiff purports to represent two putative classes of consumers from the states of Pennsylvania, Kansas, Minnesota, Mississippi, North Dakota, West Virginia, Utah, Montana, Idaho, Georgia, Kentucky, Iowa and Alaska. Plaintiff’s proposed Pennsylvania class would encompass multiple causes of action, including claims for fraud and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. Plaintiff’s multi-state class alleges violations of the consumer protection laws of 12 other states. Such claims require individualized proof and are, as a threshold matter, inappropriate for class treatment. Likewise, the variance among state laws will necessitate individualized inquiry. Further, all of plaintiff’s alleged class claims implicate divergent consumer expectations, which will prevent a uniform assessment of damages. As a result, plaintiff has not alleged sufficient facts in the complaint to demonstrate that common issues will predominate, and his class allegations should be stricken.”
UPDATE
After an amended version of the complaint was filed on May 1, the defendant renewed its motion to dismiss the case on June 12.
“Plaintiff’s first amended complaint asserts seven causes of action against BRP due to the Ryker vehicle’s alleged lack of an anti-theft system. Plaintiffs’ claims include fraud, breach of contract, negligence and warranty claims, as well as violation of various state consumer protection laws. Plaintiff purports to represent two classes of consumers – one from Pennsylvania and another multistate class under the laws of 12 other states with respect to ‘consumer fraud’ claims,” the motion stated.
“Plaintiff’s claims should be dismissed in their entirety because (i) Plaintiff has not alleged a concrete injury that he has allegedly suffered as a result of his Ryker vehicle not including an operable anti-theft system, therefore he has no standing under Article III to assert his claims; and (ii) Plaintiff has failed to state a claim under Federal Rules of Civil Procedure 12(b)(6) because his various causes of action are plagued by myriad factual and legal deficiencies. Moreover, plaintiff’s class allegations are deficient and should be stricken under Federal Rule of Civil Procedure 23(d)(1)(D) and Rule 23(c)(1)(A) because plaintiff has not made a prima facie showing that he can satisfy Rule 23’s predominance requirement.”
For counts of violating Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, various state consumer fraud statutes, breach of contract, breaches of express warranty, implied warranty of merchantability/fitness for a particular purpose and the Magnuson-Moss Warranty Act, negligent misrepresentation, fraud and unjust enrichment, the plaintiff is seeking preliminary and permanent injunctive relief by directing the defendant to correct the challenged practices to comply with the law; monetary, statutory and/or punitive damages and interest; costs and expenses, including reasonable fees for plaintiff’s attorneys and experts and other and further relief as the Court deems just and proper.
The plaintiff is represented by Spencer Sheehan of Sheehan & Associates, in Great Neck, N.Y.
The defendant is represented by Clem C. Trischler of Pietragallo Bosick & Gordon, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-01770
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com