An Illinois man will not be allowed to pursue his attempt at a class action lawsuit against Ford Motor Company over exhaust odors that had accumulated in passenger cabins of some of their vehicles – in part because a similar class action is nearing settlement in Florida.

On April 6, U.S. District Judge Sara L. Ellis dismissed with prejudice the second amended complaint of plaintiff David Schiesser, who said the 2013 Ford Explorer he bought from Joe Rizza Ford in Orland Park developed a problem with exhaust odor.

According to the opinion, Schiesser bought the car in June 2012, and in August or September 2015 — after the three-year warranty expired — noticed the odor. He brought it to the dealership that October for repairs. Through the dealership, Ford proposed two repairs, each costing between $800 and $900, but neither guaranteed to fix the problem. Absent that promise, Schiesser opted not to have the work done.

Schiesser filed suit in 2016, represented by attorneys with the firms of Wexler Wallace LLP, of Chicago, and Audet & Partners, of San Francisco.

Ellis’ background said Ford began issuing technical service bulletins acknowledging the defect in December 2012.

“Ford provided the TSBs to authorized dealerships, but not to non-Ford automotive repair facilities,” Ellis wrote. “Ford also did not disclose these TSBs to its customers.”

The National Highway Transportation Safety Administration started looking into the exhaust leak issue in July 2016. Ellis also noted a federal court in Florida has preliminarily approved a nationwide settlement addressing Schiesser’s allegations, further impeding his ability to sue.

Schiesser’s second amended complaint included claims for breach of express warranty, common law fraud and violation of the Magnuson-Moss Warranty Act, Illinois Uniform Deceptive Trade Practices Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. Ford moved to dismiss the complaint, challenging the sufficiency of Schiesser’s allegations.

Ellis first considered whether Schiesser sufficiently claimed the vehicle’s warranty terms are “unconscionable.” He contended the terms were unconscionable because Ford knew of the defect when the car was sold, but Ellis wrote the complaint “contains no allegations that Ford knew that carbon monoxide was entering vehicle compartments at the time Schiesser purchased his vehicle.” Further, Schiesser declined purchase of an extended warranty and did not seek to have the problem repaired inside the time before the factory warranty expired.

The Magnuson-Moss Warranty Act creates a federal cause of action for breach of written and implied warranties under state law, Ellis wrote, and Schiesser’s claim here fails by virtue of the failure of the state breach complaint.

In arguing Ellis should dismiss the UDTPA claim, Ford said federal law does not allow Schiesser to request an injunction forcing the automaker to develop a fix for the defect.

“Although Schiesser does not characterize his requested relief in so many words,” Ellis wrote, “he clearly seeks a recall” — a determination functionally within the power only of the U.S. Secretary of Transportation, not a judge.

Further, Ellis said, Schiesser’s pursuit of remedies distinct from what the Florida court has already preliminarily approved runs “contrary to well-established principles of judicial comity and efficiency.”

Ellis rejected Schiesser’s fraud allegations by finding he failed to identify “any communication by Ford, let alone one that omitted disclosure of the defect,” that induced him to buy the car. His complaint referenced several Ford documents, but does not say, “he saw or heard any of the allegedly deceptive communications prior to purchasing the vehicle.”

In summary, Ellis noted the second amended complaint does not cure the deficiencies identified in the first complaint, leading her to dismiss with prejudice, terminating the case.

Ford was represented in the action by the firm of DLA Piper, of Chicago and Baltimore.

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DLA Piper Ford Motor Company U.S. District Court for the Northern District of Illinois Wexler Wallace LLP

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