Scenic Boundaries Trans. Inc. v. Caterpillar Inc.

CASE 0:14-cv-01352-MJD-JSM Document 1 Filed 04/30/14 Page 1 of 33
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
SCENIC BOUNDARIES TRANS.
INC., a Wisconsin corporation,
Plaintiff,
v.
CATERPILLAR, INC., a Delaware corporation,
Defendant.
__________________________________________/
CLASS ACTION COMPLAINT
Plaintiff, Scenic Boundaries Trans. Inc. (“Scenic Boundaries,” or “Plaintiff”) brings this
class action on behalf of itself and a putative class of similarly situated entities who purchased or
leased a vehicle with a 2007, 2008, 2009 or 2010 (“2007-10”) Caterpillar, Inc. 1 C-13 or C-15
heavy duty on-highway diesel engine (collectively “MY 22007 CAT Engine”) in Minnesota
(together, the “Class”). As and for its causes of action, Plaintiff, on behalf of itself and those
similarly situated, states as follows:
1.
The MY2007 CAT engine contains exhaust emission controls to reduce diesel
engine exhaust emissions in compliance with the EPA’s 2007 Heavy Duty On Highway
1
2
Defendant Caterpillar, Inc. is collectively referred to herein as “Caterpillar” or “CAT.”
MY = Model Year
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Emissions Standard (“EPA 2007 Emission Standard” or “2007 Standard”). In order to meet the
EPA 2007 Emission Standard applicable to heavy duty, on-highway diesel engines, Caterpillar
designed, manufactured, sold for profit, and warranted MY2007 CAT Engines with an exhaust
emission control system containing integrated components intended to reduce air pollutants, in
particular, oxides of nitrogen (NOx) and particulate matter (PM), to levels not to exceed those set
by the 2007 Standard. The exhaust emission control system employed by CAT (known as the
“Caterpillar Regeneration System” or “CRS”) consists of three primary elements with supporting
components and control software: (i) the Diesel Particulate Filter (DPF); (ii) the Aftertreatment
Regeneration Device (ARD); and (iii) the Electronic Control Module (ECM).
2.
Plaintiff’s claim is that Defendant’s CRS is defective in material and/or
workmanship causing the vehicle to not function as required under all operating conditions, on a
consistent and reliable basis, even after repeated emissions warranty repairs and replacements.
These repeated warranty repairs and replacements failed to repair or correct the CRS defect
resulting in damages, including diminished value of the vehicles powered by MY2007 CAT
Engines, and the costs to re-power the vehicles with diesel engines that are compliant with the
2007 EPA Emission Standards.
JURISDICTION, VENUE, AND PARTIES
3.
This class action is within the original jurisdiction of this Court pursuant to 28
U.S.C. §1332(a) and 28 U.S.C. §1332(d)(2) (the Class Action Fairness Act). The amount in
controversy in this class action exceeds five million dollars ($5,000,000.00), exclusive of interest
and costs.
4.
Venue in this District satisfies the requirements of 28 U.S.C. §1391(b)(1-2)
because a substantial amount of the events and occurrences giving rise to the claim occurred in
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this District, or a substantial part of the property that is the subject of this action is situated in this
District.
5.
Plaintiff Scenic Boundaries is a Wisconsin Corporation with its principal place of
business located at 605 Old Military Road, Sandstone, Minnesota. Scenic Boundaries is in the
business of providing vehicles for the transportation of goods for hire. Scenic Boundaries
purchased at least six vehicles containing a MY2007 CAT Engine.
6.
Defendant Caterpillar, Inc. is a Delaware Corporation with its principal place of
business located at 100 NE Adams Street, Peoria, Illinois 61629, and is registered to conduct
business in Minnesota. Caterpillar designed, manufactured, distributed, delivered, supplied,
inspected, marketed, leased and/or sold for profit, and warranted the MY2007 CAT Engine and
in particular the exhaust emission control, the CRS, to be free of defects in material and
workmanship.
THE EPA DIESEL EMISSIONS REGULATORY REGIME
7.
The Clean Air Act (“the Act”), 42 USCA ¶¶ 7521-7551, provides the framework
for the regulation of emissions from motor vehicles and engines operated in the United States.
Section 7521(a)(1) provides that the Environmental Protection Agency shall by regulation
“prescribe…standards applicable to the emissions of any air pollutant from any class or Class of
new motor vehicles or new vehicle engines…whether such vehicles and engines are designed as
complete systems or incorporate devices to prevent or control such pollution.” Section
7521(a)(3)(A)(i) provides that “regulations under paragraph (1) of this subsection applicable to
emissions of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter from
Class or categories of heavy duty vehicles or engines manufactured during or after the model
year 1983 shall contain standards which reflect the highest degree of emissions reduction
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achievable through the application of technology which the Administrator determines will be
available for the model year to which such standard apply.”
8.
Section 7521(m) of the Act provides for regulations regarding the use of emission
control diagnostics (referred to as “On Board Diagnostics” or “OBD”) capable of “(A) accurately
identifying … emission-related systems deterioration or malfunction, including, at a minimum,
the catalytic converter and oxygen sensor, which could cause or result in failure of the vehicles
to comply with emissions standards…(B) alerting the vehicle’s owner or operator to the likely
need for emission-related components or systems maintenance…(C) storing and retrieving fault
codes…and (D) providing access to stored information in the manner specified by the
administrator.” 3
9.
Section 7541(a)(1) of the Act requires that the
“[M]anufacturer of each new motor vehicle and new motor engine shall warrant
to the ultimate purchaser and each subsequent purchaser that such vehicle or
engine is (A) designed, built, and equipped so as to conform at the time of sale
with all applicable regulations under section 7521 of this title, and (B) free of
defects in materials and workmanship which cause such vehicle or engine to fail
to conform with applicable regulations for its useful life (as determined under
section 7521(d) of this title).”
10.
In compliance with the mandate of the Act, on January 18, 2001 the
Environmental Protection Agency issued its Final Rule-Control of Air Pollution from New Motor
Vehicles: Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control
Requirements (Final Rule), effective March 1, 2001. 4 The Final Rule states:
3
Subsection (m) provides for OBD on light duty vehicles, but the subsection further states:
“The Administrator may, in the Administrator’s discretion, promulgate regulations requiring
manufacturers to install such on board diagnostic systems on heavy duty vehicles and engines.”
40 CFR §86.007-17.
4
The 2007 EPA Emission Standard for 2007 and after Heavy-Duty Diesel Engines is at 40
CFR §86.007-11.
4
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“We are establishing a comprehensive national control program that will regulate
the heavy-duty vehicle and its fuel as a single system. As a part of this program,
new emissions standards will begin to take effect in model year 2007, and will
apply to heavy-duty highway engines and vehicles. These standards are based
upon the use of high efficiency catalytic exhaust emissions control devices or
comparably effective advanced technologies. Because these devices are damaged
by sulfur, we are also reducing the level of sulfur in highway diesel fuel
significantly by mid-2006.” Federal Register / Vol. 66, No. 12 / Thursday,
January 18, 2001 / Rules and Regulations, Final Rule p. 5002.
11.
The EPA standard heavy-duty, on-highway, diesel emission standard (referred to
herein as the “2007 EPA Emission Standard”) was promulgated in 2001 so as to “provide engine
manufacturers with the lead time needed to effectively phase-in the exhaust emissions control
technology that will be used to achieve the emission benefits of the new standard.” Id. at 5002.
12.
In promulgating the 2007 EPA Emission Standard, the Agency found:
“We estimate that heavy duty trucks and buses today account for about one-third
of nitrogen oxides emissions and one-quarter of particulate matter emissions from
mobile sources…This program will reduce particulate matter and oxides of
nitrogen emissions from heavy duty engines by 90 percent and 95 percent below
current standard levels respectively.” Id. at 5002
13.
The 2007 EPA Emission Standard regulated both diesel vehicle/engine emissions
standards and diesel fuel standards simultaneously, as a single system:
“These options will ensure that there is widespread availability and supply of low
sulfur diesel fuel from the very beginning of the program, and will provide engine
manufacturers with the lead time needed to efficiently phase-in the exhaust
emissions technology that will be used to achieve the emissions benefits of the
new standards.” Id. at 5002.
14.
The 2007 EPA Emission Standard sets not-to-exceed standards for Oxides of
Nitrogen (“NOx”); Non-Methane Hydrocarbons (“NMHC”); Non-Methane Hydrocarbon
Equivalent; Carbon Monoxide; and Particulate (“PM”).
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15.
The Act requires the EPA to set standards which “reflect the greatest degree of
emissions reductions achievable through the application of technology… available for the model
year to which the standard applies.” Act, Sec. 7521(a)(3). In this regard, the EPA concluded in
the Final Rule that:
•
“[T]he development of diesel emissions control technology has advanced in
recent years so that very large emission reductions (in excess of 90%) are
possible. Especially through the use of catalytic emission control devices installed
in the vehicle exhaust system and integrated with the engine controls. These
devices are often referred to as ‘exhaust emission control’ or ‘aftertreatment’
devices…To meet the new standards, application of high-efficiency exhaust
emission controls for both PM and NOx will be needed.” Id. at 5007.
•
“[S]everal exhaust emission control devices have been or are being developed to
control harmful diesel exhaust pollutants. Of these we believe the catalyzed
diesel particulate filter and the NOx absorber are the most likely candidates to be
used to meet the very low diesel exhaust emission standards adopted today.” Id.
at 5036.
•
“Like the new PM standard, the new NOx standard is projected to require the
addition of a highly efficient NOx emission control system to diesel engines
which, with the help from the PM trap will need to be optimized to control
NMHC emissions.” Id. at 5036.
•
“Un-catalyzed diesel particulate filters will not be able to meet the 0.01 g/bhp-hr
PM standard finalized today as they are only moderately effective at controlling
the SOF fraction of the particulate. In addition, they require active regeneration
technology which must be engaged frequently making the systems expensive to
operate (increasing fuel consumption) and less reliable.” Id. at 5047.
•
“Diesel particulate filters (PM traps) function to control diesel PM through
mechanical filtration of PM from the diesel exhaust stream and then oxidation of
the stored PM (trap regeneration). Through oxidation in the catalyzed diesel
particulate filter the stored carbonaceous PM is converted to CO2 and released
into the atmosphere. Failure to oxidize the stored PM leads to accumulation in
the trap, eventually causing the trap to become so full that it severely restricts
exhaust flow through the device, leading to trap or vehicle failure…Therefore in
order to ensure passive regeneration of the diesel particulate filters, significant
amounts of platinum group metals (primarily platinum) are being used to washcoat formulations of advanced diesel particulate filters.” Id. at 5057.
•
“All of the NOx exhaust emission control technologies discussed previously in
Section III are expected to utilize platinum to oxidize NO to NO2 to improve
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NOx reduction efficiency of the catalysts at low temperatures or as in the case of
a NOx absorber, as an essential part of the process of NOx storage.” Id. at 5059.
•
“We therefore anticipate that catalyzed diesel particulate filters can be integrated
with new diesel engines with only a minimal amount of engine development. We
do not anticipate that additional hardware beyond the diesel particulate filter itself
and an exhaust pressure sensor for OBD will be required to meet the PM
standard.” Id. at 5091.
•
“Testing at NVFEL shows yet another engineering path to optimizing the NOx
control system external to the combustion system. This approach segregates the
exhaust into separate streams external to the engine and manipulates exhaust
conditions by changing exhaust mass flow (through valves) and by adding
supplemental fuel with an electronic injector.” Id. 5052.
16.
The Final Rule contemplated exhaust emission control necessary for compliance
with the emission standards to be a “complete emission control system” integrated with on-board
diagnostics: 5
17.
•
“The Complete System: We expect that the technologies described above would
be integrated into a complete emission control system as described in the final
RIA. The engine-out emissions will be balanced with the exhaust emission control
package in such a way that the results are the most beneficial from a cost, fuel,
economy, emissions standpoint.” Id. at 5054.
•
“The manufacturers are expected to take a system approach to the problem of
optimizing the engine and exhaust control systems to realize the best overall
performance possible.” Id. at 5090.
“Reliability” of the exhaust emission control system is defined in the Final Rule
as “the expectation that emission control technologies must continue to function as required
under all operating conditions for the life of the vehicle.” Id. at 5056.
5
Regulatory Impact Analysis EPA420—00-010, July 2000, p. 21: Because these future
emission control strategies will rely on electronic controls for adequate performance, EPA
expects that the best available on-board diagnostics will be implemented to ensure that these
strategies remain effective in-use.”
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18.
“Aftertreatment” refers to the treatment of exhaust, i.e., pollutant reduction after
the exhaust leaves the engine. “Regeneration” is the “burning off of collected PM (oxidation of
the stored PM releasing CO2).” Id. at 5047.
CATERPILLAR’S EXHAUST EMISSION
(“AFTERTREATMENT”) CONTROL SYSTEM
19.
After the EPA’s implementation of the Final Rule in January 2001, CAT made the
business decision to investigate, design, manufacture, and sell for profit heavy-duty diesel
engines that complied with all of the requirements of the 2007 EPA Emission Standard.
20.
On information and belief, in October 2003 CAT’s Aftertreatment Technologies
Group initiated the technology development of exhaust emission controls for its heavy duty onhighway diesel engines to conform to 2007 EPA Emissions Standards.
21.
CAT launched a designated project to design an engine-independent (meaning
independent of engine NOx and PM output), self-regenerating, Diesel Particulate Filter. The
directive for the project was to provide a PM aftertreatment solution for 2007 diesel engines
within performance and cost constraints.
22.
CAT’s various development, design, engineering, manufacturing, and business
teams participated in approval of the CRS ultimately employed in CAT’s MY2007 Engines. The
CRS was branded by CAT as its ACERT Technology (ACERT is the acronym for Advanced
Combustion Emissions Reduction Technology).
23.
Contrary to the express expectation of the EPA Final Report for the use of DPF
with precious metal catalysts, Caterpillar’s CRS employs an un-catalyzed (without precious
metal catalysts), or insufficiently catalyzed, Diesel Particulate Filter (“DPF”) which can only
regenerate a small amount of soot trapped by the DFP, periodically requiring active regeneration
to increase exhaust temperatures needed to burn off of the filter.
8
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24.
To periodically achieve the increased temperatures necessary for regeneration in
CAT’s base metal DPF, the CRS must utilize an Aftertreatment Regeneration Device (“ARD”)
to provide additional heat (600-650 ˚C) to the engine’s exhaust. Compressed air and ultra-low
sulfur diesel fuel enter the head of the ARD where they are mixed and ignited by the spark plug.
Once ignited the mixture mixes with engine exhaust flow directed into the inlet of the DPF to
enable regeneration (burning) of the soot trapped by the DPF.
25.
The operation of the CRS, as necessary to meet the Clean Air Act On Board
Diagnostic (“OBD”) requirements, uses monitoring and diagnostic sensors and Electronic
Control Module (“ECM”) software to regulate and monitor the operation of the DPF and ARD
so as to ensure that the engine exhaust has sufficiently reduced pollutants to the level mandated
by the 2007 EPA Emissions Standard.
26.
The ECM is a comprehensive, programmable engine monitoring system.
It
continuously monitors engine operating conditions, controls particulate emissions by the CRS,
interfaces with the vehicles sensor inputs, and performs the fault detection and diagnostic
reporting requirements for OBD. The ECM monitors all of the systems of the Engine, including
the exhaust emissions controls- “Operating conditions of the Aftertreatment Regeneration Device
(ARD)” and the “Operating conditions of The Diesel Particulate Filter.” In response to operating
conditions, the ECM is programmed to provide one of the following levels of response to
operating conditions: Warning; Derate; and Shutdown. “Warning” advises the driver that action
must be taken or the ECM will proceed to shut down. “Derate” means that the ECM derates the
engine’s performance (reduces horsepower) in order to get the driver’s attention so the driver can
take action in order to avoid engine damage. “Shutdown” means that the ECM takes action
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necessary to shut down the engine within a short period to allow the driver to get off the road. In
all instances the event is logged and the vehicle requires immediate authorized maintenance.
27.
The ECM’s software determines if the CRS is operating correctly, detects faults
in CRS operation, activates diagnostic trouble codes, and controls engine operation including
activating warning, derating, and shutdown functions. In much the same way as the engine
automatically adapts to airflow needs by increasing or decreasing turbocharger boost—the ECM
interfaces with the vehicle to receive sensor input, compare the input to programmed operational
parameters, and provides output which is converted into mechanical responses. In particular, the
ECM monitors the CRS aftertreatment and pressure sensors to determine when regeneration of
the DPF is required, whether regeneration occurs, and whether warning, derating, and/or engine
shutdown is necessary due to CRS failure.
If working correctly, the result is an efficient
integration of exhaust emission control under all operating conditions. The basis of Plaintiff’s
claims is that the CRS did not and cannot function efficiently and reliably.
28.
In addition to monitoring the efficient operation of the MY2007 CAT Engine’s
various systems, the ECM logs and stores “Active Codes,” “Logged Diagnostic Codes,” and
“Logged Event Codes” by the number of occurrences within a specified engine operating time
(the cumulative time of engine operating hours), as well as other engine and CRS data.
29.
The ECM has the ability to detect problems and initiate warning, derate, and
shutdown responses where the specific fault detected is of such severity as to require action.
Some codes indicate problems with the monitoring sensors themselves, and may not require any
action; some may be intermittent, while others indicate undesirable operating conditions, like
failure of the CRS to regenerate. When operating codes occur, the codes are “active,” meaning
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that the condition giving rise to the code is currently existing and in need of further diagnosis and
likely remediation.
30.
The ECM fault detection function is quantified by a corresponding numeric
“code” identified in the Caterpillar “Troubleshooting C-13 and C-15 On-highway Engines”
manual. Some codes relate to the fault detection of the CRS, and others relate to other systems
in the engine. When there is a fault detected related to the CRS it is designated by code within
the group of codes relating to CRS. These can be precisely identified by the ECM logged
diagnostic and event codes that relate to components, and operating conditions, of the CRS.
Because the CRS is comprised of integrated components, each with sensors monitoring the
critical aspects of their operation, there are fault codes designated to the various components of
the CRS. When a fault in the operation of any part of the CRS threatens the integrity of the
engine, the Engine Protection System shuts down the engine entirely. In particular code 1110-31
(“Engine Protection System has Shutdown Engine”), with code 3719 (“Diesel Particulate Filter
Collects Excessive Soot”) indicates that the engine was shut down because the DPF has failed to
properly regenerate after repeated attempts.
31.
The ECM is responsible for both fault detection and fault reporting. As a result,
when a vehicle is shut down, derated, or a warning lamp illuminated, as indicated previously, the
ECM records and stores this information. When the vehicle is brought in for emissions warranty
repair for a CRS failure, it can be identified by accessing the ECM stored data.
32.
CAT’s propriety “Caterpillar Electronic Technician” (“Cat ET”) is used to
perform diagnostic testing, and display status parameters, event codes, and diagnostic codes. In
addition the ECM also broadcasts its Diagnostic Trouble Codes, via the Cat ET on data links
directly to CAT. The Cat ET requires a license from an authorized Caterpillar dealer. The ECM
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data links through the Cat ET and provides CAT with direct access to the data stored in every
MY2007 CAT Engine, knowledge of CRS failure, cause of failure, and allows direct CAT
participation in diagnosis and remediation.
33.
The CRS is materially identical in all MY2007 CAT Engines, a schematic of
which is attached hereto as Exhibit A.
34.
The CRS provides two types of regeneration: passive regeneration-where the
engine provides sufficient exhaust gas temperature for regeneration, and active regenerationwhere the engine does not provide sufficient exhaust temperature for passive regeneration; ARD
operates to raise the temperature of the exhaust gas for regeneration.
35.
In the event passive and active regeneration fails, the temperature of the DPF can
rise to dangerous levels, as high as 900 ˚C (1652 ˚F) resulting in severe engine and exhaust
emission control damages, fire, and/or explosion hazard.
36.
Because of the significant hazard resulting from a CRS regeneration failure, the
MY2007 CAT Engines contain a program called the “ARD Programmable Regeneration
Monitoring System Status” which determines the engine’s response to this failure. The ECM
activates the OBD to issue warning to the operator, or automatically derate, or shutdown the
MY2007 CAT Engine.
37.
In the event of derate or a shutdown, the vehicle is no longer able to operate
safely on the highway until authorized maintenance is performed.
38.
In the event of a CRS OBD warning, derate, or shutdown, the vehicle can no
longer operate and must be taken in for repair at an authorized Caterpillar facility. This means
that for a vehicle in operation, the goods and/or passengers must be provided with alternative
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transportation, the vehicle towed in for repair, and the vehicle is then unusable for extended
period of time.
39.
When the MY2007 CAT Engine experiences an CRS failure and is taken in for
repair, the CRS (“active code”) failure must be identified and the CRS returned to the operational
parameters established by the ECM software sufficient to “clear the code” that caused the
warning, derate, or shutdown.
40.
CAT’s MY2007 Engines are defective in that the CRS repeatedly and frequently
experience warning, derate, and shutdown commands issued by the ECM as a result of fault
detection in the CRS, which cause the vehicles to require immediate authorized exhaust emission
control diagnoses, and remediation during which time the vehicles are not capable for the
transportation of good and/or passengers.
41.
In performing emission system warranty repairs, CAT acknowledges that the CRS
failures detected are defects in material and workmanship in the MY2007 CAT Engines because
the emissions warranty repairs are performed.
42.
However, the MY2007 Engines repeatedly experience CRS failures that are not
corrected by the emission warranty work performed. These repeated and frequent CRS failures
cause the vehicles to be unreliable for the transportation of good and/or passengers and which, in
spite of numerous attempts, the CRS failures have not and cannot be corrected. The numerous
and frequent CRS faults cause warning, derate, and shutdown that necessitate costly and time
consuming emissions warranty repairs rendering them unreliable and unsafe for the
transportation of good and/or passengers because the MY2007 CAT Engines do not and cannot
effectively and reliably remove exhaust emission pollutants as required by the EPA 2007
Emissions Standards on a consistent and reliable basis.
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PLAINTIFF’S AND THE CLASS’S EXPERIENCE WITH REPEATED
FAILURES OF THE DEFECTIVE EXHAUST EMISSION CONTROLS
43.
Not long after Plaintiff and Class members purchased or leased vehicles with
MY2007 CAT Engines, and within the warranty period of their warranty and extended warranty,
they began to experience numerous failures of the CRS to operate effectively and reliably. This
caused Plaintiff and Class members to incur significant damages in the diminution of the value
of their vehicles, but also in the cost of replacing the MY2007 CAT Engines with other EPA
2007 Emission Standard compliant heavy duty, on-highway, diesel engines.
44.
Plaintiff’s MY2007 CAT Engines detected numerous and various faults in the
operation of the CRS, which triggered warning, derating, and shut down necessitating delivery of
the vehicle to an authorized CAT repair facility for emissions warranty work.
45.
Scenic Boundaries purchased vehicles with a MY2007 CAT Engines. Scenic
Boundaries used these vehicles in the operation of its business and experienced repeated after
treatment and regeneration failures rendering its vehicles inoperable for the transportation of
goods. Scenic Boundaries repeatedly took its vehicles to an authorized Caterpillar repair facility
for remediation which remediation did not correct the defect in the MY2007 CAT Engine
causing the vehicles to be unavailable for transportation.
46.
In spite of repeated emissions warranty work on the CRS, Plaintiff and members
of the putative class experienced repeated instances of warning lights illuminating, engine
derating and shutdown, aftertreatment regeneration devices plugging and/or clogging, the ARD
head failing, and DPF regeneration failure, as well as a myriad of system failures that prevented
the engines from properly regenerating.
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47.
Despite Defendant’s numerous attempts to correct CRS failures, the MY2007
CAT Engine exhaust emission controls do not function as required under all operating
conditions, and will not do so for the expected life of the vehicle.
48.
Defendant represented to Plaintiff and Class members that each emission
warranty repair would correct the defect; therefore, Plaintiff and Class members continue to
experience defective exhaust emission control, when CAT knew, or should have known, that the
CRS defect could not be corrected.
49.
Plaintiff and Class members have suffered substantial financial losses and other
damages as a result of Defendant's actions and the defective engines.
50.
On information and belief, CAT discontinued manufacture of the MY2007 CAT
Engines in 2009/10.
CLASS ACTION ALLEGATIONS
51.
Plaintiff brings this action pursuant to Federal Rule of Civil Procedure 23 on
behalf of itself and the following Class, comprised of vehicle owners and lessees who purchased
or leased a vehicle containing a MY2007 CAT Engine, as described herein.
52.
Alternatively, Plaintiff brings this action pursuant to Federal Rule of Civil
Procedure 23 on behalf of itself and the following Class, comprised of vehicle owners and
lessees in the state of Minnesota who purchased or leased a vehicle containing a MY2007 CAT
Engine, as described herein
CLASS DEFINITION
53.
The Class is defined as all persons and entities who purchased or leased a vehicle
containing a MY2007 CAT Engine.
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54.
Plaintiff Scenic Boundaries is a member of the Class, and is a putative Class
Representative.
NUMEROSITY
55.
Upon information and belief, Caterpillar sold thousands of MY2007 CAT
Engines with its CRS exhaust emission controls. Therefore, the Class, which number in excess
of 100 individual putative Class members as to each claim asserted, are sufficiently numerous so
that the joinder of all members of the Class in a single action is impracticable. The precise
number and identities of Class members are unknown to Plaintiff, but can be ascertained through
reasonable discovery diligence and appropriate notice.
COMMONALITY
56.
There are numerous common questions of law and fact that predominate over any
questions affecting only individual members of the Class. Among these common questions of
law and fact are the following:
a. Whether MY2007 CAT Engines are defective;
b. Whether Defendant manufactured, warranted, distributed, delivered,
supplied, inspected, marketed, leased, and/or sold MY2007 CAT Engines
with CRS exhaust emission controls that, as a matter of course,
experienced or caused repeated instances of engine derating, shutdown,
aftertreatment regeneration devices plugging, the ARD head failing and/or
clogging, as well as other CRS failures that prevented the engines from
properly functioning;
c. Whether Defendant breached its express Federal Emission Control
Warranty (“Emissions Warranty”);
d. Whether Defendant breached its implied warranties;
e. Whether the Defendant’s CRS exhaust emission control was defective,
which defect could not be corrected by the replacement of parts or
components, or the employment of reasonable and customary labor;
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f. Whether limitation of the Emissions Warranty to repair and replacement,
in the presence of repeated CRS failures, which have not been and cannot
be corrected by CAT, causes the emissions warranty to fail of its essential
purpose; and
g. Whether the Plaintiff and members of the putative class are entitled to
recover compensatory damages for diminished value of their vehicles, or
the cost to replace the MY2007 CAT Engine with another, reliable, heavy
duty diesel engine which is EPA 2007 Emission Standard compliant,
and/or other damages provable at trial.
TYPICALITY
57.
Plaintiff’s legal claims are typical of the legal claims of other members of the
Class. Plaintiff has the same legal interests as other members of the Class and has no interests
antagonistic to members of the Class they seek to represent.
58.
Plaintiff and each Class member leased or owned at least one vehicle with a
MY2007 CAT Engine. Each Plaintiff has experienced repeated and frequent failures of the CRS
exhaust emission control designed, manufactured, and warranted by CAT, and members of the
Class have suffered similar repeated and frequent failures of the CRS causing them economic
damages, despite being located in different geographic regions, operating in diverse climates,
and driving on dissimilar roads.
59.
Plaintiff and Class Members have sustained the same type of economic damage
due to the MY2007 CAT Engine’s CRS. Thus, the legal remedies available to Plaintiff and
Class Members are based upon the same uniform wrongful conduct by Defendant.
ADEQUACY OF REPRESENTATION
60.
Plaintiff is an adequate representative of the Class, and together with legal
counsel, will fairly and adequately protect the interests of the Class. Plaintiff has no conflict
with the Class they seek to represent and are committed to the vigorous prosecution of this action
and have retained competent counsel experienced in litigation of this nature to represent it.
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Plaintiff anticipates no difficulty in the management of this litigation as a class action.
Moreover, Plaintiff’s interests are aligned with the Class Members and it is unlikely there will be
a divergence of viewpoint.
61.
Undersigned counsel are competent counsel experienced in class action litigation,
mass torts, and litigation involving defective and harmful products. Plaintiff and counsel will
fairly and adequately protect the interests of the class
PREDOMINANCE AND SUPERIORITY
62.
This class action is appropriate for certification because questions of law and fact
common to the Members of the Class predominate over questions affecting only individual
Members, and a class action is superior to other available methods for the fair and efficient
adjudication of this controversy, since individual joinder of all Members of the Class is
impracticable. In particular, whether MY2007 CAT Engine’s exhaust emission control, the
CRS, is inherently defective – causing repeated instances of check engine lights illuminating,
engine derating, shutdown, and aftertreatment regeneration devices plugging and/or clogging, as
well as other issues that prevented the engines from properly regenerating – is the common issue
for Plaintiff and each class member. Adjudicating this key issue, along with establishing the
rights and obligations of the parties under Defendant’s uniform express Emissions Warranty, will
benefit all members of the class and resolve a tremendously expensive common issue.
63.
A class action is superior to other available methods for the fair and efficient
adjudication of this controversy for the following reasons:
a. Questions of law or fact common to the claims or defenses of the
representative party and the class predominate over any question of law or
fact affecting its individual members.
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b. It is desirable to concentrate these claims in a single forum where
inconsistent adjudications may be avoided, and consistent conduct may be
determined and followed throughout all affected areas of the State.
c. The members of the class are so numerous that separate joinder of each
member is impracticable.
d. Plaintiff is aware of no other litigation concerning this controversy already
commenced by its class members.
e. There are no difficulties likely to be encountered in the management of
this class action, given the limited issue presented, and the simplicity of
data retrieval for Defendant.
64.
Should individual Class Members be required to bring separate actions, this Court
would be confronted with a multiplicity of lawsuits regarding the defective nature of the CRS
exhaust emissions control employed by the MY2007 CAT Engines. Such a multitude of suits
would burden the court system while also creating the risk of inconsistent rulings and
contradictory judgments. In contrast to proceeding on a case-by-case basis in which inconsistent
results will magnify the delay and expense to all parties and the court system, this class action
presents far fewer management difficulties while providing unitary adjudication, economies of
scale, and comprehensive supervision by a single Court.
65.
CAT’s proprietary information systems contain sufficient detailed information of
the emissions warranty work performed on every MY2007 CAT Engines such that the members
of the Class and SubClass are readily ascertainable and identifiable through reasonable diligence,
records in Defendant’s possession, and appropriate notice.
66.
The common questions set forth above predominate over Class Members’
individual issues.
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67.
A class action is superior to other methods of dispute resolution in this case. The
Class members have an interest in class adjudication rather than individual adjudication because
of the overlapping claims and rights. It is highly desirable to concentrate the resolution of these
claims in this single forum because it would be difficult and highly unlikely that the affected
Class members would protect their rights on their own without this class action case.
Management of the class will be efficient and far superior to the management of hundreds of
individual lawsuits.
EQUITABLE ESTOPPELL, TOLLING/FRAUDULENT CONCEALMENT
68.
Upon information and belief, Caterpillar has known of the defects in the MY 2007
Cat Engines for years and has concealed the defect from owners and/or buyers of the vehicles,
has, upon inquiry, affirmatively misrepresented that the vehicles are defect free (despite
Caterpillar knowing they are inherently defective) and/or has failed to alert owners and buyers of
the defective nature of the MY 2007 CAT Engines.
69.
Given Caterpillar’s failure to disclose this known but non-public information
about the defective nature of the MY 2007 CAT Engines – information over which it had
exclusive control – and because Plaintiff and Class Members therefore could not reasonably have
known that the MY Cat Engines were defective, Caterpillar is estopped from relying and should
not be allowed to rely on any exception regarding any statutes of limitation that might otherwise
be applicable to the claims asserted herein.
70.
Caterpillar has been on notice of the defects in the MY 2007 CAT Engines since
at the latest 2008. So, equitable tolling and/or equitable estoppel precludes Caterpillar from
asserting that they were not aware of the defects in the MY 2007 CAT Engines. Further, CAT
has never publicly disclosed the defect to Class members. On information and belief, when CAT
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has settled allegations with large fleet dealers or other well financed entities relating to defects
with MY 2007 CAT engines, CAT requires a non-disclosure/confidentiality agreement that
continues to suppress disclosure of the true nature of the defect and CAT’s knowledge.
71.
Pursuant to the doctrines of Equitable Tolling, Equitable Estoppel and/or
Fraudulent Concealment, the period for bringing claims shall not be barred due to the statute of
limitations or statute of repose. With respect to each and every cause of action and/or Count
asserted herein, Plaintiff expressly pleads Equitable Tolling, Equitable Estoppel and/or
Fraudulent Concealment and their application thereto.
COUNT I
BREACH OF EXPRESS EMISSION CONTROL SYSTEM WARRANTY
(On behalf of Scenic Boundaries and the Class)
72.
Plaintiff adopts and incorporates herein the allegations set forth above.
73.
CAT is required by the Clean Air Act to provide an Emission Control Systems
Warranty for all MY2007 CAT Engines, a copy of which is attached hereto as Exhibit B.
74.
The Federal emissions warranty covers emission related parts and components
including the Electronic Control System; Exhaust Aftertreatment System; Clean Gas Induction
System; Aftertreatment Regeneration Device; and all miscellaneous valves, switches, clamps,
connectors, tubing, and sealing devices used in the systems.
75.
According to the terms of its Emissions Warranty, CAT must, within the warranty
period, or extended warranty period if applicable, provide new, remanufactured, or repaired parts
and/or components, approved pursuant to EPA Regulations, required to correct the defect, as
well as ‘reasonable and customary’ labor required to make the warranty repair.
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76.
Under this warranty, CAT warranted to all owners and users of its MY2007 CAT
Engines that all emissions related parts and components were designed, built, and equipped so as
to conform to the EPA 2007 Emission Standard.
77.
Caterpillar expressly warranted to Plaintiff and to Class members that the exhaust
emissions controls of its MY2007 CAT Engines to be free from defects in material and
workmanship and in the event a defect manifested, CAT was obligated to correct the defect.
78.
Contrary to this warranted representation, the exhaust emission controls, the CRS,
was defective in that it repeatedly and frequently failed to function properly in reducing emission
pollutants on a reliable and dependable basis, resulting in repeated fault detection, and failures of
the Exhaust Aftertreatment System, the Aftertreatment Regeneration Device, and the Electronic
Control System covered by the Emissions Warranty. The faults resulted in warning, derating,
and shutdown, requiring authorized and expensive maintenance to remediate the active fault
codes before the vehicles could be used for on highway transport, which defects CAT was unable
to correct in spite of repeated and numerous attempts.
79.
Defendant knew, or should have known, that the CRS employed by MY2007
CAT Engine was defective, and that its defects could not be corrected, especially in light of the
EPA Final Report finding that exhaust emission controls, at least as of 2000, using base metal
catalyzed (non-precious metal catalysts) Diesel Particulate Filters requiring periodic, active
regeneration were unreliable. Final Report, p. 5047.
80.
By failing to correct the defects, in spite of repeated, frequent attempts, Defendant
has breached the express Emissions Control System Warranty.
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81.
By virtue of repeated and frequent presentation of the Plaintiff’s vehicles to
authorized CAT repair facilities, Defendant was notified of the defects in the exhaust emission
controls and failed to correct them.
82.
By failing to provide an exhaust emission control capable of meeting the 2007
EPA Emission Standard on a reliable basis, CAT’s Emission Warranty limitation to repair and
replace, but not correct, the CRS, for a period limited by the warranty, and extended warranty,
have caused a failure of the essential purpose of the emission warranty to provide a reliable
emission technology capable of functioning as required under all operating conditions for the
reasonably expected life of the vehicle.
83.
As a direct and proximate result of Defendant's breach of express Emissions
Warranty, Plaintiff and Class members have suffered financial loss in the form of diminished
value of their vehicles, and the cost to re-power the vehicles with diesel engines having reliable
exhaust emissions controls.
COUNT II
BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
(On behalf of Scenic Boundaries and the Class)
84.
Plaintiff adopts and incorporates herein the allegations set forth above.
85.
Defendant manufactured only heavy duty diesel engines and not the vehicles in
which they are installed. Defendant directly sold and marketed its MY2007 CAT Engine to
vehicle manufactures, like those from whom Plaintiff and Class owned and/or leased their
vehicles, for the intended purpose of installing those engines in vehicles, owned or operated by
Plaintiff and the Class, to be used for on-highway use. CAT knew that the MY2007 CAT
Engines would and did pass unchanged from the vehicle manufacturer to Plaintiff and Class.
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86.
CAT knew that all emission warranty work would, and could, only be performed
by an authorized CAT repair facility under direct supervision of CAT and employing the Cat ET
and with a direct data link to CAT.
87.
CAT knew that the CRS was an exhaust emission control designed and
manufactured by CAT for use in the MY2007 CAT Engine and that the MY2007 CAT Engine
could only use the CRS to meet the 2007 EPA Emission Standard for exhaust emission control.
88.
CAT knew that the MY2007 CAT Engine fault detection functions and fault
codes were proprietary to CAT and could only be accessed by the Cat ET, such that the OBD
and fault code clearing could only be performed by direct contact with CAT and its authorized
warranty repair facilities.
89.
CAT included the Emission Warranty, as required by the Act and the 2007 EPA
Emission Standard to the Operating Manual, for each vehicle powered by the MY2007 CAT
Engine.
90.
CAT knew that the CRS was programmed to disable the operation of the engine
until fault detection codes were cleared by direct contact with CAT and its authorized warranty
repair facilities; that such direct contact would be required each time there was a CRS warning,
derating, or shutdown; and that only CAT or its authorized warranty repair facility could repair
the CAT CRS.
91.
CAT knew that on highway transportation required the exhaust emission controls
to reliably function under all operating conditions to transport vehicles to and from their
destinations.
92.
CAT knew that the exhaust emissions control employed by the MY2007 CAT
Engines, the CRS, would render the vehicles inoperable in the case of CRS failure so that a
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warning, derating, or shutdown issued by the CRS ECM would place those vehicles in the unsafe
circumstance of being stranded, and place the vehicle operator in the position of not being able to
ensure that they would reach their destination and return.
93.
CAT knew that its MY2007 CAT Engines would be used to power vehicles for
the transportation of goods and/or passengers and that an unreliable exhaust emission control,
and its CRS in particular, would place those goods and/or passengers in the unsafe condition of
abandonment due to CRS failure.
94.
CAT knew that the CRS failures detected by the monitoring function of the ECM
would render the vehicles inoperable until the diagnostic codes triggering the warning, derate, or
shutdown were “cleared” by the Cat ET, and only the Cat ET.
95.
CAT knew and required that the Cat ET necessary to clear the engine warning,
shutdown, and derate codes be inaccessible to Plaintiff and Class, other than through a licensed
authorized CAT dealer.
96.
CAT knew that its CRS was unique to the MY2007 CAT Engines, that other
reliable exhaust emissions controls could not be used on the MY2007 CAT Engines, and that all
repairs to and diagnosis of the CRS required the intervention of CAT.
97.
The CAT Emission Warranty does not disclaim any implied warranties.
98.
Defendant was notified of the defects of the MY2007 CAT Engine exhaust
emission controls, but has failed to correct them.
99.
As a direct and proximate result of Defendant’s breach of the implied warranty of
fitness for particular purpose, Plaintiff and Class members have suffered financial loss and other
damages, including the diminished value of their vehicles, and the cost to re-power the vehicles
with diesel engines having reliable exhaust emissions controls.
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COUNT III
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(On behalf of Scenic Boundaries and the Class)
100.
Plaintiff adopts and incorporates herein the allegations set forth above.
101.
Defendant knew, or should have known, that base metal catalysts, or a catalyst
insufficient to regenerate the anticipated soot load in the DPF without periodic active
regeneration, would require high exhaust temperatures to effectively oxidize pollutants collected
in the DPF. Precious metal DPFs were known to provide a continuous regeneration at lower
exhaust temperatures on a reliable basis. Nevertheless CAT for its own business purpose, and
for its own profit, failed to use known, reliable exhaust emission controls in the MY2007 CAT
Engines.
102.
The CRS exhaust emission controls of the MY2007 CAT Engines rendered the
Engines, and therefore the vehicles powered by those engines, unfit, inherently unsound for use
in on-highway transportation, that they would not pass without objection in the trade; that they
were not fit for the ordinary purpose for which they were used; that they would not operate on a
reliable basis for the reasonable life of the engine; and were unmerchantable.
103.
Consequently, CAT breached the implied warranty of merchantability, to wit: it
failed to use reliable exhaust emissions controls that would reduce exhaust emissions to the EPA
Standard for the anticipated life of the vehicles of 1,000,000 miles and/or 10 years.
104.
CAT impliedly warranted that the repairs and component replacements to the
exhaust emission controls would correct the defect in its CRS in a good and workmanlike
manner; however, MY2007 CAT Engine exhaust emission controls have failed to be corrected
because the CRS is incapable of reliable functioning.
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105.
CAT was notified of the defects of the engines' emissions and/or regeneration
systems, but has failed to correct them.
106.
As a direct and proximate result of CAT’s breach of the implied warranty of
merchantability, Plaintiff and Class members have suffered financial loss and other damages,
including the diminished value of their vehicles, and the cost to re-power the vehicles with diesel
engines having reliable exhaust emissions controls.
COUNT IV
DECLARATORY JUDGMENT
(28 U.S.C. § 2201)
(On behalf of Scenic Boundaries and the Class)
107.
Plaintiff adopts and incorporates herein the allegations set forth above.
108.
Defendant drafted the Emission Warranty referred to above without negotiation
with Plaintiff or the Class.
109.
The Emission Control Systems Warranty for all MY2007 CAT Engines warranted
that the emission system be free of defects in material and workmanship and imposed upon
Defendant the obligation to correct the defects.
110.
There is a real and actual controversy regarding the meaning and impact of the
language in Defendant’s warranty.
111.
In order to resolve this controversy, Plaintiff requests that, pursuant to 28 U.S.C.
§ 2201, this Court declare the respective rights and duties of the parties with respect to the
warranty rights in this matter and, in particular, that the Court declare:
a. That the MY2007 CAT Engines are defective in material and
workmanship in that its emission system was not designed, built and
equipped to conform at the time of sale with applicable regulations
regarding emissions standards without causing repeated and frequently
after treatment failures resulting in derate and shutdown commands with
the vehicles losing power, and/or shutdown, and becoming inoperable for
the transportation of goods and/or passengers;
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b. That the MY2007 CAT Engines’ emissions systems could not and cannot
be corrected through repair and/or replacement of parts or components;
c. That the defects in the Engines are material and require disclosure to all
owners and lessees of vehicles equipped with the MY2007 CAT Engine;
d. That the defects in the MY2007 CAT Engines’ emissions systems could
not and cannot be corrected through repair and/or replacement of parts or
components is material and requires disclosure to all owners and lessees of
vehicles equipped with the MY2007 CAT Engine;
e. That the defects in the MY2007 CAT Engines’ emissions systems are
warrantable under the Engine and Emissions warranties issued by the
Defendant and require remediation by the replacement of the entire
emissions system that is not defective;
f.
That all persons, entities, and users of the MY2007 CAT Engines are to
be provided with the best practicable notice of the defect, and that the
defect has not and cannot be corrected by repairs or replacement of
existing emissions components, which cost shall be borne by Defendant;
g. That Defendant Caterpillar knew or should have known that the emissions
system of the MY2007 CAT Engine was defective, and that such defect
could not and cannot be correct by the repair or replacement of existing
components when Defendant first manufactured the Engines, any and all
disclaimers and limitations contained in the engine and Emissions
warranties is invalid and unenforceable;
h. That Defendant Caterpillar establish and inspection and recall program to
be communicated to the Class which will require Defendant to replace the
existing emissions systems of the MY2007 CAT Engines, with an
emissions system that conforms to application emissions regulations and is
not defective;
i. That the MY2007 CAT Engine is not of good and merchantable quality-fit
and safe for its ordinary intended use;
j. That the Emissions Warranty failed of its essential purpose; further, that
any limitations or exclusions be hereby declared null and void; and
k. That Defendant’s repair and replacement of existing emissions systems
components did not correct, and is not a correction of, the defects in the
MY2007 CAT Engine.
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112.
A valid case or controversy exists sufficient for this court to declare the rights and
remedies of the parties in that Plaintiff is unsure of their rights against Defendant pursuant to the
written warranties, the applicability, validity and enforceability of any disclaimers and
limitations of those warranties.
113.
This controversy is ripe for determination at this time because Defendant has not
sufficiently or adequately corrected the defects in the 2007-9 CAT C-13 emissions systems,
cannot correct the defects, while the Plaintiff, and the class continue to have repeated and
frequent emissions and aftertreatment failures and are submitted their vehicles to Defendant’s
authorized technicians for warranty remediation.
COUNT V
VIOLATION OF MINNESOTA UNIFORM DECEPTIVE TRADE PRACTICES ACT
(MINN. STAT.. § 325D.43, et. seq.)
(On behalf of Scenic Boundaries and the Class)
114.
Plaintiff adopts and incorporates herein the allegations set forth above.
115.
Defendant engaged in conduct that violates the Minnesota Deceptive Trade
Practices Act, MINN. STAT. § 325D.44, et seq. The violations include the following:
a. Defendant violated MINN. STAT. § 325D.44(5) by representing the
MY2007 CAT Engine as having characteristics, uses, and benefits of safe
and mechanically sound vehicles while knowing that the statements were
false and the MY2007 CAT Engine and 2007-9 CAT C-13 emissions
systems contained the defects;
b. Defendant violated MINN. STAT. § 325D.44(7) by representing the
MY2007 CAT Engine and 2007-9 CAT C-13 emissions systems as a nondefective product of a particular standard, quality, or grade while knowing
the statements were false and the MY2007 CAT Engine and 2007-9 CAT
C-13 emissions systems contained defects;
c. Defendant violated MINN. STAT. § 325D.44(9) by advertising,
marketing, and selling the MY2007 CAT Engine and 2007-9 CAT C-13
emissions systems as reliable and without a known defect while knowing
those claims were false; and,
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d. Defendant violated MINN. STAT. § 325D.44(13) by creating a likelihood
of confusion and/or misrepresenting the safety of the MY2007 CAT
Engine and 2007-9 CAT C-13 emissions systems.
116.
Defendant’s deceptive scheme was carried out in Minnesota and affected Plaintiff
and the other Class members.
117.
Defendant also failed to advise the public about what it knew about the defects in
the exhaust emissions control employed by the MY2007 CAT Engines and that the CRS would
render the vehicles inoperable in the case of CRS failure so that a warning, derating, or shutdown
issued by the CRS ECM would place those vehicles in the unsafe circumstance of being
stranded, and place the vehicle operator in the position of not being able to ensure that they
would reach their destination and return.
118.
As a direct and proximate result of Defendant’s deceptive conduct and violation
of MINN. STAT. § 325D.44, et seq., Plaintiff and the other Class members have sustained and
will continue to sustain economic losses and other damages for which they are entitled to
compensatory and equitable damages and declaratory relief in an amount to be proven at trial.
COUNT VI
VIOLATION OF MINNESOTA PREVENTION OF CONSUMER FRAUD ACT
(MINN. STAT. § 325F.68, et seq.)
(On behalf of Scenic Boundaries and the Class)
119.
Plaintiff adopts and incorporates herein the allegations set forth above.
120.
Plaintiff and Defendant are “persons” within the meaning of the Minnesota
Prevention of Consumer Fraud Act.
121.
Defendant’s conduct violated the Minnesota Prevention of Consumer Fraud Act
for one or more of the following reasons, inter alia:
a. Defendant concealed from Plaintiff and the Class the material facts that
the Engines were defective; and
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b. Defendant misrepresented the features and functionality of the MY2007
CAT Engine with the intent that Plaintiff and the other Class members rely
on such representations in their decision regarding the purchase or lease of
the vehicles containing such engines.
122.
Plaintiff and the other Class members did, in fact, rely on Defendant’s
representations and silence as to known defects with the CRS employed by the MY2007 CAT
Engine in connection with their decision regarding the purchase, lease, and/or use of the vehicles
in which the MY2007 CAT Engine were installed.
123.
Had Defendant disclosed all material information regarding the defective Engines
to Plaintiff and the Class, they would not have decided to purchase or lease the vehicles or would
have paid less.
124.
Through these misleading and deceptive statements and false promises, Defendant
violated MINN. STAT. § 325F.69 and proximately caused Plaintiff and the Class to suffer losses
in the form of added expense to continuously remove, replace or repair the defective Engines, the
loss of the use of the Engines, towing and repair and other related expenses, and diminution of
value, inter alia, and are entitled to recover such damages.
125.
The Minnesota Prevention of Consumer Fraud Act applies to Defendant’s
transactions with Plaintiff and the other Class members because Defendant’s deceptive scheme
was carried out in Minnesota and affected them.
126.
As a direct and proximate result of Defendant’s deceptive conduct and violation
of MINN. STAT. § 325F.69, Plaintiff and the other Class members have sustained and will
continue to sustain economic losses and other damages for which they are entitled to
compensatory and equitable damages and declaratory relief in an amount to be proven at trial.
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PRAYER FOR RELIEF
WHEREFORE Plaintiff, on behalf of all others similarly situated and the Class, demand:
a. An order certifying the case as a class action;
b. An order appointing Plaintiff as the Class Representative of the Class;
c. An order appointing undersigned counsel and their firms as Class Counsel;
d. All compensatory damages;
e. Pre-judgment and post-judgment interest, as applicable, at the maximum rate
allowable at law;
f. An award of attorneys’ fees to class counsel based upon a common fund
theory as allowed by law, for the benefits conferred upon the Class and/or as
allowed by contract or statute;
g. The costs and disbursements incurred by Plaintiff and Class Members in
connection with this action, including reasonable attorneys’ fees based on the
benefits conferred upon the Class, a common fund, statutory, and/or
contractual basis;
h. An award of taxable costs; and
i. Such other and further relief under all applicable state law and any other relief
the Court deems just and appropriate.
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DEMAND FOR JURY TRIAL
Plaintiff individually, and on behalf of the Class Members, hereby demands a trial by jury
as to all issues so triable as a matter of right.
Dated: April 30, 2014
Respectfully submitted,
___s/Garrett D. Blanchfield_____________
Garrett D. Blanchfield, #209855
Roberta A. Yard, #322295
REINHARDT WENDORF & BLANCHFIELD
E-1250 First National Bank Building
332 Minnesota Street
St. Paul, MN 55101
Telephone: 651-287-2100
Facsimile: 651-287-2103
Richard J. Burke
Jamie E. Weiss
COMPLEX LITIGATION GROUP LLC
513 Central Ave., Suite 300
Highland Park, IL 60035
Telephone: (847) 433-4500
Facsimile: (847) 433-2500
Jonathan Shub
SEEGER WEISS LLP
1515 Market Street, Suite 1380
Philadelphia, Pennsylvania 19102
33

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