These cases are both factually and legally distinguishable from this matter. See Rothe v. Maloney Cadillac, 119 Ill.2d 288, 116 Ill.Dec. 207, 518 N.E.2d 1028 (Ill. 1988); Connick v. Suzuki Motor Co., Ltd., 275 Ill.App.3d 705, 212 Ill.Dec. 17, 656 N.E.2d 170 (Ill.App.Ct. 1995), rev'd on other grounds, 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584 (Ill. 1996); see also Ampat/Midwest, Inc. v. Illinois Tool Works, Inc., No. 85 C 100029, 1988 WL 53222 (N.D. Ill. May 12, 1988).
In the automobile promotional advertising context, other courts have found statements that "`It won't spoil the fun knowing that the Samurai handles differently than any ordinary passenger car'; and, the Suzuki 4x4 `has a nifty, go-getter engine, . . . and all the goodies of 4-wheel drive'" to be subjective descriptions not qualifying as a fraudulent representation of fact. ( Connick v. Suzuki Motor Co. (1995) 275 Ill.App.3d 705 [212 Ill.Dec. 17, 656 N.E.2d 170, 183], reversed in part on other grounds (1996) 174 Ill.2d 482 [221 Ill.Dec. 389, 675 N.E.2d 584], and also disagreed with on other grounds in Chaurasia v. General Motors Corp. (Ct.App. 2006) 212 Ariz. 18 [ 126 P.3d 165, 171]; see also Gen. Motors Anti-Lock Brake Products Liability Lit. (E.D.Mo. 1997) 966 F.Supp. 1525, 1531 [GM advertisement that crash-avoidance systems such as anti-lock brakes, "`"[are] 99 percent more effective than protective systems"'" such as air bags, because protective systems are rarely used, while "`"drivers frequently brake aggressively or make sudden road maneuvers to avoid hazards or collisions"'" and "`[a] driver is 100 times more likely to benefit from a vehicle's crash-avoidance capabilities (such as anti-lock brakes) than from its crash-survival capabilities (such as air bags)'" held to be puffing; court held "such comparative claims, often involving large numbers, are puffing because a consumer cannot reasonably believ
GM has provided its own catalog of state law variations regarding privity, which indicates that a significant number of jurisdictions require vertical privity in an implied warranty action for direct economic loss. See, e.g., Rhodes v. Gen. Motors, 621 So.2d 945, 947 (Ala. 1993); Rocky Mountain Fire Cas. Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 640 P.2d 851, 856 (1982); Hauter v. Zogarts, 14 Cal.3d 104, 120 Cal.Rptr. 681, 534 P.2d 377, 383 n. 8 (1975); Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Aviation Mgmt. of Cent. Flo., Inc., 637 So.2d 968, 970 (Fla.Dist.Ct. App. 1994); Bodymasters Sports Indus, v. Wimberley, 232 Ga.App. 170, 501 S.E.2d 556, 561 (1998); Puckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174, 1183 (1999); Connick v. Suzuki Motor Co., Ltd., 275 Ill.App.3d 705, 212 Ill.Dec. 17, 656 N.E.2d 170, 180 (1995), aff'd in part on other grounds, rev'd in part on other grounds, 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). Other jurisdictions, however, have eliminated the privity of contract requirement and allow recovery of economic loss from remote manufacturers.
But, contrary to Plaintiff's argument that this allows in to bring a state-law based breach of implied warranty claim against Defendant, see [66] at 36, the privity requirement is relaxed only for purposes of an MMWA claim, not for "a separate claim based solely on the UCC implied warranties," which is "properly dismissed because [Plaintiffs] lack[ ] privity with the manufacturer." Connick v. Suzuki Motor Co., Ltd. , 275 Ill.App.3d 705, 212 Ill.Dec. 17, 656 N.E.2d 170, 180 (1995) (citing Rothe , 116 Ill.Dec. 207, 518 N.E.2d at 1028 ), reversed in part on other grounds , 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). And it is not relaxed even for that purpose in federal courts in the Seventh Circuit.
But, contrary to Plaintiffs argument that this allows in to bring a state-law based breach of implied warranty claim against Defendant, see [66] at 36, the privity requirement is relaxed only for purposes of an MMWA claim, not for “a separate claim based solely on the UCC implied warranties, ” which is “properly dismissed because [Plaintiffs] lack[] privity with the manufacturer.” Connick v. Suzuki Motor Co., Ltd., 656 N.E.2d 170, 180 (Ill.App. 1995) (citing Rothe, 518 N.E.2d at 1028), reversed in part on other grounds, 675 N.E.2d 584 (Ill. 1996).
While some courts have concluded that "owner's manuals cannot form an express contractual obligation," Tae Hee Lee , 992 F. Supp. 2d at 978, the weight of authority (as cited by the parties) holds that they may, provided that the other requirements of U.C.C. § 2-313 have been satisfied. See, e.g. , McVicar v. Goodman Glob., Inc. , 1 F. Supp. 3d 1044, 1057 (C.D. Cal. 2014) ; Connick v. Suzuki Motor Co., Ltd. , 275 Ill.App.3d 705, 212 Ill.Dec. 17, 656 N.E.2d 170, 173, 177 (1995), rev'd in part on other grounds , 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). The Court therefore rejects Toyota's attempt to categorically exclude the owner's manuals from the coverage of U.C.C. § 2-313 and affiliated statutes.
While some courts have concluded that "owner's manuals cannot form an express contractual obligation," Tae Hae Lee, 992 F. Supp. 2d at 978, the weight of authority (as cited by the parties) holds that they may, provided that the other requirements of U.C.C. § 2-313 have been satisfied. See, e.g., McVicar v. Goodman Glob., Inc., 1 F. Supp. 3d 1044, 1057 (C.D. Cal. 2014); Connick v. Suzuki Motor Co., Ltd., 656 N.E.2d 170, 173, 177 (Ill. App. Ct. 1995), rev'd in part on other grounds, 174 Ill.2d 482 (Ill. 1996). The Court therefore rejects Toyota's attempt to categorically exclude the owner's manuals from the coverage of U.C.C. § 2-313 and affiliated statutes.
"In the context of a buyer purchasing a product from a dealer and not the manufacturer, Illinois courts have concluded that brochures, documents, and advertisements may be the basis of [an] express warranty." Canadian Pac. Ry. Co. v. Williams-Hayward Protective Coatings, Inc., 2005 WL 782698, *15 (N.D. Ill. Apr. 6, 2005) (citing Connick v. Suzuki Motor Co., 656 N.E.2d 170, 177 (Ill. App. Ct. 1995), aff'd in part, rev'd in part, 675 N.E.2d 584 (Ill. 1996)). Here, however, Plaintiff does not allege that she bought anything—either from the manufacturer or any dealer.
I leave open the question whether, under certain circumstances, a plaintiff can rely on allegations that a defect is inherent in all units of a particular product and that other purchasers have experienced the problem. Cf. Connick v. Suzuki Motor Co., 275 Ill.App.3d 705, 212 Ill.Dec. 17, 656 N.E.2d 170, 182 (Ill.App.Ct.1995) (concluding that plaintiffs' claim for breach of implied warranty should not have been dismissed where plaintiffs alleged that Suzuki Samurai was defective in that it was prone to rollover under normal driving conditions, even though plaintiffs had not suffered rollovers, because the “gist of the complaint [was] that the defective Samurai is not safe and reliable” and therefore “not fit for the ordinary purpose for which automobiles are used, which is to provide safe and reliable transportation”), aff'd in part and rev'd in part on other grounds,174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). The implied warranty of merchantability “serve[s] to protect buyers from loss where goods purchased are below commercial standards.”
Where such a statement is merely a "subjective description or opinion," it constitutes "puffing" and is not actionable as a fraudulent misrepresentation. See Tykla v. Gerber Prods. Corp., 1999 WL 495126, at *5 (N.D. Ill. Jul. 1, 1999) , citing Connick v. Suzuki Motor Co., Ltd., 656 N.E.2d 170, 183, 275 Ill. App. 3d 705, 212 Ill. Dec. 17 (Ill.App.Ct. 1995), aff'd in part, rev'd in part, 675 N.E.2d 584, 174 Ill. 2d 482, 221 Ill. Dec. 389 (Ill. 1996). For example, claiming a line of baby food is the "most wholesome nutritious safe food you can buy anywhere in the world" falls within the "sales pitch" and "should put the reasonable consumer on alert that the comments are meaningless sales patter."