Jason Counts v. General Motors, LLC; Robert Bosch LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0150p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JASON COUNTS; DONALD KLEIN; OSCAR ZAMORA;
JASON SILVEUS; JOHN MISKELLY; THOMAS HAYDUK;
JOSHUA RODRIGUEZ; BASSAM HIRMIZ; CHRISTOPHER
HEMBERGER; DEREK LONG, individually and on behalf
of themselves and all others similarly situated,
Plaintiffs-Appellants,
v.
GENERAL MOTORS, LLC; ROBERT BOSCH LLC,
Defendants-Appellees.
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No. 24-1139
Appeal from the United States District Court for the Eastern District of Michigan at Bay City.
No. 1:16-cv-12541—Thomas L. Ludington, District Judge.
Argued: March 18, 2025
Decided and Filed: June 6, 2025
Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Garth Wojtanowicz, HAGENS BERMAN SOBOL SHAPIRO, LLP, Seattle,
Washington, for Appellants. Jay P. Lefkowitz, KIRKLAND & ELLIS LLP, New York, New
York, for Appellee General Motors. Patrick Swiber, CLEARY, GOTTLIEB, STEEN &
HAMILTON, LLP, New York, New York, for Appellee Robert Bosch LLC. ON BRIEF:
Garth Wojtanowicz, Steve W. Berman, HAGENS BERMAN SOBOL SHAPIRO, LLP, Seattle,
Washington, Christopher A. Seeger, SEEGER WEISS LLP, Ridgefield Park, New Jersey,
Shauna B. Itri, SEEGER WEISS LLP, Philadelphia, Pennsylvania, James E. Cecchi, James A.
O’Brien III, CARELLA, BRYNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.,
Roseland, New Jersey, for Appellants. Jay P. Lefkowitz, KIRKLAND & ELLIS LLP, New
York, New York, Renee D. Smith, Jeffrey S. Bramson, Cole T. Carter, KIRKLAND & ELLIS
LLP, Chicago, Illinois, for Appellee General Motors. Abena A. Mainoo, Carmine D. Boccuzzi
Jr., CLEARY, GOTTLIEB, STEEN & HAMILTON, LLP, New York, New York, Matthew D.
>

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No. 24-1139 Counts, et al. v. General Motors, LLC, et al. Page 2
Slater, CLEARY GOTTLIEB STEEN & HAMILTON LLP, Washington, D.C., William R.
Jansen, Jonathan E. Lauderbach, WARNER NORCROSS & JUDD LLP, Detroit, Michigan, for
Appellee Robert Bosch LLC. Jonathan S. Martel, ARNOLD & PORTER KAYE SCHOLER
LLP, San Francisco, California, for Amici Curiae.
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OPINION
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KETHLEDGE, Circuit Judge. The plaintiffs appeal the district court’s judgment in favor
of the defendants as to their claims that GM and Bosch misled consumers regarding the
emissions generated by certain Chevrolet Cruze vehicles. We affirm in part, vacate in part, and
remand for further proceedings consistent with this opinion.
I.
A.
New motor vehicles generally cannot be sold in the United States without a “certificate of
conformity,” which is the EPA’s certification that a vehicle complies with all federal emissions
standards. See 42 U.S.C. §§ 7522(a)(1), 7525(a); 40 C.F.R. § 86.1854-12(a)(1). As part of the
certification process, manufacturers must disclose whether a vehicle has any “auxiliary emission
control devices” (AECDs), which for various reasons can increase vehicle emissions under
certain operating circumstances. See 42 U.S.C. § 7525; 40 C.F.R. §§ 86.127-12, 86.1844-
01(d)(11).
AECDs use software to sense conditions like temperature, speed, or engine RPMs “for
the purpose of activating, modulating, delaying, or deactivating the operation of any part of the
emission control system.” 40 C.F.R. § 86.082-2. A manufacturer’s disclosures must provide “a
detailed justification of each AECD that results in a reduction in the effectiveness of the
emission control system, and rationale for why it is not a defeat device.” 40 C.F.R. § 86.1844-
01(d)(11). A “defeat device,” in turn, is an AECD that unjustifiably “reduces the effectiveness
of the emission control system under conditions which may reasonably be expected to be
encountered in normal vehicle operation and use.” 40 C.F.R. § 86.004-2. A defeat device,
therefore, operates to defeat the proper functioning of emission control system, as determined by

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the EPA; and the EPA may not issue a certificate of conformity for a vehicle equipped with one.
40 C.F.R. § 86.1844-01(g)(5).
General Motors completed this regulatory process for the diesel Cruzes at issue here. As
part of its application to the EPA, GM disclosed 90 pages of information about the AECDs in
these vehicles. Those disclosures included, as relevant here, separate sections about the AECDs
for two emission-control systems—namely, exhaust gas recirculation and selective catalytic
reduction—that reduce emissions of nitrogen oxides (NOx). After reviewing GM’s submissions,
the EPA’s Administrator issued certificates of compliance for all the Cruze vehicles at issue
here. See generally 42 U.S.C. § 7525(a)(3). Thereafter, GM advertised to consumers that the
Cruzes featured “Clean Diesel” technology.
B.
1.
The plaintiffs brought this suit in 2016, asserting various types of fraud claims under the
laws of 30 states, as well as claims under the Racketeer Influenced and Corrupt Organizations
(RICO) Act. The fraud claims were based on five theories: namely, that the Cruzes “emit levels
of NOx many times higher than (i) their gasoline counterparts, (ii) what a reasonable consumer
would expect, (iii) what GM had advertised, (iv) the [EPA]’s maximum standards, and (v) the
levels set for the vehicles to obtain a Certificate of Conformity that allows them to be sold in the
United States.” First Amended Complaint ¶ 2. The Cruzes produced those higher emissions, the
plaintiffs alleged, “by turning off or turning down emissions controls when the software in these
vehicles senses they are not in an emissions-testing environment.” Id. The allegations here thus
sought to mimic the ones that had recently been lodged against Volkswagen.
In the years since the plaintiffs filed their complaint, however, the district court has
winnowed their claims. The district court first held, in deciding a motion to dismiss, that claims
based on the plaintiffs’ fourth and fifth theories—which reference the EPA’s standards
directly—were preempted by the Clean Air Act. Counts v. General Motors, LLC, 237 F. Supp.
3d 572, 589–90 (E.D. Mich. 2017). The plaintiffs have since abandoned those theories.

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In the same order, the court held that claims based on the plaintiffs’ first three theories
were not preempted. Id. at 592. But the court narrowed the factual bases on which the plaintiffs
could seek to prove claims based on those theories. Specifically, the court held that GM’s
affirmative representations in its advertising—e.g., statements about “clean diesel” or the
“cleanliness” of the Cruzes’ emissions—were nonactionable puffery. Id. at 597–98, 600–01.
Likewise nonactionable, the court held, were ads stating that the Cruze “generates at least 90%
less nitrogen oxide and particulate emissions when compared to previous generation diesels.” Id.
at 598–99. The plaintiffs have not challenged those determinations either.
After the close of discovery—more than four years after the suit was brought—the
defendants moved for summary judgment on their remaining claims. The district court held that
claims based on their first theory—that a reasonable consumer would expect that the diesel
Cruzes would have lower emissions than their gasoline counterparts—were too implausible to
proceed. Counts v. General Motors, LLC, 606 F. Supp. 3d 678, 693 (E.D. Mich. 2022). That
determination too the plaintiffs have not challenged.
The plaintiffs’ remaining claims, as the district court described them then, all “hinge[d]
on whether Defendants fraudulently concealed one or more defeat devices” in the plaintiffs’
Cruzes. Id. at 702. On that theory, the court held that the plaintiffs had presented evidence
creating a genuine issue of material fact: specifically that, based on the record before it, “a
reasonable juror could find by a preponderance of the evidence that Plaintiffs relied on the
absence of defeat devices when they purchased their diesel Cruzes.” Id. at 705. To that extent,
therefore, the court denied the defendants’ motion for summary judgment as to the fraud claims.
Id. at 706. Separately, the court granted summary judgment to the defendants on the RICO
claims, on the ground that the plaintiffs had purchased the Cruzes from dealers rather than
directly from GM. Id. at 703–05.
2.
A year later, however, our court decided In re Ford Motor Company F-150 and Ranger
Truck Fuel Economy Marketing and Sales Practices Litigation (Ford), 65 F.4th 851 (6th Cir.
2023). There too the plaintiffs brought fraud claims, alleging that the gas mileage of F-150 and

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Ranger pickups was worse than advertised. Those advertisements had cited the EPA’s mileage
estimates—which were themselves based on testing data submitted by Ford and approved by the
EPA. We held that the plaintiffs’ claims were preempted on four different grounds. One was
that the plaintiffs’ claims “essentially challenge[d] the EPA’s [gas-mileage] figures” for the
vehicles—because, “even though the EPA exercised its statutory duty and found Ford’s testing to
be acceptable, a jury would still make its own determination” about whether the EPA’s figures
were correct. Id. at 863. Another reason, as relevant here, was that “allowing juries to second-
guess the EPA’s fuel economy figures would permit them to rebalance the EPA’s objectives” as
to how the testing was conducted. Id.
As a result of our decision in Ford, the district court in this case revisited its earlier
determination that the plaintiffs’ claims remaining after the court’s summary-judgment order
(which we call the “plaintiffs’ remaining claims”) were not preempted. Those claims, to
reiterate, were based on two “theories”: namely, that the Cruzes’ NOx emissions were higher
than “(ii) what a reasonable consumer would expect” and “(iii) what GM had advertised.” After
ordering the parties to brief the issue, the court held that, under Ford, the plaintiffs’ remaining
claims were preempted—specifically on grounds of conflict preemption. The court reasoned
that, “[w]ithout the CAA and its regulations, Plaintiffs would have no basis for their claims”; and
that, under Ford, “it is for the EPA—no one else—to evaluate” whether the Cruzes’ emissions
systems complied with the EPA’s regulations. Counts v. General Motors, LLC, 681 F. Supp. 3d
778, 785–86 (E.D. Mich. 2023). The court therefore dismissed the plaintiffs’ remaining fraud
claims and entered judgment in favor of the defendants. This appeal followed.
II.
A.
Plaintiffs argue that their remaining fraud claims are not preempted. We review de novo
the district court’s decision that they were. Ford, 65 F.4th at 859.
State law is preempted on conflict grounds if it makes compliance with federal law
“impossible,” or if the state law is “an obstacle to the accomplishment of the full purposes and
objectives of Congress.” Id. at 860 (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248

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No. 24-1139 Counts, et al. v. General Motors, LLC, et al. Page 6
(1984)). Whether a state-law claim presents such an “obstacle” depends on the federal statute’s
text, not on a judge’s sense of what the statute’s purposes might be. Id.; see also Virginia
Uranium, Inc. v. Warren, 587 U.S. 761, 778 (2019) (Gorsuch, J., opinion). A defendant bears
the burden of proving preemption. Ford, 65 F.4th at 859.
In this appeal, the plaintiffs’ principal argument is that yet another recent decision of our
court—namely, Fenner v. General Motors, LLC, 113 F.4th 585, 593 (6th Cir. 2024)—shows that
their remaining fraud claims are not preempted. In Fenner, the plaintiffs claimed that the
emissions systems of GM’s model years 2011–16 Duramax Trucks likewise contained a defeat
device that made the NOx emissions of those vehicles higher than customers would have
expected. At a certain level of generality, the fraud claims in Fenner were based on the same
theories the plaintiffs initially based their claims on here: again, that the vehicles “emit levels of
NOx many times higher than (i) their gasoline counterparts, (ii) what a reasonable consumer
would expect, (iii) what GM had advertised, (iv) the [EPA]’s maximum standards, and (v) the
levels set for the vehicles to obtain a Certificate of Conformity that allows them to be sold in the
United States.” Id. at 596.
In Fenner, a divided panel of our court held that, under Ford, only the last two of those
five theories were categorically preempted. Those two theories, the majority explained, “would
require a showing that, contrary to the EPA’s decision, the Duramax Trucks failed to meet EPA
standards.” Id. But the majority held, on the record there, the plaintiffs’ first three theories did
“not depend on the use (or misuse) of a ‘defeat device,’ nor on any fraud ‘in the emissions-
testing process.’” Id. at 599. To that extent, therefore, the majority held that the claims based on
those theories were not preempted. Id.
Here, at the time of the district court’s decision on summary judgment, the plaintiffs’
remaining claims (as we have defined that term) were based on their second and third theories.
And in Fenner we held, on the record there, that claims based on those theories were not
preempted. Hence the plaintiffs argue that their remaining claims are not preempted here.
The defendants counter we should simply disregard Fenner because, they say, our
holding in Fenner conflicted with our holding in Ford. See generally Habich v. City of

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Dearborn, 331 F.3d 524, 530 n.2 (6th Cir. 2003). That is an overstatement. Fenner
acknowledged each of the four grounds of preemption cited in Ford; and the majority gave
coherent reasons why (as to the plaintiffs’ first three theories) none of those grounds for
preemption were present on the record there. True, several judges later disagreed with that
reasoning. Fenner v. Gen. Motors, LLC, 121 F.4th 1117 (6th Cir. 2024) (order denying petition
for rehearing en banc). But it takes more than spirited disagreement about a rule’s application to
particular facts, for one panel lawfully to disregard a published decision of another. Wright v.
Spaulding, 939 F.3d 695, 700 (6th Cir. 2019). The holding of Fenner applies here.
In Fenner, the court reasoned that, on the record there, the plaintiffs’ first three theories
of liability did “not implicate or challenge the EPA’s determinations” that the AECD at issue
was not a defeat device. 113 F.4th at 596. In addition, the court said, at least some of the
plaintiffs’ evidence in support of those theories “exists independently of EPA standards.” Id. at
596–07. Thus, the court concluded, the plaintiffs there could “prevail without showing that the
subject vehicles violate EPA regulations.” Id. at 598. The court therefore held that claims based
on these theories were not preempted.
The question now is whether the same things are true in this case. We will not decide
that issue in this appeal: the district court has presided over this case for some seven years now,
and thus knows the record better than we do. Instead we will remand the case for the district
court to decide whether, on this record, the plaintiffs’ remaining claims can proceed without
relying in any way on a disagreement with the EPA’s determinations.
Specifically, the court should determine whether, as narrowed in this case, the plaintiffs’
remaining claims (which are, again, based on their second and third theories) “do not depend on
the use (or misuse) of a ‘defeat device,’ nor on any fraud ‘in the emissions-testing process.’” Id.
at 599. To that end, the term “theories”—as that term has been used in both Fenner and this
case—means syllogisms in support of a particular claim. Thus, for a claim based on a particular
theory to avoid preemption, no part of its syllogism can “implicate or challenge” a determination
of the EPA. Id. at 596. Moreover, the evidence in support of the claim must “exist[]
independently of EPA standards.” Id. at 596–97. Only if both of those things are true are the
claims not preempted. Id. at 598. For the text of the Clean Air Act empowers the EPA’s

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Administrator, and not a lay jury, to determine compliance with the EPA’s regulations under the
Act. See 42 U.S.C. § 7525(a)(3), id. at 7521(a)(4).
B.
We briefly address the plaintiffs’ remaining two arguments in this appeal. First, the
plaintiffs challenge the dismissal of their RICO claim under the indirect-purchaser rule. That
rule developed in the antitrust context as a “bright-line rule that authorizes suits by direct
purchasers but bars suits by indirect purchasers.” Fenner, 113 F.4th at 604 (quoting Apple, Inc.
v. Pepper, 587 U.S. 273, 279 (2019)). In Fenner, we applied that rule to a RICO claim
materially identical to the claim here. Id. Yet it is now the plaintiffs, on this issue, who say that
Fenner conflicted with binding precedent. Suffice it to say we disagree: Fenner is binding
precedent on this issue too. The district court was right to dismiss this claim.
Nor, finally, did the district court abuse its discretion in denying the plaintiffs’ post-
judgment motion to vacate its judgment in part and to approve a preliminary settlement
agreement that Bosch had earlier terminated. See Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084,
1094 (6th Cir. 2016). The district court denied the parties’ earlier motion for preliminary
settlement approval, and no such motion was pending when the district court entered judgment.
* * *
This case has been pending for more than eight years now, so we do not remand it for the
parties to litigate anew. Rather, we remand the case for the limited purpose of determining
whether the plaintiffs’ remaining claims (as we have defined that term here) are preempted under
the analysis described above. To the extent any such claims are not preempted, the district court
may do the following: (i) decide (upon an appropriate motion) the separate question whether the
record in this case—as it now stands after the close of discovery—shows the existence of
genuine issues of material fact as to any such unpreempted claim; and (ii) otherwise engage in
proceedings consistent with this opinion.

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