Nancy Anderton, et al. (23-1696) v. General Motors, LLC; Robert Bosch Gmbh; Robert Bosch LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0257p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDREI FENNER et al.,
Plaintiffs,
PHILLIP BURNS, et al. (23-1648); NANCY ANDERTON,
et al. (23-1696); MIKE BULAON, et al. (23-1697);
TAYLOR PANTEL, et al. (23-1698),
Plaintiffs-Appellants,
v.
GENERAL MOTORS, LLC; ROBERT BOSCH GMBH;
ROBERT BOSCH LLC,
Defendants-Appellees.
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Nos. 23-1648/1696/1697/1698
On Petition for Rehearing En Banc
United States District Court for the Eastern District of Michigan at Bay City.
No. 1:17-cv-11661—Thomas L. Ludington, District Judge.
Decided and Filed: November 20, 2024
Before: MOORE, KETHLEDGE, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: 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. ON RESPONSE TO THE PETITION
FOR REHEARING EN BANC AND TO THE MOTIONS TO FILE AMICI BRIEFS: Steve
W. Berman, Garth D. Wojtanowicz, HAGENS BERMAN SOBOL SHAPIRO, LLP, Seattle,
Washington, E. Powell Miller, Dennis A. Lienhardt, THE MILLER LAW FIRM, P.C., Rochester,
Michigan, James E. Cecchi, Donald A. Ecklund, James A. O’Brien III, CARELLA, BYRNE,
CECCHI, BRODY & AGNELLO, P.C., Roseland, New Jersey, Christopher A. Seeger, Jennifer
R. Scullion, SEEGER WEISS LLP, Ridgefield Park, New Jersey, Shauna Itri, SEEGER WEISS
>

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LLP, Philadelphia, Pennsylvania, for Appellants Phillip Burns, et al. and joined by the Anderton,
Bulaon, and Pantel Appellants. ON AMICI BRIEFS: Stephen A. D’Aunoy, KLEIN THOMAS
LEE & FRESARD, St. Louis, Missouri, Brandon L. Boxler, KLEIN THOMAS LEE &
FRESARD, Richmond, Virginia, Jonathan S. Martel, ARNOLD & PORTER KAYE SCHOLER
LLP, Washington, D.C., for Amici Curiae.
The court delivered an order denying the petition for rehearing en banc. MOORE, J. (pp.
3–5), delivered a separate opinion concurring in the denial of the petition for rehearing en banc, in
which CLAY, STRANCH, and BLOOMEKATZ, JJ., concurred. GRIFFIN, J. (pp. 6–7), delivered
a separate opinion dissenting from the denial of rehearing en banc, in which KETHLEDGE and
BUSH, JJ., concurred. KETHLEDGE, J. (pp. 8–9), also delivered a separate opinion dissenting
from the denial of rehearing en banc, in which GRIFFIN and BUSH, JJ., concurred.
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ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision. The petition was then circulated to the full court.* Less
than a majority of the judges voted in favor of rehearing en banc.
Judge Kethledge would grant the petition for rehearing en banc for the reasons stated in his
dissent to the court’s opinion of August 21, 2024, and in his dissent (pp. 8–9) to this order.
Therefore, the petition is denied.
*Judge Davis is recused from participation in this decision.

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CONCURRENCE
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KAREN NELSON MOORE, Circuit Judge, concurring in the denial of rehearing en banc.
The law is clear that preemption of state-law claims is appropriate where those claims “exist solely
by virtue of” fraud on a federal agency. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S.
341, 353 (2001). But the law affords no argument for preempting claims “not based on any sort
of fraud-on-the-agency theory, but on traditional state tort law principles.” Id. at 352
(distinguishing Medtronic, Inc. v. Lohr, 518 U.S. 470, 481 (1996), and Silkwood v. Kerr-McGee
Corp., 464 U.S. 238, 241 (1984), on these grounds). Fenner v. General Motors is emphatically
consistent with this holding because we correctly held that certain of plaintiffs’ claims were not
preempted to the extent they “relie[d] solely on traditional state tort law predating the [Clean Air
Act], and would exist in the absence of the [federal] Act.” 113 F.4th 585, 602 (6th Cir. 2024)
(quoting Loreto v. Procter & Gamble Co., 515 F. App’x 576, 580 (6th Cir. 2013)). And we
appropriately held preempted those of plaintiffs’ claims which did arise exclusively from alleged
violations of federal regulations. Id. at 596.
There is thus no conflict between Fenner and our recent decision in In re Ford Motor
Company, 65 F.4th 851, 866 (6th Cir. 2023). In Fenner we devoted more than five pages to an
application of Ford, ultimately determining that two of plaintiffs’ five theories were indeed
preempted under Ford. 113 F.4th at 595–600. The Fenner plaintiffs initially alleged that GM
violated state consumer fraud and deception laws when the Duramax trucks “emit[ted] 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 Environmental Protection Agency’s maximum
standards, and (v) the levels set for the vehicles to obtain a certificate of compliance that allows
them to be sold in the United States.” Id. at 596 (quoting R. 18 (First Am. Compl. ¶ 2) (Page ID
#892)) (alteration in Fenner). We held that “[t]he fourth and fifth theories of liability would
require a showing that, contrary to the EPA’s decision, the Duramax [t]rucks failed to meet EPA
standards. These two theories of liability depend entirely upon a [Clean Air Act] violation. Like
the Ford plaintiffs’ claims, these two theories are thus ‘impermissible legal challenges to the

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EPA’s decision’ and, under Ford, are preempted.” Id. (quoting D. 38 (Appellee Br. at 29)). We
clearly recognized Ford as binding precedent, but we simply (and correctly) determined that
plaintiffs’ three remaining claims did not rely on a showing of any regulatory violation and thus
did not invite a lay jury to question the EPA’s judgment, making them distinguishable.
A jury, in hearing plaintiffs’ arguments—that GM violated state consumer-protection laws
when it advertised and sold Duramax trucks with emissions higher than gasoline counterparts,
reasonable consumer expectations, and those promised by GM’s advertisements, see id.—will be
asked to determine whether GM’s marketing was misleading in light of the trucks’ heightened
emissions. See, e.g., Mich. Comp. Laws § 445.903(1)(s) (prohibiting “[u]nfair, unconscionable,
or deceptive” acts which, inter alia, “[f]ail[] to reveal a material fact, the omission of which tends
to mislead or deceive the consumer”). A verdict in favor of plaintiffs would require no finding as
to why the Duramax emissions were heightened, but only as to whether the emissions were higher
than a reasonable consumer would expect based on GM’s marketing and thereby rendered that
marketing misleading. And when the jury determines whether the trucks emitted “too much” NOx,
it will do so based on a reasonable consumer’s definition of “too much,” not the EPA’s. This is a
perfectly appropriate role for a lay jury and does not displace the EPA’s determination about
whether the Duramax trucks contained defeat devices. Indeed, depriving the jury of that role
would displace state consumer protection law that poses no direct conflict with federal regulations
based on a court’s “freewheeling inquiry” into the amorphous purposes and objectives of the
federal statute, which is exactly what we are not supposed to do. Chamber of Com. v. Whiting,
563 U.S. 582, 607 (2011); Merrick v. Diageo Ams. Supply, Inc., 805 F.3d 685, 694–95 (6th Cir.
2015).
In calling for en banc review, my colleagues overread Fenner. They fear Fenner means
“any regulatory judgment affecting consumers is now open to second-guessing by a lay jury.”
Griffin Dissenting Op. at 7. That is not true, and we need look no further than our decision to see
why. We held that the plaintiffs’ claims “second-guess[ing]” the EPA’s decision were indeed
preempted. See Fenner, 113 F.4th at 595 (quoting Ford, 65 F.4th at 863). My colleagues also
attack the surviving claims in Fenner for lacking independent support in the record, saying the
only evidence for them ties back to EPA standards. Kethledge Dissenting Op. at 8–9. But the

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evidence we cited suggests otherwise. See Fenner, 113 F.4th at 591–92. Even so, at most, this
concern represents a record dispute about the remaining claims.
Where does that leave us? Ford and Fenner stand for a simple proposition: When claims
depend on standards set by the EPA under the Clean Air Act, or a “fraud-on-the-agency” theory,
they are impliedly preempted. But when the claims do not depend on representations to the EPA,
standards the EPA establishes, certificates the EPA issues, or other EPA regulations, they are not
impliedly preempted. My colleagues dissenting from the denial of rehearing en banc do not
seriously dispute these points. Rather, they disagree on which side of the line the facts of this case
fall. That fact-bound dispute does not warrant rehearing en banc. See Fed. R. App. P. 35(a).
For the foregoing reasons and because Fenner was correctly decided, I concur in the denial
of rehearing en banc.

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DISSENT
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GRIFFIN, Circuit Judge, dissenting from the denial of the petition for rehearing en banc.
This case warrants rehearing en banc. Such review “is necessary to secure or maintain uniformity
of [our] decisions.” Fed. R. App. P. 35(a)(1). This case conflicts with In re Ford Motor Co. F-
150 and Ranger Truck Fuel Economy Marketing and Sales Practices Litigation (Ford F-150), 65
F.4th 851 (6th Cir. 2023), because the two cases reach opposite conclusions on the same issue:
whether a jury can revisit the EPA’s regulatory judgment with respect to vehicle standards set by
federal law.
Moreover, this case “involves a question of exceptional importance.” Fed. R. App. P.
35(a)(2). In our October sitting alone, we heard two more putative class actions—Bledsoe v. FCA
US, LLC, No. 24-1094, and Counts v. General Motors, LLC, No. 24-1139—that apparently assert
similar claims that the majority approved here. Class actions involving automakers are largely
unique to our Circuit (because the automakers are headquartered in Michigan), so it is both likely
that we will continue to see these types of cases in the future and unlikely that the Supreme Court
will resolve our conflicting precedent for us.
The majority opinion in this case would allow lay juries to second-guess the EPA’s
approval of the emissions systems of any vehicle sold in the United States. Federal law (namely
the Clean Air Act) vests the EPA with authority to regulate emissions for new vehicles sold here.
See 42 U.S.C. §§ 7521(a)–(b), 7525; 40 C.F.R. §§ 86.127-12, 86.135-12. And in this case, as the
majority opinion itself observed, the subject GM “Duramax Trucks all received EPA-issued
certificates of conformity, indicating that the vehicles met EPA emissions standards.” Moreover,
the EPA issued those certificates after GM fully disclosed all the relevant components of the
trucks’ emissions systems. Yet the majority opinion would now allow a lay jury—applying state
law—to determine anew whether these trucks emitted too much nitrogen oxide “in real-world
driving conditions.” The EPA has already found otherwise; these claims should be preempted by
federal law rather than encouraged by our court.

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Our caselaw compels that conclusion. Just last year, we held that “allowing juries to
second-guess the EPA’s fuel economy figures would permit them to rebalance the EPA’s
objectives.” Ford, 65 F.4th at 863. Here, the majority opinion attempts to distinguish Ford on the
ground that Ford involved mileage estimates, whereas this case involved emissions systems. But
the underlying problem in both cases is the same: the claims would “inescapably and
impermissibly put[] a jury into the EPA’s regulatory shoes.” Id. That the EPA had adopted the
mileage estimates as its own was an additional reason for preemption in Ford, not the only reason.
Id.
Nor should it matter that the plaintiffs have since relabeled some of their claims to avoid
(on the surface, at least) any mention of the EPA. As Judge Kethledge explains in his panel dissent,
“the through-thread of all [the plaintiffs’] claims and ‘theories’” is that the trucks’ emissions
system “unjustifiably increases the trucks’ emissions during ‘real-world’ driving conditions.” But
the EPA itself found the opposite when it issued a certificate of conformity for these trucks. That
the plaintiffs have now made their disagreement with the EPA the premise of their claims—rather
than (as in Ford) the claims’ ultimate conclusion—should make no difference to whether those
claims are preempted. As stated by amicus FCA US, LLC—one of several amici who wrote in
support of our rehearing this case en banc—“[w]ordsmithing and labels now control the
preemption analysis” for these kinds of claims.
“Making complex technical judgments about vehicle emissions,” Judge Kethledge
appropriately observed, “is precisely the kind of thing that expert agencies are good at—and lay
jurors are not.” Yet the implications of the majority opinion are that any regulatory judgment
affecting consumers is now open to second-guessing by a lay jury.
For these reasons and those more fully set forth in Judge Kethledge’s panel
concurrence/dissent and his separate dissent from the denial of rehearing en banc, I respectfully
dissent from the denial of the petition for rehearing en banc.

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DISSENT
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KETHLEDGE, Circuit Judge, dissenting from the denial of rehearing en banc. I write to
make an additional point as to why the plaintiffs’ claims here are preempted. Courts should be
careful not to hold state laws preempted based merely on a judge’s own sense of what a federal
statute’s purposes should be. But most jurists would agree that preemption is proper when a state
law or claim expressly or impliedly conflicts with a federal statute’s text. See Virginia Uranium,
Inc. v. Warren, 587 U.S. 761, 778 (2019) (Gorsuch, J., opinion).
We have such a textual conflict here. From the beginning, the plaintiffs have alleged that
the online-dosing system for the subject Duramax trucks was a “defeat device”—which the
complaint itself describes as “an auxiliary emissions control device that reduces the effectiveness
of the emission control system under conditions which may reasonably be expected to be
encountered in normal vehicle operation and use.” Compl. ¶4. That is verbatim the federal
definition of a defeat device. See 42 C.F.R. § 86.004-2. Accordingly, the plaintiffs’ expert, Juston
Smithers, opined in his report and in his deposition that “the defeat device here is a technically
unjustified use of a strategy called ‘online dosing.’” Rep. at 2. In opposing summary judgment,
the plaintiffs likewise argued—as to all their claims—that “the Duramax trucks use ‘online dosing’
as a defeat device that reduces the effectiveness of the emission control system under normal
driving conditions and thereby causes excessive emissions.” Omnibus Resp., p. 1, Pls’ Resp., p.
1; see also Omnibus Resp., p. 42 n.29 (“that Defendants made statements touting the low emissions
qualities of their products gives rise to the obligation to disclose the defeat device rendering
defective the emissions control technology and causing higher-than-expected emissions”). And
even in arguing that their claims were not preempted, the plaintiffs asserted that “Defendants
carefully concealed what Plaintiffs’ expert analysis has shown: that the vehicles contained defeat
devices which caused excessive NOx emissions in common real-world conditions.” Resp. to Show
Cause, p. 18; see also, e.g., id. at 14 n.2 (“the allegations of defeat devices are a means by which
Plaintiffs can demonstrate that Defendants actively concealed the true nature of the vehicles’
emissions systems, and how they did so”).

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The district court, for its part, summarized the record before it on summary judgment as
follows:
Plaintiffs have not identified an emissions benchmark, standard, or metric—except
the EPA’s standards—that a reasonable consumer would be aware of, care about,
or expect. That is, Plaintiffs’ allegations about “defeat devices” concealing excess
emissions from the EPA hinge solely on the violation of EPA regulations, as
confirmed by Plaintiffs’ emissions expert, Juston Smithers.
681 F. Supp. 3d 767, 774-75 (E.D. Mich. 2023) (citation omitted).
Thus, whatever their label, all the claims at issue here—as actually litigated for six years
in the district court—would have a lay jury revisit the EPA’s determination that the Duramax
trucks’ online-dosing system was not a defeat device. Therein lies the conflict with the statutory
text: the Clean Air Act directs the EPA’s “Administrator” to determine (among many other things)
whether “any emissions control device” is a defeat device as defined by the EPA, 42 U.S.C.
§ 7525(a)(3)(A), id. § 7521(a)(4), 42 C.F.R. § 86.004-2; yet the plaintiffs want a lay jury to reject
that same determination. That should be conflict enough to hold these claims preempted.
ENTERED BY ORDER OF THE COURT
__________________________________
Kelly L. Stephens, Clerk

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