Auto buyers' claims for fraud relating to vehicle emissions; “Conflict preemption”; In re Ford Motor Co F-150 & Ranger Truck Fuel Econ Mktg & Sales Practices Litig (Ford); Fenner v General Motors, LLC; Dismissal of plaintiffs’ RICO claim under the “indirect-purchaser rule”; Denial of plaintiffs’ post-judgment motion to vacate the judgment in part & to approve a preliminary settlement agreement; Environmental Protection Agency (EPA); Auxiliary emission control devices (AECDs); Nitrogen oxides (NOx); Racketeer Influenced & Corrupt Organizations (RICO) Act

[This appeal was from the ED-MI.] The court vacated the district court’s ruling that plaintiffs’ fraud claims related to vehicle emissions were preempted under the Clean Air Act and remanded for a determination of whether their remaining claims “‘implicate or challenge’ a determination of the EPA.” New U.S. motor vehicles are generally required to have an EPA “certificate of conformity” with all federal emissions standards. Manufacturers are required to disclose whether the vehicle is equipped with any AECDs, which can sometimes increase vehicle emissions. If an AECD is determined to be a “defeat device” (defeating the proper functioning of the emission control system), the EPA may not issue a certificate for that vehicle. Defendant-GM produced a diesel Chevy Cruz and was issued a certificate. It advertised “that the Cruzes featured ‘Clean Diesel’ technology.” Plaintiffs sued GM and another company, claiming they misled consumers about the emissions generated by the Cruzes. At this point in the litigation, plaintiffs’ only remaining fraud claims concerned whether defendants “‘fraudulently concealed one or more defeat devices’ in” plaintiffs’ Cruzes. These claims were based on two theories – “that the Cruzes’ NOx emissions were higher than ‘(ii) what a reasonable consumer would expect’ and ‘(iii) what GM had advertised.’” The district court initially denied defendants summary judgment as to those claims and granted them summary judgment on plaintiffs’ RICO claims. But after the court’s decision in Ford, it revisited its ruling and concluded that conflict preemption barred the fraud claims. It then entered judgment for defendants. Plaintiffs relied on Fenner in arguing on appeal that the claims were not preempted. Fenner held that claims based on the same theories were not preempted. It concluded that claims were not preempted where they “did ‘not implicate or challenge the EPA’s determinations’ that the AECD at issue was not a defeat device[,]’” and where at least some of “plaintiffs’ evidence in support of those theories ‘exists independently of EPA standards.’” The court declined to determine whether the same things were true here where the district court was in a better position to do so, and remanded for it “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.” It affirmed the dismissal of their RICO claims under the indirect-purchaser rule and the denial of their post-judgment motion to vacate the judgment in part and to approve a preliminary settlement agreement that the other defendant had earlier terminated. Affirmed in part, vacated in part, and remanded.