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From Products Liability Law Daily, August 6, 2015

Class action charges that uConnect recall falls short of fixing defect in FCA vehicles

By Pamela C. Maloney, J.D.

A putative nationwide class of owners or lessees of vehicles manufactured by FCA US LLC and equipped with an infotainment system called “uConnect,” manufactured by Harman International Industries Inc., has filed a lawsuit against these two companies alleging that the safety recall they conducted was insufficient to address the underlying defect. According to the complaint, the design and system architecture of the system was defective in that non-secured systems were coupled with essential engine and safety controls. Thus, the problem was not a software issue as announced in the recall but was an overarching design defect (Flynn v. FCA US LLC, August 4, 2015).

Background. In July 2015, Wired Magazine published an article in which security researchers demonstrated the ability to remotely hack into a 2014 Jeep Cherokee while it was driving on a highway in St. Louis, MO. The researchers were also able to gain access to the vehicle through security vulnerabilities in the uConnect System. Once “inside,” the researchers were able to rewrite encoded chips in the uConnect hardware which allowed them to access and issue commands through the vehicle’s CAN bus (a CAN bus is a vehicle’s internal communication network that connects the vehicle’s engine control units (“ECUs”) with each other). In addition to being able to control the vehicle’s radio, door locks, windshield wipers, display picture on the center console, and other peripheral functions, the researchers also demonstrated their ability to control engine functionality by shutting the vehicle down in highway traffic, which was demonstrated on a closed course. Other researchers also have demonstrated the ability to infiltrate infotainment systems through the radio.

Days after the Wired article was published, FCA US instituted a safety recall (NHTSA No. 15V461 [see Products Liability Law Daily’s July 24, 2015 analysis]).

General allegations. According to the complaint, FCA’s safety recall fixed only the particular vulnerability that allowed the researchers access to the uConnect. It did not fix the fundamental design flaw in these vehicles, i.e., the design and system architecture of the system coupled non-secured systems like uConnect with essential engine and safety controls. This design allows hackers to affect powertrain and safety functionality through the uConnect system.

The complaint further charged that FCA learned of this security vulnerability in January 2014, 18 months before the company released a software update. In addition, the allegations state that the update process itself was not secure, providing potential hackers with additional opportunities to access the vehicle’s safety systems.

Specific counts. The complaint states counts based on (1) negligent design and manufacture; (2) violation of the Magnuson-Moss Warranty Act; (3) breach of implied warranty of merchantability under Illinois, Michigan, and Missouri law, (4) fraud; (5) unjust enrichment; (6) violations of Illinois’ Consumer Fraud and Deceptive Business Practices Act; (7) fraudulent concealment/fraud by omission; and (8) violation of Missouri’s Merchandising Practices Act;

Remedies sought. In addition to seeking class certification, the named representatives are seeking non-monetary damages in the form of (1) a declaration that vehicles equipped with uConnect are defective and that these defects are safety related; (2) an order enjoining FCA and Harman from further deceptive distribution, sales, and lease practices with respect to these vehicles and directing these companies to permanently, expeditiously, and completely remedy the defects; (3) a decree that the court will monitor any recall or remedial measures established for remedying these defects; and (4) a decree establishing a program funded by these two companies and supervised by the court under which claims can be made and paid for class members’ recall-related out-of-pocket expenses and costs.

In terms of monetary damages, the class is seeking actual, compensatory, and or statutory damages; punitive and exemplary damages; reasonable attorneys’ fees, costs, and pre- and post-judgment interest; and restitution and/or disgorgement of “ill-gotten gains” resulting from the conduct described in the complaint.

The case is No. 3:15-cv-855.

Attorneys: Paul M. Weiss (Quantum Legal LLC) for Larry Butler. Bradley B. Falkof (Barnes & Thornburg) for Sears Roebuck & Co.

Companies: FCA US LLC; Harmon International Industries, Inc.

MainStory: TopStory DesignManufacturingNews MotorVehiclesNews MotorEquipmentNews DamagesNews ClassActLitigationNews IllinoisNews

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