a missed her each bob brand new honda vehicles and when they purchased these vehicles they got with that it warranty a new vehicle warranty as was presented to them and as they expected the warranty would cover all mechanical breakdowns each of them were operating the vehicle on a roadway normally when the cut power steering of each of their vehicles went out in the car died they contacted honda asked them to bring the vehicle into a repair facility where honda certified repair technician came and told these people each of them that the soil wiring of their vehicles rodents attacked it shoot them up and cause this breakdown this is not covered under their warranty this is the be under their own dime and then there's also unfairness claims in the company why decision to not repair these particular problems this material event illinois consumer fraud case you've got to show a communication which was misleading or omitted a material fact what the communication on the made that was the fact respect your honor that would be a communication that is misleading would be a misrepresentation and we do not bring a misrepresentation case or this is an emissions theory case now you have it under illinois consumer price so the consumer fraud act it's a unique act because it was created to be more expansive than common law fraud it was created to be a remedial act and give consumers rights against deceptive and unfair practices so the requirements of a claim under the consumer fraud act are deceptive or unfair act or practice in the course of commerce with the intent that the consumer rely on the deception for the act or omission and approximately causing damages in the statute itself and in the case law and conic that we presented by the supreme court notably absent from the requirement is that the consumer plead that they actually relied on the act or omission i'm asking you about the element of communication what is the communication that honda made your client that was the only communication that you're claiming no you you're claiming that they feel that they omitted to make a statement regarding the soy based rapping on the men really sticker right right we're not saying that they had to make we allege that the warranty book is given post sale because it's in the vehicle when they get the car if they sign but the warranty itself and what it has this is before is pre sale and we alleged it's a pre sale touting how it's transmitted sticker and were not saying this is a misrepresentation class or case this is an omission case where they were they should have the they should have said something about the soy based wrapping on the moon rowley sticker no no they were not saying they should have no we're saying that they as far as an omission theory is concerned they should have said something at any point of communication of any kind then i would have satisfied your nations with smith my question is as i that omitted the soy based wires the warranty the communication of the warranty the warranty was only delivered after the sale or no your either warranty is is communicated and the vehicle on the sticker that says this vehicle warranted before the consumers buy the vehicle it's not the monroe nice it is the minority sticker ok so i just want to make sure they understand your answer because i think we're all getting at the same thing as i understand that the statute that you're relying on in this case the claim in this case choir's a presale communication that requires the misrepresentation omission and i'm trying to understand what communication you're relying on it's the monroe nice ticker that's your position yes and it's the end it's the general knowledge that the consumers given about the warranty before they bought the vehicle both of them were told that they're buying a vehicle that is warranted  and that communication alone without telling them at some point afterwards before they buy the car hey there's more to this there's a hidden problem that you don't know about we've changed the ingredients on vehicle we've made it into soil rats are starting a rodents are starting to attack it and we're not covering that and for whatever reason we're calling it a design defect which isn't covered by the warranty and what we haven't put in this case which isn't part of it we've they've used in an act of nature defense on it but we're not here talking about that it's they basically just been denying the claim saying it's not covered under the specific terms of the warranty even though these people are led to believe that in our case district court erred when it when it found that we did not give the defendant proper notice or fair notice of the grounds of the claim under rule nine b parties must state when alleging fraud particularities the circumstances constituting the fraud the who the what the when the where and the how know where though does this imply that we have to break down a complicated vehicle and name a specific component part or identify the cubic foot within the vehicle where this occurred we we 've there's a case hart versus chrysler a central district of california case where it was enough to put chrysler a notice of the defect by just saying it was the manual transmission and then describing the symptoms of it i think we've done far more than that we've we've we've identified the particular parts we've given we stayed the power steering wiring is the issue we point out the one hundred service records specify the parts replaced we even give those those numbers  each was part of the power steering so we made that clear for one hundred to sit and say you know we don't know what they're talking about they didn't give us notice respectfully they have to be kind of giving us a poke poke wink wink and that and they made this vehicle they're aware of it they've been dealing with complaints about this for years as we've alleged so this isn't something that they're completely unaware of and that we got them out of the dark this is something that they know of and we told them very clearly supposed fars complying with rule nine requirements which is what we have to do who what when where and how who we identified honda the what knowledge that they've changed the wires to soybeans and rats are attacking them the when prior to plaintiff's purchase where at hand authorised dealerships and how by filling to disclose material issue to consumers that might change their mind why wasn't this contractual line a breach of warranty well because the terms of the warranty according to what i've done it's warranty weren't breached we're not saying the honda made some promise here that they're not fulfilling what they did was this is kind of like the pappas versus poly case that we cited or the defendant made the same argument aren't you just making a breach of warranty argument in the court said no they're saying that there was a material fact that you knew about that had that been disclosed to the consumers that might alter their decision to make this purchase what about imply warranty claim at any point during the pleadings from the original and then meant was given that the i thought was to not throw any warranty claims in this case at this point given what we're looking at we don't want to make a kitchen sink complaint that we'd be up here arguing about things that really don't belong up here your complaint appears to sound a little bit in breach of warranty because she said honda refuses to cover rodent related repairs under its manufacturer's warranty malfunction attributed to road damage due in the applicable new vehicle warranty period and hondo denied warranty coverage so it's in a way it could be concluded that you're trying to plead around a breach of warranty but you still have those breach of warranty type allegations in the complaint right but but the case doesn't fit into the breach of warranty and honda's warranty book it doesn't fit in so we really can't have a breach of warranty here and that's why illinois consumer fraud act is remedial it actually allows for not just the sept of but unfair acts or practices and let me talk about that for a moment both of your planes were told the vehicle was warranted would you allege actual facts of honda telling them that it was ordered beyond the the the warning sales folks mr heard in the one hundred sales folks we probably could expound a little bit more on that to make it a little bit clearer how the warranty was touted to them we would actually add up the honda sales person who actually made the representations i i don't think at the pleading stage we have to name the actual name of the salesman at this point as to who are who have to and now i can't because i'm not looking at mr preston's contract that has the salesman's name on it but we do have one and we there is a name on it we do know he spoke with but we don't name that person and i don't think it was necessary in the complaint are you relying on the contents of that contract to say that those representations were made or your conversations written contract right we're not relying on the contract itself because actually the contract is just a contract to buy the vehicle the issue that we have here is one you're buying the vehicle there's something about it that you don't know there's a hidden problem that's not being disclosed to them so would your position be that the sales person neglected to tell the buyer about this problem the particular sales person who is listed on the contract know we think it's a company wide problem and that's that's where our unfair claims come in as well this is a company wide issue it's not just happening and it didn't just happen to mr preston or mr john it's happening to thousands of consumers problem is if you can't tell us who said it when they said it isn't that not  sufficient to state a claim if you can't give us the details we said who in that it was the honda authorized dealerships again at the pleading stage and we said when it happened it was prior to the sale of medical kind of authorized dealerships does not give us  the other party want to take the deposition of the person that you say that made this representation they can't the poles the honda authorized dealership they need to know who is the person what was the date what was the time so they can pinpoint who was on duty at that time so that we can depose that person and get an answer as to what was said in the presale conversation thank you and with the few moments i have i have a little time left rhonda would know that long before we do are the salespeople it's their store it's their cars they're selling they have access to these documents they know the stuff before they do so if they want to take a duck session of the sales your clients know who they spoke with i think and they know when they spoke with the person and they know where it is with the person and that's something that should be in the complaint to give notice to honda as to where to start to look for the answer and we do name the store where they were bought and the date that these vehicles were purchased so we do name those things we do name the when and where i do i am out of time but i hope that you'll live music at least a moment or rebut i will thank you so many issues that your honour's have raised good questions judgment let me just make quick work of the implied warranty claim question that you asked plaintiff's counsel there was an implied warranty claim in the original complaint plaintiffs did not pursu implied warranty or breach of express warranty in their st amended complaint after they had read honda's motion to dismiss the original complaint so there was one it was a band in this case just in terms of the issues to cover plaintiff continues to make reference to a new vehicle warranty as your honour's can see from plaintiff's complaint itself  your twenty eight dollars where plaintiffs included a copy of the new vehicle limit limited warranty it is a new vehicle limited warranty limited is in its name it is not an all expens warranty and in fact point two says in their briefing that a consumer can not see the limited warranty prior to the purchase of cell problem with the vehicle so whether or not it's covered under the warranty we don't get to that until we determine whether or not the statute applies and whether or not this is a breach of warranty case so for me i'm shying to garner from you was there a communication that fit within the illinois state there is no communication identified in the st amended complaint that would qualify under the illinois statute so the answer is no there is not a suggest that that the representation is an all encompassing warranty that would cover and council said it to you again this morning any mechanical problem well i think councils talking about representations were made by the honda salesman orally regarding the automobile if you are allowed to amend he will edge time place and content but when one council st got up and addressed your honour's he said that the plane just purchased a vehicle with a new vehicle warranty and they expected it would cover all mechanical problems well he said that there was a sticker on the current that set warranty that the car was warranted well is that true or no did this sticker say the car was warranted it said that it comes with a limited warranty and word limited actually puts customers on notice that it's not go not because the sales person is from an authorized dealership those are independent entities hot american honda is not the dealership and the dealership that is not american honda there may be a case against the dealership but a statement by a salesperson that is not directed or own under the control of american honda would not apply to american honda so no the discussions between a sells person at a dealer and the plaintiffs here would not be sufficient communication from american hunder about the warranty and let me let me point something out to your honor's about plaintiff's position that a customer does not get or cannot have access to the language of the limited warranty prior to sell the magnuson moss act requires the availability of warranty language prior to purchase limited warranty identified and in the man wrongly label which by the way these plaintiffs never allege that they saw then that warranty is available to them they can either ask the dealer for it or they can go  online because an alternative way of providing the warranty is to go on line there are no allegations in this complaint none that american honda violated magnusson moss by failing to provide access to the limited warranty which contains the language that it only applies to workmanship immaterial which contains the language that it doesn't apply to acts of nature which are the provisions that lead plaintiffs to abandon their express warranty claims those provisions are available there's no allegation suggesting that they are not and that ha merican honda violated federal law by failing to make those warranty that warranty owners asked whether this case is just a breach of express warranty or breach of warranty claim and that the allegations are intended to plead around to the inability to bring a breach of warranty claim i think counsel in fact admitted to such but if there's any question and judge rawlinson you read a number of excerpts that i would have pointed out to but there are some that you have not a plaintive opening brief at page nine there is a heading and it says the plaintiffs sufficiently allege consumer fraud against honda for its refusal to cover under warranty repairs caused by its own conduct they say hundreds unfair conduct and this is the conduct that they say is unfair this is the trigger that they claim leads to the violation of the it for honda's unfair conduct quote failing to notify consumers that there exists a condition with the vehicle that is not warranted and will require their own out of pocket expense to repair a for failure to warrant its defective wire according insulation there is no question that this case is based on plaintiff's belief that honda breached its warranty by not covering repairs needed as a result of rodent damage it is equally clear that it for precludes that precise type of allegation every st state farm the illinois supreme court case specifically says as a matter of law plaintiff's consumer fraud claim may not be based on the assertion that the form breached its promise to restore plaintiff vehicles to their pre launch condition in this case it can't be based on honda's refusal to cover rodent damage under its limited warranty  consumer fraud arise in a contractual setting as it has in this case and all one needs to do is read the complaint and the amended complaint to see that when allegations of consumer fraud arise in a contractual setting the plaintiff must prove that the defendant engaged in deceptive actual practices and this is an important word this stink distinct from any underlying breach of contract every explains a deceptive act or practice involves more than the mere fact that a defendant promised something and then fail to do it that type of misrepresentation occurs every time a defendant breaches a contract here and this is in greenberg as as an everyday consumer fraud in contract contract claims raced on the rest on the same factual foundation no distinct if your honour's go back and take a look at is it your position that you can know there's no conceivable with you can amend this complaint there is no conceivable way to want to use it because at the end of the day what pointers are unhappy with refusal to cover the repairs under its warranty and they say it over and over and over again and so long gas this case is tethered to the warranty says they cannot do that and in and in and in every and greenberger and lang and or the plaintiffs say the defendant felt to live up to their contractual obligations just as the plaintiffs say here and then they say well we're not the our it for claim is not based on the breach of contract it's been so much more it's the failure to disclose what the defendants are up to or manufactured parts in the estimate of repair damage in greenberger it's  disclose that proof is required by a claimant the same thing here what they're saying is hey don't tell us rodent damage is covered others and plaintiffs in this case have dispensed with the notion that in fact the wires are responsible for bringing the rodents into the vehicles in the st place if your owners look at page thirteen of plaintiff's reply brief they say the following in talking about judge real's dismissal order the court misconstrued plaint allegations entirely plaintiff's claims are not premised on the fact that wires are defective because the rodents to and i'm saying that that's not their claim point is do not suggest that the wires were chewed  because the rodents were allergic to the cool cars in general as the court's opinion seems to indicate so that can't be their claim instead pointis properly allege that the animals are eating the food and food doesn't belong in an engine disavowing on the other is that rodents chew wires more frequently in one hundred vehicles but on the other hand they're saying but they rodents don't get into the hand engine compartments because they're about the presence of alleged oil wires they're back and forth and that the one thing that is clear is that plaintiffs brought this case because honda wouldn't cover their claims under its limited thank your honour's to begin with i just want to start with one quick comment that counsel made a few times and that's regarding the fact that rodents have been damaging vehicles forever i didn't know this maybe the panel has different experience than i do maybe counsel is different experience than i do but i complain alleges that this is something that has cropped up after toyota changed the i'm sorry after honda change the ingredients to the vehicle and that's kind of an important factor here is that they change the ingredients this isn't the same car it's always been for as long as one has been around and i've never heard that rodents have been chewing wires for as long as cars have been around that's news to me and it's not part of the pleadings and it's not part of our case i think it a chance to discuss unfair claims because we were asked questions about what communications were made to the plaintiff in this matter and we also have unfair claims here and unfair claims under the only consumer fraud act don't require an actual communication there is an abundance of seven circuit cases that discuss the consumer fraud and deceptive business practices act the talks about it in a plaintive can show conduct that is contrary to public policy immoral unethical oppressive an obscene or unscrupulous will cause a substantial harm to consumers you have an unfair claim and you don't need to have all thirty one dollars or two can stand on their own in this case at the record it's starting a pair page thirty in the in the record we allege the defense public policy because are governed by reliability and safety standards this is a moral and ethical oppressive unscrupulous as these are missions still occur despite years of consumers complaints and this causes substantial harm to consumers and i don't want to leave that off because these mechanical failures besides the machine devalue the vehicles are causing people to go out of pocket michael preston's bill was over two thousand dollars people buying a new vehicle do not expect the power steering to go out and then you have to pay two