RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0039p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JAMES SMITH, et al.,

Plaintiffs-Appellants,

v.

GENERAL MOTORS LLC,

Defendant-Appellee.

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No. 19-1614

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:17-cv-14146—Laurie J. Michelson, District Judge.

Argued: February 5, 2020

Decided and Filed: February 18, 2021

Before: SUHRHEINRICH, STRANCH, and NALBANDIAN, Circuit Judges. 

_________________

COUNSEL

ARGUED: Jason H. Alperstein, ROBBINS GELLER RUDMAN & DOWD LLP, Boca Raton, 

Florida, for Appellants. James C. McGrath, SEYFARTH SHAW, LLP, Boston, Massachusetts, 

for Appellee. ON BRIEF: Jason H. Alperstein, Mark J. Dearman, ROBBINS GELLER 

RUDMAN & DOWD LLP, Boca Raton, Florida, E. Powell Miller, Sharon S. Almonrode, THE 

MILLER LAW FIRM, PC, Rochester, Michigan, Caroline F. Bartlett, CARELA, BYRNE, 

CECCHI, OLSTEIN, BRODY & AGNELLO, P.C., Roseland, New Jersey, for Appellants. 

James C. McGrath, SEYFARTH SHAW, LLP, Boston, Massachusetts, Robyn E. Marsh, 

SEYFARTH SHAW, LLP, Chicago, Illinois, for Appellee.

NALBANDIAN, J. delivered the opinion of the court in which SUHRHEINRICH, J., 

joined. STRANCH, J. (pp. 20–23), delivered a separate opinion concurring in the judgment.

>
No. 19-1614 Smith v. General Motors LLC Page 2

_________________

OPINION

_________________

NALBANDIAN, Circuit Judge. It is cliché for a court to note that a case is odd. But the 

moniker is appropriate here—where the parties seem to ignore the fundamental question of 

governing law. Congress commands that we apply the law of the “several states” in this 

diversity action. That task, though, is made difficult here because the parties eschew their 

obligation to set forth what that law is. 

Plaintiffs’ multi-state class action suit alleges that General Motors, LLC (GM) knowingly 

sold them vehicles with defective dashboards. According to Plaintiffs, that defect produces 

dashboard cracking that could cause severe injuries because malfunctioning airbags could turn 

the plastic dashboards into deadly projectiles during a crash. But no class member, or any other 

GM customer, experienced that dangerous scenario. At worst, Plaintiffs suffered only cosmetic 

damage and a potential reduced resale value from owning cars with cracked dashboards. Even 

still, Plaintiffs contend that GM knew about the defect and its dangers. And they believe that is 

enough to justify relief. 

This case turns on what, exactly, Plaintiffs must plead to survive a motion to dismiss. 

They assert that routine testing, customer complaints, and increased warranty claims alerted GM 

to the defective dashboards and accompanying danger. But that is not enough to move forward 

absent some specifics about how and when GM (1) learned about the defect and its hazards, and 

(2) concealed the allegedly dangerous defect from consumers when selling cars. Even accepting 

that GM produced defective vehicles, under the common legal principles of the several states, 

Plaintiffs must show that GM had sufficient knowledge of the harmful defect to render its sales 

fraudulent. And Plaintiffs did not allege particular facts showing that GM fraudulently unloaded 

unsafe vehicles onto an unwitting public. Much like Sir Conan Doyle’s case of the dog that did 

not bark, this dispute centers on what we can infer from shrapnel that did not spray. And, absent 

more detailed pleading about GM’s knowledge, there is not enough showing that GM learned 

about, and ignored, the allegedly dangerous defect. So we AFFIRM. 
No. 19-1614 Smith v. General Motors LLC Page 3

I.

Between 2005 and 2006, GM changed the dashboard used for GMT900 model cars from 

a multi-piece design to a single-piece design. This change made the dashboard prone to cracking 

in two places. Plaintiffs, who reside and bought GM vehicles in many states, allege that 

GMT900 vehicles produced between 2007 and 2014 contained a faulty, dangerous dashboard.1 

This line of vehicles contains some of the most popular cars in America, such as the Chevrolet 

Silverado, the GMC Sierra, the Chevrolet Tahoe, and the Cadillac Escalade. Fixing dashboard 

cracks can cost up to $1,800. Even worse, the design change allegedly created a safety hazard—

a crack near the steering column that could lead to an airbag malfunction or shrapnel spray 

during a crash. But GM never recalled GMT900 dashboards or publicly disclosed this defect.

Plaintiffs allege that GM first learned about the dashboard defect during the preproduction testing stage. Automotive industry standards suggest that car manufactures use a 

Production Part Approval Test (PPAT) when redesigning vehicles. This test allows car 

manufacturers to identify and remedy “potential failure modes and their associated 

causes/mechanisms.” (R. 14, Am. Compl., PageID 576.) It follows that GM likely submitted the 

defective dashboard used in the GMT900 series to a PPAT. Plaintiffs alleged that during that 

test, GM would have learned that panel cracking could lead to serious hazards for drivers, 

including “adverse deployment of the passenger side airbag” and “sharp shards of flying debris 

inside the vehicle.” (Id. at 581.) Relying on information and beliefs about automobile industry 

standards and the requirements of pre-production testing, Plaintiffs thus assert that GM knew of 

the defective dashboards before GTM900 vehicles hit the market. 

After greenlighting the GTM900 series for mass production and sales in 2007, GM 

received customer complaints about those cars beginning in 2009. For instance, drivers 

complained about cracked dashboards on websites like ChevroletForum.com. By monitoring 

these forums, GM could have learned about the defective dashboards. Around the same time, 

complaints about cracked dashboards began to increase on the National Highway Traffic Safety 

Administration (NHTSA) website. These included 1,589 complaints about GMC and Chevrolet 

1Because this case comes during the motion to dismiss stage, we treat the facts Plaintiffs alleged in their 

complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
No. 19-1614 Smith v. General Motors LLC Page 4

cars with the words “dashboard” and “crack” in the description. (Id. at 587.) And 1,138 

complaints came from GMT900 series cars, 240 of which asserted the dashboards were unsafe. 

One complaint voiced a concern that the defective dashboard could become hazardous during a 

crash by creating shrapnel. In a similar vein, GM saw a rise in warranty claims and complaints 

relating to GMT900 vehicles.2 

Most of the complaints, however, related to cars driven for many years and many miles 

(another potential reason against warranty coverage). And all of the named Plaintiffs 

complained about defects in vehicles driven between 23,000 and 156,000 miles over multiple 

years. 

What is more, Plaintiffs’ complaint contains no allegation that any of them have been 

hurt by the allegedly defective dashboards. It only theorizes that “[t]he [dashboard] cracks can

interfere with the planned deployment of the passenger side airbag, thus creating a safety risk.” 

(Id. at 567 (emphasis added).) And Plaintiffs confirmed that they did not have evidence showing 

that the dashboard’s alleged safety defect ever caused an injury to anyone driving or riding in a 

GMT900 series car. 

Plaintiffs (who hail from twenty-five states) sued GM on behalf of themselves and a 

nationwide class in the Eastern District of Michigan, alleging that GM should be liable for 

fraudulent concealment and unjust enrichment, violated state consumer protection statutes, and 

skirted the Magnusson-Moss Warranty Act. GM moved to dismiss the suit, relying heavily on 

Mross v. Gen. Motors Co., No. 15-C-0435, 2016 WL 4497300 (E.D. Wis. Aug. 25, 2016), a case 

in which different consumers had sued GM over the same dashboard defect. There, applying 

common legal principles, the district court explained that “for all named plaintiffs to have viable 

fraud claims, the complaint must adequately allege that GM knew . . . both that the dashboards 

were likely to crack and that this defect posed the safety concerns alleged in the complaint” 

before they had purchased their vehicles. Id. at *5. 

2GM’s warranty offers “bumper-to-bumper” coverage for three years or 36,000 miles (whichever comes 

first). (Id. at 622–23.) But Plaintiffs allege that GM would not fix the dashboard because it stated that the cracked 

dashboard was a cosmetic issue not covered under warranty. 
No. 19-1614 Smith v. General Motors LLC Page 5

In response to GM’s motion, Plaintiffs “also urge[d]” the district court “to follow Mross” 

because they believed that case “actually support[ed] the viability of [their] claims.” (R. 32, 

Resp. to Mot. to Dismiss, PageID 1382.) And they quoted Mross’s finding that a “viable fraud 

claim[] . . . complaint must adequately allege that GM knew . . . both that the dashboards were 

likely to crack and that this defect posed the safety concerns alleged in the complaint” before 

sale. 2016 WL 4497300, at *5. But later in their response, Plaintiffs argued that they were “Not 

Required to Plead GM’s Knowledge of the Safety Risk” because “[k]nowledge of the defect is 

sufficient” so “knowledge of the safety risk is unnecessary.” (R. 32, Resp. to Mot. to Dismiss, 

PageID 1400.) Then, in the alternative, they argued that “even if it were required, Plaintiffs have 

pled GM’s knowledge of the safety risk.” (Id.) 

The district court held a hearing in February 2019 on GM’s motion. After hearing 

argument, the district court ruled in GM’s favor. It noted that Plaintiffs had sent mixed signals 

about what they believed the law required them to plead: “Plaintiffs suggest they do not need to 

plead that GM had knowledge of the safety issue, but at the same time, they ask the Court to 

follow Mross.” (R. 44, Tr. Mot. to Dismiss, PageID 1550.) The court noted that “[t]hey cannot 

have it both ways.” (Id.) And, “[a]pplying Mross,” it ruled that “plaintiffs need to plead facts 

that make it plausible to in[fer] that GM knew of the safety issue.” (Id.) And it determined that 

Plaintiffs’ allegations about pre-production testing and customer complaints were not enough to 

support an inference that GM knew about the alleged safety risk related to the dashboard cracks. 

So the district court dismissed Plaintiffs’ claims because they failed to show that GM had the 

requisite knowledge. 

This appeal followed in which “Plaintiffs appeal only the dismissal of their fraudulent 

concealment, state statutory consumer protection, and unjust enrichment claims.” (Appellants

Br. at 11.) 

II.

To survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), 

a complaint “must contain either direct or inferential allegations respecting all the material 

elements to sustain a recovery under some viable legal theory.” Boland v. Holder, 682 F.3d 531, 
No. 19-1614 Smith v. General Motors LLC Page 6

534 (6th Cir. 2012) (citation omitted). We review dismissals for failure to state a claim de novo. 

D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). And in doing so, we consider all 

factual allegations to be true and construe inferences in the light most favorable to plaintiffs. 

Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013).

III.

Plaintiffs asserted fraudulent concealment, unjust enrichment, and consumer protection 

claims below, and they now challenge the dismissal of those claims on appeal. The district court 

dismissed these claims because it ruled that Plaintiffs had failed to adequately plead that GM 

knew the dashboard defect posed a safety risk prior to sale of the vehicles. It determined that 

Plaintiffs needed to plead knowledge of the safety risk for all three claims based on how 

Plaintiffs had responded to GM’s motion to dismiss. And it concluded that they had failed to do 

so. 

Presumably because the district court dismissed each of these claims under the same 

knowledge standard, Plaintiffs do not attempt to meaningfully distinguish their three claims on 

appeal except as described below in Part IV.B. Rather, they simply argue that the district court 

erred in requiring them to plead knowledge of the safety risk as opposed to mere knowledge of 

the defect coupled with existence of a safety risk. In the alternative, they argue that they 

adequately pled that GM knew about the safety risk. 

Their arguments thus rest on the assumption that each claim is governed by a single 

generalized legal standard for purposes of this appeal, which means two things. First, it means 

that each claim rises or falls with the other two claims. Second, it means that their briefing 

assumes the law about whether knowledge of a safety risk is required for each of the three claims 

is materially identical throughout the country. But Plaintiffs present their case without providing 

citations to support these two underlying assumptions. And that is troubling because it 

highlights that Plaintiffs have failed to specify which jurisdiction’s laws, federal or otherwise, 

govern their suit.3 And that failure implicates Erie and the Rules of Decision Act. 

3To be sure, Plaintiffs pointed to specific state laws in their complaint for some claims for the named 

plaintiffs based on their respective home states. But Plaintiffs have not appealed some of those claims. And, more 
No. 19-1614 Smith v. General Motors LLC Page 7

Because we are bound by both, we first address Plaintiffs’ failure to tell us which law or 

laws, state or federal, govern this suit. But as explained in this section, we ultimately decide that 

neither prevents us from disposing of this case on the merits, and we proceed to do so in the 

following sections. 

Plaintiffs’ choice to simply rely on general tort principles rather than specify which 

jurisdiction’s law governs their claims is odd because product liability cases often turn on 

specific state law requirements. See, e.g., In re Darvocet, Darvon & Propoxyphene Prods. Liab. 

Litig., 756 F.3d 917, 938 (6th Cir. 2014) (performing a “state-by-state Erie analysis” for a 

misrepresentation-based product liability claim); Matanky v. Gen. Motors LLC, 370 F. Supp. 3d 

772, 792–96 (E.D. Mich. 2019) (analyzing GM’s knowledge of a defect to resolve fraudulent 

concealment claims under Illinois, Michigan, Missouri, Nevada, Ohio, Pennsylvania, and 

Virginia law). And parties usually specify which jurisdictions cover their diversity dispute, and 

then this court applies the “substantive law of the states” by either (1) following a ruling from the 

state supreme court, (2) following the applicable state statute, or (3) predicting how the state 

supreme court would rule “by looking to all available data, including decisions of the states’ 

appellate courts.” In re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 756 F.3d at 937. 

And Plaintiffs’ assumption that general tort principles govern each claim also toes a 

dangerous line with the Rules of Decision Act and the Erie doctrine. By asserting that a 

generalized framework governs, they venture close to asking us to apply the general common 

law or federal common law, see Swift v. Tyson, 41 U.S. 1, 1 (1842), overruled by Erie R.R. Co. 

v. Tompkins, 304 U.S. 64 (1938), rather than “[t]he laws of the several states,” Rules of Decision 

Act, 28 U.S.C. 1652.

4

 And under the Erie doctrine, parties typically cannot escape the general 

importantly, their arguments in response to GM’s motion below and on appeal treat all three relevant claims as if 

their survival turns on the question of whether they need to plead that GM had knowledge of the safety implications 

of the dashboard defect. 

4

Indeed, in paragraph 183 of the complaint, Plaintiffs purport to bring their case “under the common law of 

fraudulent concealment.” (R. 14, Am. Compl., PageID 615.) Only “in the alternative” do they bring the claim “on 

behalf of each State Class under the law of each state in which Plaintiffs and Class members purchased or leased the 

GM Vehicles.” (Id.) The latter, “alternative,” view, however, is likely compelled by Erie and the Rules of Decision 

Act where the basis of our jurisdiction is diversity.
No. 19-1614 Smith v. General Motors LLC Page 8

rule that “[i]n diversity cases we apply the choice-of-law rules and substantive law of the forum 

state.”5 CenTra, Inc. v. Estrin, 538 F.3d 402, 409 (6th Cir. 2008).

Here, various state laws recognize causes of action like the claims at issue on appeal. 

And unsurprisingly, the state laws governing these types of claims do not appear to be 

completely uniform. For example, state law regarding manufacturers’ duty to disclose defects 

appears to vary at least to some degree from state to state. See Matanky, 370 F. Supp. 3d at 795–

98 (noting Nevada “imposes a duty to speak in certain transactions, depending on the parties’ 

relationship[,]” whereas Pennsylvania “recognizes a duty to disclose for remote manufacturers 

with superior knowledge” and specifies that the defect must be “serious and life threatening” 

(citation omitted)). 

But the district court correctly determined that it could resolve this case despite any 

possible (and unbriefed) differences in state law given the way the parties argued GM’s motion 

to dismiss. And that same reason provides an avenue for us to affirm the district court’s 

decision. 

When GM moved to dismiss, it relied heavily on Mross, a case in which a district court 

confronted the same defect and alleged safety risk. 2016 WL 4497300. In that case, like this 

one, the parties did not “point[] to any significant differences in the laws of the states at issue,” 

so the district court applied the Restatement (Second) of Torts, which it concluded “accurately 

summarize[d] the law.” Id. at *2. That court ruled that “for the plaintiffs to state a valid claim 

for nondisclosure of this safety risk, they must not only allege that the risk exists (which they 

have done) but also allege that GM knew of the risk at or before the time the plaintiffs purchased 

their vehicles.” Id. at *5. In response to GM’s motion, Plaintiffs then also “urge[d]” the district 

5

It is true, of course, that even under the Rules of Decision Act and Erie regime, parties often choose their 

own law (through contractual choice-of-law clauses, for example) and that choice of law is generally waivable in 

litigation. See, e.g., Wallace Hardware Co. v. Abrams, 223 F.3d 382, 393 (6th Cir. 2000) (upholding the parties’ 

contractual choice of law provision). But that seems far different than abandoning Erie and the Rules of Decision 

Act entirely in a case like this one where they should otherwise apply. And that means that we are required to follow 

“the explicit command given to [us] by Congress to apply State law in cases purporting to enforce the law of a 

State.” Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 102 (1945). And, of course, even contracts that contain choiceof-law clauses are themselves analyzed under some state’s law should a controversy arise over the validity of that 

clause itself. See, e.g., Stone Surgical, LLC v. Stryker Corp., 858 F.3d 383, 389 (6th Cir. 2017); Fin. One Pub. Co. 

v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 332-33 (2d Cir. 2005).
No. 19-1614 Smith v. General Motors LLC Page 9

court to apply Mross. (R. 32, Resp. to Mot. to Dismiss, PageID 1382.) The district court heeded 

that request and applied Mross. And we do so as well. 

This choice bypasses the potentially messy choice-of-law issues described above because 

Mross concluded that state law as it related to knowledge of defects was materially uniform and 

accurately described in the Restatement. Because Plaintiffs (and Defendants) asked the district 

court to apply Mross, the doctrine of invited error prevents Plaintiffs from now complaining that 

the district court did so. In re Bayer Healthcare & Merial Ltd. Flea Control Prod. Mktg. & Sales 

Pracs. Litig., 752 F.3d 1065, 1072 (6th Cir. 2014) (“[T]he doctrine of invited error prevents a 

party from inducing a court to follow a course of conduct and then ‘at a later stage of the case 

us[ing] the error to set aside the immediate consequences of the error.’” (citation omitted) 

(second alteration in original)). So we refuse to conduct an exhaustive, unrequested study to 

determine if Mross got it right. Furthermore, Plaintiffs have failed to convince us otherwise on 

appeal. And because, as explained below, we hold that dismissal was proper under the commonknowledge requirement, we can avoid the messy choice-of-law problems ignored by the parties’ 

briefs, and we can resolve this case under the principles that Mross identified. So we now 

proceed to the merits of Plaintiffs’ arguments on appeal.

IV.

Plaintiffs first assert that the district court applied the incorrect pleading standard to 

dismiss their claims.6 They make three arguments in support of this contention. First, they 

argue that the district court improperly required them to plead GM’s knowledge of the safety risk 

in order to survive the motion to dismiss. Second, they argue that even if that pleading standard 

does govern their fraudulent concealment claim, it should not apply to their state statutory 

consumer protection claim. Finally, they argue that the district court misunderstood the pleading 

requirements under Fed. R. Civ. P. 9(b), which sets the pleading standard for “alleging fraud or 

mistake.” 

6Except as explained below in Part IV.B., Plaintiffs do not distinguish between their three claims when 

asserting that the district court applied the incorrect pleading standard. And given the arguments before us, we also 

decline to distinguish the three claims in our analysis outside of Part IV.B. 
No. 19-1614 Smith v. General Motors LLC Page 10

A.

Below, the district court assessed Plaintiffs’ complaint using the pleading standard used 

in Mross, a case in which different plaintiffs sued GM over the same dashboard defect. The 

lower court did so at least partially because Plaintiffs had argued that Mross governed their 

dispute. Even so, Plaintiffs now argue that the Mross court (and thus the district court below) 

employed the incorrect pleading standard “when it required them to plead GM’s knowledge of 

the safety risk.” (Appellants Br. at 19.)

Plaintiffs point out that the procedural history is more complex than both parties simply 

agreeing that Mross provided the standard. And so we now describe precisely what happened 

below before rejecting Plaintiffs’ argument. 

In its motion, GM argued that the district court should dismiss Plaintiffs’ claims because 

Plaintiffs had failed to allege that GM knew of the safety risk created by the defective 

dashboards as required by Mross. As we noted above, the district court in Mross analyzed 

whether plaintiffs who had asserted similar claims stemming from the same dashboard defect 

had stated a claim under the laws of the several states generally (looking to the Restatement as 

well) rather than the law of any specific state. See 2016 WL 4497300, at *3–4. And relying on 

generalizations about state tort law, the Mross court found that “for the plaintiffs to state a valid 

claim for nondisclosure of this safety risk, they must not only allege that the risk exists (which 

they have done) but also allege that GM knew of the risk at or before the time the plaintiffs 

purchased their vehicles.” Id. at *5. So Mross required the plaintiffs there to show GM knew 

that the “defect posed the safety concerns alleged in the complaint.” Id.

In response to GM’s motion below, the district court noted that Plaintiffs had made two 

contradictory arguments. They had both “urge[d]” the district court “to follow Mross” and then 

later asserted that they should not be required to plead that GM knew about the safety risk 

associated with the dashboard defect. (R. 32, Resp. to Mot. to Dismiss, PageID 1382, 1400.) 

The district court noted that Plaintiffs “cannot have it both ways” and then applied the law as 

stated in Mross. (R. 44, Tr. Mot. to Dismiss, PageID 1550.)
No. 19-1614 Smith v. General Motors LLC Page 11

Plaintiffs now argue that Mross is an outlier and urge us to ignore their request that the 

district court apply Mross and credit their other argument in response to GM’s motion to 

dismiss—that they shouldn’t be required to plead that GM knew about the safety risk associated 

with the dashboard defect. In support of their argument that Mross misstates the law, they now 

point to various federal cases applying primarily California law that they claim support the idea 

that they should not be required to plead GM’s knowledge of the safety risk. For example, they 

quote Baranco v. Ford Motor Co. which states that “[w]hile the fact of the safety implications 

may be a requisite element” to survive a motion to dismiss, a manufacturer’s “specific 

knowledge of a safety implication is not.” 294 F. Supp. 3d 950, 962 (N.D. Cal 2018). And they 

assert that even absent knowledge of the safety implications, these cases establish that GM had a 

duty to disclose the defect. But these citations do not change the reality that Plaintiffs 

specifically “urge[d]” the district court to apply Mross below, thereby inviting any potential error 

from reliance on the standards set forth in that case. (R. 44, Tr. Mot. to Dismiss, PageID 1482.) 

And thus even accepting that some federal cases might support Plaintiffs’ argument, Plaintiffs’ 

cannot now complain that the district court applied the Mross standard, which clearly requires 

manufacturer knowledge of a defect’s safety implications. 

Moreover, Plaintiffs’ citations to federal case law applying primarily the law of one state 

(California) fail to convince us that Mross (and by association the district court below) got it 

wrong. That court concluded that “[t]he Restatement (Second) of Torts §§ 550 and 551 appear 

to accurately summarize the law.” Mross, 2016 WL 4497300, at *2. And after analyzing the 

Restatement, it concluded that “for the plaintiffs to state a valid claim for nondisclosure of this 

safety risk, they must not only allege that the risk exists (which they have done) but also allege 

that GM knew of the risk at or before the time the plaintiffs purchased their vehicles.” Id. at *5. 

This conclusion flows logically from the discussion of disclosure failures in the Restatement. 

Section 551 imposes a duty to disclose “facts basic to the transaction, if [a person] knows 

that [another person] is about to enter into it under a mistake as to them, and that the other, 

because of the relationship between them, the customs of the trade or other objective 

circumstances, would reasonably expect a disclosure of those facts.” Restatement (Second) of 

Torts § 551(2)(e). The Mross court explained that “[i]f it is true that a cracked dashboard has the 
No. 19-1614 Smith v. General Motors LLC Page 12

propensity to cause personal injuries, either through interference with the airbag or causing the 

dash to send shrapnel through the vehicle during an accident, then it is at least plausible to 

consider facts about these safety risks as being basic to the transaction.” 2016 WL 4497300, at 

*4. But it then further explained that even if such a safety risk could trigger a duty to disclose as 

a fact basic to the transaction, “for the plaintiffs to state a valid claim for nondisclosure of this 

safety risk, they must not only allege that the risk exists (which they have done) but also allege 

that GM knew of the risk at or before the time the plaintiffs purchased their vehicles.” Id. at *5. 

This conclusion flows logically from the text of the Restatement, which only requires disclosure 

of facts basic to a transaction if a person “knows that [another person] is about to enter [a 

transaction] under a mistake as to them.” Restatement (Second) of Torts § 551(2)(e). Comment 

c explains that § 551(2) only imposes a duty when an entity “has reason to know” the 

undisclosed matter will be “regarded by the other as important in determining his course of 

action.” It is difficult to understand how GM would have known, or had reason to know, that 

Plaintiffs were entering into a transaction under a mistake as to the existence of a safety risk 

unless GM somehow knew about a safety risk. 

And so it looks as if Mross’s ultimate conclusion that plaintiffs must plead knowledge of 

the safety risk flows logically from the principles described in the Restatement. Ultimately, the 

existence of some federal cases that that may cut the other way does not, without more, render 

Mross, which appears to correctly follow the principles outlined in the Restatement, an outlier. 

Based on the briefing before us, it is entirely possible that their primarily California-based cases 

are the outlier, not Mross. And so we do not hesitate to hold Plaintiffs to their request that Mross 

should govern because the Plaintiffs have both failed to show that the Mross standard is wrong 

and invited any error caused by following that standard. 

Because Mross appears to accurately capture the law as described in the Restatement, we 

also note that the pleading standard applied by the Mross court is consistent with Iqbal and 

Twombly. Under the latter two decisions, a plaintiff must “state a claim to relief that is plausible 

on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which requires the plaintiff to 

“plead[] factual content that allows the court to draw the reasonable inference that the defendant 

is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And so the 
No. 19-1614 Smith v. General Motors LLC Page 13

Mross court was correct to reject “conclusory allegation[s]” and require the plaintiffs there “to 

generally allege that GM was aware of both the defect and the safety risk before any plaintiff 

purchased his or her vehicle.” 2016 WL 4497300, at *3, *6. Plaintiffs’ arguments to the

contrary are unpersuasive. 

B.

Plaintiffs also assert that the pleading requirements below should have differed for their 

fraudulent concealment claim and their state statutory consumer protection claim. They point 

out that consumer protection statutes require a finding that the defendant’s omissions had the 

“capacity or tendency to deceive,” which is not a fraudulent concealment element. (Appellants

Br. at 20 n.3 (emphasis omitted).) So Plaintiffs argue that the district court wrongly ignored this 

distinction and thus imposed too strict a pleading standard. 

Yet per Plaintiffs’ request, the trial court faithfully followed Mross when declining to 

distinguish between the knowledge required for fraudulent concealment and the allegedly 

heightened knowledge required for state statutory consumer protection violations. See Mross,

2016 WL 4497300, at *2. Furthermore, simply labeling a trade practice as deceptive in a 

complaint does not pass 12(b)(6) muster—a consumer protection claim still needs to specify who 

was deceived and how. See MacDermid v. Discover Fin. Servs., 488 F.3d 721, 732 (6th Cir. 

2007) (holding that a “conclusory allegation that the application process is ‘inherently deceptive’ 

is not enough to survive 12(b)(6) dismissal.”). So we reject Plaintiffs’ position that its state law 

consumer protection claims should have been subject to different pleading requirements. 

C.

Finally, Plaintiffs allege the district court misapplied Fed. R. Civ. P. 9(b), which sets the 

pleading standard for “alleging fraud or mistake” and governs state fraudulent concealment 

claims in diversity cases. See Morris Aviation, LLC v. Diamond Aircraft Indus., Inc., 536 F. 

App’x 558, 562 (6th Cir. 2013) (addressing fraudulent concealment claims under Kentucky law). 

Rule 9(b) requires parties to “state with particularity the circumstances constituting fraud or 

mistake” for fraud claims but permits general allegations about the defendant’s knowledge to 

avoid a 12(b)(6) motion to dismiss. The adequacy of 9(b) pleadings in the face of a motion to 
No. 19-1614 Smith v. General Motors LLC Page 14

dismiss under 12(b)(6) are analyzed under the Twombly/Iqbal framework, which requires a 

plaintiff to “state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, by 

“pleading factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678. 

Despite the lower court having accurately described rule 9(b)’s heightened pleading 

standard, Plaintiffs contend that the lower court’s decision improperly imposed a “probability 

requirement at the pleading stage” rather than the plausibility standard. (Appellants Br. at 35.) 

In other words, Plaintiffs think the district court improperly rejected facts from the complaint;

drew inferences in favor of GM without saying so; and wrongly required a showing that GM 

probably, and not plausibly, knew about the dangerous defect. For instance, they allege that the 

district court accepted GM’s claim that no safety defect existed. 

But the district court articulated the proper motion to dismiss standard—the 

Twombly/Iqbal “facial plausibility” requirement along with the 12(b)(6) standard of construing 

the complaint in the light most favorable to Plaintiffs and accepting their factual allegations as 

true. And the court correctly applied that standard in the context of rule 9(b). 

To satisfy Rule 9(b), “the plaintiff must allege (1) ‘the time, place, and content of the 

alleged misrepresentation,’ (2) ‘the fraudulent scheme,’ (3) the defendant’s fraudulent intent, and 

(4) the resulting injury.” Wall v. Mich. Rental, 852 F.3d 492, 496 (6th Cir. 2017) (quoting 

United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 504 (6th Cir. 2007)). And 

the district court simply ruled against Plaintiffs because they never showed an injury or that GM 

had the requisite knowledge to perpetrate a fraud that covered up a dangerous defect. Although 

the Plaintiffs adequately pled that a defect existed, Plaintiffs did not meet their burden of 

showing GM’s knowledge about the safety risk. For example, their complaint did not explain 

how Plaintiffs determined a cracked dashboard posed a safety risk—a fact that would have 

helped show how either party would have gained knowledge about the risk, not whether that risk 

existed. So the court did not misunderstand or misapply the 9(b) pleading standard. 
No. 19-1614 Smith v. General Motors LLC Page 15

V.

Plaintiffs also argue that even if they needed to plead knowledge of the safety risk, 

dismissal was inappropriate because their factual allegations raise a plausible inference of presale knowledge of the safety risk. We disagree. 

Rule 9(b) imposes a heightened pleading requirement for claims alleging fraud. That 

means that parties bringing a fraudulent concealment claim “must specify ‘the who, what, when, 

where, and how’ of the alleged omission.” Republic Bank & Tr. Co. v. Bear Stearns & Co., 

683 F.3d 239, 256 (6th Cir. 2012) (quoting Carroll v. Fort James Corp., 470 F.3d 1171, 1174 

(5th Cir. 2006)). And they must do so with particularity. Fed. R. Civ. P. 9(b). In the context of 

this case under the standard in Mross, that means that Plaintiffs needed to “state with 

particularity” factual allegations supporting the assertion that GM knew about the safety 

implications of the dashboard defect. But Plaintiffs’ allegations merely identify the dashboard 

defect and say the manufacturer could have theoretically known about the flaw. And that’s not 

enough. 

Plaintiffs claim that their allegations about GM’s pre-release testing, customer complaints 

made to the NHTSA and GM dealers, and increased warranty claims involving GMT900 

vehicles support their assertion that GM knew about the safety defect. But taken as a whole with 

inferences made in Plaintiffs’ favor, these factual allegations do not rise above mere speculation 

and recitation of legal claims. And so they are not enough to withstand a 12(b)(6) motion to 

dismiss. 

First, Plaintiffs argue that GM knew about the dashboard defect because of preproduction testing and analysis that allegedly occurred in 2005–06. They contend that GM 

learned about the defect because it assumedly “follow[s] industry-approved engineering and 

quality standards” every time GM makes a change to its cars. (Appellants Br. at 6.) Because 

GM changed the dashboard design for its GMT900 series, Plaintiffs insist that GM must have 

performed this testing “early in the design process” and uncovered the “safety risks associated 

with the changed design.” (Id.) Yet Plaintiffs make no specific allegations about the results of 

the tests, such as data obtained by GM or documents confirming or suggesting whether the defect 
No. 19-1614 Smith v. General Motors LLC Page 16

became known. And “[j]ust because plaintiffs plead testing and the testing could reveal the 

safety risks alleged, does not make it plausible GM knew of the existence of these safety risks.” 

(R. 44, Tr. Mot. to Dismiss, PageID 1552.) Indeed, Plaintiffs admitted below that they never 

presented any “allegation that specifically says” that pre-production testing alerted GM to the 

defect. (Id. at 1511.) And all of this confirms the district court’s finding that Plaintiffs 

never asserted how or why testing revealed the dashboard defect or alleged that through “this 

testing . . . GM somehow learned that the cracked dashboard was a risk.” (R. 44, Tr. Mot. to 

Dismiss, PageID 1550.)

The Plaintiffs disagree that allegations of pre-production testing are insufficient. And 

they contend that “[c]ourts throughout the country, including in this Circuit, routinely find that 

an automobile manufacturer’s knowledge can be plausibility inferred from [pre-production 

testing] allegations.” (Appellants Br. at 23.) But the cases cited by Plaintiffs all concern 

complaints that offered more than just allegations about pre-production testing. See, e.g.,

Weidman v. Ford Motor Co., No. 18-cv-12719, 2019 WL 3003693, at *6 (E.D. Mich. July 10, 

2019) (finding allegations of pre-production testing sufficient when accompanied by “aggregate 

data from Ford dealers[] and other internal sources”); Persad v. Ford Motor Co., No. 17-12599, 

2018 WL 3428690, at *3 (E.D. Mich. July 16, 2018) (permitting the case to continue when the 

complaint contained pre-production testing allegations accompanied with “repair order and parts 

data received from the dealers . . . and testing performed in response to consumer complaints”). 

And so these cases do not undermine the dismissal of Plaintiffs’ claims because the cases do not 

show that theoretical results from pre-production tests without accompanying verification that 

the tests occurred and revealed a safety defect can survive a motion to dismiss. 

Next, Plaintiffs point to customer complaints to show that GM knew about the defective 

dashboards. They allege that “GM began to receive a flood of customer complaints” about the 

defect in 2009. (R. 14, Am. Compl., PageID 585.) These complaints came as online posts on 

car websites, such as ChevroletForum.com, and complaints on the NHTSA database about the 

cracks, including 239 NHTSA safety complaints related to the cracked dashboards. Plaintiffs 

reason that because GM monitors online car forums and the NHTSA database, it must have 

learned about the dangerous dashboard defect and still sold affected vehicles. 
No. 19-1614 Smith v. General Motors LLC Page 17

But the existence of these complaints fails to show that GM knew about the safety 

implications of the defect. Indeed, only one customer articulated that the cracked dashboard 

could lead to an unsafe deployment of airbags. And so while the complaints might have put GM 

on notice about the cracked dashboard, they did not create knowledge about the safety risk 

alleged by Plaintiffs. That is especially true because the alleged airbag malfunction has never 

occurred. 

Furthermore, Plaintiffs only offered “information and belief” that GM knew of the 

complaints. (R. 14, Am. Compl., PageID 586–93.) And although complaints grounding claims 

on “information and belief” can survive a motion to dismiss, they “must set forth a factual basis 

for such belief,” and plaintiffs cannot “base claims of fraud on speculation and conclusory 

allegations.” Sanderson, 447 F.3d at 878 (quoting United States ex rel. Thompson v.

Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir.1997)). And evidence showing 

the requisite knowledge for fraud cannot escape a motion to dismiss by resting on information 

and belief without supporting facts. See United States ex rel. Bledsoe, 501 F.3d at 512. 

Plaintiffs’ assertion that GM reads online message boards and scours the NHTSA 

complaint database is speculative absent any supporting facts. And that is especially true 

considering findings in Roe v. Ford Motor Co., in which the district judge reasoned that a small 

number of complaints were “a blip on Ford’s complaints-and-repairs radar” considering the 

millions of Ford cars in use. No. 2:18-cv-12528, 2019 WL 3564589, at *7. (E.D. Mich. Aug. 6, 

2019). So allegations of complaints, made both online and directly to Ford, did not show Ford’s 

knowledge of a defect in its cars. Id. Thus, like Roe, nothing shows that the complaints about 

GM’s cracked dashboards were “frequent enough that they were not lost in a sea of complaints 

and repairs amassing by the dozens each day.” Id. Without supporting facts that GM engaged 

with or received complaints about the defective dashboard and its safety risk, the consumer 

complaints are insufficient to allege that GM knew about the defective dashboard under the 

12(b)(6) pleading standard. 

Finally, Plaintiffs cite increased warranty claims as more evidence that GM knew about 

the defective dashboard. Their complaint alleged, upon information and belief, that GM received 

data in late 2009 about an uptick in warranty claims for dashboard repairs. But the warranty 
No. 19-1614 Smith v. General Motors LLC Page 18

claims did not show GM knew of any safety risks associated with the crack. So even if the 

warranty claim spike supports that GM knew about increased dashboard repairs for GMT900 

vehicles, that does not mean the warranty claims led GM to know about the hazardous airbag 

deployment that could accompany the cracked dashboard. In short, Plaintiffs offer no facts 

showing why the warranty claims informed GM of the safety hazard rather than a mere cosmetic 

issue. 

One last point. Many class members allege that their dashboards did not crack until after 

driving their car tens (or hundreds) of thousands of miles over many years. So it seems odd to 

say GM knew, at the time of sale, about a dashboard crack that developed only after a GMT900 

vehicle traveled many miles over many years. Rephrased, Plaintiffs’ argument implies that GM 

knew about the safety ramifications of that defect when it sold the cars even though the defect 

took time to manifest. That makes little sense. For example, take Burdt v. Whirlpool Corp., No. 

15-01563, 2015 WL 4647929 (N.D. Cal. Aug. 5, 2015). There, a class of plaintiffs lost on a 

motion to dismiss because they didn’t show the manufacturer’s knowledge of an oven’s defect at 

the time of sale. Id. at *2–3. In that opinion, the district court remarked “the alleged defect did 

not appear until eleven months after purchase [which suggested] that the pre-release testing may 

not have revealed an alleged defect that only appeared after . . . extended use.” Id. at *4. Here, 

many of the dashboard cracks cited in the complaint appeared only after extended use. So 

following the sound logic in Burdt, Plaintiffs cannot rely on pre-production test and post-hoc 

complaints to show knowledge of a defect that only arose after extended use. 

In sum, Plaintiffs’ factual allegations fail to plausibly support their assertion that GM 

knew about the potential for cracked dashboards in its vehicles to explode and emit dangerous 

shrapnel. To support such a claim, a complaint must contain specific facts showing the 

manufacturer’s knowledge of the defect that it allegedly fraudulently concealed. Mere assertions 

that a manufacturer’s routine testing, along with customer feedback and increased warranty 

claims, should have alerted it to a dangerous defect are not enough to meet the 12(b)(6) pleading 

standard. In similar automobile class actions that have proceeded past the motion to dismiss 

stage, other plaintiffs have asserted concrete factual allegations—not just speculation about what 

testing might have shown. Because Plaintiffs present scant evidence that GM knew that cracked 
No. 19-1614 Smith v. General Motors LLC Page 19

dashboards in its vehicles might have posed a safety hazard, the district court rightly granted 

GM’s motion to dismiss.

VI. 

For the reasons stated above, we AFFIRM.
No. 19-1614 Smith v. General Motors LLC Page 20

_________________________________________

CONCURRING IN THE JUDGMENT

_________________________________________

JANE B. STRANCH, Circuit Judge, concurring in the judgment. I write separately to 

express my concerns with imposing a rule unduly saddling Plaintiffs with an additional burden at 

the pleading stage.

The majority opinion imposes on Plaintiffs the pleading requirements outlined in Mross 

v. Gen. Motors Co., LLC, No. 15-C-0435, 2016 WL 4497300 (E.D. Wis. Aug. 25, 2016), 

obliging them to “not only allege that the risk exists (which they have done) but also allege that 

[GM] knew of the risk at or before the time [Plaintiffs] purchased their vehicles.” Id. at *5. It 

notes that earlier in the case, the parties jointly asked the district court to adopt Mross’s 

reasoning, and so the district court did. In light of the record in this case, I am constrained to 

agree that the doctrine of invited error works against Plaintiffs and ultimately resolves this case. 

See In re Bayer Healthcare & Merial Ltd. Flea Control Prod. Mktg. & Sales Practices Litig., 

752 F.3d 1065, 1072 (6th Cir. 2014); Harvis v. Roadway Exp., Inc., 923 F.2d 59, 61 (6th Cir. 

1991).

Still, no matter what the parties urged the district court to do, I struggle with imposing 

Mross’s unduly heightened pleading requirements on Plaintiffs. Notably, the only case that has 

since cited Mross is the district court’s opinion here. The Seventh Circuit (the court to which the 

Mross plaintiffs could have appealed) has not clearly adopted Mross’s rule. Nor have we, either 

before this case or as a result of it.

As Plaintiffs note, the pleading requirements differ for claims of violations of state 

consumer protection statutes and of fraudulent concealment. For consumer protection claims, 

most state laws require plaintiffs to show only that the statements or actions have the capacity or 

tendency to deceive, not necessarily that they are knowing or intentional. See Carolyn Carter, 

Nat’l Consumer Law Ctr., Consumer Protection in the States: A 50-State Evaluation of Unfair 

and Deceptive Practices Laws 29 & App’x C (2018), http://bit.ly/2DJKbGp. Fraudulent 

concealment claims, including under state law, typically do not require allegations of knowledge 
No. 19-1614 Smith v. General Motors LLC Page 21

of safety risks. See Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 

1975); see, e.g., Mich. Comp. Laws § 600.5855.1 Similarly, it is unclear why Plaintiffs’ unjust 

enrichment claims—that GM’s retention of profits from vehicle sales is unjust because it knew 

the propensity of the dashboards to crack but did not disclose the defect—would require pleading 

GM’s knowledge not just of the defects but of the safety risks as well. The distinction in Mross

and the other nonbinding cases that the parties cite appears to be that the defects alleged concern 

potential safety risks and are not just purely cosmetic. But even fraudulent concealment claims 

in which the alleged defect at issue poses safety concerns do not necessarily require pleading of 

knowledge of the safety defect. See e.g., Krumpelbeck v. Breg, Inc., 491 F. App’x 713, 721–22 

(6th Cir. 2012); In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 831 (S.D. Ohio 2012).

The sole authority on which Mross drew to impose an obligation on its plaintiffs to allege 

its defendants’ knowledge of safety risks, as opposed to only knowledge of defects, is Wilson v. 

Hewlett–Packard Co., 668 F.3d 1136 (9th Cir. 2012). Mross, 2016 WL 4497300, at *5. But 

Wilson stated no such rule. Instead, it held that the plaintiffs there had to “allege [the 

defendant’s] knowledge of a defect to succeed on their claims of deceptive practices and fraud.” 

Wilson, 668 F.3d at 1145 (emphasis added). Separately, it rejected the plaintiffs’ claim that the 

defect posed a safety hazard because the plaintiffs there did not plead any facts showing a 

connection between the defect they alleged and the safety risk they identified. Id. at 1144–45. 

Wilson’s requirement to show causation is not synonymous with a requirement to show the 

manufacturer’s knowledge of that causation. See Hodsdon v. Mars, Inc., 891 F.3d 857, 860 (9th 

Cir. 2018) (“Wilson stands for the premise that plaintiffs in pure omission cases must plead that 

the undisclosed information created a safety hazard.”); Williams v. Yamaha Motor Co., 851 F.3d 

1015, 1025 (9th Cir. 2017) (citing Wilson, 668 F.3d at 1142–43) (outlining the test for claims for 

failing to disclose a defect). 

1

“[T]he party alleging fraudulent concealment must plead the circumstances giving rise to it with 

particularity. Three elements must be pleaded in order to establish fraudulent concealment: (1) wrongful 

concealment of their actions by the defendants; (2) failure of the plaintiff to discover the operative facts that are the 

basis of his cause of action within the limitations period; and (3) plaintiff’s due diligence until discovery of the 

facts.”
No. 19-1614 Smith v. General Motors LLC Page 22

This approach comports with decisions from this circuit. In Krumpelbeck, 491 F. App’x 

at 721–22, we addressed Ohio negligent misrepresentation and fraud claims for a defective 

anesthetic infusion pump, requiring the plaintiff to show the link between the defect and the 

safety concern but not explicitly imposing a separate requirement on the plaintiff to allege the 

defendants’ knowledge of the safety concern. Beck v. FCA US LLC, 273 F. Supp. 3d 735 (E.D. 

Mich. 2017), for instance, applied California law and found that the plaintiff had “failed to 

sufficiently allege that [the defendant] had knowledge . . . of the defective [product] at the time 

of the sale.” Id. at 753. Again, that is not the same as requiring the plaintiff to sufficiently allege 

that the defendant had knowledge of the safety risk that defect could pose. Also applying 

California law, Porsche Cars, 880 F. Supp. 2d at 831, evinces a similar distinction. The very 

district court in this case has, only months after its decisions here, stopped short of imposing the 

extra requirement when dealing with a variety of state laws. Roe v. Ford Motor Co., No. 

218CV12528LJMAPP, 2019 WL 3564589, at *5 (E.D. Mich. Aug. 6, 2019) (subsequent history 

omitted); see also Francis v. Gen. Motors, LLC, No. 19-11044, --- F. Supp. 3d. ----, 2020 WL 

7042935, at *17 (E.D. Mich. Nov. 30, 2020) (collecting cases and highlighting those in which 

“the plaintiffs plausibly alleged that the defendant either had exclusive knowledge of a defect, or 

the defect allegedly implicates vehicle safety”). While alleging that the defendant has 

knowledge of the safety risk a defect could pose certainly bolsters a complaint’s viability, see In 

re FCA US LLC Monostable Elec. Gearshift Litig., 280 F. Supp. 3d 975, 1003 (E.D. Mich. 

2017), it is beyond what is required to survive a motion to dismiss.

I also do not see the outlier Mross rule as flowing logically from the Restatement 

(Second) of Torts § 551(2) (Am. Law. Inst. 1977, Oct. 2020 update).2 The Restatement is not 

binding, and it concerns broad principles of ultimate liability—it does not and cannot, nor does it 

seek to, specify federal pleading standards. Even when a Restatement provision is a “useful 

beginning point for a discussion of general . . . principles,” Burlington Indus., Inc. v. Ellerth, 

524 U.S. 742, 755 (1998), it should not be applied in a way that creates “perverse incentives,” 

2

“One party to a business transaction is under a duty to exercise reasonable care to disclose to the other 

before the transaction is consummated . . . if he knows that the other is about to enter into it under a mistake as to 

them, and that the other, because of the relationship between them, the customs of the trade or other objective 

circumstances, would reasonably expect a disclosure of those facts.”
No. 19-1614 Smith v. General Motors LLC Page 23

Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545 (1999). In light of the multitude of federal cases 

on point that do not impose the additional pleading requirement, Mross does not articulate an 

especially persuasive rule.

It bears repeating that this case comes to us at the motion-to-dismiss stage. At summary 

judgment, things may be different. See Rodriguez v. Stryker Corp., 680 F.3d 568, 570–71 (6th 

Cir. 2012). It seems to me to be unfair to require Plaintiffs to plead at this point, without the 

benefit of discovery, that GM had knowledge of safety risks, not just that it had knowledge of 

defects that may pose safety risks. But I recognize that this case presents the unique 

circumstance of all parties requesting and then accepting application of the reasoning of Mross, a 

case involving the exact same defendant and alleged defect. As a result, I concur in the 

judgment.