Government of the United States Virgin Islands v. Takata Corp.
Opinion of the Court
MEMORANDUM OPINION
(June 19, 2017)
Pending before the Court are Defendants TK Holdings, Inc.’s and Takata Corporation’s Motions to Dismiss the Complaint, or in the Alternative, for a Stay. Defendants’ motions will be denied in part because the Court has personal jurisdiction over Defendants under the Virgin Islands long-arm statute and the Complaint states a claim for Counts I-IV. However, because the Complaint fails to state a claim for fraudulent concealment, the Court will grant Defendants’ motions as to Count V of the Complaint and Plaintiff’s request for punitive damages. Defendants’ alternative requests for a stay will be denied.
RELEVANT FACTUAL & PROCEDURAL HISTORY
This matter arises out of a Complaint filed on May 25, 2016, by the Attorney General of the United States Virgin Islands on behalf of Plaintiff the Government of the United States Virgin Islands against Defendants Takata Corporation (“Takata Japan”), TK Holdings, Inc. (“TKH”), Honda Motor Company, American Honda Motor Company, and Honda of America Manufacturing, Inc. (collectively “Honda”). Plaintiff seeks civil penalties, general damages, punitive damages, injunctive relief, and declaratory relief in connection with Defendants’ role in equipping at least 7,000 vehicles in the Virgin Islands with defective airbags containing Phase-stabilized ammonium nitrate (“PSAN”) as a propellant (sometimes referred to as “PSAN-propelled inflators”).
On July 19, 2016, and October 3, 2016, Defendants TKH and Takata Japan moved to dismiss the Complaint or alternatively to stay these proceedings.
STANDARDS
I. Procedural Authority.
The Virgin Islands Rules of Civil Procedure came into effect on March 31, 2017.
II. Motion to Dismiss for Lack of Personal Jurisdiction.
“Personal jurisdiction is the authority of a court to exercise jurisdiction over a party before it.”
*337 First, the Court evaluates whether the defendant is subject to personal jurisdiction under the Virgin Islands long arm statute, codified at V.I. Code Ann. tit. 5, § 4903.21 Second, the Court must be satisfied that “the exercise of personal jurisdiction satisfies the requirements of due process.”22
“The plaintiff bears the ultimate responsibility to prove by a preponderance of the evidence that the trial court may exercise personal jurisdiction over the out-of-state defendant.”
III. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted.
Under V.I. R. Civ. P. 12(b)(6), a defendant may test the sufficiency of the pleadings against preliminary defenses by seeking dismissal for the plaintiff’s “failure to state a claim upon which relief can
First, the court must take note of the elements a plaintiff must plead to state a claim so that the court is aware of each item the plaintiff must sufficiently plead. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. These conclusions can take the form of either legal conclusions couched as factual allegations or naked [factual] assertions devoid of further factual enhancement. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief. If there are sufficient remaining facts that the court can draw a reasonable inference that the defendant is liable based on the elements noted in the first step, then the claim is plausible.29
The Virgin Islands Supreme Court has further instructed that ‘“[t]he plausibility determination is a ‘context-based’ determination which should be guided by the court’s ‘judicial experience and common sense.’ ”
‘“A motion to dismiss a complaint should be denied if the factual allegations are ‘enough to raise a right to relief above the speculative
IV. Motion to Stay Proceedings.
The Court has the inherent power to stay proceedings.
ANALYSIS
I. TKH’s and Takata Japan’s Motions to Dismiss for Lack of Personal Jurisdiction.
A. Personal Jurisdiction under the Virgin Islands Long-Arm Statute.
“The Virgin Islands long arm statute[, set forth in 5 V.I.C. § 4903,] specifies several bases for exercising personal jurisdiction over an out-of-state individual, or corporation, in the Virgin Islands:”
*340 (a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s
(1) transacting any business in this territory;
(2) contracting to supply services or things in this territory;
(3) causing tortious injury by an act or omission in this territory;
(4) causing tortious injury in this territory by an act or omission outside this territory if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this territory;
(b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.38
In evaluating whether the long-arm statute is satisfied, “the correct procedure is for a court to determine (1) whether the defendant’s contacts meet one of categories under section 4903(a) and then (2) whether the plaintiff’s claim ‘arises from’ that contact!,]” which in turn requires “a prima facie showing for each... claim[ ] that (1) one of [the defendant’s] contacts with the Virgin Islands is a but-for cause of that claim; and (2) that the obligations and privileges that accompany that contact with the Virgin Islands are closely related to the cause of action.”
Here, all the Counts alleged in the Complaint pertain to the presence of TKH and Takata Japan’s allegedly defective airbags in vehicles in the Virgin Islands. The Court will consider Counts II-V together because they are based on the same factual predicate: that Defendants “misrepresented
With respect to the first step, whether Defendants TKH and Takata Japan’s contacts meet one of categories under section 4903(a), TKH and Takata Japan argue that the Court lacks personal jurisdiction over them because their conduct does not fall within any of the enumerated categories under section 4903(a) of the Virgin Islands long-arm statute.
While the bulk of Plaintiff’s argument is focused on establishing the Court’s jurisdiction under section 4903(a)(1), the Court finds Plaintiff’s argument is most compelling under section 4903(a)(4), where Plaintiff argues that it has satisfied its prima facie burden by showing that TKH and Takata Japan caused “tortious injury in this territory by an act or omission outside this territory” and “derive[ ] substantial revenue from goods used or consumed or services rendered, in this territory[.]”
According to the Supreme Court of the Virgin Islands:
section 4903(a)(4), requires a two part showing: first, that [the defendant] committed a tort outside the Virgin Islands causing an injury in the Virgin Islands and, second, that the [Plaintiff] can “establish the existence of additional unrelated forum contacts, a plus factor,” by showing, through one or more of the following that [the defendant] has (1) regularly done business with or solicited business from the Virgin Islands, (2) engaged in any other persistent course of conduct in the*343 territory, or (3) derived substantial revenue from goods or services consumed in the Virgin Islands.50
When considering the second part-the existence of additional unrelated forum contacts-the Court may consider the aforementioned factors “individually” or “cumulatively” and this conduct need not “have any relationship with the tortious activity.”
i. Whether Plaintiff has established that TKH and Takata Japan committed a tort outside the Virgin Islands causing an injury in the Virgin Islands and the existence of additional unrelated forum contacts of TKH.
In arguing that TKH and Takata Japan committed a tort outside the Virgin Islands causing an injury in the Virgin Islands, Plaintiff refers to the claims alleged in the Complaint, which assert that TKH and Takata Japan committed torts in the territory by violating Virgin Islands’ consumer protection laws (Counts II and III), causing a public nuisance (Count IV), and committing fraudulent concealment (V).”
As to the second requirement under section 4903(a)(4), that additional unrelated forum contacts exist, the statute provides that the Court may consider whether the defendant has derived “substantial revenue from goods used or consumed in this territory.” In making this determination, “ ‘substantial’ must be interpreted by local Virgin Islands
Here, Plaintiff submitted evidence that indicates the sale of vehicles with the allegedly defective airbags in the Virgin Islands was not an “isolated or exceptional occurrence.” The evidence suggests that during the recall and warranty recovery process of the allegedly defective airbags, Takata Japan and TKH targeted the Virgin Islands as one of four “priority regions” that experience “higher levels of heat and absolute humidity.”
Additionally, e-mail correspondence during 2011, 2012, and 2014, suggests that TKH employees knew vehicles containing the allegedly defective airbags were located in the Virgin Islands.
The targeting of the Virgin Islands by TKH and Takata Japan during its recall and warranty recovery efforts suggests that the sales of vehicles containing the allegedly defective airbags in the Virgin Islands were not “isolated” or “exceptional” occurrences, otherwise the territory would not have been targeted. Even assuming, arguendo, TKH and Takata Japan did not intend to conduct business in the Virgin Islands when they initially manufactured the airbags, the evidence suggests that TKH and Takata Japan targeted the Virgin Islands throughout the recall and warranty
With respect to the revenue derived by TKH and Takata Japan from the sale of vehicles containing the allegedly defective airbags in the Virgin Islands, Plaintiff submitted evidence that suggests the price of each airbag inflator part manufactured by TKH was S60.00.
In multiplying 7,000 by the price of $60.00 per part, TKH would have received at least $420,000.00 in compensation as a result of the sale of vehicles containing their allegedly defective airbags. Considering the size and population of the territory, the Court finds that this figure constitutes “substantial revenue” under section 4903(a)(4). Having found that TKH derived substantial revenue from the sale of vehicles containing the allegedly defective airbags, which was not an “isolated or exceptional occurrence,” the Court concludes that Plaintiff has made a prima facie showing that the Court may exercise personal jurisdiction over TKH under section 4903(a)(4) of the long-arm statute.
ii. At this stage of the proceedings, TKH’s contacts can be imputed to Takata Japan.
Because it is unclear how much revenue Takata Japan derived from the sale of the allegedly defective airbags in the Virgin Islands, if any, the Court cannot conclude that Takata Japan satisfies section 4903(a)(4). However, Takata Japan could fall within section 4903(a)(4) of the Virgin Islands long-arm statute through the imputation of TKH’s contacts to Takata Japan. Takata Japan opines that the evidence does not warrant an imputation of TKH’s contacts, while Plaintiff urges the Court to do so under an agency theory.
“5 V.I.C. §4903 permits the Court to exercise personal jurisdiction over a person who acts directly or by an agent as to a claim for relief.”
In determining whether to impute a subsidiary’s minimum contacts to a foreign corporate parent, many courts apply an “alter-ego” theory or a formal “agency” theory.
The alter ego theory allows plaintiffs to pierce the corporate veil to impute a subsidiary’s contacts to the parent company by showing that the subsidiary and the parent are one and the same.78 The rationale behind this theory is that the alter ego subsidiary is the same enhty as its parent, and thus, the jurisdictional contacts of the subsidiary are also jurisdictional contacts of the parent.79 Unlike with the alter ego theory, the corporate idenhty of the parent company is preserved under the agency theory; the parent nevertheless “is held for the acts of the [subsidiary] agent” because the subsidiary was acting on the parent’s behalf.80
With respect to the imputation of a subsidiary’s contacts to a corporate parent for purposes of establishing personal jurisdiction, the Supreme Court of the Virgin Islands has not addressed the alter-ego or agency theories, nor has the Superior Court in recent years. The concepts were addressed by the Territorial Court, which applied the United States District Court for the Virgin Islands’ test for piercing the corporate veil,
There is surprisingly sparse case law regarding the foundational underpinnings of the agency theory in the Virgin Islands. However, the Court is guided by the application of the Restatement (Second) of Agency by other courts, which have explained:
Whether a subsidiary is an agent of its parent corporation is a question that “defies resolution by ‘mechanical formulae,’ for the inquiry is inherently fact-specific.” ... “At a minimum, however,... the relationship of principal and agent does not obtain unless the parent has manifested its desire for the subsidiary to act upon the parent’s behalf, the subsidiary has consented so to act, the parent has the right to exercise control over the subsidiary with respect to matters entrusted to the subsidiary, and the parent exercises its control in a manner more direct than by voting a majority of stock in the subsidiary or making appointments to the subsidiary’s Board of Directors.”84
The evidence submitted by Plaintiff indicates that, no later than 2011, Takata Japan knew vehicles in the Virgin Islands contained the allegedly defective airbags; Takata Japan was “actively involved” in overseeing and supervising the work and employees of TKH; Takata Japan employees were the direct supervisors of some TKH employees; when a TKH employee planned to leave the company, Takata Japan employees proposed new terms to facilitate the employee’s continued employment with TKH; a TKH employee described Takata Japan as TKH’s “corporate office”; TKH “didn’t do anything” without Takata Japan’s approval; liaisons and representatives of Takata Japan were present at TKH’s facilities to ensure that TKH complied with Takata Japan’s directives; Takata Japan was intimately involved in — if not controlled — the investigation into TKH’s allegedly defective airbag inflators and TKH’s participation in the recall process; both TKH and Takata Japan provided replacement parts during the recall process; an executive of Takata Japan, while under oath, publicly took responsibility for the investigation and recall efforts into the allegedly defective airbags manufactured by TKH; Takata Japan played a key role in disseminating information regarding the investigation of the allegedly defective airbags to retailers, NHTSA, and the public; Takata Japan’s 2008 annual report states that it “is currently a major supplier to the Big Three automakers” and “work[s] closely with automakers ... to ensure that commercialized products meet their respective specifications”; and Takata Japan’s 2010 annual report states that the United States is Takata Japan’s “most important [mature] market.”
The factual allegations, coupled with the evidence submitted by the parties, suggest that Takata Japan controlled the internal affairs of TKH.
iii. Whether each of Plaintiff’s claims against TKH and Takata Japan arise from TKH’s and Takata Japan’s contacts.
The second step of the long-arm statute analysis requires the Court to consider whether each of Plaintiff’s claims against TKH and Takata Japan arises from TKH’s and Takata Japan’s contacts in the Virgin Islands.
In Counts II-V, Plaintiff asserts claims against TKH and Takata Japan for unfair or deceptive trade practices 12A V.I.C. § 101 et seq., consumer fraud in violation of 12A V.I.C. § 301 et seq., public nuisance, and fraudulent concealment.
With respect to Count I of the Complaint, Plaintiff alleges TKH and Takata Japan violated CICO by engaging in an “association in fact” enterprise with the other Defendants for the purpose of “sell[ing] cars equipped with [TKH and Takata Japan’s] defective airbags and to conceal the nature and extent of their defect”
B. Personal Jurisdiction in accordance with constitutional Due Process.
Even if the Court is satisfied that the jurisdictional requirements imposed by the Virgin Islands long-arm statute are met, ‘“[t]he second half or the personal jurisdiction test requires a court to find that its exercise of personal jurisdiction over the defendant does not violate due process.”
a. General Jurisdiction.
“A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”
Here, Plaintiff does not allege that TKH or Takata Japan are incorporated in or have their principal places of business in the Virgin Islands, nor has Plaintiff alleged that TKH and Takata Japan’s contacts in the Virgin Islands form a central part of each company’s business.
b. Specific Jurisdiction.
The Superior Court ‘“may exercise specific personal jurisdiction, jurisdiction on a claim-by-claim basis, over a defendant if it finds the defendant has the requisite minimum contacts with the forum and the claim arises out of those contacts with the forum.”
To determine whether specific jurisdiction exists, we apply a three-part test.112 ‘“First, the defendant must have ‘purposefully directed [its] activities’ at the forum.”113 “Second, the litigation must ‘arise out of or relate to’ at least one of those activities.”114 “And third, if the first*357 two requirements have been met, a court may consider whether the exercise of jurisdiction otherwise ‘comport[s] with fair play and substantial justice.’ ”115 The purpose of the test is to ensure that the defendant has the requisite minimum contacts with a forum to receive “fair warning” that the defendant may be haled into court in that forum to answer for its actions in relation to those contacts.116
i. Whether TKH and Takata Japan purposefully directed their activities at the Virgin Islands.
With respect to the first prong, TKH and Takata Japan argue that Plaintiff has only shown that TKH “direct[ed their] products to a national market by selling to national retailers[,]” provided “information to national retailers and regulatory agencies[,]” and “tested their products’ responses to climate conditions found in locations throughout the United States (and the world)[,]” which “do not provide a basis for the exercise of jurisdiction” in accordance with the principles of due process because they do not “amount to purposeful availment of th[e] forum.”
As Plaintiff points out, the Supreme Court of the Virgin Islands found in Molloy v. Indep. Blue Cross
Considering the conclusions already drawn by the Court from the factual allegations that are supported by the affidavits and evidence submitted by the parties, the Court can reasonably infer that, in knowing that vehicles containing the allegedly defective airbags were sold in the Virgin Islands and in providing information to the public, Honda, and NHTSA regarding TKH and Takata Japan’s investigation for purpose of facilitating the vehicle recalls, TKH and Takata Japan were significant participants in disseminating information in the Virgin Islands regarding the alleged defective airbags, risks associated therewith, and recalls and in controlling the replacement of the allegedly defective airbags, including those in the territory. TKH and Takata Japan’s role resembles BCBSA’s approval of false advertisements in Molloy, which the Supreme Court of the Virgin islands found was significant in showing that BCBSA purposefully availed itself of the forum. While all of TKH and Takata Japan’s contacts in the Virgin Islands are not identical to those in Molloy, many are similar and the Court will not, as TKH and Takata Japan suggest, disregard the similarities merely because TKH and Takata Japan did not give the national retailers permission to use its name when transacting business in the Virgin Islands.
TKH and Takata Japan correctly note that “[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.”
Here, however, Plaintiff submitted significantly more evidence of TKH and Takata Japan’s contacts in the Virgin Islands than the mere placement of the airbags in the national stream of commerce, and Plaintiff does not suggest that TKH and Takata Japan are subject to this Court’s specific personal jurisdiction merely because TKH and Takata Japan tested the allegedly defective airbags in areas of high heat and absolute humidify similar to that in the Virgin Islands. Rather, the evidence submitted by Plaintiff suggests that TKH and Takata Japan were aware that the allegedly defective airbags posed a greater risk in the Virgin Islands but failed to employ the remedial measures necessary to ameliorate it, instead opting to deceive to the public as to the true extent of the defect and the risk involved.
Finally, TKH and Takata Japan emphasize their purported lack of knowledge regarding the sale of the airbags in the Virgin Islands prior to their discovery of the alleged defects, but this disputed fact is not dispositive of the Court’s specific jurisdiction here. As discussed, even assuming, arguendo, TKH and Takata Japan were initially unaware of the sales in the Virgin Islands, Plaintiff’s claims rest on TKH and Takata Japan’s conduct after the defects were discovered, and it is through this
While Takata Japan seeks to differentiate itself from TKH on the grounds that its contacts are “more attenuated” than TKH’s contacts with the forum, the Court has already concluded that Plaintiff has satisfied his burden of showing that Takata Japan controlled TKH so as to warrant the imputation of TKH’s contacts to Takata Japan under the Virgin Islands long-arm statute. Indeed, the United States Supreme Court has noted that “[a]gency relationships, we have recognized, may be relevant to the existence of specific jurisdiction”
ii. Whether the litigation arises out of or relates to at least one of TKH’s and Takata Japan’s activities directed at the Virgin Islands.
The second prong of the due process analysis requires the “litigation ‘arise out of or relate to’ at least one of’ the activities wherein the out-of-state defendant purposefully availed itself of the forum.
iii. Whether the exercise of personal jurisdiction over TKH and Takata Japan otherwise comports with fair play and substantial justice.
The final prong of the due process analysis requires the Court to “consider whether the exercise of jurisdiction otherwise ‘comport[s] with fair play and substantial justice.’ ”
analyze “the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.” However, where the plaintiff has established that a defendant has the requisite minimum contacts and that his claim arises out of those contacts, the burden of proof shifts to the defendant to “present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.”132
Because the Court has found that Plaintiff sufficiently demonstrated that TKH and Takata Japan have the minimum requisite contacts with the Virgin Islands with respect to all of Plaintiff s claims, the burden of proof on this prong of the due process analysis shifts to TKH and Takata Japan.
1. TKH.
TKH argues that all of the aforementioned factors “weigh against jurisdiction over TKH” because “defending this action” in the Virgin Islands “would impose an undue burden on TKH” since “TKH’s alleged
As to the burden on TKH in defending this case, the Court recognizes that the witnesses presented by TKH on its behalf will likely not be located in the Virgin Islands, but considering only limited discovery has commenced in this case, the Court cannot place great weight on TKH’s blanket statement that no witnesses in the case will be located in the Virgin Islands. For example, it is not out of the realm of possibility that both parties would call witnesses from Bella International regarding TKH’s involvement in replacing the defective parts in vehicles located in the Virgin Islands. Moreover, TKH fails to articulate where its witnesses are located so as to explain why defending this suit in the Virgin Islands imposes a greater burden than that posed in any other jurisdiction. Further, “ ‘telephones, facsimile machines, and photocopiers’ detract from logistical difficulties in litigating this case in the Virgin Islands.”
As to TKH’s contention that the Virgin Islands has only a limited interest in policing the alleged conduct, this factor does not tip the scale away from the Court exercising personal jurisdiction. As other courts have held, the Virgin Islands has a significant interest in redressing harms committed against its citizens by out-of-state companies.
As to the remaining factor, the shared interest of the several States in furthering fundamental substantive social policies, the Court finds it weighs in favor of jurisdiction. Suits similar to this case have been filed against Defendants by state governments.
Considering all three prongs of the due process analysis are met, the Court concludes that the exercise of specific personal jurisdiction over TKH would not violate due process.
2. Takata Japan.
With respect to Takata Japan, the third prong of the due process analysis differs because, unlike TKH, Takata Japan is “a Japanese corporation with its principal place of business in Japan.”
Rather, this case pertains to Takata Japan’s alleged awareness of a purportedly unsafe manufacturing defect, involvement in safety
In taking into consideration the interests of the “several States,” the Court must “consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by” this Court, which requires “careful inquiry into the reasonableness of the assertion of jurisdiction in” this case.
Consequently, the Court concludes that exercising personal jurisdiction over Takata Japan would not violate due process.
In the event the Court finds Plaintiff has established a prima facie case for personal jurisdiction, TKH and Takata Japan request that the Court “hold an evidentiary hearing to evaluate [Plaintiffs] evidence in support of personal jurisdiction.”
II. TKH’s and Takata Japan’s Motions to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted.
Even if the Court finds that it may exercise personal jurisdiction over them, both TKH and Takata Japan contend that the Complaint must be dismissed because it fails to state a claim upon which relief can be granted.
A. Count I: Civil violations of CICO under 14 V.I.C. § 600 et seq.
In Count I of the Complaint, Plaintiff alleges that TKH, Takata Japan, and Honda participated in an “association-in-fact” enterprise through a
In their Motions to Dismiss,
CICO permits “[t]he Attorney General ... to institute civil proceedings against any person in the Superior Court ... in order to
‘“Person” is defined under CICO to ‘“mean[ ] any individual or entity holding or capable of holding a legal or beneficial interest in property.”
Because Virgin Islands ‘“CICO is cast in the mold of the federal statute[,]”
a. “Person” under CICO.
Here, Plaintiff points to TKH and Takata Japan as the “persons” for purposes of CICO.
It is undisputed that Plaintiff alleges that TKH, Takata Japan, and Honda engaged in an “association-in-fact” enterprise.
The requisite “purpose” under RICO refers to the common interest or goal that the “group of persons associate[ ] together” in order to achieve.
Such a group need not have a hierarchical structure or a “chain of command”; decisions may be made on an ad hoc basis and by any number*371 of methods — by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.181
Here, Plaintiff alleges that TKH, Takata Japan, and Honda, engaged in an “association-in-fact” enterprise.
TKH and Takata Japan contend that the interactions between TKH, Takata Japan, and Honda only show “the normal business relationship between Takata and Honda entities[,]... not that they had joined together to create a distinct entity for purposes of duping USVI consumers into purchasing defective airbags.”
Notwithstanding their misplaced reliance on United Food, TKH and Takata Japan’s argument ignores the factual allegations that suggest extraordinary collaboration among TKH, Takata Japan, and Honda, in the handling of the alleged defects and recall process, which in turn, suggests that TKH, Takata Japan, and Honda were not working towards their individual self-interests. With respect to TKH and Takata Japan, the facts suggest that Takata Japan exerted control over TKH employees and the business decisions made by TKH with respect to the manufacture, testing, and sale of the allegedly defective airbag inflators.
Even though “Honda . . . had the ultimate responsibility to ensure that the inflators installed in its automobiles met its own specifications,” Honda never conducted its own investigation or “independent testing process to ensure the safety of the parts it installed in its vehicles.”
According to the Complaint, this pattern of public misrepresentations by Honda and Takata began with Honda’s issuance of Recall 08V593 on November 11, 2008, and continued through 20 1 6.
Considering Takata Japan provided Honda the results of the first “process validation testing” on June 15, 2000, Honda learned of “four events involving airbag ruptures that occurred in the field” on July 18,
The combined actions of TKH, in collecting the data and manufacturing the inflators, Takata Japan, in controlling the internal affairs of TKH, and providing misinformation to Honda; Honda, in failing to conduct its own investigation into the alleged defect when faced with overwhelming evidence that “Takata” had not identified the root cause of the problem; and all three entities, in providing of false or misleading information to NHTSA and the public, plausibly suggest that TKH, Takata Japan, and Honda acted as a continuing unit “to conceal the nature and extent of the[ ] defect” in order “to sell as may airbags, and vehicles containing such airbags, as possible” in order to maximize their profits.
The factual allegations in the Complaint also satisfy the “longevity” feature of an “association-in-fact” enterprise. Indeed, the eight years between “Honda’s initial recall of just over 3,000 cars” in 2008 to NHTSA’s expanded recall in 2016 is of a sufficient duration to permit TKH, Takata Japan, and Honda to collectively act towards this purpose through “a pattern of criminal activity.”
Having found all three structural features of an “association-in-fact” enterprise are established by the well-pleaded factual allegations of the
c. The “person” conducted or participated in the affairs of the enterprise through a “pattern of criminal activity.”
“Pattern of criminal activity” is defined under section 604(j) of CICO.
(1) “two or more occasions of conduct... that”; (2) “constitute criminal activity;” (3) “are related to the affairs of the enterprise;” and (4) “are not isolated; and” (5) where the “occasions of conduct” occur within the specified time period; (6) one of which “constitute[s] a felony under the Virgin Islands Code” [if the action is brought for purposes of criminal remedies under section 606 of CICO.]208
Notably, this interpretation differs from the interpretation of “pattern of racketeering activity” under RICO, which contains different statutory lan
With respect to the express requirements of “pattern of criminal activity” under CICO, “criminal activity” is defined in section 604(e) to “mean[ ] . . . violations or the prohibited conduct as variously described in the laws governing this jurisdiction[,]” including federal felony offenses, and “in addition, . . . violations or prohibited conduct as found in” enumerated chapters of the Virgin Islands Code.
Here, Plaintiff alleges that TKH and Takata Japan “conducted and participated in the conduct of affairs of the . . . [enterprise through a pattern of criminal activity in furtherance of this enterprise” by “falsely
Because the well-pleaded factual allegations plausibly suggest that all of the elements of a CICO claim have been met, the Court concludes that Plaintiff states a claim against TKH and Takata Japan under CICO. Therefore, TKH and Takata Japan’s Motions to Dismiss will be denied as to Count I of the Complaint.
B. Count II: Unfair or deceptive trade practices under 12A V.I.C. § 101 et seq. and Count III: Consumer fraud under 12A V.I.C. § 301 et seq.
In Counts II and III of the Complaint, Plaintiff alleges that by making “numerous affirmative deceptive statements about the nature of the defects plaguing its airbag inflators and the number of cars affected, intending to deceive the regulators and the public[,]” Takata Japan and TKH are liable for deceptive or unconscionable trade practices under the Virgin Islands Consumer Protection Law, 12A V.I.C. § 101 et seq. (“CPL”), and consumer fraud under the Consumer Fraud and Deceptive Business Practices Act, 12A V.I.C. § 301 et seq. (“CFDBPA”).
The Virgin Islands Legislature instructs that both CPL and CFDBPA should be construed in accordance with “the Federal Trade Commission and judicial interpretation ... of the Federal Trade Commission Act” (“FTCA”).
1. Statutory provisions under CPL.
12A V.I.C. § 101 of CPL provides that “[n]o person shall engage in any deceptive or unconscionable trade practice in the sale, lease, rental or loan or in the offering for sale, lease, rental, or loan of any consumer goods or services, or in the collection of consumer debts.”
As to the second element, defendant is engaged in a deceptive or unconscionable trade practice, both terms are defined under CPL, which provides, in pertinent part:
(a) “Deceptive trade practice” means any false, falsely disparaging, or misleading oral or written statement, visual description or other representation of any kind made in connection with the sale, lease, rental, or loan of consumer goods or services, or in the extension of consumer credit or in the collection of consumer debts, which has the capacity, tendency or effect of deceiving or misleading consumers....
(b) “Unconscionable trade practice” means any act or practice in connection with the sale, lease, rental or loan or in connection with the offering for sale, lease, rental or loan of any consumer goods or services, or in the extension of consumer credit, or in the collection of consumer debts which unfairly takes advantage of the lack of knowledge , ability, experience or capacity of a consumer; or results in a gross disparity between the value received by a consumer and the price paid, to the consumer’s detriment;. . ,234
The definition of “deceptive trade practice” also sets forth a non-exhaustive list of prohibited practices,
(1) representations that goods or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have... or goods or services are of particular standard, quality, grade, style or model, if they are of another;
*383 (2) the use, in any oral or written representation, of exaggeration, innuendo or ambiguity as to a material fact or failure to state a material fact if such use deceives or tends to deceive;.. ,236
Additionally, “[c]onsumer” is defined as “a purchaser or lessee ... or prospective purchaser or lessee ... of consumer goods or services ... [,]”
Notably, the parameters of a “deceptive trade practice” action under CPL are significantly more lenient than those required for “an action for common law fraud.”
2. Statutory interpretation of CPL.
Here, TKH and Takata Japan argue that “there can be no CPL violation . . . because the statute applies only to the direct sale of consumers, i.e., purchasers of consumer goods.”
First, the Court considers the words “sale, lease, rental, or loan” as used in section 101’s prohibition against “deceptive or unconscionable trade practices” and the definition of “deceptive trade practice” under section 102(a).
Next, the Court looks to the definition of “deceptive trade practice” under section 102(a), which requires the “deceptive trade practice” be “made in connection with the sale, lease, rental, or loan of consumer goods or services . . . .”
Nevertheless, to ensure that this conclusion does not undermine legislative intent, the Court must consider the statutory scheme as a whole by giving effect to all statutory language of CPL.
This construction is consistent with the Court’s conclusion that the plain language of CPL does not mandate contractual privity between the parties as a pre-requisite to bringing an action for deceptive or unconscionable trade practices, as there will likely be no contractual privity between a consumer and a wholesaler or manufacturer who is indirectly involved in the transaction. Furthermore, this conclusion aligns with the remedial purpose FTCA, upon which CPL is based, to “protect the public”
Notably, courts in other jurisdictions have reached similar conclusions when interpreting state consumer protection laws.
First, while Pennsylvania’s consumer protection statute resembles the Virgin Islands CPL, the statutory language is quite different. In Katz v.
Second, the District Court in MRL neglected to consider the Virgin Islands CPL as a whole, and instead isolated sections 101, 102(d) and (e) from the overall statutory scheme.
Because the plain language of CPL is clear, the Court cannot, “under the pretext of statutory construction, read into the statute that which the legislature has not sought fit to include.”
3. Sufficiency of the factual allegations in the Complaint.
Having already concluded that the first element of the cause of action has been met, the Court must assess the sufficiency of the factual allegations in the Complaint with respect to the second and third elements: that the defendant is engaged in a deceptive or unconscionable trade practice and that the deceptive or unconscionable trade practice occurred in the context of a consumer transaction.
In the Complaint, Plaintiff alleges that TKH and Takata Japan manufactured the defective airbags that were installed in Honda vehicles and sold to Virgin Islands residents.
All three elements having been satisfied by the well-pled allegations of the Complaint, the Court concludes that the Complaint states a claim for deceptive or unconscionable trade practices under CPL. Consequently, the Court will deny TKH and Takata Japan’s Motions to Dismiss with respect to Count II of the Complaint.
1. Statutory provisions of CFDBPA.
Under CFDBPA, specifically 12A V.I.C. § 304, “[i]t is unlawful for any person to engage in unfair methods of competition or unfair or deceptive trade acts or practices in the conduct of any trade or commerce.”
With respect to the first element, the definition of “person” under CFDBPA includes a “corporation.”
Finally, the third element requires the “unfair or deceptive act or practice” occur “in the conduct of trade or commerce.”
2. Statutory interpretation of CFDBPA.
TKH and Takata Japan argue that the definitions of “consumer,” “sale,” and “merchandise” indicate that liability under CFDBPA is limited to “the sale of a good usually sold directly to a consumer for use in the
First, the Court considers the definition of “consumer” under CFDBPA: “any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household.”
Next, the Court considers the term “merchandise,” which is defined under section 303(g) as “any article of commerce usually sold directly to the consumer.”
Considering the plain meaning of these words together, the Court concludes that the definition of “merchandise” under section 303(g) is ambiguous because the phrase “usually sold directly to the consumer” is susceptible to more than one interpretation. The first interpretation is that “merchandise” under section 303(g) encompasses items of commerce that are ordinarily sold immediately, without deviation, to consumers, as defined under CFDBPA. This interpretation essentially creates a contractual privity requirement between the consumer and defendant. However, the provision is susceptible to a second interpretation, namely, that
The first interpretation is at odds with legislative intent, which requires that “[t]he provisions of [CFDBPA] ... be liberally construed to protect the consuming public from deceptive and unfair acts or practices in the conduct of any trade or commerce [,]”
Considering this, and in light of the remedial purpose of CFDBPA,
[A] privity requirement would seriously undermine the utility of the [Vermont Consumer Fraud] Act. Virtually all of the representations about the quality and features of a modern automobile are made by manufacturers, most through national and regional media advertisements. If we enforced a privity requirement, the consumer could not reach the perpetrator of consumer fraud.333
Like the Supreme Court of Vermont, the Court finds a liberal construction of CFDBPA “to protect the consuming public from deceptive and unfair acts or practices in the conduct of any trade or commerce” requires the Court to decline from imposing a contractual privity requirement between the consumer and defendant under the Act.
This conclusion is consistent with the statutory scheme of CFDBPA as a whole. A contractual privity requirement cannot be inferred from a statutory definition of “seller” or “defendant,” since CFDBPA provides no such definition.
For these reasons, the Court concludes that the Legislature did not intend for an individual to qualify as a “consumer” only where contractual privity exists between the individual and defendant, but rather that the Legislature intended the phrase “usually sold directly to the consumer” in the definition of “merchandise” to limit the scope of CFDBPA to consumer transactions, as opposed to general commercial transactions, such as those between a manufacturer and distributor.
3. Sufficiency of the factual allegations in the Complaint.
The Court has already concluded that the first element of a cause of action under CFDBPA has been met. The second and third elements under CFDBPA require the facts alleged in the Complaint to plausibly suggest that the defendant engaged in unfair or deceptive trade acts or practices, which occurred in the conduct of any trade or commerce. The factual allegations, as described above with respect to Plaintiff’s claim under CPL, satisfy these elements as to Virgin Islands residents who purchased or were under contract to purchase vehicles containing the allegedly defective airbags for their personal, family, or household use. Further, nothing in CFDBPA requires Plaintiff the Government of the
Consequently, the Complaint states a claim for consumer fraud under CFDBPA, and the Court will deny TKH and Takata Japan’s Motions to Dismiss as to Count III of the Complaint.
C. Count IV: Public Nuisance.
In Count IV of the Complaint, Plaintiff alleges that TKH and Takata Japan have created a public nuisance in the Virgin Islands and seeks an Order “providing for abatement of Defendants’ public nuisance by compelling Defendants to engage in a robust public education effort to ensure that affected consumers are aware of the potential hazards of their Takata Airbags and the availability of repairs to replace these airbags [,] ”
With respect to civil liability for a public nuisance, the Superior Court has adopted the definition of “public nuisance” set forth in the Restatement (Second) of Torts § 821B(1).
First, the Court considers the interference with a public right requirement. Public safety, which includes the public right of safe passage on public highways, has long been recognized as a right common to the public.
Here, Plaintiff asserts that 7,000 vehicles in the Virgin Islands potentially contain PSAN-propelled airbags manufactured by TKH.
Accepting these facts as true, the Court finds the allegations in the Complaint sufficiently demonstrate that TKH and Takata Japan’s conduct interferes with a public right by threatening the right of public safety on public highways in the Virgin Islands. Despite TKH and Takata Japan’s contention, this threat to public safety is not limited to the 7,000 owners of vehicles containing the allegedly defective airbags. The danger extends to all drivers and occupants of the vehicles containing the airbags, as well as other drivers on the public roadways and even pedestrians. Not only could the metal fragments shot from an exploding PSAN-propelled airbag injure the non-owner driver and occupants of the vehicle, but a driver injured or panicked by the explosion poses a potential danger to other drivers and pedestrians also using territory’s public roadways.
Next, the Court must determine whether TKH and Takata Japan’s interference with public safety is unreasonable. TKH and Takata Japan’s alleged participation in the “cover up” of the defect for over a decade clearly falls within conduct that is proscribed by Virgin Islands statute, namely CPL, CFDBPA, and CICO.
In general, courts also require the plaintiff make some showing of causation that links the defendant to the creation or maintenance of the public nuisance. When the tort of public nuisance is based on Section 82IB, courts have expansively construed the causation requirement in
As TKH and Takata Japan point out, courts commonly reject product-based public nuisance claims on the grounds that they sound in products liability and impermissibly seek to circumvent “the basic requirements of products liability law.”
*410 [Liability is premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create. This conduct is distinct from and far more egregious than simply producing a defective product or failing to warn of a defective product;... Because this type of nuisance action does not seek damages but rather abatement, a plaintiff may obtain relief before the hazard causes any physical injury or physical damage to property_In contrast, a products liability action may be brought only by one who has already suffered a physical injury to his or her person or property, and the plaintiff in a products liability action is limited to recovering damages for such physical injuries. A products liability action does not provide an avenue to prevent future harm from a hazardous condition, and it cannot allow a public entity to act on behalf of a community that has been subjected to a widespread public health hazard.369
Here, TKH and Takata Japan contend that Plaintiff has brought a product liability claim under the guise of public nuisance because liability is based on alleged harm caused by TKH and Takata Japan’s product. However, this argument ignores the crux of Plaintiff s allegations, which largely pertain to TKH and Takata Japan’s conduct in affirmatively misrepresenting and concealing information regarding a known hazardous defect, rather than TKH and Takata Japan’s initial manufacture and placement of the defective product in the stream of commerce. Further, Plaintiff does not seek damages for physical injuries incurred as a result of TKH and Takata Japan’s allegedly defective airbags, but rather abatement of the dangers posed by TKH and Takata Japan’s purported misrepresentation and concealment. Because Plaintiff’s claim differs from a products liability claim, the concern that “nuisance law would become a monster that would devour in one gulp the entire law of tort”
Finally, the Court considers Plaintiff’s requested relief of abatement. It is well established that governments may seek the
Considering the Complaint contains sufficient facts to plausibly give rise to an entitlement of relief for a public nuisance, the Court concludes that Count IV states a claim upon which relief can be granted.
D. Count V: Fraudulent Concealment.
In Count V of the Complaint, Plaintiff alleges that TKH and Takata Japan are liable for the tort of fraudulent concealment.
As TKH and Takata Japan point out, a party alleging fraud is subject to the heightened pleading requirements of V.I. R. Crv. P. 9(b).
To state a claim for fraudulent misrepresentation, a plaintiff must plead that the defendant (1) made a misrepresentation of fact, opinion, intention, or law (2) that the defendant either knew or had reason to know was false, (3) and that was made for the purpose of inducing plaintiff to act or refrain from acting on it, and (4) that plaintiff suffered pecuniary loss caused by the his or her justifiable reliance on the misrepresentation.384
Importantly, however, claims for fraudulent misrepresentation and fraudulent concealment do not necessarily encompass identical elements.
(1) whether any Virgin Islands courts have previously adopted a particular rule;
(2) the position taken by a majority of courts from other jurisdictions; and
*414 (3) most importantly, which approach represents the soundest rule for the Virgin Islands.387
With respect to the first factor under Banks, whether any Virgin Islands courts have previously adopted a particular rule, “fraudulent concealment” has largely been considered by Virgin Islands courts for purposes of tolling the statutes of limitation in medical malpractice actions.
The second factor under Banks, “determining the position taken by a majority of courts from other jurisdictions[,] directs the Superior Court to consider all potential sides of an issue by viewing the potentially different ways that other states and territories have resolved a particular question.”
The requirement of a duty to disclose is reflective of Section 551 of the Restatement (Second) of Torts (1979).
Finally, the third factor under Banks, requires the Court to adopt the soundest rule for the Virgin Islands. Considering the foregoing, the soundest rule for the Virgin Islands is:
To state a claim for fraudulent concealment, a plaintiff must plead that: (1) the defendant concealed or suppressed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendant knew or had reason to know that the material fact had been concealed or suppressed; (4) the defendant concealed or suppressed the material fact for the purpose of inducing the plaintiff to act or refrain from acting ; and (5) the plaintiff suffered pecuniary loss caused by the his or her justifiable reliance on the concealed or suppressed material fact.
This approach modifies the existing elements applicable to a claim for fraudulent misrepresentation in the Virgin Islands. By retaining the elements of reliance, injury, and damages, this rule fosters consistency in the territory’s application of common law fraud. By requiring the defendant have a duty to disclose, this rule aligns the Virgin Islands with the majority approach to fraudulent concealment claims, while providing a barrier necessary to protect those who are silent, without a duty to disclose, from tort liability for fraud. In that vein, the Court concludes that the soundest rule for the Virgin Islands with respect to the duty to disclose is as follows:
Whether the defendant had a duty to disclose is determined by the facts and circumstances of the case, through an application of the following*418 factors: (1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiffs opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.404
A factor test affords the Court with the flexibility necessary to assess the defendant’s duty to disclose in all cases. While the Section 551 of the Restatement (Second) of Torts specifically delineates particular instances that give rise to “a duty to the other [in a transaction] to exercise reasonable care to disclose the matter in question[,]” such a specialized rule could inhibit the applicability of the rule. On the other hand, the factor test ensures that a cause of action for fraudulent concealment is broadly applicable in civil cases and that the defendant’s legal duty is assessed in terms of the unique facts and circumstances presented by each case. Further, the factor test provides a foundation upon which Virgin Islands courts can identify their own “special circumstances” giving rise to a duty to disclose in the Virgin Islands.
Here, Plaintiff’s claim for fraudulent concealment against TKH and Takata Japan fails. While Plaintiff has alleged facts that plausibly suggest TKH and Takata Japan intentionally concealed or suppressed material facts regarding the extent of airbags’ defects in order to maximize their profits and that TKH and Takata Japan arguably had a duty to disclose the information to prevent the public from being misled by their public assertions that the defect had been remedied to render the airbags were safe,
The parties dispute the applicability of the “manifestation defense,” which is recognized in other jurisdictions to preclude products liability
Moreover, even assuming, arguendo, the manifestation defense applies in this jurisdiction and the Court were to accept Plaintiffs assertion that the defense does not apply here, Plaintiffs claim for fraudulent concealment would still fail. Pecuniary loss in the form of diminished value or loss of resale value can only result if Plaintiff itself owned at least one vehicle containing an allegedly defective airbag, but the Complaint alleges no facts that suggests Plaintiff purchased a vehicle containing one of TKH and Takata Japan’s airbags. Rather, Plaintiff seeks to demonstrate pecuniary loss through that suffered by its residents, which is insufficient to satisfy the damages element of a fraudulent concealment claim. While Plaintiff reiterates throughout its Opposition to TKH’s Motion to Dismiss that this lawsuit is brought by the Government of the Virgin Islands “on behalf of the People of the Virgin Islands and in the public interest[,]”
Consequently, the Complaint fails to state a claim for fraudulent concealment against TKH and Takata Japan.
E. Economic Loss Doctrine.
TKH and Takata Japan also move to dismiss Counts II-V on the grounds that they are “barred by the economic loss doctrine, which
The economic loss doctrine, which “forbids a party from suing or recovering in tort for economic or pecuniary losses that arise only from breach of contract or are associated with the contract relationship^]” has been adopted by the Superior Court as the soundest rule for the Virgin Islands
Unlike the Third Circuit in Werwinski, the Superior Court must adopt common law doctrines that have not yet been addressed by the Supreme Court of the Virgin Islands, such as the economic loss doctrine, within the confines of a Banks analysis. The Court has accepted the sound reasoning of the Superior Court in adopting the economic loss doctrine under a fact-intensive case-by-case approach and sees no reason to create discordant precedent by deviating to a “bright-line” rule approach merely because the Third Circuit reached a different conclusion when applying the law of a different state
Assuming, arguendo, Plaintiff’s fraudulent concealment claim in Count V was viable, the Court would be hesitant to apply the economic loss doctrine in this case because “[t]he purpose of the economic loss
Likewise, the Court also finds that the economic loss doctrine does not bar Plaintiffs claims under CPL and CFDBPA, set forth in Counts II-III of the Complaint. Plaintiff is statutorily authorized to bring suit to enforce CPL and CFDBPA
In the Complaint, Plaintiff seeks an award of punitive damages against all Defendants.
The Court will first address the sufficiency of the allegations in the Complaint. Specifically, TKH and Takata Japan note that “because [Plaintiff] has failed to plead a cognizable fraudulent concealment claim, his request for punitive damages likewise fails.”
“Claimants must plead punitive damages with particularity” in accordance with V.I. R. Crv. P 9(g).
As discussed at length above, the Court has found that Count V fails to state a claim for fraudulent concealment. Because Plaintiff only requests punitive damages in connection with Count V of the Complaint,
The Court recognizes that Plaintiff alleges that “Defendants’ intentional, willful, and reckless disregard of the rights [and safety] of others” pertain to facts that relate to Plaintiff’s claims under CPL and CFDBPA, as well as the fraudulent concealment claim, and that Plaintiff pleads “[i]n the alternative,. . . that [Defendants’ conduct was negligent or grossly negligent.”
Although the foregoing justifies the striking of Plaintiff’s request for punitive damages, the Court will also briefly address TKH and Takata Japan’s remaining argument. Primarily, TKH and Takata Japan claim that
The Supreme Court of the Virgin Islands has yet to address the choice of law rules governing the measure of damages in the Virgin Islands, nor has the issue been analyzed within the confines of Banks by the Superior Court
G. Federal Preemption.
Finally, TKH and Takata Japan argue that Plaintiffs claims, all of which arise under Virgin Islands law, are preempted by the federal Motor Vehicle Safety Act,
The Court agrees with Plaintiff. The Supremacy Clause of the Constitution of the United States provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
‘“Federal law can preempt state law in three ways: (1) express preemption, (2) field preemption, and (3) conflict preemption.”
The Court agrees with the former view that the relevant area of law is motor vehicle safety, which is subject to the presumption against preemption as “an area of traditional State police power” without “a history of significant federal presence.”
Congress enacted the Motor Vehicle Safety Act with the purpose of ‘“reduce[ing] traffic accidents and deaths and injuries resulting from traffic accidents.”
The United States Supreme Court clarified the scope of its ruling in Geier the following year in Williamson v. Mazda Motor of Am., Inc,
Here, the basic question is whether Plaintiffs requested injunctive relief — that the Court issue an Order directing Defendants to cease their violations of CICO, CPL, CFDBPA, and abate the alleged public nuisance — conflict with the Consent Orders entered by NHTSA while regulating TKH and Takata Japan’s compliance under Motor Vehicle Safety Act. Specifically, TKH and Takata Japan argue conflict preemption defeats Plaintiff’s claims in two ways. First, TKH and Takata Japan contend that Plaintiff’s request for “an injunction ordering Defendants to cease their violations of the law . . . would disrupt the careful balance struck by NHTSA” and “impermissibly interfere with . . . [the] NHTSA’s goal of mitigating and controlling the risk of serious injury or death due to an airbag inflator rupture” by “imposing liability on TKH for continuing to provide non-desiccated PSAN inflators as temporary replacement parts” when “NHTSA’s recall plan . . . allows Takata until December 2019 to phase out all non-desiccated PSAN frontal airbags[.]”
Despite TKH and Takata Japan’s suggestion, Plaintiff’s Complaint does not request that the Court enjoin TKH and Takata Japan from temporarily using non-desiccated PSAN propelled inflators as replacement parts in accordance with NHTSA’s Consent Orders.
With this in mind, the Court notes that TKH and Takata Japan point to no authority that suggests manufacturers’ deceptive or misleading statements to the public are regulated by the Motor Vehicle Safety Act or its associated federal safety standards so as to be in “actual conflict” with CPL and CFDBPA and preclude the tort remedies available thereunder. Likewise, TKH and Takata Japan fail to identify any provision of the relevant federal law and regulations that suggests a government’s authority to prosecute violations of CICO conflicts with the Motor Vehicle Safety Act.
As to Plaintiff’s public nuisance claim, for which Plaintiff seeks abatement in the form of a “robust public education effort” directed at the Virgin Islands,
The Court will elaborate no further on this issue. To reach conclusions by hypothesizing arguments that the parties could have made, but did not, is antithetical to the principles of fundamental fairness and judicial economy that underpin the foundations of this Court. Even if a presumption against preemption did not apply, TKH and Takata Japan have not satisfied their burden of showing clear evidence of an actual conflict between Virgin Islands law and the Motor Vehicle Safety Act.
Second, TKH and Takata Japan argue that “requiring Takata to provide the restitution and disgorgement sought in the Complaint could hinder Takata’s ability to pay NHTSA’s $200 million fine and produce replacement parts to comply with NHTSA’s recall.”
Having found TKH and Takata Japan have failed to sufficiently demonstrate an “actual conflict” between the relevant federal law, including federal safety regulations and NHTSA’s Consent Orders, and Plaintiff’s viable state law claims, the Court concludes that the Complaint is not preempted by the Motor Vehicle Safety Act.
“To the extent the Court finds any allegation or claim in the Complaint deficient in any way, [Plaintiff] . . . requests the opportunity to amend — for the first time — any such allegation or claim.”
III. TKH’s and Takata Japan’s Motions for Stay.
Should “the Court not dismiss this action altogether,” TKH and Takata Japan move the Court to stay the proceedings “pending completion of the NHTSA recall and final judgment in the consumer class action pending in the Southern District of Florida.”
The Court’s authority to grant or deny a request for a discretionary stay of proceedings derives from its ‘“inherent power ‘to control the disposition of the causes on [the Court’s] docket with economy of time and effort for itself, for counsel, and for litigants.’ ”
As to the second factor, TKH and Takata Japan do not specifically identify how they would suffer a hardship or inequity if forced to proceed without a stay, although they contend that “letting this action proceed risks jeopardizing Takata’s ability to carry out the recall that prioritizes repair of Virgin Islands vehicles and to satisfy any judgments entered in the MDL on behalf of Virgin Islands residents for the same alleged misconduct.”
Lastly, the Court considers whether granting the stay would further the interest of judicial economy. Staying a case pending the outcome of another case can further the interests of judicial economy, but this generally occurs where the actions involve the same parties, claims, and available relief.
Having considered and weighed the foregoing factors, the Court concludes that staying these proceedings pending the resolution of MDL or NHTSA’s recall is not warranted. Consequently, TKH’s and Takata Japan’s Motions for Stay will be denied.
CONCLUSION
Considering the foregoing, Defendant TKH’s and Defendant Takata Japan’s Motions to Dismiss the Complaint, or in the Alternative, for a Stay will be denied as to Counts I-IV of the Complaint and as to Defendants’ requests to stay the proceedings. Defendants’ motions will be granted in part as to Count V of the Complaint and Plaintiff’s request for punitive damages, which will be dismissed without prejudice. Plaintiff will be granted leave to amend the Complaint to cure the deficiencies.
An Order consistent with this Memorandum Opinion shall follow.
Compl. ¶¶ 1-26.
Compl. ¶ 22.
Compl. ¶ 26.
Compl. ¶ 26.
Compl. ¶¶ 131-144.
Compl. ¶¶ 145-157.
Compl. ¶¶ 158-169.
Compl. ¶¶ 170-176.
Compl. ¶¶ 177-181.
An evidentiary hearing on Plaintiff s request for a preliminary injunction is scheduled for July 28, 2017. An emergency hearing on this matter is also scheduled for June 19, 2017.
Def. TKH’s July 19, 2016, Mot. to Dismiss; Def. Takata Japan’s October3, 2016, Mot. to Dismiss.
See In re Adoption of the Virgin Islands Rules of Civil Procedure. S. Ct. Prom. Order No. 2017-001, 2017 V.I. Supreme LEXIS 22 (V.I. April 3, 2017).
Likewise, decisions by the Superior Court interpreting and applying the Federal Rules of Civil Procedure remain applicable where the relevant provision of the Virgin Islands Rules of Civil Procedure resembles its federal counterpart.
See In re Adoption of the Virgin Islands Rules of Civil Procedure, S. Ct. Prom. Order No. 2017-001 (V.I. January 18, 2017).
Pelle v. Certain Underwriters at Lloyd’s of London, 66 V.I. 315, 320 (V.I. 2017) (citing Mercer v. Bryan, 53 V.I. 595, 601 (V.I. 2010)).
St. Croix, Ltd, v. Shell Oil Co., 60 V.I. 468, 473 (V.I. 2014) (citing Molloy v. Indep. Blue Cross, 56 V.I. 155, 172 (V.I. 2012)).
See V.I. R. Civ. P. 4(f).
St. Croix, Ltd., 60 V.I. at 473 (citing Molloy, 56 V.I. at 172) (both applying Fed. R. Crv. P. 12(b)(2), the substance of which is mirrored by V.I. R. Crv. P. 12(b)(2)).
Id. (citing Molloy, 56 V.I. at 172).
Molloy, 56 V.I. at 173 (citing In re Najawicz, 52 V.I. 311, 336 (V.I. 2009)).
Chabuz v. Putnam Lumber & Exp. Co.. 2016 V.I. LEXIS 33, at *6 (V.I. Super. Ct. Apr. 12, 2016) (citing Molloy. 56 V.I. at 173).
Id. 2016 V.I. LEXIS 33, at *6-7 (citing St. Croix. Ltd., 60 V.I. at 474).
Molloy. 56 V.I. at 172 (citing Unlimited Holdings. Inc. v. Bertram Yacht. Inc., 49 V.I. 1002, 1006 (D.V.I. 2008)).
Id. (citing O’Connor v. Sandy Lane Hotel Co.. 496 F.3d 312, 316 (3d Cir. 2007)) (other citations omitted).
Id. at 173 (citing United Elec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir. 1993)) (quotation marks omitted).
Id. (citing Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 330, 51 V.I. 1219 (3d Cir. 2009)).
Joseph v. Bureau of Corrections, 54 V.I. 644, 649 (V.I. 2011) (applying Fed. R. Crv. P. 8) (citations omitted). V.I. R. Crv. P. 8 and 12(b)(6) mirror Fed. R. Crv. P. 8 and 12(b)(6) such that the standard delineated by Virgin Islands courts under the federal rules remains applicable.
Fleming v. Cruz, 62 V.I. 702, 713-714 (V.I. 2015) (citing Pollara v. Chateau St. Croix, LLC, 58 V.I. 455, 471 (V.I. 2013) (other citations omitted).
Joseph, 54 V.I. at 650 (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009)).
Id. (citing Fowler, 578 F.3d at 211).
Peters v. V.I. Water & Power Auth., 58 V.I. 49, 54 (V.I. Super. Ct. 2013) (citations omitted); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007).
Twombly, 550 U.S. at 555; see Fleming, 62 V.I. at 710 (applying the standard articulated in Twombly). V.I. R. Crv. P. 8(a)(2) (“a pleading that states a claim for relief must contain:... a short and plain statement of the claim showing that the pleader is entitled to relief — because this is a notice pleading jurisdiction”).
Creque v. Roebuck. 1979 V.I. LEXIS 23, at *2 (V.I. Terr. Ct. 1979); see also Gov’t of the V.I. v. Lonsdale, 2009 U.S. Dist. LEXIS 15149, at *8 (D.V.I. Feb. 18,2009); see Landis v. N. Am. Co.. 299 U.S. 248, 254, 57 S. Ct. 163, 81 L. Ed. 153 (1936)).
Bechtel Corp. v. Local 215. Laborers’ Int’l Union. 544 F.2d 1207, 1215 (3d Cir. 1976) (citing American Life Ins. Co. v. Stewart, 300 U.S. 203, 215, 81 L. Ed. 605, 57 S. Ct. 377 (1937)).
Simon v. Joseph. 59 V.I. 611, 613 (V.I. 2013).
Molloy, 56 V.I. at 174. It is undisputed that the Virgin Islands long-arm statute applies here since Defendant TKH, a “subsidiary of Takata Japan,” is “a corporation organized under the laws of Delaware, with its principal place of business ... [in] Michigan!,]” while Defendant
5 V.I.C. § 4903.
Molloy, 56 V.I. at 174-175 (internal and other citations omitted).
Id. at 174-175 (citations omitted).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 13: See Compl. ¶¶ 145-157 (Count II), Compl. ¶¶ 158-169 (Count III), Compl. ¶¶ 170-176 (Count IV), Compl. ¶¶ 177-181 (CountV).
Compl. ¶¶ 135, 131-144.
Def. TKH’s Mot. to Dismiss, pp. 9-12, Def. Takata Japan’s Mot. to Dismiss, pp. 1-3 (also adopting the arguments made by Defendant TKH in its Motion to Dismiss).
Def. TKH’s Mot. to Dismiss, p. 11; Def. Takata Japan’s Mot. to Dismiss, p. 2.
Pl.’s Opp’n to TKH’s Mot. to Dismiss, pp. 5, 5-13; Pl.’s Opp’n to Takata Japan’s Mot. to Dismiss, pp. 1-8 (adopting Plaintiff’s arguments made in opposition to Defendant TKH’s Motion to Dismiss).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 12 (quoting 5 V.I.C. § 4903(a)(4)).
Def. TKH’s Reply, p. 9.
Def. Takata Japan’s Mot. to Dismiss, p. 2; Def. Takata Japan’s Reply, p. 3.
Def. Takata Japan’s Reply, pp. 7-10.
Molloy, 56 V.I. at 179-80 (citing In re Manbodh Asbestos Litigation II, 47 V.I. 267, 281 (Super. Ct. 2005)).
Id. at 180 (citing In re Manbodh Asbestos Litigation II, 47 V.I. at 281) (other citation omitted) (quotation marks omitted).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 12.
Chapin v. Whitecap Inv. Corp., 2015 V.I. LEXIS 127, at *9 (V.I. Super. Ct. Oct. 22,2015) (citing Hendrickson v. Reg. O. Co., 17 V.I. 457, 463-64 (D.V.I. 1980), aff’d 657 F.2d 9, 12-13 (3d Cir. 1981)); see also Chabuz. 2016 V.I. LEXIS 33, at *8-9.
Chabuz, 2016 V.I. LEXIS 33, at *9 (citing Hendrickson, 17 V.I. at 464) (other citation omitted).
Hendrickson v. Reg. O. Co.. 657 F.2d 9, 13 (3d Cir. 1981) (“Hendrickson IF).
Hills v. Whitecap Inv. Corp. 2013 V.I. LEXIS 41, at *5 (V.I. Super. Ct. June 14, 2013) (citing Hendrickson II. 657 F.2d at 12).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 24, Ex. 20; Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 17, Ex. 38.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 24, Ex. 20 (emphasis added).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 14, Ex. 9.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 18, Exs. 12-14 (e-mail correspondence in 2012 indicating that employees of TKH and Honda discussed various aspects of the defective airbags in relation to their replacement by Bella International, a distributor of Honda’s product line in Puerto Rico and the Virgin Islands ),¶ 17, Ex. 38 (e-mail correspondence dated October 13, 2014, indicates that a TKH employee informed an employee of Takata Japan that he thought the warranty recovery negotiations with Honda should be “focusfed] on 4 state/region — Florida, Hawaii, Puerto Rico and US Virgin Island [sic]”); ¶¶ 7-8, Exs. 2-3 (e-mail correspondence dated February 8, 2011, through February 10, 2011, where employees of Honda and TKH refer to “the recent St. Croix Inflator failure” and “the St. Croix issue” ),¶ 23, Ex. 19 (indicating counsel for “Takata and Honda” took a video sworn statement under oath of Suetania Francis Emmanuel on July 27,2011, on St. Croix, U.S. V.I.); See Compl. ¶¶ 27-30 (“On November 8, 2010, S.F.E. was driving her 2002 Honda Civic DX in Frederiksted, on the island of St. Croix” when she sustained injuries as aresult of her airbag rupturing).
Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 17, Ex. 38.
See Compl. ¶¶ 145-176.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 22, Ex. 18.
Def. Takata Japan’s Mot. to Dismiss, p. 2 & Ex. A, Ohama Decl. ¶ 5.; Def. Takata Japan’s Reply, p. 3.
Compl. ¶ 31.
Pl.’s May 25, 2016, Mot. for Prelim. Inj. Against Def. TKH, Carrington Aff. ¶ 7.
See Def. TKH’s Reply, Ex. C, May 18, 2015, Defect Information Report, pp. 4-6; Def. TKH’s Mot. to Dismiss, p. 14 (arguing that even when accepting Plaintiff’s allegation as true.
Def. Takata Japan’s Reply, pp. 7-10: Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, p. 7.
In re St. Croix Seamen’s Asbestos Cases, 1993 V.I. LEXIS 20, at *8 (V.I. Terr. Ct. June 16, 1993) (“It is well established that a corporation is a legal entity endowed with a separate and distinct existence from that of its owners”) (citing American Protein Corp. v. Ab. Volvo, 844 F. 2d 56 (2nd Cir. 1988)). Cannon Mfg. Co. v Cudahy Packing Co., 267 U.S. 333, 336-37, 45 S. Ct. 250, 251, 69 L. Ed. 634 (1925).
In re St. Croix Seamen’s Asbestos Cases. 1993 V.I. LEXIS 20, at *7-8.
Id. 1993 V.I. LEXIS 20, at *8; see Government v. O ’Brien. 21 V.I. 549, 554 (Terr. Ct. 1985) (“[W]here, as here, a parent corporation so controls and dominates a subsidiary as to disregard its independent corporate existence, the judicial power which a court exercises over the subsidiary is also exercisable over the parent”).
See Daimler v. Bauman. 571 U.S. 117, 134 S. Ct. 746, 760, 759 n. 13, 187 L. Ed. 2d 624 (2014) (“Agency relationships, we have recognized, may be relevant to the existence of specific jurisdiction”) (citing International Shoe Co. v. Washington, 326 U. S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)]: D’Jamoos v. Pilatus Aircraft Ltd.. 566 F.3d 94, 108-09 (3d Cir. 2009) (“The concept underlying the agency theory of personal jurisdiction is the familial' principle that a principal is responsible for the actions of its agent”) (citations omitted); Mackey v. Compass Mktg., 391 Md. 117, 125-26, 892 A.2d 479, 483-84 (2006) (“Courts have drawn routinely from the substantive law of agency to justify the exercise of personal jurisdiction over nonresident defendants”).
In re St. Croix Seamen’s Asbestos Cases. 1993 V.I. LEXIS 20, at *8 (citing Phoenix Canada Oil Co. Ltd. v. Texaco. Inc., 842 F.2d 1466 (3rd Cir. 1988)).
Viega GmbH v. Eighth Judicial Dist. Court of the State. 328 P.3d 1152, 1157 (Nev. 2014) (citing Doe v. Unocal Corp., 248 F.3d 915, 925 (9th Cir. 2001)); In re St. Croix Seamen’s Asbestos Cases. 1993 V.I. LEXIS 20, at *8.
Viega GmbH, 328 P.3d at 1157 (citations omitted).
See William J. Rands, Article, Domination of a Subsidiary by a Parent, 32 Ind. L. Rev. 421, 444-445 (1999); Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523, 540, 99 Cal. Rptr. 2d 824, 837 (2000).
Viega GmbH, 328 P.3d at 1157 (citing Goodyear v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 2857, 180 L. Ed. 2d 796 (2011) (implying, but not deciding, that an alter ego theory would be appropriate in such a situation)); see also Platten v. HG Bermuda Exempted, Ltd., 437 F.3d 118, 139 (1 st Cir. 2006); Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640, 653 (5th Cir. 2002).
Id. (citing Patin, 294 F.3d at 653).
Id. (citing F. Hoffman-La Roche, Ltd. v. Superior Court, 130 Cal. App. 4th 782, 30 Cal. Rptr. 3d 407, 418 (2005); Wesley-Jessen Corp. v. Pilkington Visioncare, Inc., 863 F. Supp. 186, 188-89 (D. Del. 1993) (“This [agency] theory does not treat the parent and subsidiary as one entity, but rather attributes specific acts to the parent because of the parent’s authorization of those acts”)).
In re St. Croix Seamen’s Asbestos Cases, 1993 V.I. LEXIS 20, at *12 (citing Anderson v. Lorck-Schierning, 20 V.I. 200 (D.C. 1983)); see also Arawak Foods, Inc. v. Lawaetz, 1985 V.I. LEXIS 42, at *10 (V.I. Terr. Ct. Feb. 21, 1985) (discussing piercing the corporate
Donastorg v. Daily News Pnbl’g Co., Inc., 63 V.I. 196, 333 (Super. Ct. 2015) (conducting the requisite analysis mandated in Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011) and adopting the majority traditional veil piercing approach after concluding “[t]he soundest rule of law is to disregard corporate separateness and utilize the assets of a shareholder to satisfy a corporation’s liability, but only in those circumstances where the shareholder has exercised such domination and control over the corporation that the corporation has become an alter ego of the shareholder, and where the shareholder has utilized the corporate form to perpetuate the fraud or injustice at issue in the litigation”).
See Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229, 1238 (N.D. Cal. 2004) (“Unlike liability under the alter-ego or veil-piercing test, agency liability does not require the court to disregard the corporate form”).
Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 31 (D.D.C. 2008) (citing TransAmerica Leasing, Inc. v. La Republica De Venezuela. 339 U.S. App. D.C. 385, 200 F.3d 843, 849 (D.C. Cir. 2000) (citing RESTATEMENT (SECOND) OF AGENCY § 1 (1958))); See Timothy R Glynn, Article, Beyond “Unlimiting” Shareholder Liability: Vicarious Tort Liability for Corporate Officers. 57 VAND. L. Rev. 329, 347 n. 76 (2004) (Under an agency theory, courts must
TransAmerica Leasing, 200 F.3d at 849 (citing RESTATEMENT (SECOND) OF AGENCY § 14 (1958)).
Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, Ex. A, Pate Decl. ¶¶ 9-11, 17-20, 42, 44, 48-57, Exs. 1, 35-36, 38-42, 50, 52, 55-63; Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶¶ 19-20, 24, Ex. 15-16, 20.
See In re Manbodh Asbestos Litigation II, 47 V.I. at 281.
5 V.I.C. § 4903(b).
Molloy, 56 V.I. at 174-175 (internal and other citations omitted).
Compl. ¶¶ 145-181.
Compl. ¶¶ 152, 165.
Compl. ¶ 180.
Compl. ¶ 173.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶¶ 7-8, 11, Exs. 2-3, 6; Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, Ex. A, Pate Decl. ¶¶ 9-11, Exs. 1, 35-36.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, Ex. A, Pate Decl. ¶ 24, Ex. 20; Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss. Ex. A, Pate Decl. ¶¶ 39-40, Exs. 34, 31.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 10 (citing Ex. A, Pate Decl. ¶¶ 11, 19-20, 24, Exs. 15-16, 20).
Molloy, 56 V.I. at 174-175 (internal and other citations omitted).
See 12A V.I.C. § 304 et seq. and 12A V.I.C. § 101 et seq.
Compl. ¶ 135.
Compl. ¶ 142.
Plaintiff argues that Defendant TKH concedes to the Court’s personal jurisdiction over it with respect to this claim, but the Court finds no concession in Defendant TKH’s filings with the Court. See Pl.’s Opp’n to Def. Mot. to Dismiss, p. 5.
In the interest of judicial economy and efficacy, the Court will not address the parties’ remaining arguments with respect to the other provisions of section 4903(a).
Molloy, 56 V.I. at 181 (citing In re Najawicz, 52 V.I. at 336).
Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984)).
Id. at 181-182 (citing BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 260 (3dCir. 2000) (quoting International Shoe, 326 U.S. at 320)) (internal quotation marks omitted )•, Antilles Sch., Inc. v. Lembach, 64 V.I. 400, 418 (V.I. 2016) (“Clearly, state and territorial courts must follow, as binding precedent, decisions of the United States Supreme Court that interpret the United States Constitution, federal statutes, and federal treaties”).
Def. TKH’s Mot. to Dismiss, p. 12; Def. Takata Japan’s Mot. to Dismiss, pp. 1-3.
Goodyear, 564 U.S. at 919.
Daimler, 134 S. Ct. at 760, 761 n.19 (citations omitted); Chapin, 2015 V.I. LEXIS 127, at *10 (V.I. Super. Ct. Oct. 22, 2015) (citing Daimler, 134 S. Ct. at 760).
Molloy, 56 V.I. at 182-83 (“To establish general jurisdiction, the nonresident’s contacts must be continuous and substantial. For a non-resident business entity, the contacts with the Virgin Islands should form a central paid of the company ’ s business”) (citing Provident Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437-38 (3d Cir. 1987)).
Compl. ¶¶ 14, 21, 23, 31,97,111 (alleging that the allegedly defective air-bags have been installed in “millions of vehiclesf,]” but that only “roughly 7,000 vehicles on the Islands are makes and models that contain inflators relying on [TKH and Takata Japan’s] unstable, explosive propellant”).
Molloy, 56 V.I. at 181 (citations omitted).
Id. at 183 (citing O’ Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007)).
Id. (citing D’Jamoos, 566 F.3d at 102) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).
Id. (citing D’Jamoos, 566 F.3d at 102) (quoting Helicopteros, 466 U.S. at 414)).
Id. (citing D’Jamoos, 566 F.3d at 102) (quoting Burger King Corp., 471 U.S. at 476).
Id. at 183-84 (citing Burger King Corp., 471 U.S. at 472).
Def. TKH’s Reply, p. 9.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 14.
See Def. TKH’s Reply, p. 10 n. 4.
J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 882-83, 131 S. Ct. 2780, 2788-89, 180 L. Ed. 2d 765 (2011); Def. TKH’s Reply, pp. 9-10; Def. Takata Japan’s Reply, pp. 4-5.
115 F.3d 81 (1st Cm 1997); see Def. TKH’s Reply, pp. 9-10.
Alers-Rodriguez, 115 F.3d at 85.
Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 333, 51 V.I. 1219 (3d Cir. 2009).
Daimler, 134 S. Ct. at 759 n.13 (citing International Shoe, 326 U.S. at 316).
See Goodyear, 564 U.S. 930.
Molloy, 56 V.I. at 183 (citations omitted).
Def. TKH’s Mot. to Dismiss, p. 13; Molloy, 56 V.I. at 184 (“[W]e adopted the Third Circuit’s approach to the ‘arising out of’ requirement of specific personal jurisdiction as a
Molloy, 56 V.I. at 183 (citations omitted).
Id. at 184 (citing Burger King Corp., 471 U.S. at 477).
Def. TKH’s Mot. to Dismiss, p. 17.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 17.
Chapin, 2015 V.I. LEXIS 127, at *27 (citing A. Uberti & C. v. Leonardo, 181 Ariz. 565, 575-576, 892 P.2d 1354 (1995)).
C. W. Downer & Co. v. Bioriginal Food & Sci. Corp., 771 F.3d 59, 69-70 (1st Cm 2014) (citing BlueTarp Fin., Ine. v. Matrix Constr. Co., 709 F.3d 72, 83 (1st Cir. 2013)) (internal quotation marks and citations omitted).
McGee v. Int'l Life Ins. Co., 355 U.S. 220, 224, 78 S. Ct. 199, 201, 2 L. Ed. 2d 223 (1957).
Chapin, 2015 V.I. LEXIS 127, at *27.
See Adelson v. Hananel, 510 F.3d 43, 51 (1st Cir. 2007).
Id. (citations omitted).
State of Hawai’i, by Its Office of Consumer Protection v. Takata Corporation, et al. Civil No. 16-1-0922-05 RAN (pending before the Circuit Comí of the First Circuit, State of Hawai’i); State of New Mexico, ex rel. Hector Balderas, Attorney General v. Takata Corporation, et al., No. D-101-CV-2017-00176 (pending before the First Judicial District Court, State of New Mexico).
State of Hawai’i, by Its Office of Consumer Protection v. Takata Corporation, et al., Civil No. 16-1-0922-05 RAN (November 28, 2016, Order denying Defendants Takata Corporation and TK Holdings, Inc.’s August 16, 2016, Motion to Dismiss the Complaint or, in the Alternative, for a Stay); See Pl.’s December 21, 2016, Notice of the Hawai’i Trial Court Order.
Def.’s TKH’s Mot. to Dismiss, pp. 2-3.
See Def. Takata Japan’s Mot. to Dismiss, Ex. A. Ohama Decl. ¶ 3.
Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 114, 107 S. Ct. 1026, 1033, 94 L. Ed. 2d 92 (1987).
O’Connor, 496 F.3d at325 (citing Asahi, 480 U.S. at 114); see also Daimler, 134 S. Ct. at 765 (Sotomayor, J„ concurring) (discussing the onerous burdens imposed by Argentine plaintiffs bringing suit against a German defendant in California).
Asahi, 480 U.S. at 115.
See Def. Takata Japan’s Mot. to Dismiss, Ex. A. Ohama Decl.
Asahi, 480 U.S. at 115.
With respect to Count I of the Complaint, Takata Japan contends that the CICO statute, specifically 14V.I.C. § 607(j), does not vest this Court with personal jurisdiction over Takata Japan where doing so would violate constitutional due process. Def. Takata Japan’s Reply, pp. 10-13. However, because the Court has already found that the principals of due process are not violated by the Court’s exercise of personal j urisdiction over Takata J apan in this case, this argument is moot.
Def. TKH’s Mot. to Dismiss, p. 18 n.14; Def. Takata Japan’s Mot. to Dismiss, p. 3 n.2.
C-Innovation, LW v. Norddeutsche Seekabelewerke GmbH, No. 10-4441, 2012 U.S. Dist. LEXIS 182634, at *6 (E.D. La. Dec. 28, 2012) (citing Walk Haydel & Assocs. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th Cir. 2008)). "
See id.
Compl. ¶¶ 131-144.
Compl. ¶¶ 136, 142(a), 143.
Compl. ¶¶ 136, 142(b)-(c), 143.
With respect to its argument pertaining to V.I.R. Crv. P. 12(b)(6), Takata Japan adopted TKH’s arguments, but also asserted separate arguments pertaining to “issues unique to [Takata J apan].” Def. Takata J apan’s Mot. to Dismiss, p. 1.; Def. Takata J apan’s Reply, p. 13.
Def. TKH’s Mot. to Dismiss, p. 19.
Def. Takata Japan’s Reply, pp. 13-14; Def. TKH’s Mot. to Dismiss, pp. 20-21.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 18.
14 V.I.C. § 607(a).
14 V.I.C. § 605(d).
14 V.I.C. § 604(1).
14 V.I.C. § 604(h).
Charleswell v. Chase Manhattan Bank, N.A., 308 F. Supp. 2d 545, 562, 577, 45 V.I. 495 (D.V.I. 2004) (citations omitted); see Gumbs v. People of the V.I., 59 V.I. 784, 790 n.2 (V.I. 2013) (noting that “our local CICO statute was modeled . . . upon [RICO] ”) (citing Charleswell, 308 F. Supp. 2d at 562).
Def. TKH’s Mot. to Dismiss, p. 20n.l9; Pl.’s Opp’n to TKH’s Mot. to Dismiss, p. 18 & n.8; See Takata Japan’s Reply, p. 14 (relying on federal case law interpreting RICO).
Def. Takata Japan’s Reply, p. 11 (citations omitted); see People of the Virgin Islands v. McKenzie, 66 V.I. 3, 17-21 (V.I. Super. Ct. 2017) (distinguishing CICO from RICO with respect to the meaning of a “pattern of criminal activity” under CICO).
Compare 14 V.I.C. § 605(a), (d) with 18 U.S.C.S. § 1962(c) and (d). 18 U.S.C.S. § 1962(c) states that “[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affair's through a pattern of racketeering activity or collection of unlawful debt[,]” while section 1962(d) provides that “[i]t shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.”
Compare 14 V.I.C. § 604(h) with 18 U.S.C.S. § 1961(4).
Id.
Chancey v. State, 256 Ga. 415, 418, 349 S.E.2d 717, 723 (1986) (discussing Georgia’s “little RICO” statute, which defines “enterprise” as including “illicit as well as licit enterprise,” in relation to the definition of “enterprise” under RICO) (citing United States v. Turkette, 452 U.S. 576, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)).
Accord McKenzie, 66 V.I. at 12-13.
Compl. ¶¶ 132-133, 139, 142, 143, 16.
Compl. ¶ 133; Def. Takata’s Mot. to Dismiss, p. 19.
Boyle v. United States, 556 U.S. 938, 946, 129 S. Ct. 2237, 2244, 173 L. Ed. 2d 1265 (2009) (citing Turkette, 452 U.S. at 583).
Id; see McKenzie, 66 V.I. at 12-13 (applying the federal interpretation of “association-in-fact” enterprise to CICO).
Guaranteed Rate, Inc. v. Barr, 912 F. Supp. 2d 671, 687 (N.D. Ill. 2012) (“The existence of a common goal or purpose is an ‘essential ingredient’ of an association-in-fact enterprise”) (citing Baker v. IBP, Inc., 357 F.3d 685, 691 (7th Cir. 2004)); see also Boyle, 556 U.S. at 946 (“The concept of ‘association’ requires both interpersonal relationships and a common interest”).
Boyle, 556 U.S. at 947-48 & n. 4.
Id. at 946 (citing 18 U.S.C.S. § 1962(c)).
Id. at 948.
Compl. ¶¶ 134-135.
Compl. ¶¶ 135, 140.
See Guaranteed Rate, 912 F. Supp. 2d at 687.
Compl. ¶¶ 135-136, 140-141. While TKH and Takata Japan are frequently referenced collectively as “Takata,” other factual allegations are sufficient to separately implicate TKH and Takata Japan and suggest that Takata Japan controlled, or at least exerted significant influence over, TKH’s decisions and actions regarding the alleged defect and throughout the recall process. See Compl. ¶¶ 14-15, 47-49, 51-61, 67, 69, 112.
See Compl. ¶¶ 21, 37, 42-82, 86-89, 91, 94-98, 100-101, 104, 106-107, 112, 122-124.
Compl. ¶¶ 136.
Def. TKH’s Mot. to Dismiss, pp. 20-21.
719 F.3d 849 (7th Cir. 2013).
Def. TKH’s Mot. to Dismiss, pp. 19-20.
Id. at 854-55 (citations omitted).
Id.; see Menzies v. Seyfarth Shaw LLP, 197 F. Supp. 3d 1076, 1094 (N.D. Ill. 2016) (discussing defendants’ misplaced reliance on United Food, 719 F.3d 849).
See Compl. ¶¶ 14-15, 47-49, 51-61, 67, 69, 112.
Compl. ¶¶ 50, 72-85.
Compl. ¶¶ 146-69, 72-86, 88,91 -110. By April of 2013, “Takata and Honda had identified more than nineteen ‘Case Events’ in which PSAN-propelled inflators caused injury or
Compl. ¶¶ 77, 81, 86, 91-94.
Compl. ¶¶ 87-88, 95-97.
Compl. ¶¶ 77-109.
Compl. ¶¶ 107-108.
Compl. ¶ 109.
Compl. ¶¶ 51, 72; see Compl. ¶¶ 46-69, 72-86, 88, 91-107.
Compl. ¶ 109.
Compl. ¶¶ 135, 140.
Compl. ¶¶ 77, 109.
14 V.I.C. § 604(j) provides:
“Pattern of criminal activity” means two or more occasions of conduct
(1) that:
(A) constitute criminal activity;
(B) are related to the affair's of the enterprise; and
(C) are not isolated; and
(2) where;
(A) at least one of the occasions of conduct occurred after November 9, 1990;
(B) the last of the occasions of conduct occurred within five years of the filing of the action under this chapter, or within the relevant period within the Statute of Limitations as provided in section 3541 of Title 5, Virgin Islands Code, if such statutory period shall be greater than five years; and
(C) for the purposes of section 606 [Criminal penalties] of this chapter, but not section 607 [Civil remedies] of this chapter, at least one of the occasions of conduct constituted a felony under the Virgin Islands Code, or, if committed subject to the jurisdiction of the United States, or any state of the United States, would constitute a felony under the Virgin Islands Code if committed in the Territory of the Virgin Islands.
McKenzie, 66 V.I. at 17 (citing 14 V.I.C. § 604(j)).
Compare 14 V.I.C. § 604(j) with 18 U.S.C.S. § 1961(5). 18 U.S.C.S. § 1961(5)provides that “ ‘pattern of racketeering activity’ requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activityf.]”
See H. J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989).
McKenzie, 66 V.I. at 15-21.
14 V.I.C. § 604(e).
McKenzie, 66 V.I. at 19-20 (citations omitted).
14 V.I.C. § 604(j)(2)(A)-(B).
14 V.I.C. § 604(j )(2)(C); see 14 V.I.C. § 607; Compl. ¶¶ 9-10, 12.
Compl. ¶ 142.
Compl. ¶ 142(a).
Compl. ¶ 142(b).
Compl. ¶ 142(c).
18 U.S.C. § 1343 (violator may be “imprisoned for not more than 20 years”); 49 U.S.C. § 30170(a)(1) (violator may be “imprisoned for not more than 15 years”); 18 U.S.C.S. § 3559(a)(3) (“An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is — ... less than twenty-five years but ten or more years, as a Class C felony”).
See generally Compl. & ¶¶ 143, 50-51, 69, 72-77, 79-82, 86-91, 93-101.
Compl. ¶¶ 152, 145-146, 153-157, 158-159, 165-169.
TKH’s Mot. to Dismiss, pp. 21-25.
TKH’s Mot. to Dismiss, p. 25.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, pp. 21-22, 24, 21-28.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 28 (citing Compl. ¶ 7).
12A V.I.C. § 110; 12A V.I.C. § 304.
See Act No. 6833, § 1, Sess. L. 2006.
12A V.I.C. § 110; 12A V.I.C. § 302, 304 (emphasis added).
Compl. ¶¶ 12 &n. 1, 156; see 3 V.I.C. § 114(a)(l )-(2), (4) (“The Attorney General shall have the following powers and duties: (1) except in cases where the United States attorney is representing the Government of the United States Virgin Islands at the request of the Governor, to appear for and represent the executive branch of the Government of the Virgin Islands before the courts in all civil proceedings in which the said Government, or any executive department, board, commission, agency, instrumentality or officer thereof is interested; (2) to prosecute in the inferior courts all offenses against the laws of the Virgin Islands; (4) to investigate violations of the laws of the Virgin Islands for which the executive branch of the Government of the United States Virgin Islands may invoke penalties, fines or forfeitures, or deny, suspend or revoke licenses, and to initiate and conduct appropriate proceedings in relation thereto . .. .”); 12A V.I.C. § 104(d) (“Whenever the Commissioner has
12A V.I.C. § 101.
Neither the Supreme Court of the Virgin Islands, nor this Court, has explicitly outlined the elements necessary for stating a claim under CPL. However, other state courts have determined the essential elements of a claim under their' consumer protection statutes in this manner. See State v. O’Neill Investigations, 609 P.2d 520, 534 (Alaska 1980).
1 V.I.C. §41.
12A V.I.C. § 102(a), (b).
12A V.I.C. § 102(a)( 1)-(10).
12A V.I.C. § 102(a)( 1)-(2).
12A V.I.C. § 102(d).
12A V.I.C. § 102(c). The parties dispute the specific terms used by the Legislature in defining “consumer goods” under CPL. TKH and Takata Japan assert that “consumer goods” is defined as “foods, services, credit and debts which are primarily for personal, household or family purposes,” but Plaintiff asserts that the use of the term “foods” rather than “goods” is a typographical error “in the online publication (by LexisNexis) of the Virgin Islands Code.” Def. TKH’s Mot. to Dismiss, p. 23 (emphasis added); Def. TKH’s Reply, pp. 13-14; Pl.’s December 22, 2016, Notice of Typographical Error in 12A V.I.C. § 102(c) (“Notice of Typographical Error”); Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 22 n. 11. The text of the session laws of the Virgin Islands enacting CPL in 1973 states: “ ‘[c]onsumer goods, services, credit and debts’ . . . means goods, services, credit and debts which are primarily used for personal, household or family purposes.” Act No. 3431, § 4, Sess. L. 1973, p. 89; see Pl.’s Notice of Typographical Error, Ex. B. Nevertheless, the Legislature recently clarified the confusion by amending 12A V.I.C. § 102(c) “by striking ‘foods’ and inserting ‘goods’ to correct a typographical error.” Act No. 7972, § 14, Sess. L. 2016, p._(amended January 20, 2017). Consequently, the Court will read and construe the definition of “consumer goods” in section 102(c) of CPL as referring to “goods” rather than “foods.”
12A V.I.C. § 102(e).
Island Insteel Sys. v. Waters, 296 F.3d 200, 204, 44 V.I. 389 (3d Cir. V.I. 2002).
Id. (analogizing an action for deceptive trade practices under 12A V.I.C. § 101 to an action for trademark infringement under the LanhamAct. 15 U.S.C.S. § 1125(a), in order to determine the statute of limitations period applicable to a claim for trademark infringement);
Id.; accord Poulin v. Ford Motor Co., 147 Vt. 120, 124, 513 A.2d 1168, 1171 (1986) (“Many federal courts have held that a misrepresentation which has the tendency and capacity to mislead consumers is a deceptive act or practice under federal law. . . . Similarly, a number of courts in states with statutes similar to Vermont’s Consumer Fraud Act have also adopted this definition of deception”) (collecting cases) (internal citations omitted).
12A V.I.C. § 104(e).
12A V.I.C. § 108(a).
See Hall v. Walter. 969 P.2d 224, 237 (Colo. 1998) (identifying state consumer protection statutes that require an ascertainable injury).
Def. TKH’s Mot. to Dismiss, p. 23.
Pl.’s Opp’n to TKH’s Mot. to Dismiss, p. 24.
Statutory interpretation is governed by the “Rules of Construction.” 1 V.I.C. §§ 41-52. The Supreme Com! of the Virgin Islands has described the standard for statutory interpretation, as follows:
“The first step when interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning. If the statutory language is unambiguous and the statutory scheme is coherent and consistent, no further inquiry is needed. In analyzing a statutory scheme, we must give effect to every provision, making sure to avoid interpreting any provision in a manner that would render it — or another provision — wholly superfluous and without an independent meaning or function of its own. But even where a statutory scheme is plain and internally consistent, no statute should be read literally if such a reading is contrary to its objective [and] this Court must consider whether applying the statute’s literal language leads to . . . absurd consequences or is otherwise inconsistent with the Legislature’s intent.” In reL.O.F., 62 V.I. 655, 661 (V.I. 2015) (internal and other citations omitted).
Defoe v. Phillip, 56 V.I. 109, 121 (V.I. 2012) (“[T]he Virgin Islands Legislature has instructed that ‘[w]ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language,’ but that ‘[tjechnical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to their peculiar and appropriate meaning’ ”) (citing 1 V.I.C. § 42).
Black’s Law Dictionary 1454 (9th ed. 2009).
Black’s Law Dictionary 970 (9th ed. 2009).
Black’s Law Dictionary 1019 (9th ed. 2009).
https://www.merriam-webster.com/dictionary/rental (last visited on May 16, 2017).
Black’s Law Dictionary (9th ed. 2009).
“Transaction” is defined by Merriam-Webster as “an exchange or transfer of goods, services, or funds” or “a communicative action or activity involving two parties or things that reciprocally affect or influence each other.” https://www.merriam-webster.com/dictionary/ transaction (last visited on May 16, 2017). Black’s Law Dictionary defines “transaction” as “[t]he act or an instance of conducting business or other dealings” and “[s]omething performed or carried out; a business agreement or exchange.” Black’ S Law DICTIONARY 1635 (9th ed. 2009). Thus, transactions “of’ consumer goods or services refers to transactions proceeding from, with their' origin in, consumer goods or services. Consumer goods and services are purchased by “consumers.” See 12A V.I.C. § 102(c)-(d).
12A V.I.C. § 102(a);«,e 12A V.I.C. § 101 (phrase is similar, but not identical, to the words used in section 102(a)).
See Black’s Law DICTIONARY 1080 (6th ed. 1990) (defining the term “of’ as “denoting that from which anything proceeds; indicating origin, source, descent, and the like . . . .”); accord Avery v. State Farm Mut. Auto. Ins. Co.. 216 Ill. 2d 100, 180, 296 Ill. Dec. 448, 497, 835 N.E.2d 801, 850 (2005) (discussing Illinois’ consumer protection law and referring to the terms “trade” and “commerce,” which are statutorily defined to “mean the advertising, offering for sale, sale, or distribution of any services. . . [,] as “consumer transactions”) (citing 815 ILCS 505/l(f) (West 1998)).
12A V.I.C. § 102(a) (emphasis added).
https://www.merriam-webster.com/dictionary/in%20connection%20with (last visited on June 16, 2017).
Dupigny v. Tyson, 66 V.I. 434, 440-441 (V.I. 2017) (“The first canon of statutory interpretation states that, if the language of a statute is clear and unambiguous, no further analysis is required in order to discern the meaning of that language. All the statutory language must be given effect when doing so does not undermine the legislative intent. Interpretations that are unjust or lead to absurd results must be avoided because they are inconsistent with legislative intent. An interpretation that renders a statute nonsensical or superfluous, or that defies rationality, is absurd”) (internal quotation marks omitted) (internal and other citations omitted).
12A V.I.C. § 102(c)-(d).
12A V.I.C. § 102(d).
12A V.I.C. § 102(e).
12A V.I.C. § 108(a)(2) (emphasis added).
See Dupigny, 66 V.I. at 440-441.
Regina Corp. v. Fed. Trade Com., 322 F.2d 765, 768 (3d Cir. 1963) (“The purpose of the Federal Trade Commission Act is to protect the public, . . . and it is in the public interest to stop any deception at its incipiency”) (internal and other citations omitted).
See Cal. Dental Ass’n v. FTC, 526 U.S. 756, 768, 119 S. Ct. 1604, 143 L. Ed. 2d 935 (1999) (the purpose of FTC Act is to eliminate unfair' or deceptive business practices); see also Ryan P. Quinn & Thomas Watterson, Note, Fair is Fair — Reshaping Alaska’s Unfair Trade Practices and Consumer Protection Act. 28 Alaska L. Rev. 295, 299 (2011) (citations omitted); Victor E. Schwarz & Cary Silverman, Article, Common-Sense Construction of Consumer Protection Acts. 54 Kan. L. Rev. 1, 8-16 (2005).
Infra n.269-270; see Waltham Watch Co. v. FTC, 318 F.2d 28, 31 (7th Cir. 1963) (“[T]hose who put into the hands of others the means by which they may mislead the public, are themselves guilty of a violation of Section 5 of the Federal Trade Commission Act”).
See. e.g., Haynes v. George Ballas Buick-GMC Truck. No. L-89-168, 1990 Ohio App. LEXIS 5661, at *49 (Ct. App. Dec. 21, 1990) (“the defendant must have some connection to the consumer transaction in order to be liable for any violation of the [Ohio Consumer Sales Practices Act, OHIO Rev. Code Ann. § 1345.01 etseq.}... there is nothing under the statute which provides that privity of contract is a necessary prerequisite to recovery of damages”) (citations omitted); In re Ford Motor Co. Ignition Switch Prods. Liab. Litig. v. Ford Motor Co., 1999 U.S. Dist. LEXIS 22892, at *30-31 (D.N.J. May 14, 1999) (finding consumer protection laws of Nebraska, Neb. Rev. Stat. Ann. § 59-1601 et seq., and Oklahoma, OKLA. Stat. tit. 15, § 751 etseq., sufficiently broad such that they “includef ] upstream component part suppliersf,]” especially when the “component is included in many thousands of vehicles sold to consumers in Nebraska”), vacated in part on other grounds. 1999 U.S. Dist. LEXIS 22891 (D.N.J. July 27, 1999); Gibbons v. J. Nuckolls. Inc., 216 S.W.3d 667, 670 (Mo. 2007) (en banc) (finding wholesaler of automobile that was sold to plaintiff through a dealership
See. e.g., Jones v. Sportelli, 166 N.J. Super. 383, 390, 399 A.2d 1047, 1050(1979) (manufacturer of IUD was subject to liability under New Jersey consumer protection law because “the term ‘sale’ was liberally expanded by the Legislature ... [to] encompassf ] any ‘attempt directly or indirectly to sell’ ” and the manufacturer’s “provision of an IUD to a gynecologist essentially constitutes, at the very least, an indirect attempt to sell the IUD to a wanting patient with the concomitant expectation of monetary return. Upon actual sale or distribution, economic benefit accrues to the manufacturer, and although the manufacturer might receive payment from the gynecologist, it is unrealistic to suggest that the patient is not, in the ordinary course of business, ultimately charged with the cost”) (citing N.J.S.A. 56:8- 1(e)); Kociemba v. G.D. Searle & Co., 680 F. Supp. 1293, 1304-05 (D. Minn. 1988) (Because the language of Minnesota’s consumer protection law “coverfs] ‘direct and indirect’ outreaches to the public ... [the] advertisement to a physician is an ‘indirect’ advertisement to the public”) (citing Minn. Stat. § 325F.67); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F. Supp. 2d 160, 193 (D. Me. 2004) (“As with Maine and Montana, the New Hampshire consumer protection statute does not apply only to those who have directly engaged in trade or commerce with consumers”) (citations omitted); Merriman v. Auto Excellence, Inc., 55 Va. Cir. 330, 331 (Va. Cir. Ct. 2001) (permitting consumer’s action against upstream retailer, who sold vehicle to a wholesaler, who then sold the vehicle to plaintiff, because “lack of privity is not a defense ... to a claim brought under the Virginia Consumer Protection Act[,] . . . [since] the language of the statutef,]” which provides that certain “[fraudulent acts or practices committed by a supplier in connection with a consumer transaction are unlawfulf,]” Va. Code Ann. § 59.1-200(A), “does not seem to limit protection only to those transactions that occur directly between a supplier and the ultimate con-sumerf,]” particularly in light of the statute’s remedial purpose); Amstadt v. United States Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996) (Under Texas’ consumer protection law, though “[p]rivity of contract with a defendant is not required for the plaintiff to be a con-sumerf,] . . . the defendant’s deceptive conduct must occur in connection with a consumer transactionf,]” which can “[r]each upstream manufacturers and suppliers [only] when their misrepresentations are . . . communicated to the consumer”) (internal and other citations
2014 U.S. Dist. LEXIS 24081 (D.V.I. Feb. 26, 2014).
Def. TKH’s Mot. to Dismiss, p. 23.
MRL, 2014 U.S. Dist. LEXIS 24081, at * 17 (citing Katz v. Aetna Cas & Sur. Co., 972 F.2d 53, 55 (3d Cir. Pa. 1992).
Ernest v. Morris, 64 V.I. 627, 637-38 (V.I. 2016) (explaining that decisions of the District Court of the Virgin, Islands sitting as a federal trial court are “merely persuasive authority!,]” as are “Third Circuit decisions... if the case, was before that court on appeal from the District of Delaware, the District of New Jersey, the Eastern, Western, or. Middle Districts of Pennsylvania, or the District Court of the Virgin Islands sitting as a federal trial court”): see Hamed v. Hamed, 63 V.I. 529, 534-35 (V.I. 2015) (explaining in dicta that Appellate Division and Third Circuit decisions are, not binding on the Superior Court)).
972 F.2d 53 (3d Cir. 1992).
Id. (citing 73 PA. Stat. Ann. § 201-9.2(a)). 73 Pa. Stat. Ann. § 201-9.2(a) provides:
Any person who purchases or leases goods or services primarily for personal, family or household, purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result, of the use or employment by any person of a method, act or practice declared unlawful by section 3, of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages, sustained, but not less than one hundred dollars ($100), and may provide such additional relief as, it deems necessary or proper. The court may award to the plaintiff, in addition to other relief, provided in this section, costs and reasonable attorney tees, (emphasis added).
12A V.I.C. § 102(d).
Toy v. Metro. Life Ins. Co., 2004 PA Super 404, 863 A.2d 1, 10 (2004) (“[A] plaintiff must demonstrate reliance and, resulting injury to establish a private cause of action under any of the [Pennsylvania Uniform Trade Practices and. Consumer Protection Law]’s sections. Specifically, we stated that plaintiffs retain ‘the burden of establishing a causal, connection to or
See Island Insteel Sys., 296 F.3d at 204, 213-14 (discussing the elements required in consumer’s private action, under the Virgin Islands CPL); 12A V.I.C. §§ 101, 102(a), 108.
Compare 73 Pa. Stat. Ann. § 201-3 with 12A V.I.C. § 101. Notably, sections 101-105, 110 of CPL are substantially, similar to sections 700-704, 706 of the New York City Consumer Protection Law, N.Y.C. Admin. Code §§ 20-700 - 704, though private actions may be brought under the Virgin Islands CPL, while no private mechanism is provided, under the New York City law. See Dimond v. Darden Rests., Arc., 2014 U.S. Dist. LEXIS 94004, at *17 (S.D.N.Y., July 9, 2014) (collecting cases).
Antilles Sch., 64 V.I. at 419 (“[Wjhere a Virgin Islands statute is patterned after a statute from another jurisdiction,, the borrowed statute shall be construed to mean what the highest court from the borrowed statute’s jurisdiction, prior, to the Virgin Islands enactment, construed the statute to mean.... In other words, the purpose of the borrowed-statute, doctrine is to predict what the Legislature intended when it enacted a substantive law”) (internal and other citations, omitted); Dupigny. 66 V.I. at 443 (“When statutes from other jurisdictions are substantially, similar to a Virgin Islands statute, this Court may look for guidance at how that jurisdiction’s courts have interpreted, the similar statute”) (citing Ottley v. Estate of Bell, 61 V.I. 480, 494 n.10 (V.I. 2014)).
Contra MRL. 2014 U.S. Dist. LEXIS 24081, at *17-18.
In re Joseph, 65 V.I. 217, 230 (V.I. 2016) (“[I]n interpreting a statute, ‘we must do our best, healing in mind the, fundamental canon of statutory construction that the words of a statute mustbe read in their context and with a view, to theirplace in the overall statutory scheme.’...
Heyliger v. People of the V.I., 66 V.I. 340, 353-354 (V.I. 2017) (“[T]he, ‘[statutory text is to be interpreted to give consistent and harmonious effect to each of its provisions’ ”) (internal, quotation marks and citations omitted).
MRL, 2014 U.S. Dist. LEXIS 24081, at *17 (framing the issue as whether “an indirect purchaser — someone who, did not buy the materials at issue directly from the defendant, but rather from a third party — is considered a ‘purchaser, or lessee or prospective purchaser or lessee’ for purposes of the Virgin Islands Code”).
See id.
Edwards v. HOVENSA, LLC, 497 F.3d 355, 358-62, 49 V.I. 1133 (3d Cir. 2007) (holding that the District Court sitting in diversity, is subject to the Erie doctrine and thus is “bound to follow state law as announced by the highest state court. ‘If the, highest court has not spoken to the issue, we can garner assistance from the decisions of the state’s intermediate, appellate courts in predicting how the state’s highest court would rule’ ”) (citing Mosley v. Wilson, 102 F.3d 85, 92 (3d Cir. 1996)); see Brennan v. Norton, 350 F.3d 399, 432 n.28 (3d Cir. 2003) (“In predicting how the highest court, of the state would resolve the issue, we must consider relevant state precedents, analogous decisions, considered dicta,, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would, decide the issue at hand”); MRL Dev. I. LLC v. Whitecap Inv. Corp.. No. 2013-48, 2014 U.S. Dist. LEXIS 4533, at *6-7 (D.V.I. Jan. 14, 2014) (prior proceeding in which the District Court states that it is “sitting in diversity”).
See MRL, 2014 U.S. Dist. LEXIS 24081.
See Rennie v. Hess Oil V.I. Corp., 62 V.I. 529, 550 (V.I. 2015) (The Supreme Court of the Virgin Islands “has, repeatedly held that statutes which are silent as to who has standing to bring suit should be broadly interpreted to, confer standing”) (collecting cases); Benjamin v. AIG Ins. Co. of P.R., 56 V.I. 558, 564 (V.I. 2012) (overruling “any, language in older opinions indicating that standing is jurisdictional”).
In re Joseph, 65 V.I. at 229 (citations omitted).
Compl. ¶¶ 14-15, 31.
Compl. ¶ 152.
Compl. ¶¶ 143(c).
Compl. ¶¶ 46-112, 121, 128 (deceptive statements made by TKH and Takata Japan to consumers through its, website), 118, 129 (deceptive statements made by TKH and Takata Japan to NHTSA), 46-49 (Takata Japan, manufactured PSAN-propelled inflators despite that they faded Takata’s process validating testing), 50-52 (Takata, Japan altered test results so that the PSAN-propelled inflators would comply with Honda’s “specific technical, specifications aimed at entrusing their safe and reliable performance”).
Compl. ¶ 154.
Accord Country Tweeds, Inc. v. FTC, 326 F.2d 144 (2d Cir. 1964) (Manufacturers of cashmere coats and other, materials violated 15 U.S.C. § 45(a)(1) by deceptive advertising where they altered report prepared for them by United, States Testing Company on respective qualities of two brands of cashmere, and distributed altered form to their dealers, throughout United States. In its altered form, the report misrepresented quality of tested products as found by testing company).
12A V.I.C. § 304.
12A V.I.C. § 328(a)(l)-(5), (g).
Supra n.230.
12A V.I.C. § 303(h) (“ ‘Person’ means any natural person or his legal representative, partnership, corporation, domestic or foreign, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestui que trust thereof’).
See Compl. ¶¶ 165-169. As a result, it is not necessary for the Court to address unfair' methods of competition under, CFDBPA.
Compare 12A V.I.C. § 303(e) with 12A V.I.C. § 102(a). 12A V.I.C. § 303(e) provides:
“Deceptive business practice” means any false, falsely disparaging, or misleading oral or written statement, visual description or other representation of any kind made in*397 connection with the sale, lease, rental, or loan of consumer goods or services, or in the extension of consumer credit or in the collection of consumer debts which has the capacity, tendency or effect of deceiving or misleading consumers.
While the Court recognizes the differing definitions under CFDBPA and CPL, the Court finds that its statutory construction of “deceptive trade practice” under CPL remains equally applicable to the construction of “deceptive business practice” under CFDBPA because the differing terms do not alter the plain meaning of the definition. Indeed, the definition of “sale” in CFDBPA largely reflects the common meaning of the word, as considered by the Court when interpreting CPL, and is immediately followed by other types of transactions, namely “lease, rental, or loan.”
12A V.I.C. § 303(j).
12A V.I.C. § 303(d).
12A V.I.C. § 303(g).
The definition of “unfair acts or practices” is informed by the definition under the FTCA. See 12A V.I.C. § 304 (The Legislature has instructed the Court to consider “the interpretations of the Federal Trade Commission and the federal courts relating to 15 U.S.C. § 45 at the time of enactment of this chapter’ on May 17, 2006) (emphasis added).
12A V.I.C. § 304.
12A V.I.C. § 303(k).
Def. TKH’s Mot. to Dismiss, p. 24. Though TKH and Takata Japan do not discuss the distinction between, “deceptive” and “unfair” trade acts or practices, the definitions under CFDBPA and FTCA, respectively, contain the, word “consumer,” which in turn is defined under CFDBPA with the term “merchandise.”
Supra n.248.
12A V.I.C. § 303(d).
https://www.merriam-webster.com/dictionary/purchase (last visited on May 23, 2017).
https://www.merriam-webster.com/dictionary/contracts (last visited on May 23, 2017).
https://www.merriam-webster.com/dictionary/resale (last visited on May 23, 2017).
https://www.merriam-webster.com/dictionary/ordinary%20course%20of%20business (last visited on May 23, 2017).
https://www.merriam-webster.com/dictionary/use (last visited on May 23, 2017).
https://www.merriam-webster.com/dictionary/liousehold (lastvisitedonMay23,2017).
Notably, this definition is more limited than the definition of “consumers” under CPL, which includes “prospective, purchasers” and “prospective lessees,” as well as actual purchasers and lessees. See 12A V.I.C. § 102(d).
12A V.I.C. § 303(g).
https://www.merriam-webster.com/dictionary/article (last visited on May 23, 2017).
https://www.merriam-webster.com/dictionary/commerce (last visited on May 23,2017).
https://www.merriam-webster.com/dictionary/usually (last visited May 23, 2017).
https://www.merriam-webster.com/dictionary/directly (last visited on May 23, 2017). Black’s Law Dictionary defines “directly” as “[i]n a straightforward manneif,]” “[i]n a straight line or course,” or “[i]mmediately[,]” while, “direct” is defined as “straightforward!,]” “[f]ree from extraneous influence; immediate!,]” or “Mo cause (something, or someone) to move on a particular- course.” Black’s Law DICTIONARY 527, 525 (9th ed. 2009), Gov’t of the V.I. v. Takata Corp., et al.
https://www.merriam-webster.com/dictionary/dir-ect (last visited on May 23, 2017).
See 12A V.I.C. § 303(d).
12A V.I.C. § 302.
See 12A V.I.C. § 304; Federal Trade Commission Law Practice And Procedure §§ 6.03,14.04 (Law Journal Press, 2017); Stephen B. Burbank, Sean Farhang, & Herbert M. Kritzer, Article, Private Enforcement, 17 LEWIS & CLARK L. Rev. 637, 705 (2013) (“All of the 50 states have some form of general statute dealing with UDAP [unfair and deceptive acts or practices] issues, often referred to as ‘little FTC Acts.’ These acts vary from state to state, with regal'd, both to scope and to enforcement provisions. A 2009 report prepared for the National Consumer Law Center (NCLC) describes these variations and provides a chart summarizing some of the key differences among the states which we, include as an Appendix”).
See 15 U.S.C. § 45; FTC v. IFC Credit Corp., 543 F. Supp. 2d 925, 937 (N.D. Ill. 2008).
W. Star Trucks, Inc. v. Big Iron Equip. Serv., 101 P.3d 1047, 1053-54 (Alaska 2004) (“It is clear that 15 USCS § 45(a)(1) is not limited to consumer transactions”).
12A V.I.C. § 302.
Elkins v. Microsoft Corp., 174 Vt. 328, 332, 817 A.2d 9 (2002) (discussing 9 V.S.A. § 2451 et seep).
Sec 12A V.I.C. § 302.
Sec 12A V.I.C. § 302.
Compare 12A V.I.C. § 331 with Ky. Rev. Stat. § 367.220(1).
12A V.I.C. § 328(a)(2).
12A V.I.C. § 303(e) (defining “deceptive business practice” as being “made in connection with the sale, lease, rental or loan of consumer goods or sendees'’) (emphasis added); 12A V.I.C. § 303(d).
The Court recognizes that CFDBPA contains provisions that resemble, but are not identical to, those under 73 Pa. Stat. Ann. § 201-1 etseq. However, the Court still finds the ruling in MRL unpersuasive because the District Court’s analysis in MRL was limited to the plaintiff’s statutory standing under CPL, not CFDBPA. See MRL, 2014 U.S. Dist. LEXIS 24081, at *16-20.
12A V.I.C. § 328(a).
Compl. ¶¶ 170-176, 187(e).
Def. TKH’s Mot. to Dismiss, pp. 26.
Def. TKH’s Mot. to Dismiss, p. 28.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, pp. 28-30.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 30.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 32.
Bell v. Raddiffe, 2014 V.I. LEXIS 119, at *22-24 (V.I. Super. Ct. Apr. 30, 2014) (conducting the requisite analysis, mandated in Banks, 55 V.I. at 967 with respect to the definition of public nuisance); but see Sickler v. Mandahl Bay Holding, Inc., 2014 V.I. LEXIS 39, at *20 (V.I. Super. Ct. July 7, 2014) (applying the definition of public nuisance in, 14 V.I.C. § 1461 in a civil proceeding because “[t]his statute has been interpreted as declaring the standard common, law definition of public nuisance” rather than conduct a Banks analysis) (citations omitted). Having reviewed the Superior Court’s Banks analysis in Bell v. Radcliffe and agreeing with the methodology and conclusions of same, the Court hereby adopts the standard articulated in that case. See Bell, 2014 V.I. LEXIS 119, at *22-24.
Restatement (Second) of Torts § 821B(1) (1979).
Restatement (Second) of Torts § 821B(2)(a)-(c).
14 V.I.C. § 1461; see 14 V.I.C. § 1462 (setting forth the criminal punishment for “willfully omit[ting] to perform, any legal duty relating to the removal of a public nuisance” where “no punishment [for maintaining or committing a, public nuisance] is prescribed elsewhere in this title or other law”). Notably, the criminal definition of public nuisance, does not dictate the law governing the civil tort of public nuisance. 58 Am. Jur. 2d Nuisances § 27 (2017) (“The codification of certain common law nuisances in a state criminal code and a legislative declaration that certain other, conditions constitute nuisances does not exclude common law nuisances not codified therein from being classed as, public nuisances”) (footnotes omitted); Restatement (SECOND) OF Torts § 82IB cmt. d (“The defendant may be liable in tort though immune to criminal prosecution” for a public nuisance) (citing Urie v. Franconia Paper Corp., 107 N.H. 131, 218 A.2d 360 (1966); State ex rel. Board of Comm’rs v. WOR-TV Tower, 39 N.J. Super. 583, 121 A.2d, 764 (1956)) (other citations omitted).
Gov’t of the V.I. v. Latalladi, 8 V.I. 137, 141 (Mun. Ct. 1970) (noting that 14 V.I.C. §§ 1461-1462 “seems declaratory of the common law which defines a public nuisance as ‘the doing of or the failure to do something that, injuriously affects the safety, health, or morals of the public or works some substantial annoyance, inconvenience or injury to the public’ ”) (citations omitted).
See Restatement (SECOND) Of Torts § 821B cmt. i (“[F]or damages to be awarded [in public nuisance cases], significant harm must have been actually incurred, while for an injunction harm need only be threatened and need not, actually have been sustained at all”); 5 J. Pomeroy, A Treatise on Equity Jurisprudence and Equitable Remedies, § 1937 (§ 523), at 4398 (2d ed. 1919) (noting that while “a mere possibility of a future nuisance will not support an, injunction,” relief will be warranted when “the risk of its happening is greater than a reasonable man would incur”); Michigan v. United States Army Corps of Eng’rs, 667 F.3d 765, 781 (7th Cir. 2011) (threat of injury may constitute, public nuisance under federal law).
Restatement (Second) of Torts § 821B cmt. g.
Compl. ¶ 31.
Compl. ¶¶ 22-25.
Compl. ¶¶ 23-31.
Compl. ¶¶ 27, 173-175.
Compl. ¶¶ 21-130.
Compl. ¶¶ 21-130.
Compl. ¶¶ 47 (alleging “Takataf’s] process validation analysis of the PSAN-propelled PSDI inflator, completed in, January 2000 .. . uncovered a number of problems — the very same problems predicated in Takata’s own patent, application [in 1999]”), 51 -52 (“[T]he data points sent to Honda [by Takata Japan] in the June 15, 2000 report were, simply made up”); 129 (alleging “Takata” made deceptive statements to NHTSA, which were made available to the public on NHTSA’s website in 2015); see generally Compl. ¶¶ 21-130, 131-144 (regarding alleged violations of CICO, 14 V.I.C. § 600 et seq.), 145-157 (regarding alleged violations of CPL, 12A V.I.C. § 101 et seq.). 158-168 (regarding alleged violations of CFDBPA, 12A V.I.C. § 301 et seq.).
See City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, 1142 (2002).
Ileto v. Clock Inc., 349 F.3d 1191, 1212 (9th Cir. 2003) (citations omitted); Victor E. Schwartz & Phil Goldberg, Article, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 WASHBURN L.J. 541, 567 (2006) (discussing the element of control in public nuisance claims); see State v. Lead Indus. Ass’n, 951 A.2d, 428, 446-47 (R.I. 2008) (discussing the requisite element of control in a public nuisance claim in Rhode Island).
Donald G. Gifford, Article, Public Nuisance as a Mass Products Liability Tort, 71 U. ClN. L. Rev. 741, 820 (2003)).
See Peter Tipps, Note, Controlling the Lead Paint Debate: Why Control is Not an Element of Public Nuisance, 50 B.C. L. Rev. 605, 607 (2009) (“Of course, states are free to develop their own common law, but those that profess to, adopt the RESTATEMENT (SECOND) Of Torts view on public nuisance do not remain faithful to that view by imposing a, control element”); infra n.365.
Ileto, 349 F.3d at 1212 (citing City of Cincinnati, 768 N.E.2d at 1142); People ex rel. Gallo v. Acuna, 14 Cal. 4th, 1090, 1105, 60 Cal. Rptr. 2d 277, 285, 929 P.2d 596, 604 (1997); See City of Milwaukee v. NL Indus., 2008 WI App 181, 315 Wis. 2d 443, 498, 762 N.W.2d 757 n.20 (noting that a public nuisance claim under Wisconsin law does not encompass an element of, control); In re Lead Paint Litigation, 191 N.J. 405, 924 A.2d 484, 510 (2007) (Zazzali, C.J., dissenting) (concluding that control, over the nuisance is not a necessary element of a public nuisance claim at common law); Tipps, supra n.364, at 625, & n.173 (collecting cases).
In re Firearm Cases, 126 Cal. App. 4th 959, 988, 24 Cal. Rptr. 3d 659, 680 (2005) (“Although it is not necessary to show that harm actually occurred, plaintiffs must show that a defendant’s acts are likely to cause a significant invasion of a public right.... [However,
Lead Indus. Ass’n, 951 A.2d at 456 (citations omitted).
See Cty. of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292, 309-10, 40 Cal. Rptr. 3d 313 (2006): In re Methyl, Tertiary Butyl Ether Prods. Liab. Litig., 175 F. Supp. 2d 593, 628 (S.D.N.Y. 2001); see also Smith & Wesson Corp. v. City of Gary, 875 N.E.2d 422, 431 (Ind. Ct. App. 2007) (defendant manufacturers, distributors, and dealers of, handguns intentionally supplied, participated in, or ignored the illegal purchase of handguns, resulting in “a large, number of handguns in the hands of persons who present a substantial danger to public safety in the City of Gary,” were “sufficient to allege an unreasonable chain of distribution of handguns sufficient to give rise to a public, nuisance generated by all defendants” at the motion to dismiss stage).
Cty. of Santa Clara. 137 Cal. App. 4th at 309-10 (internal and other citations omitted).
Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 540 (3d Cir. N.J. 2001) (citing Tioga Public Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993)).
See Restatement (Second) of Torts §§ 821C, 821B cmt.i; Am. Jur. 2d, supra n.350, § 205 (footnotes omitted).
See e.g., Christian v. Atl. Richfield Co., 2015 MT 255, 380 Mont. 495, 515, 358 P.3d 131 (2015); Gulf C. & S. F. R. Co. v. Belton, 57 Tex. Civ. App. 460, 469, 122 S.W. 413, 417 (1909); Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49, 53 (Ind. Ct. App. 1993); Sharon Steel Corp. v. Fairmont, 175 W. Va. 479, 488, 334 S.E.2d 616, 626 (1985).
Am. Jur. 2d, supra n.350, § 271 (footnotes omitted).
Compl.fi 177-181.
Def. TKH’s Mot. to Dismiss, pp. 28-29.
Pl.’s Opp’n to TKH’s Mot. to Dismiss, p. 32.
V.I. R. Crv. P. 9(b) contains identical language to Fed. R. Crv. P. 9(b). Compare V.I. R. Civ. P. 9(b) with Fed. R. Crv. P. 9(b). As a result, prior precedent of Virgin Islands courts applying the heightened pleading requirements for, allegations of fraud under Fed. R. Crv. P. 9(b) remains applicable.
Merchs. Commercial Bank v. Oceanside Vill., Inc., 64 V.I. 3, 24 (Super. Ct. 2015) (internal quotation marks and citations omitted).
While the Court understands that the pending motions have required extensive briefing by the parties, this does not negate their duties under V.I. R. Crv. P. 11 and the Virgin Islands Rules of Professional Conduct to “fully brief all questions of law relevant to the issues that are being litigated, including all three Banks factors.” Antilles Sch., Inc. v. Lembach, 64 V.I. at 428 n.13 (citations omitted); see People of the V.I. v. Armstrong, 64 V.I. 528, 536 n.6 (V.I. 2016). For years, this Court has repeatedly warned litigants that their failure to properly brief their arguments in accordance with the mandates of Banks, 55 V.I. 967, may result in an imposition of sanctions. See. e.g.. SBRMCOA, LLC v. Morehouse Real Estate Invs., LLC, 62 V.I. 168, 190 n.75 (Super. Ct. 2015); Benjamin v. Coral World VI, Inc., 2014 V.I. LEXIS 35, at 14-16 n.38 (V.I. Super. Ct. June 12, 2014); People of the V.I. v. Willis. 61 V.I. 60, 74 n.37 (Super. Ct. 2014).
Merchs. Commercial Bank. 64 V.I. at 16; see Harbison v. Auto Depot. LLC, 2017 V.I. LEXIS 75, at *8 (V.I. Super. Ct. May 24, 2017) (citations omitted).
Merchs. Commercial Bank, 64 V.I. at 17-22, 25-30 (conducting the requisite analyses mandated in Banks, 55 V.I. 967 with respect to claims for fraudulent misrepresentation and negligent misrepresentation).
Lock v. Schreppler, 426 A.2d 856, 859 n.* (Del. Super. Ct. 1981) (citing 37 Am. Jur. 2d, Fraud and Deceit. § 2).
Merchs. Commercial Bank, 64 V.I. at 22. Having reviewed the Superior Court’s Banks analysis in Merchs. Commercial Bank v. Oceanside Vill.. Inc. and agreeing with the methodology and conclusions of same, the Court hereby adopts the standards articulated in that case. See id. at 17-22.
Big Bear Construction. Inc. v. Hoford. 2016 V.I. LEXIS 2, at *14-15 (V.I. Super. Ct. Jan. 15, 2016) (citing Merchs. Commercial Bank, 64 V.I. at 17-22).
See Knights of Columbus Council 3152 v. KFS Bd. Inc., 280 Neb. 904, 924-28, 791 N.W.2d 317 (2010) (discussing the difference between claims for fraudulent misrepresentation and fraudulent concealment).
“As established in Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 981-84 (V.I. 2011), and subsequent cases, when confronted with an issue of Virgin Islands common law that... [the Supreme Court of the Virgin Islands] has not resolved — or that has been addressed only through erroneous reliance on former 1 V.I.C. § 4 — courts [in this jurisdiction] must‘engage in a three-factor analysis: first examining which common law rule Virgin Islands courts have applied in the past; next identifying the rule adopted by a majority of courts of other jurisdictions; and then finally — but most importantly — determining which common law rule is soundest for the Virgin Islands.’ "’ Machado v. Yacht Haven U.S.V.I., LLC, 61 V.I. 373, 380 (V.I. 2014) (citing Better Bldg. Maint. of the V.I., Inc. v. Lee. 60 V.I. 740, 757 (V.I. 2014); Gov’t of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014); Walters v. Walters, 60 V.I. 768, 777 n.11 (V.I. 2014)).
Simon, 59 V.I. at 613 (interpreting Banks); Hamed, 63 V.I. at 534-37 (discussing the evolution of Banks and its progeny).
See, e.g., Frederick v. Ellet, 2014 V.I. LEXIS 5, at *6 (V.I Super. Ct. Feb. 14, 2014); Warner v. Ross, 164 Fed. Appx. 218, 220 (3d Cir. 2006) (rendered while serving as the de facto court of lastresort in the Virgin Islands); Simmons v. Martinez, 45 V.I. 278, 284-85 (Terr. Ct. 2003); Payne v. Gov’t of the V.I., 44 V.I. 213, 217 (Terr. Ct. 2002). This is because the Virgin Islands Medical Malpractice Act specifically permits the tolling of the statute of limitations for medical malpractice claims in certain circumstances. See 27 V.I.C. § 166d.
Manbodh v. Hess Oil V.I. Corp. (In re Manbodh Asbestos Litig Series), 47 V.I. 215, 244 (Super. Ct. 2005).
See Shealy v. W. Indies Mgmt. Co., 2011 V.I. LEXIS 58, at *16-20 (V.I. Super. Ct. Dec. 5, 2011).
Connor, 60 V.I. at 603 (citations omitted).
See N.D. CENT. CODE § 9-03-08; CAL. Civ. CODE §§ 1709-1710; Ala. Code §§ 6-5-100-6-5-102; see also Davis v. HSBC Bank, 691 F.3d 1152, 1163 (9th Cir. 2012) (applying California law). The Superior Court should consider “non-statutory law created by
Courts in other jurisdictions use varying terminology to refer to common law fraud. For the sake of clarity and consistency, the Court will refer to the concept of “fraud” as “fraudulent misrepresentation” throughout this discussion.
Knights, 280 Neb. at 926-27 (collecting cases); see Merchs. Commercial Bank, 64 V.I. at 19 (noting that “some jurisdictions recognize that one can make an actionable misstatement through omission”); see also, e.g., Carr v. Fleet Bank, 73 Conn. App. 593, 595, 812 A.2d 14, 16-17 (2002); Borgschulte v. Bonnot, 285 S.W.3d 345, 349 (Mo. Ct. App. 2009); Williams v. Aetna Fin. Co., 83 Ohio St. 3d 464, 1998 Ohio 294, 700 N.E.2d 859, 868 (1998);Barr v. Dyke, 2012 ME 108, 49 A.3d 1280, 1286-87 (2012); Oxbow Calcining USA Inc. v. Am. Indus. Partners, 948 N.Y.S.2d 24, 30, 96 A.D.3d 646 (2012); Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98, 110 (1998), overruled in part on other grounds, 117 Nev. 265, 21 P.3d 11, 15 (2001); Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 396-97, 653 S.W.2d 128 (1983); Odom v. Oliver, 310 S.W.3d 344, 349-50 (Tenn. Ct. App. 2009); Transpetrol, Ltd. Radulovic, 764 So. 2d 878, 879-80 (Fla. Dist. Ct. App. 2000); Sallee v. Fort Knox Nat’l Bank, N.A. (In re Sallee), 286 F.3d 878, 895-96 (6th Cir. 2002) (applying Kentucky law); Hoffman v. Stamper, 155 Md.App. 247, 304-05, 843 A.2d 153, 187-88 (Ct. Spec. App. 2004), aff’d in part, rev’d in part on other grounds and remanded, 385 Md. 1, 867 A.2d 276(2005); Cannon Techs., Inc. v. Sensus Metering Sys., 734 F. Supp. 2d 753, 769 (D. Minn. 2010) (citing Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775, 795 (1975)) (internal quotation marks omitted).
Borgschulte, 285 S.W.3d at 349 (citations omitted); see Carr, 812 A.2d at 16-17 (citations omitted); Williams, 700 N.E.2d at 868 (citations omitted); Barr, 49 A.3d at 1286-87 (citations omitted); Oxbow, 948 N.Y.S.2d at 30 (citations omitted); Camp v. First Fed. Sav. & Loan, 12 Ark. App. 150, 154-55, 671 S.W.2d 213, 215-16 (1984) (citations omitted); Transpetrol, 764 So. 2d at 879-80 (citations omitted); Sallee, 286 F.3d at 896 (applying Kentucky law) (citations omitted); Hoffman, 155 Md.App. at 304-05 (citations omitted).
This approach mirrors the layout of the Restatement (Second) of Torts, which “includes fraudulent concealment and non-disclosure of material information which the person has a duty to reveal, as a species of fraudulent misrepresentation.” Lock, 426 A.2d at 859 n.* (citing Restatement (Second) of Torts §§ 526, 529, 550, 551).
See Oxbow, 948 N.Y.S.2d at 30 (citations omitted); Dow Chem. Co., 970 P.2d at 110 (citations omitted); Barr, 49 A.3d at 1286-87 (citations omitted); Odom, 310 S.W.3d at 349-50; Hoffman, 155 Md. App. at 304-05 (citations omitted).
Section 551 of the RESTATEMENT (SECOND) OF Torts provides:
(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(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,
(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
(d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
(e) facts basic to the transaction, 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.
Restatement (Second) of Torts § 550 (1979) (“One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering”).
Supra n.394.
See Sallee, 286 F.3d at 896 (citations omitted).
See 37 Am. Jur. 2d Fraud and Deceit § 198 (2017) (collecting cases); Camp, 12 Ark. App. 150, 154-55, 671 S.W.2d 213, 215-16 (1984) (“[W]hether a duty to speak exists is determinable by reference to all the circumstances of the case, and by comparing the facts not disclosed with the object and end sought by the contracting parties. The difficulty is not so much in stating the general principles of law, which are fairly well understood, as in applying the law to particular' groups of facts”) (citations omitted).
See Cannon Techs., 734 F. Supp. 2d at 769 (“[Fjraud does not exist based solely on the failure to disclose facts unless ‘special circumstances’ require that disclosure.... Three such ‘special circumstances’ have been recognized by the Minnesota Supreme Court: where there exists a confidential or fiduciary relationship between the parlies; where disclosure is necessary to clarify information already disclosed, which would otherwise be misleading; or where the non-disclosing party ‘has special knowledge of material facts to which the other party does not have access’) (citing L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn. 1989)) (internal and other citations omitted).
Accord Armstrong Bus. Servs. v. AmSouth Bank, 817 So. 2d 665, 677 (Ala. 2001) (citations omitted).
Because the reliance and damages elements are not met, the Court need not reach a conclusion on whether TKH and Takata Japan owed a duty to disclose here. However, the Court notes that at least one court has ruled that manufacturers have a post-sale duty to warn consumers of product defects. See Holmes v. Wegman Oil Co., 492 N.W.2d 107, 112 (S.D. 1992).
Briehl v. GMC, 172 F.3d 623, 628 (8th Cir. 1999) (citing Weaver v. Chrysler Corp., 172 F.R.D. 96, 99 (S.D.N.Y. 1997)) (other citations omitted).
People of the Virgin Islands v. Penn, 53 V.I. 315, 318 (V.I. Super. Ct. 2010) (denying a defendant’s motion to dismiss when he did not present any argument or case law supporting his claim of discrimination); see Simpson v. Golden, 56 V.I. 272, 280 (V.I. 2012) (“The rules that require a litigant to brief and support his arguments ... before the Superior Court, are not mere formalistic requirements. They exist to give the Superior Court the opportunity to consider, review, and address an argument”); Bertrand v. Mystic Granite & Marble, Inc., 63 V.I. 772, 782 (V.I. 2015) (“[S]imply stating a principle of law without any argument or explanation of how it applies to the case at hand is not sufficient to fairly present the issue to the Superior Court”) (citing Yusuf v. Hamed, 59 V.I. 841, 851 n.5 (V.I. 2013)).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 33.
Def. TKH’s Mot. to Dismiss, p. 29.
Def. TKH’s Mot. to Dismiss, p. 30.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 33.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 33.
Turnbull v. Univ. of the V.I., 2016 V.I. LEXIS 22, at *14-15 (V.I. Super. Ct. Mar. 2, 2016) (conducting the requisite analysis mandated in Banks. 55 V.I. 967 with respect to the economic loss doctrine) (citations omitted). Having reviewed the Superior Court’s Banks analysis and agreeing with the methodology and conclusions of same, the Court hereby adopts the standards articulated in Turnbull v. Univ. of the V.I. See id. 2016 V.I. LEXIS 22, at *14-17.
Id. 2016 V.I. LEXIS 22, at *19.
286 F.3d 661 (3d Cir. 2002).
TKH and Takata Japan note that in Ringo v. Southland Gaming of the United States V.I., Inc., 2010 V.I. LEXIS 62, at *15-16 (V.I. Super. Ct. Sept. 22, 2010), this Court applied the economic loss doctrine by relying on the Third Circuit’s opinion in Werwinski, 286 F.3d at 671. Def. TKH’s Reply, p. 27. This Court’s opinion in Ringo was issued in 2010, prior to the Supreme Court of the Virgin Islands’ landmark decision in Banks. Clearly, the law of the territory has changed substantially since Banks, and the Court will not rely on outdated case law merely because the Superior Court formerly placed greater weight on Third Circuit precedent than it does now.
R. Joseph Barton, Note, Drowning in a Sea of Contract: Application of the Economic Loss Rule to Fraud and Negligent Misrepresentation Claims, 41 Wm. & Mary L. Rev. 1789, 1797 (2000).
Turnbull, 2016 V.I. LEXIS 22, at *18 (citations omitted).
Barton, supra n.419, at 1803-05: see also Lloyd v. CMC, 397 Md. 108, 131, 916 A.2d 257 (2007) (discussing the economic loss doctrine in terms of a products liability suit against a manufacturer).
See 12A V.I.C. § 104, 12A V.I.C. § 328; supra n.230.
12A V.I.C. § 104(d); 12A V.I.C. § 328(a)(2).
12A V.I.C. § 328(a)(1).
12A V.I.C. § 328(b).
12A V.I.C. § 328(a)(3).
12A V.I.C. § 104(c).
See Banks, 55 V.I. at 979-80 (“[T]he will of the Legislature will generally prevail in the event of a conflict between a statute and a judicial decision”) (citations omitted); Grispino v.
Supra n.371.
See City of Chi. v. Beretta U.S.A. Corp.. 213 III. 2d 351, 424, 290 111. Dec. 525, 569-70, 821 N.E.2d 1099, 1143-44 (2004) (The City sought to recoup “the costs of emergency medical services, law enforcementefforts, the prosecution of violations of gun control ordinances, and other related expenses!,]” while the County sought to recoup “the costs of treatment of victims of gun violence and the costs of prosecutions for criminal use of firearms, including the expenses associated with providing defense counsel to those accused of gun crimes”); City of Cleveland v. Ameriquest Marv. Sec., Inc., 621 F. Supp. 2d 513, 520, 522-24 (N.D. Ohio 2009) (The City sought to “recover damages in the form of municipal expenditures it claims were necessary due to the increased need for police and fire protection and demolition of the foreclosed and vacant homes”).
Cf. Tioga Pub. Sch. Dist. #15 v. United States Gypsum Co., 984 F.2d 915, 919-20(8th Cir. 1993) (In concluding “the economic loss doctrine does not bar tort recovery for the cost of removing asbestos-containing building materials!,]” the Court noted that the endangerment of“the lives and health of the building’s occupants,... unlike typical economic loss,.. .was not the type of risk normally allocated between parties by agreement”) (collecting cases) (citations omitted).
Compl. ¶¶ 182-187(f).
See Def. TKH’s Mot. to Dismiss, p. 30 n.24.
Def. TKH’s Mot. to Dismiss, pp. 30-32; Def. Takata Japan’s Mot. to Dismiss, pp. 3-5.
Def. TKH’s Mot. to Dismiss, p. 30 n.24.
Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, p. 12.
Libien v. MIFR, Inc., 2016 V.I. LEXIS 193, at *17 (V.I. Super. Ct. Nov. 28, 2016) (citing Fed. R. Crv. R 9(g)). Since V.I. R. Crv. P. 9(g) mirrors Fed. R. Crv. P. 9(g), this case law remains applicable.
Isaac v. Crichlow, 63 V.I. 38, 69 n.13 (Super. Ct. 2015) (citing Powell v. Chi-Co’s Distributing, Inc., 2014 V.I. LEXIS 21 (V.I. Super. Ct. Apr. 3, 2014) (conducting the requisite analyses mandated in Banks, 55 V.I. 967 with respect to punitive damages)): Libien, 2016 V.I. LEXIS 193, at *18-19 (citing Segura v. Meyer, ST-13-CV-565, mem)op., 2014 V.I. LEXIS 130, at *8 n.24 (V.I. Super. Ct., Feb. 21, 2014) (conducting the requisite analyses mandated in Banks, 55 V.I. 967 with respect to punitive damages and reaching the same conclusion as the Superior Court in Powell, 2014 V.I. LEXIS 21)). Having reviewed the Superior Court’s Banks analysis in Powell v. Chi-Co’s Distributing. Inc. and agreeing with the methodology
Libien, 2016 V.I. LEXIS 193, at *17 (citations omitted).
Der Weer v. Hess Oil Virgin Island Corp., 61 V.I. 87, 102 (V.I. Super. Ct. 2014) (citing Anthony v. FirstBank V.I., 58 V.I. 224, 227 n.4 (V.I. 2012)).
Libien, 2016 V.I. LEXIS 193, at *17 (citations omitted); Willie v. Amerada Hess Corp., 66 V.I. 23, 95-96 (V.I. Super. Ct. 2017) (“[A] demand for punitive damages ... is not a cause of action”) (citing Abednego v. St. Croix Alumina. LLC, 63 V.I. 153, 185 (Super. Ct. 2015)).
Compl. ¶ 187(f).
Compl. ¶¶ 182-187.
See 12A V.I.C. § 101 et seq.: 12A V.I.C. § 301 et seq.
Def. TKH’s Mot. to Dismiss, pp. 30-32; Def. Takata Japan’s Mot. to Dismiss, pp. 3-5.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, pp. 34-35.
Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, pp. 12-15.
Def. Takata Japan’s Mot. to Dismiss, p. 16.
In support of their arguments regarding the applicable choice of law rules in the Virgin Islands, the parties rely on a variety of sources, including, inter alia, case law or secondary materials that involve mechanistic applications of the Restatement (Second) of Conflicts of Law in violation of Banks, 55 V.I. 967. Def. TKH’s Mot. to Dismiss, pp. 30-32 & n. 25; Def. Takata Japan’s Mot. to Dismiss, p. 4n. 3; Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, pp. 34-35; Pl.’s Opp’n to Def. Takata Japan’s Mot. to Dismiss, pp. 12-13; See Dysart v. Dysart, 45 V.I. 118, 126-27 (Terr. Ct. 2002) (mechanistically applying RESTATEMENT (SECOND) OF CONFLICT OF Laws § 187(1) in accordance with 1 V.I.C. § 4 with respect to the choice of law rule where the law of the state is chosen by the parties); St. Croix Renaissance Grp. v. St. Croix Alumina, Civil Action No. 04-067, 2009 U.S. Dist. LEXIS 120525, at *30-31 (D.V.I. Dec. 23, 2009) (mechanistically applying RESTATEMENT (SECOND) OF CONFLICT OF Laws § 148 in accordance with 1 V.I.C. § 4 with respect to the choice of law rule applicable to fraud or misrepresentation claims); see also Bally Corp. v. Enighed Condos., LLC, 58 V.I. 93, 104 (Super. Ct. 2013) (citing Virgin Islands v. Lonsdale, 172 F. Supp. 2d 636, 645 n.8 (D.V.I. 2001)) (mechanistically applying RESTATEMENT (SECOND) OF CONFLICT OF Laws § 307 in
Supra n.386 & 387.
49 U.S.C.S. § 30101 et seq.
Def. TKH’s Mot. to Dismiss, p. 35 (citing 49 C.F.R. § 554.1).
Def. TKH’s Mot. to Dismiss, p. 32.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, pp. 35-36.
U.S. CONST, art. VI, cl. 2.
Alleyne v. Diageo USVI, Inc., 63 V.I. 384, 391-92 (Super. Ct. 2015) (citing Free v. Bland, 369 U.S. 663, 666, 82 S. Ct. 1089, 8 L. Ed. 2d 180 (1962) (“[A]ny state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield”)).
49 U.S.C.S. § 30102(a)( 12) (“ ‘State’ means a State of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and the Virgin Islands”).
Accord Alleyne, 63 V.I. at 392; Hillsborough County v. Automated Medical Laboratories. Inc., 471 U.S. 707, 713, 85 L. Ed. 2d 714, 105 S. Ct. 2371 (1985) (“[S]tate laws can be pre-empted by federal regulations as well as by federal statutes”).
Alleyne, 63 V.I. at 392 (quoting Farina v. Nokia, Inc., 625 F.3d 97, 115 (3d Cir. 2010)) (internal quotation marks omitted).
Def. TKH’s Mot. to Dismiss, p. 34.
Farina, 625 F.3d at 115 (citing Hillsborough Cnty., 471 U.S. at 713).
Geier v. Am. Honda Motor Co., 529 U.S. 861, 884, 120 S. Ct. 1913, 1927, 146 L. Ed. 2d 914 (2000).
Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 1194-1195, 173 L. Ed. 2d 51 (2009) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)):
United States v. Locke, 529 U.S. 89, 108, 120 S. Ct. 1135, 1147-48, 146 L. Ed. 2d 69 (2000) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977)).
Compare In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 754 F. Supp. 2d 1145, 1196-97 (C.D. Cal. 2010); Chamberlan v. Ford Motor Co., 314 F. Supp. 2d 953, 958 (N.D. Cal. 2004) with In re Bridgestone/Firestone Inc., ATX, ATX II & Wilderness Tires Prods. Liab. Litig., 153 F. Supp. 2d 935, 942 (S.D. Ind. 2001).
In re Toyota Motor Corp., 754 F. Supp. 2d at 1196 (citing Chamberlan, 314 F. Supp. 2d at 958) (quoting Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 443, 98 S. Ct. 787, 54 L. Ed. 2d 664 (1978))) (internal quotation marks and citations omitted).
Bridgestone, 153 F. Supp. 2d at 942 (citing Locke, 529 U.S. at 108).
In re Toyota Motor Corp., 754 F. Supp. 2d at 1196 (citing Chamberlan, 314 F. Supp. 2d at 958) (citing City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. 424, 439, 122 S. Ct. 2226, 153 L. Ed. 2d 430 (2002))).
Chamberlan, 314 F. Supp. 2d at 962 (quoting California v. ARC Am. Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 1665, 104 L. Ed. 2d 86 (1989)).
Geier, 529 U.S. at 885 (citing English v. Gen. Elec. Co.. 496 U.S. 72, 90, 110 S. Ct. 2270, 2273, 110 L. Ed. 2d 65 (1990)).
Rice, 331 U.S. at 230 (citations omitted).
See Geier, 529 U.S. at 874-84.
49 U.S.C. § 30101.
In re Ford Motor Co. Speed Control Deactivation Switch Prods. Lab. Litig., 2007 U.S. Dist. LEXIS 62483, at *13 (E.D. Mich. Aug. 24, 2007) (citing 49 U.S.C. § 30101 et seq.).
Id. Some of NHTSA’s duties are listed as follows. See 49 U.S .C. § 30166(b)(1) (to inspect and investigate); 49 U.S .C. § § 30118-30120 (to ensure that defective vehicles and equipment are recalled and remedied and that owners are notified of a defect and how to have the defect remedied); 49 U.S.C. § 30120(c) (to ensure the adequacy of the remedy, including through acceleration of the remedy program; 49 U.S.C. § 30166(e) (to require vehicle manufacturers and equipment manufacturers to keep records and make reports); 49 U.S.C. § 30166(g) (to require any person to file reports or answers to specific questions); 49 U.S.C. § 30165 (to seek civil penalties).
Kent v. DaimlerClaysler Corp., 200 F. Supp. 2d 1208, 1216 (N.D. Cal. 2002) (citing 49 C.F.R. §§ 501.1, 501.2).
In re Ford Motor Co.. 2007 U.S. Dist. LEXIS 62483, at*13; see 49 U.S.C. § 30120(a)(1), (c)(2) (delineating some, but not all, of manufacturers’ obligations under the Motor Vehicle Safety Act).
In re Ford Motor Co., 2007 U.S. Dist. LEXIS 62483, at *13.
562 U.S. 323, 131 S. Ct. 1131, 179 L. Ed. 2d 75 (2011).
Id. at 327-37.
Id. at 334-35.
Id. at 336 (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)).
Def. TKH’s Mot. to Dismiss, p. 33 (internal quotation marks omitted).
See generally Compl.; see also Pl.’s Opp’n to Def. TKH’s Mot. to Stay, p. 36 n.27.
Compl. ¶ 110.
People of Cal. v. GM L.L.C. (In re GM LLC Ignition Switch Litig.), 69 F. Supp. 3d 404, 415 (S.D.N.Y. 2014) (noting while addressing federal subject matter jurisdiction that “it is not the ‘rare’ state consumer protection suit that involves alleged violations of federal law: instead, ‘[sjtate courts frequently handle state-law consumer protection suits that refer to or are predicated on standards set forth in federal statutes’ ”) (citing Nevada v. Bank of Am. Corp., 672 F.3d 661, 676 (9th Cir. 2012)).
ARC Am. Corp., 490 U.S. at 101 (citing Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146, 83 S. Ct. 1210, 1219, 10 L. Ed. 2d 248 (1963)).
Again, the Court reiterates that it “will not make a movant’s arguments for him when he has failed to do so.” Supra n. 407.
Compl. ¶ 187(e).
Def. TKH’s Mot. to Dismiss, p. 28.
Supra n.461.
49 U.S.C. § 30101.
See Williamson, 562 U.S. at 335 (“[T]o infer from the mere existence of such a cost-effectiveness judgment that the federal agency intends to bar States from imposing stricter standards would treat all such federal standards as if they were maximum standards, eliminating the possibility that the federal agency seeks only to set forth a minimum standard potentially supplemented through state tort law”).
Def. TKH’s Mot. to Dismiss, p. 34 (emphasis added).
In re Toyota Motor Corp., 754 F. Supp. 2d at 1198; Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204, 103 S. Ct. 1713, 1722, 75 L. Ed. 2d 752 (1983)).
49 U.S.C. § 30103(e).
See In re Ford Motor Co.. 2007 U.S. Dist. LEXIS 62483, at *15-16 (“[T]he fact that Defendants may have to pay damages for its failure to have sufficient replacement parts on hand does not interfere with the enforcement of the [Motor Vehicle Safety Act], Whether Defendants may have to pay such damages does not pose an actual and irreconcilable dilemma, and does not interfere with the NHTSA oversight of the recalls. The state laws at issue do not preclude Defendants from complying with their' MVS A obligations; rather, they impose obligations on Defendants in addition to those found within the MVS A. Defendants’ motion to dismiss will not be granted on these grounds”); cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S. Ct. 615, 625, 78 L. Ed. 2d 443 (1984) (construing the Atomic Energy Act, 42 U. S. C. § 2011 et seq. (1976 ed. and Supp. V) and stating “Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is [the defendant’s] burden to show that Congress intended to preclude such awards.... [The Nuclear Regulatory Committee] is authorized to impose civil penalties on licensees when federal standards have been violatedf, but] . . . the award of punitive damages in the present case does not conflict with that scheme. Paying both federal fines and state-imposed punitive damages for the same incident would not appeal' to be physically impossible. Nor does exposure to punitive damages frustrate any purpose of the federal remedial scheme”); Exxon Shipping Co. v. Baker, 554 U.S. 471, 489, 128 S. Ct. 2605, 2619, 171 L. Ed. 2d 570 (2008) (“[W]e have rejected similar attempts to sever remedies from their causes of action”) (citing Silkwood, 464 U.S. at 255-56).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 38.
Adams v. North West Co., Inc., 2015 V.I. LEXIS 123, at *18 (V.I. Super. Ct. Oct. 6, 2015) (citing Benjamin v. Bennerson. 2012 V.I. LEXIS 7, at *7 (V.I. Super. Ct. Feb. 13, 2012); James-St. Jules v. Thompson, 2015 V.I. LEXIS 74, at*12-13 (V.I. Super. Ct. June 25, 2015) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004): Brathwaite v. H.D.V.I. Holding Co., 2017 V.I. LEXIS 76, at *8 (V.I. Super. Ct. May 24, 2017) (citations omitted).
James-St. Jules, 2015 V.I. LEXIS 74, at *13 (citing Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)).
Def. TKH’s Mot. to Dismiss, p. 36.
Def. TKH’s Mot. to Dismiss, p. 37.
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, pp. 37-38.
Pedro v. Ranger Am. of the V.I., Inc., 63 V.I. 511, 527 (V.I. 2015) (Gómez, J., dissenting in part) (sitting as a designated Justice of the Supreme Court of the Virgin Islands in accordance with 4 V.I.C. § 24(a)) (citing United States v. Colomb, 419 F.3d 292, 299 (5th Cir. 2005))); see Landis, 299 U.S. at 254.
Burke v. Treasure Bay V.I. Corp., 2016 V.I. LEXIS 161, at *8-9 (V.I. Super. Ct. Oct. 6, 2016) (citing Landis, 299 U.S. at 254-55).
McDonald v. Piedmont Aviation. Inc.. 625 F. Supp. 762, 767 (S.D.N.Y. 1986) (citations omitted).
Burke, 2016 V.I. LEXIS 161, at *9 (citations omitted).
Id. (citing CTF Hotel Holdings, Inc. v. Marriott Int’l., Inc., 381 F.3d 131, 138 (3d Cir. 2004)).
McDonald, 625 F. Supp. at 767 (citing Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946)).
Burke, 2016 V.I. LEXIS 161, at *10 (citing Dover v. Diguglielmo, 181 Fed. Appx. 234, 237 (3d Cir. 2006)).
Cf. EQT Prod. Co. v. Terra Servs., LLC, 2016 U.S. Dist. LEXIS 172613, at*10 (W.D. Pa. Dec. 14, 2016) (“the loss of additional witnesses would result in undue prejudice to Plaintiff’).
Pl.’s Opp’n to Def. TKH’s Mot. to Dismiss, p. 38.
Def. TKH’s Reply, pp. 30-31.
See EQT, 2016 U.S. Dist. LEXIS 172613, at *11.
See id. at *10-11 (collecting cases).
Def. TKH’s Reply, p. 31.
McDonald. 625 F. Supp. at 767 (“Ordinarily, a court would not be justified in holding in abeyance a later-filed action such as this one unless the parties and issues of the concurrent actions are substantially identical”) (citing Kistler Instruniente A.G. v. PCB Piezotronics. 419 F. Supp. 120, 123 (W.D.N.Y. 1976)); cf. Chrysler Credit Corp. v. Marino, 63 F.3d 574, 578 (7th Cir. 1995) (“A federal suit may be dismissed for ‘reasons of wise judicial administration ... whenever it is duplicative of a parallel action already pending in another federal court.’ A suit is only duplicative if it involves the ‘same claims, parties, and available relief’ ”) (citations omitted).
See Stewart v. V.I. Bd. of Land Use Appeals, 66 V.I. 522, 533, 547-548 (V.I. 2017) (discussing the requirements that must be present in order to apply doctrines of res judicata and collateral estoppel in the Virgin Islands).
For example, the remedies available in private actions, class actions, and public actions differ under CPL and CFDBPA. See 12A V.I.C. § 101 et seq.; 12A V.I.C. § 301 et seq. The standard applicable to public nuisance claims under the Restatement (Second) of Torts differs
Case-law data current through December 31, 2025. Source: CourtListener bulk data.