After what time has passed would you consider an FSD class action lawsuit?

[rxlawdude]

If what you say is true (and I‘ve no reason to doubt it), then this is an excellent legal analysis, and provides a solid factual basis for a suit under various theories of liability, particularly a Deceptive and Unfair Trade Practice suit—most states have a similar statute. Of course, common-law fraud is implicated too, as well as various other causes of action. Well done and well summarized.

Yet no one has reported successfully winning a court or arbitration case (the latter which can gag parties from revealing the outcome) based on this "excellent legal analysis." There have been a few cases centering around false statements made by Tesla employees, but none asserting the theories and facts with respect to delivery of FSD.

 

[gaspi101]

Yet no one has reported successfully winning a court or arbitration case (the latter which can gag parties from revealing the outcome) based on this "excellent legal analysis." There have been a few cases centering around false statements made by Tesla employees, but none asserting the theories and facts with respect to delivery of FSD.

Hey, I thought you said you were going to “Block” or “ignore” me. What happened, there, bud?

 

[rxlawdude]

Hey, I thought you said you were going to “Block” or “ignore” me. What happened, there, bud?

Unfortunately, the last post appearing in the thread includes ignored members. As do replies from ignored members.

 

[gaspi101]

$3000 that were paid to Tesla and that they used interest-free for 3 years.

Get your lawyer to describe an articulable claim to you. "Interest-free loan" does not constitute damages. And sure, let's add the bank rate 0.01% annual interest to your damages.

SMH.

It’s called pre-judgment interest on damages. It’s standard for most damages claims, particularly those where the damages are measured by out-of-pocket expenses. the interest rate is set by statute, usually revised at least annually. The idea is that when you’ve paid $3,000.00, your damages include not just that sum, but also your lost opportunity to invest that sum…same in pretty much every state in the USA. I’m surprised you don’t know that, it’s pretty basic…seeing as you are a lawyer and all.

edit: you’re in Cali, right? Here you go: Law section.

CIVIL CODE - CIV​

DIVISION 4. GENERAL PROVISIONS [3274 - 9566]​

( Heading of Division 4 amended by Stats. 1988, Ch. 160, Sec. 16. )

PART 1. RELIEF [3274 - 3428]​

( Part 1 enacted 1872. )

TITLE 2. COMPENSATORY RELIEF [3281 - 3361]​

( Title 2 enacted 1872. )

CHAPTER 1. Damages in General [3281 - 3296]​

( Chapter 1 enacted 1872. )

ARTICLE 2. Interest as Damages [3287 - 3291]​

( Article 2 enacted 1872. )

3287. ​

(a) A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.
(b) Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.
(c) Unless another statute provides a different interest rate, in a tax or fee claim against a public entity that results in a judgment against the public entity, interest shall accrue at a rate equal to the weekly average one year constant maturity United States Treasury yield, but shall not exceed 7 percent per annum. That rate shall control until the judgment becomes enforceable under Section 965.5 or 970.1 of the Government Code, at which time interest shall accrue at an annual rate equal to the weekly average one year constant maturity United States Treasury yield at the time of the judgment plus 2 percent, but shall not exceed 7 percent per annum.

 

[BriansBucketList]

Hence it becomes an issue of additional verbal statements & tweets by Tesla (Musk). Since Tesla has canned it’s PR department, Tesla has predominantly used Musk’s tweets & verbal statements to disseminate information.
The question becomes how legally bound is Tesla by ALL said tweets & verbal statements, particularly when the company is aware that its customers utilise social & electronic media to be informed.
As for time limits for FSD, I strongly doubt a judge would accept its open ended until, say, the year 3769 to complete.
I believe the ‘reasonable person’ test comes into play, commonly used in deciding cases of law

How about something exotic like using "The Covenant of Good Faith and Fair Dealing or Promissory Estoppel ?" Often used in employment law, but dealing with the effects of promises made, and reasonableness.

 

[EVNow]

but in no event earlier than the date the action was filed.

So, from the date the clai was filed, rather than when the money was paid for FSD ?

BTW, according to the poll, there are some 90 people who want to start a class action suit. Will be interesting to see who actually tries and what Tesla does. I'm guessing they will ask the suit be moved to arbitration. (and everyone gets a cybertruck t-shirt priced $60 as compensation )

 

[gaspi101]

So, from the date the clai was filed, rather than when the money was paid for FSD ?

BTW, according to the poll, there are some 90 people who want to start a class action suit. Will be interesting to see who actually tries and what Tesla does. I'm guessing they will ask the suit be moved to arbitration. (and everyone gets a cybertruck t-shirt priced $60 as compensation )

So, full disclosure, I’m not a lawyer in California and this is not legal advice.

As I read it, the limitation of pre-judgment interest you’re quoting under the statute is for ”unliquidated” damages. unliquidated means that you need a judge or jury to determine what that sum is—this happens often when, for example, you hire someone to do a job for $100, and they don’t do it, and now you have to hire someone else to do it, but they’ll charge you $150. You can argue your damages are $50, but you need a judge or jury to decide whether the going rate is $150 for that job…maybe it’s $120….in the case where you want a refund of money you’ve paid, however, that’s what we’d call a “sum certain,’” or “liquidated. You don’t need a judge or jury to make a determination based on the market or whatever else…that’s actual money you’ve paid, so it’s a “sum certain.” Subsection (a) controls instead. Hope that makes sense.

 

[gaspi101]

So, from the date the clai was filed, rather than when the money was paid for FSD ?

BTW, according to the poll, there are some 90 people who want to start a class action suit. Will be interesting to see who actually tries and what Tesla does. I'm guessing they will ask the suit be moved to arbitration. (and everyone gets a cybertruck t-shirt priced $60 as compensation )

Class actions are great to get a company to make a big change, where they otherwise would just settle with an individual and change nothing. The concept of a class action suit is not to benefit the plaintiffs, and often not even the putative class-members, really, but to cause a dramatic change of policy in a large company that would otherwise pay off individuals and change nothing. So if people want to maximize their individual recovery, class action is not usually the best way to go. you can sue individually on behalf of yourself only, and perhaps get a positive result…litigation costs often exceed the sum of the claim, so folks unhappy about FSD might get a settlement tied with a confidentiality agreement, such that they can’t talk about it (in all likelihood, it’s already happened, and these folks can’t talk)…But class actions are sometimes the only way to get a company to make a change. The problem is, class actions are very very expensive to prosecute, so the case has to be good, and there needs to be a law firm willing to bankroll it as well as do a good job.

If you guys want the best legal advice that could be given, it’s this: speak with a commercial trial lawyer in your jurisdiction, and have them give you their opinion on claims and viability…this is the internet, all info here can be either misleading or entirely inapplicable to your jurisdiction. dont take legal advice from the internet.

 

[BriansBucketList]

Class actions are great to get a company to make a big change, where they otherwise would just settle with an individual and change nothing. The concept of a class action suit is not to benefit the plaintiffs, and often not even the putative class-members, really, but to cause a dramatic change of policy in a large company that would otherwise pay off individuals and change nothing. So if people want to maximize their individual recovery, class action is not usually the best way to go. you can sue individually on behalf of yourself only, and perhaps get a positive result…litigation costs often exceed the sum of the claim, so folks unhappy about FSD might get a settlement tied with a confidentiality agreement, such that they can’t talk about it (in all likelihood, it’s already happened, and these folks can’t talk)…But class actions are sometimes the only way to get a company to make a change. The problem is, class actions are very very expensive to prosecute, so the case has to be good, and there needs to be a law firm willing to bankroll it as well as do a good job.

If you guys want the best legal advice that could be given, it’s this: speak with a commercial trial lawyer in your jurisdiction, and have them give you their opinion on claims and viability…this is the internet, all info here can be either misleading or entirely inapplicable to your jurisdiction. dont take legal advice from the internet.

I liked the Small Claims court approach someone mentioned, ask for 10,000 plus any actual and reasonable damages, and offer to give the product back, since it was misrepresented, in my opinion. Some might call it fraud, but it’s a strong word to use if they are actually trying to make “good” on full self driving. Does an arbitration clause rule out small claims ? Our ex President used tweets, so tweets of a car driving itself from coast to coast led me to believe the car could drive my sick wife to the store.

 

[gaspi101]

I liked the Small Claims court approach someone mentioned, ask for 10,000 plus any actual and reasonable damages, and offer to give the product back, since it was misrepresented, in my opinion. Some might call it fraud, but it’s a strong word to use if they are actually trying to make “good” on full self driving. Does an arbitration clause rule out small claims ? Our ex President used tweets, so tweets of a car driving itself from coast to coast led me to believe the car could drive my sick wife to the store.

Usually, small claims cases are not subjectected to arbitration, but that’s not a certainty. Depends on the jurisdiction and your agreement with Tesla. Purchase agreement terms change so try to find your records and see what it says concerning arbitration. But honestly, the best thing to do is to go speak with a lawyer in your jurisdiction who will be able to better assess this question for you—this is not usually something you want to do by yourself.

 

[mark95476]

I won't be part of any class action.

Getting a 99% safety score kind was brutal and now that I have FSDbeta I'm going to turn it off and go back to normal driving. I don't use NoA, autopark, and don't intend to use autosteer city. I only wanted the update visualizations and any AP enhancements.

 

[gaspi101]

Yet no one has reported successfully winning a court or arbitration case (the latter which can gag parties from revealing the outcome) based on this "excellent legal analysis." There have been a few cases centering around false statements made by Tesla employees, but none asserting the theories and facts with respect to delivery of FSD.

So what?? Do you think the fact that law suit results are not reported in the media that these cases haven't been brought? Most (if not all) settlements of this type contain confidentiality/non-disclosure provisions, preventing the publication of the settlement terms or even the claims. This is standard and expected! "The absence of evidence is not evidence of absence." Surely you know about non-disclosure agreements in settlements, being a lawyer yourself, no?

Instead of making sarcastic comments bashing @t3sl4drvr, using the fact that there are not a bunch of people talking about their successful suits against Tesla as the reason that his/her analysis is incorrect, just read again what he/she wrote. You could take his/her post, put numbers for the paragraphs and label it "complaint," and it would state a cause of action for fraudulent misrepresentation, false advertising, a bunch of other things...

Lastly, your beginning premise is also wrong--There are plenty of cases where Tesla was sued for this very thing, and not unsuccessfully too.

Some Tesla owners are losing trust in Elon Musk's promises of 'full self-driving'

Frustrated Tesla owners continue to wait for "full self-driving," an expensive and long-delayed software feature that isn't even guaranteed to help their cars' resale values. Some of the company's earliest backers of the "full self-driving" option are even beginning to lose faith in the promise...

www.cnn.com

Tesla agrees to partially reimburse people who bought Autopilot 2.0 in $5 million settlement of class action lawsuit

As part of the settlement of a class action lawsuit started by a few Tesla owners, the automaker has agreed...

electrek.co

Tesla lawsuit claiming Autopilot is 'false advertising' allowed to proceed

A lawsuit against Tesla from two Santa Barbara, California, brothers who claim Autopilot is false advertising is being allowed to proceed to its next phase after the automaker’s several attempts to have it dismissed. Judge Thomas Anderle ruled earlier this week that Alexandro Filippini vs...

www.teslarati.com

 

[EVNow]

Does an arbitration clause rule out small claims ?

From what I've read, Tesla can object to small claims too and ask that it be moved to arbitration.

 

[rxlawdude]

So what?? Do you think the fact that law suit results are not reported in the media that these cases haven't been brought? Most (if not all) settlements of this type contain confidentiality/non-disclosure provisions, preventing the publication of the settlement terms or even the claims. This is standard and expected! "The absence of evidence is not evidence of absence." Surely you know about non-disclosure agreements in settlements, being a lawyer yourself, no?

Instead of making sarcastic comments bashing @t3sl4drvr, using the fact that there are not a bunch of people talking about their successful suits against Tesla as the reason that his/her analysis is incorrect, just read again what he/she wrote. You could take his/her post, put numbers for the paragraphs and label it "complaint," and it would state a cause of action for fraudulent misrepresentation, false advertising, a bunch of other things...

Lastly, your beginning premise is also wrong--There are plenty of cases where Tesla was sued for this very thing, and not unsuccessfully too.

Some Tesla owners are losing trust in Elon Musk's promises of 'full self-driving'

Frustrated Tesla owners continue to wait for "full self-driving," an expensive and long-delayed software feature that isn't even guaranteed to help their cars' resale values. Some of the company's earliest backers of the "full self-driving" option are even beginning to lose faith in the promise...

www.cnn.com

Tesla agrees to partially reimburse people who bought Autopilot 2.0 in $5 million settlement of class action lawsuit

As part of the settlement of a class action lawsuit started by a few Tesla owners, the automaker has agreed...

electrek.co

Tesla lawsuit claiming Autopilot is 'false advertising' allowed to proceed

A lawsuit against Tesla from two Santa Barbara, California, brothers who claim Autopilot is false advertising is being allowed to proceed to its next phase after the automaker’s several attempts to have it dismissed. Judge Thomas Anderle ruled earlier this week that Alexandro Filippini vs...

www.teslarati.com

Please state the articulable damages for a person owning a Tesla who bought FSD in 2018, for example.

Then, please state the articulable damages for a person who bought a Tesla and paid for FSD in 2018, but the car was totalled in 2021 (not due to beta FSD ).

Finally, please state the articulable damages suffered by a person still owning the Tesla who bought FSD in 2020.

As to Tesla being sued for "this very thing," IMO there are very clear distinguishing facts between the cases you cite above.

First, the CNN article describes owner frustration. That's not a lawsuit that succeeded.
The 2018 case centered around less functionality for HW2.0 cars when they first came out, than was available at that time for existing, olderf AP1 vehicles. Again, that's quite distinguishable from the instant issue. I also must point out that the most anyone received was $280, vs the $2,000 (? or more) people paid for EAP. The winner was the law firm. This is why class actions suck for the plaintiffs (other than the lead plaintiff).

Interestingly, in the 2020 Fillipini case, I can find no mention whatsoever as to how the case was allowed to proceed in court. Did these brothers opt out of arbitration? Did Tesla assert removal was necessary on this basis and was refused? We. Don't. Know.

 

[gaspi101]

Please state the articulable damages for a person owning a Tesla who bought FSD in 2018, for example.

Then, please state the articulable damages for a person who bought a Tesla and paid for FSD in 2018, but the car was totalled in 2021 (not due to beta FSD ).

Finally, please state the articulable damages suffered by a person still owning the Tesla who bought FSD in 2020.

As to Tesla being sued for "this very thing," IMO there are very clear distinguishing facts between the cases you cite above.

First, the CNN article describes owner frustration. That's not a lawsuit that succeeded.
The 2018 case centered around less functionality for HW2.0 cars when they first came out, than was available at that time for existing, olderf AP1 vehicles. Again, that's quite distinguishable from the instant issue. I also must point out that the most anyone received was $280, vs the $2,000 (? or more) people paid for EAP. The winner was the law firm. This is why class actions suck for the plaintiffs (other than the lead plaintiff).

Interestingly, in the 2020 Fillipini case, I can find no mention whatsoever as to how the case was allowed to proceed in court. Did these brothers opt out of arbitration? Did Tesla assert removal was necessary on this basis and was refused? We. Don't. Know.

The damage type and sum would depend on the theory of liability, but let's keep it simple--Let's say you're bringing in a general common law claim for false advertising/fraudulent misrepresentation, promissory estoppel, something like that - and that you paid $5,000.00 for FSD in 2016 based on Elon's promises, service center promises and advertising that turned out to be false or deceptive--Your measure of damages would be out-of-pocket cost (so $5,000.00) plus pre-judgment interest from the date of payment...now if you sue under any of the various host of consumer protection statutes available in your state, such as the uniformly-adopted Unfair and Deceptive Trade Practices acts, these statutes may allow you to recoup statutory damages as well, and depending on the number of misrepresentations, they could rack up to quite a tidy sum...and there may be a prevailing legal fee award that allows you to recoup these as well.

I think that answers your question--anything else, boss?

 

[rxlawdude]

The damage type and sum would depend on the theory of liability, but let's keep it simple--Let's say you're bringing in a general common law claim for false advertising/fraudulent misrepresentation, promissory estoppel, something like that - and that you paid $5,000.00 for FSD in 2016 based on Elon's promises, service center promises and advertising that turned out to be false or deceptive--Your measure of damages would be out-of-pocket cost (so $5,000.00) plus pre-judgment interest from the date of payment...now if you sue under any of the various host of consumer protection statutes available in your state, such as the uniformly-adopted Unfair and Deceptive Trade Practices acts, these statutes may allow you to recoup statutory damages as well, and depending on the number of misrepresentations, they could rack up to quite a tidy sum...and there may be a prevailing legal fee award that allows you to recoup these as well.

I think that answers your question--anything else, boss?

I interpret that you are saying is the plaintiff is generally entitled to the amount paid for FSD. I agree in some cases. As this cost is below the maximum amount in controversy for Small Claims Court in many states, I believe this is the cheapest and potentially best way for aggrieved owners who bought FSD and never received value for that fee. That's why I've been encouraging anyone here to use that venue.

Getting a token settlement in a class action is for suckers. Class attorneys gorge on 30-40%, while the leftovers are distributed to hapless class members.

You haven't given a damages theory for those who bought and still own the vehicle as Tesla continues development and feature enhancements as we speak. Isn't it speculative for a plaintiff to try to recover while Tesla is making an effort to deliver (eventually!) at least the bulk of expected functionality. And that last point is also controversial. Is expected functionality the implied L5 of pre-2019 marketing for those purchasing back then, or the more modest marketing language since 2019?

 

[svusa]

The damage type and sum would depend on the theory of liability, but let's keep it simple--Let's say you're bringing in a general common law claim for false advertising/fraudulent misrepresentation, promissory estoppel, something like that - and that you paid $5,000.00 for FSD in 2016 based on Elon's promises, service center promises and advertising that turned out to be false or deceptive--Your measure of damages would be out-of-pocket cost (so $5,000.00) plus pre-judgment interest from the date of payment...

As far as I know, Jury has the ability to award higher compensation based on the damage formula. The point here is deceptive marking practices must end to protect consumers' rights. Fans can argue all day that Tesla is a great company and they didn't do anything wrong but at the end of the day, Tesla is a publically traded company in the business of making money for their shareholders.

On top of that, NTSB seems to agree that their marketing of FSD is misleading. Anyone surprised??

 

[gaspi101]

I interpret that you are saying is the plaintiff is generally entitled to the amount paid for FSD. I agree in some cases. As this cost is below the maximum amount in controversy for Small Claims Court in many states, I believe this is the cheapest and potentially best way for aggrieved owners who bought FSD and never received value for that fee. That's why I've been encouraging anyone here to use that venue.

Getting a token settlement in a class action is for suckers. Class attorneys gorge on 30-40%, while the leftovers are distributed to hapless class members.

You haven't given a damages theory for those who bought and still own the vehicle as Tesla continues development and feature enhancements as we speak. Isn't it speculative for a plaintiff to try to recover while Tesla is making an effort to deliver (eventually!) at least the bulk of expected functionality. And that last point is also controversial. Is expected functionality the implied L5 of pre-2019 marketing for those purchasing back then, or the more modest marketing language since 2019?

I don’t think the damages calculation changes depending on whether you have the car or sold it and did not receive just value for FSD. On the contrary, if you sell your car, you are accepting a particular price as the value of your car. After that, it could be argued that you accepted too little, or that the vehicle value depreciated, and therefore your voluntary acceptance of the price paid to you is a total waiver of lost-value claims vis a vis FSD. Indeed, when you sell a car, you sell it for a specific price, which is not apportioned between the vehicle itself, and any add-on things like FSD. It’s easy to argue that the vehicle depreciated by $10,000 and they’re giving you $5,000 for FSD

I am really not understanding your fixation with damages claims following the sale of the car. I think the further back the purchase date goes, The better the claim, because the representation concerning the viability of FSD contained reasonable benchmark dates. as others have posted in this thread, it was possibly a deceptive practice to promise FSD in 2016, and also provide all of the propaganda and video that suggested Coast to Coast hands free driving by 2017… A reasonable consumer in 2016 certainly would have expected to have received the promised autonomy within five years of purchase.…The representations naturally change throughout time, and accordingly the nature of the claim will also change. Someone that buys a Tesla in 2021 naturally can’t make the same assertions as someone that purchased it in 2016.

in my opinion, the viability of the claims (for at least false advertising) decrease proportional to the date of purchase. A vehicle sale is very detrimental to the claim.

and yes, small claims is the obvious forum to get paid from Tesla in this regard, but I wouldn’t say class actions are “for suckers.” The purpose of class actions is to effect social change. Instead of recovering $5000 yourself, you could be making sure that Tesla changes its deceptive practices and thereby protect consumers at large. its a pretty great thing to do, in my opinion.

 

[gaspi101]

As far as I know, Jury has the ability to award higher compensation based on the damage formula. The point here is deceptive marking practices must end to protect consumers' rights. Fans can argue all day that Tesla is a great company and they didn't do anything wrong but at the end of the day, Tesla is a publically traded company in the business of making money for their shareholders.

On top of that, NTSB seems to agree that their marketing of FSD is misleading. Anyone surprised??

Agreed, this is the difference between compensatory damages (which are fixed to your actual damages) and punitive damages (which are meant to punish bad behavior). The jury has much more latitude with punitive damages, although that is not always unlimited.

 

[mark95476]

Nope.

Elon's secret master plan for Tesla and it's shareholders wasn't to become fabulously wealthy. Tesla is going to drag the legacy ICE industry kicking and screaming into the future.

I get the feeling that NTSB, various government regulators, politicians, media, and many others have their hands out and are demanding money and jobs. The legacy auto OEMs know how to play the game and spread money and cushy jobs around. Tesla became immensely successful even though they didn't submit to these shake-downs.

As far as I know, Jury has the ability to award higher compensation based on the damage formula. The point here is deceptive marking practices must end to protect consumers' rights. Fans can argue all day that Tesla is a great company and they didn't do anything wrong but at the end of the day, Tesla is a publically traded company in the business of making money for their shareholders.

On top of that, NTSB seems to agree that their marketing of FSD is misleading. Anyone surprised??