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

[rxlawdude]

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.

Do you need to assert damages to win a claim in a civil case? I'm asking what those damages are for someone still holding on to their 2016 FSD; and what damages someone who sold or totalled their 2016 FSD car? Finally, what about someone who bought FSD post 2019 and still has their car?

Specific performance (i.e., forcing Tesla to deliver a fully functional FSD now) doesn't seem to be the answer, so it comes back to money damages. How would you assess damages for someone who still owns their FSD car?

 

[gaspi101]

@rxlawdude, I'm trying to be as clear as possible and I thought I had...and I'm sorry if I wasn't. I'll this way:

Do you need to assert damages to win a claim in a civil case?

Of course. Without damages, there's only liability, and liability standing alone is not a viable claim. Unless, of course, you are suing under a consumer-protection statute, something like an Unfair and Deceptive Trade Practices Act statute, in which case, there may be statutory damages--so you may not need to assert compensatory damages, if the statute allows for something like $1,000.00 per violation or something similar. There are many consumer-protection statutes, and many follow similar frameworks. The answer to your question is YES, but the more complete answer is YES, but they need not necessarily be actual damages you suffered.

I'm asking what those damages are for someone still holding on to their 2016 FSD;

For the answer to that, please see my earlier post addressing this exact question: Prior post #535 and Prior post #539

and what damages someone who sold or totalled their 2016 FSD car?

As I stated in Prior post #539, this person's damages are identical to that of someone who did not sell their car, since the damages are measured by what you have suffered in the past, not what you will suffer in the future. So same analysis. However, when you sell your car (or it's totalled and you agree to receive the insurance company's payout), you are agreeing to receive a sum certain for the vehicle, and therefore, agreeing that the value of the vehicle is a particular sum. When you do that, it becomes very difficult to say whether Tesla's prior deceptive practices have had a specific impact on the value of your vehicle because (a) your acceptance of that sum certain can constitute a waiver of any argument of inadequate value, and (b) it becomes extremely hard to determine whether the payout that was given to you was based on an insufficient valuation of FSD or a potentially excessive depreciation of the vehicle's overall value in the market. So again, the damage calculation doesn't change if you are no longer the owner of the vehicle. It just becomes much much more difficult to prove you actually have been damaged.

Finally, what about someone who bought FSD post 2019 and still has their car.

Again, this person's claim is limited to the representations made at the time of purchase by Tesla, which means that this person's claim to false advertising or fraudulent misrepresentation are dependent on such advertising and representations made on or around 2019--the time of purchase. The damages claim is the same: I paid X in consideration of promises Y, upon which a reasonable consumer would rely, Promises Y were materially false, Defendant knew of the falsity of such promises when they made them, Defendant intended to materially induce Plaintiff to pay X under false pretenses, WHEREFORE, give me back X plus interest (and maybe statutory damages, fees and costs). That's the same lawsuit for a 2016 owner or a 2019 owner or a 2021 owner...but of course, the viability of the claim, in my opinion at least, decreases in directly proportionality with how recent the purchase was--It's a much stronger argument to say I've been waiting 5 years for these promises which have not materialized, than it is to say, "I bought this car in 2021, I test drove it before I bought it, and it performs exactly as it did when I test drove it."

Specific performance doesn't seem to be the answer, so it comes back to money damages.

Correct, specific performance is usually not available in situations like this, unless Tesla had the FSD capability and was unlawfully withholding it from you, and even then, specific performance is generally unavailable when a judgment on damages will make you whole. (for the non-lawyers, specific performance is a type of "relief" or what you ask the judge/jury to give you. You can ask the court to either give you money as damages, or force the other party to perform under the contract...specific performance is often used for real estate transactions where one party refuses to sell the property, you can ask the judge to order that the sale take place...aside from situations simliar to that, specific performance is very very rare.)

How would you assess damages for someone who still owns their FSD car?

See supra.

 

[gaspi101]

I will add one more thing: Given the strides being made publicly by FSD Beta, any claim made by anyone concerning the viability of FSD is diminishing quickly. At the end of the day, a suit will come down to whether the judge or jury believe that Tesla has failed to deliver on their promise and that they knew that their promise was false when they made it...don't expect a judge or jury to understand the subtlety of what FSD can't do today. Tesla will put up videos of their gazillion supporters from YouTube praising and fawning over FSD Beta and showing what a marvel of autonomy it is now, in its current state--

Never underestimate the inability of judges and juries to understand technical issues. Like my favorite comedian George Carlin said (and I'm paraphrasing here): "Think of how dumb the average American is. Now once you have that thought clear, realize that 50% of Americans are even dumber than that."

If you think judges are an exception, think again. And jurors...often they don't have high-school educations. Those that do, know get out of jury duty.

 

[svusa]

I will add one more thing: Given the strides being made publicly by FSD Beta, any claim made by anyone concerning the viability of FSD is diminishing quickly. At the end of the day, a suit will come down to whether the judge or jury believe that Tesla has failed to deliver on their promise and that they knew that their promise was false when they made it...don't expect a judge or jury to understand the subtlety of what FSD can't do today. Tesla will put up videos of their gazillion supporters from YouTube praising and fawning over FSD Beta and showing what a marvel of autonomy it is now, in its current state--

Never underestimate the inability of judges and juries to understand technical issues. Like my favorite comedian George Carlin said (and I'm paraphrasing here): "Think of how dumb the average American is. Now once you have that thought clear, realize that 50% of Americans are even dumber than that."

If you think judges are an exception, think again. And jurors...often they don't have high-school educations. Those that do, know get out of jury duty.

I must say, you have provided one of the most comprehensive, meaningful, and objective analyses in this debate. Thank you for your insight, you must have studied the law!

 

[gaspi101]

I must say, you have provided one of the most comprehensive, meaningful, and objective analyses in this debate. Thank you for your insight, you must have studied the law!

ha! I’m glad some could find it helpful, thank you for your kind words—this is actually what I do for a living, so it’s purely coincidental—lawyers do like to talk…and this site has no shortage of passionate people—I’ve learned a ton browsing this forum.

 

[BriansBucketList]

ha! I’m glad some could find it helpful, thank you for your kind words—this is actually what I do for a living, so it’s purely coincidental—lawyers do like to talk…and this site has no shortage of passionate people—I’ve learned a ton browsing this forum.

Isn't the real "litmus test" whether or not the manufacturer assumes all liability for an accident ? Comments back when steering wheel design were discussed were "steering wheels may not be required." How would you interpret that ? It made me think there car would drive itself, and I would only need to choose the destination. If I am not driving, wouldn't the key be who is responsible for the car ? Good thing Tesla is digging into insurance.

 

[gaspi101]

Isn't the real "litmus test" whether or not the manufacturer assumes all liability for an accident ? Comments back when steering wheel design were discussed were "steering wheels may not be required." How would you interpret that ? It made me think there car would drive itself, and I would only need to choose the destination. If I am not driving, wouldn't the key be who is responsible for the car ? Good thing Tesla is digging into insurance.

You are 100% correct, I think. The true definition of Full Self Driving is when Tesla assumes liability for all accidents while FSD is operating. Of course, it won’t be products liability—the product is not defective…it’s unlikely that all accidents will be prevented by the software, but if Elon is right and it’s “a March of 9’s,” and The software is safer than a human at the wheel, then Tesla should cover for when FSD is at fault in an accident. Drivers’ insurance companies will sue them in subrogation if Tesla doesn’t cover voluntarily.

Personally, I think it’s a bridge too far for Tesla to cross in terms of risk…but then again, it’s probable that’s part of the reason they started Tesla Insurance…to get ahead of it….and I also have a hard time imagining a reality where L5 vehicles are ubiquitous. Can’t wait to be proven wrong.

 

[BriansBucketList]

You are 100% correct. The true definition of Full Self Driving is when Tesla assumes liability for all accidents while FSD is operating. Of course, it won’t be products liability—the product is not defective…it’s unlikely that all accidents will be prevented by the software, but if Elon is right and it’s “a March of 9’s,” and The software is safer than a human at the wheel, then Tesla should cover for when FSD is at fault in an accident. Drivers’ insurance companies will sue them in subrogation if Tesla doesn’t cover voluntarily.

Personally, I think it’s a bridge too far for Tesla to cross in terms of risk…but then again, it’s probable that’s part of the reason they started Tesla Insurance…to get ahead of it….and I also have a hard time imagining a reality where L5 vehicles are ubiquitous. Can’t wait to be proven wrong.

I should have studied law.. the whole proposition of robotaxies may force the litmus test, and, yes, it's quite a leap for a company who refuses to fix silent FCWs because the feature is in beta. You can't buy the car without it, and it came with my old 2016 Model S.

Even the method by which insurance rates are calculated is in beta. Is California looking at this ? I guess it works in Texas. I love their cars, but Tesla has a very bright, and very dark side, tempered with good intentions. The typical love hate relationship, but I'm an old tech junkie. More of a centrist than Fanboi

 

[gaspi101]

I should have studied law..

1) Don’t do it. Most lawyers are miserable. Long hours working for clients who would prefer to be at the proctologist than in your office, little to no time off, work till you die, and 2) It’s never too late. It can be very rewarding.

the whole proposition of robotaxies may force the litmus test, and, yes, it's quite a leap for a company who refuses to fix silent FCWs because the feature is in beta. You can't buy the car without it, and it came with my old 2016 Model S.

Even the method by which insurance rates are calculated is in beta. Is California looking at this ?

California is by far the most progressive State in the country. Has been for generations. If this sort of thing is going to be implemented and adopted by state regulators anywhere first, it will be in California, I should think. I think it’s also probable that insurance companies might create special insurance rates for Tesla cars (either with or without an agreement with Tesla) because I suspect it will be a long long period between L3 and L4/L5, meaning, the car will be much much safer than humans driving alone, but it will nonetheless require human supervision for edge cases. I think we’re going to see at least 10-15 years of L3/L3.5, and private insurance is going to have to step up and give special rates.

I guess it works in Texas. I love their cars, but Tesla has a very bright, and very dark side, tempered with good intentions. The typical love hate relationship, but I'm an old tech junkie. More of a centrist than Fanboi

 

[EVNow]

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.

I think even with Tesla FSD, there is a lot of uncertainty on what has been delivered vs what was promised. Definitely some features have been delivered and accounted for by recognizing revenue (and audited and approved by auditors). It would be easiest to argue that whatever Tesla has still kept in deferred income has not been delivered. So, its not going to be a straightforward - I paid 5k and I should get back 5k.

To use a similar analogy - you hire a contractor to restore an old painting for $5k. The contractor says its a very difficult job, this kind of painting has never been restored before and not sure when he can get it done. But estimates by the end of the year he may get it done. Then even after 3 years he has only restored some portions and not others - and says he continues to work to get the restoration done. So, how will the judge ask him to refund ?

 

[KArnold]

Then even after 3 years he has only restored some portions and not others - and says he continues to work to get the restoration done. So, how will the judge ask him to refund ?

Take that same scenario - the restorationist sold that same promise to 10k people. Now it sounds intentional and fraudulent.

 

[EVNow]

Take that same scenario - the restorationist sold that same promise to 10k people. Now it sounds intentional and fraudulent.

This is where analogies fail.

Its not a restoration - but a software that costs Billions to build and you are getting it for a mere $5k. Once the software is fully built - it will likely cost $100k.

 

[gaspi101]

I think even with Tesla FSD, there is a lot of uncertainty on what has been delivered vs what was promised. Definitely some features have been delivered and accounted for by recognizing revenue (and audited and approved by auditors). It would be easiest to argue that whatever Tesla has still kept in deferred income has not been delivered. So, its not going to be a straightforward - I paid 5k and I should get back 5k.

To use a similar analogy - you hire a contractor to restore an old painting for $5k. The contractor says its a very difficult job, this kind of painting has never been restored before and not sure when he can get it done. But estimates by the end of the year he may get it done. Then even after 3 years he has only restored some portions and not others - and says he continues to work to get the restoration done. So, how will the judge ask him to refund ?

Interesting ideas, but I'm not sure it's exactly the same. In your example of restoring a painting, the contractor did not promise he would do it, merely saying he would "try" and thought he "may get it done" by the end of the year. These sort of equivocations can be used successfully by Tesla, maybe, if they were actually made. From what I understand, Tesla was often saying that things like "come find you in a parking lot" would be coming "later this year." And in 2016, spliced together video to make it look like they were further along in autonomy development than they really were, kind of like Nikola's truck being pushed downhill...

But assuming none of that were true, the measure of your damages in the contractor scenario would be the cost of getting the painting restored by another contractor, subtracting the price your bad contractor agreed to....So for example, if your contractor couldn't or didn't get the job done as promised, then they're in breach. What are your damages? Well, what's the market rate for another contractor/painting restorer? Maybe you get quotes for $7k or $8k, in which case, your damages will be that difference ($8k - $5k=$3k).

But this doesn't usually apply to consumer products, of which cars and car features are a part. Either the consumer product meets the expectations of the common consumer or it doesn't. The focus is not so much on what proportion of FSD was delivered, but rather on the deceptive practice itself. Pretend you buy a case of coca cola from the store, get home, and the case contains 7-up instead, wrong packaging. You can ask for a refund. A judge wouldn't start considering "well, they're both liquids, and fizzy, and sweet..." No, you paid for a specific product with unique and particular characteristics. They either deliver or not.

But none of this is black-and-white or mathematically certain...these are the principles, but how the case actually develops could be significantly different...

Edit: By the way, in cases where the contract was silent as to specific times for performance, i.e., your contractor didn't give a specific time for restoring the painting, and Tesla didn't give a specific time for delivering FSD, believe it or not, the court will often look to "reasonable standards" of what the parties intended. In contracts, the parties' intentions are what control--that's why you put things in writing, so that there is no question what the intentions were. But if there are necessary and important terms missing, such as date for final performance, then the court could interpret a reasonable amount of time, based on the circumstances. This also plays into why a 2016 owner of FSD has a much better claim than a 2021 owner...

 

[EVNow]

But assuming none of that were true, the measure of your damages in the contractor scenario would be the cost of getting the painting restored by another contractor, subtracting the price your bad contractor agreed to....So for example, if your contractor couldn't or didn't get the job done as promised, then they're in breach. What are your damages? Well, what's the market rate for another contractor/painting restorer? Maybe you get quotes for $7k or $8k, in which case, your damages will be that difference ($8k - $5k=$3k).

But this doesn't usually apply to consumer products, of which cars and car features are a part. Either the consumer product meets the expectations of the common consumer or it doesn't. The focus is not so much on what proportion of FSD was delivered, but rather on the deceptive practice itself.

What if the restoration job is truly unique and there is absolutely no one else offering that service.

Exactly like the FSD. You just can't buy it from anyone else - because absolutely noone has been able to develop FSD yet.

I think the biggest deference in opinion here is whether the Tesla practice was deceptive or whether they genuinely believed they will be able to deliver FSD in the timeframe Musk was talking about. I believe Musk actually thought he could deliver FSD in shorter timespan. There are various tweets you can trace in the last three years which amply prove that - including things like offering George Holtz to reproduce what Tesla was getting from MobileEye for $1M (and George actually doing that, though Musk didn't agree he did).

ps :

Other things people completely ignore here are
- Tesla continues to spend Billions actively trying to develop FSD
- If Tesla can develop FSD, they can make Trillions, so it is in the best interest of Tesla to develop FSD as fast as possible
- The feature is truly unique and does not existing anywhere in the world with dozens of companies spending billions to try to develop the product

 

[gaspi101]

I think the biggest deference in opinion here is whether the Tesla practice was deceptive or whether they genuinely believed they will be able to deliver FSD in the timeframe Musk was talking about. I believe Musk actually thought he could deliver FSD in shorter timespan.

There is a legal construct called the "Reasonable Person." This person never jaywalks, never speeds, always mops up the floor in their restaurant the nanosecond someone spills liquid. It's a person that does not exist, except on paper, and the law requires everyone to be this person, and respond by paying damages when he or she is not. It's the standard by which the standard of conduct in negligence actions are measured. It's unrealistic and absurd, but it's the best system we have come up with since Napoleon.

In consumer protection cases like these (which are not negligence cases), that pesky Reasonable Person is back. Even if Musk actually believed the things he was saying, the law will require his beliefs to be reasonable. If it can be proven that his actual beliefs were unreasonable (put George Hotz on the stand!), then despite his genuine belief in his promises, Tesla would still be liable if a common consumer would have "reasonably relied" on them.

Consumer protection statutes usually protect the common consumer and their reasonable reliance upon promises made. It doesn't matter if the CEO of the product manufacturer genuinely and subjectively believes what they're saying. You have to create an objective standard, because otherwise, it would be impossible to prove a deceptive practice--proving someone's subjective mental state is really really really difficult, and these statutes are created to make things easier for consumers, and to make sure that manufacturers take care with what they say and promise. Good things all around.

 

[gaspi101]

ps :

Other things people completely ignore here are
- Tesla continues to spend Billions actively trying to develop FSD
- If Tesla can develop FSD, they can make Trillions, so it is in the best interest of Tesla to develop FSD as fast as possible
- The feature is truly unique and does not existing anywhere in the world with dozens of companies spending billions to try to develop the product

These are excellent observations. The law often does not catch up with justice. The rules we make up as laws are meant to approximate a just result in the maximum number of cases, based on the public policy of the day, and it sure ain't perfect. But in a lawsuit, you have to limit yourself to very specific facts which either support or do not support individual "elements" of a cause of action. Without getting too technical, the idea is that in a deceptive trade practice action or fraudulent misrepresentation action, you don't look to how much money they're spending to develop FSD, and you certainly don't look to see if other companies are doing any better. Consumer protection laws generally focus on specific instances of conduct--take a snapshot of time at the moment a particular promise made. Looking only at that time and at no other time, the court will consider, (1) Did the person making the promise reasonably believe they could perform that promise? And, (2) did the consumer reasonably rely on that promise? The first question, we've discussed. The second one, @rxlawdude appropriately addressed several times when discussing the concept of "puffery." There are a category of things that sellers of products can say that are not specific and material promises, and are instead statements which "no reasonable consumer would believe to be specific promises." Statements like "this is the mos refreshing drink in the world!" Long ago, there was an ad for Pepsi (I think?) where they showed a kid collecting bottle caps and then redeeming them for a harrier jet. Well, some guy sued because he collected a ton of bottle caps and wanted his harrier jet. Leonard v. Pepsico, Inc. - Wikipedia. "The court found that even if the advertisement had been an offer, no reasonable person could have believed that the company seriously intended to convey a jet worth roughly $23 million for $700,000, i.e., that it was mere puffery."

So despite all of the attending circumstances you list out, consumer protection lawsuits will generally concern themselves only with the specific representations made at the time they made them. Which means that sometimes, law suit results are terribly unfair. The law is far from perfect.

 

[EVNow]

In consumer protection cases like these (which are not negligence cases), that pesky Reasonable Person is back. Even if Musk actually believed the things he was saying, the law will require his beliefs to be reasonable. If it can be proven that his actual beliefs were unreasonable (put George Hotz on the stand!), then despite his genuine belief in his promises, Tesla would still be liable if a common consumer would have "reasonably relied" on them.

George Hotz is a well known "super programmer" - and you can listen to his podcast by Lex Fridman about his interaction with Musk. He runs his own FSD company now called comma.ai. Oh, he is the guy who first jailbroke iPhone.

George Hotz - Wikipedia

en.wikipedia.org

Consumer protection statutes usually protect the common consumer and their reasonable reliance upon promises made. It doesn't matter if the CEO of the product manufacturer genuinely and subjectively believes what they're saying. You have to create an objective standard, because otherwise, it would be impossible to prove a deceptive practice--proving someone's subjective mental state is really really really difficult, and these statutes are created to make things easier for consumers, and to make sure that manufacturers take care with what they say and promise. Good things all around.

No reasonable person would put all the money he made from Paypal into SpaceX and an EV company

One of the interesting things I read once was - the entire human advance has been made by extremely talented individuals (a tiny, tiny minority). Otherwise we'd all still be living in caves.

There is zero chance a "reasonable person", the way its used, could have know anything about FSD timelines. You would have to rely on SMEs and internal communication within Tesla to prove any kind of deceptive practice. The same way you don't use "reasonable person" perspective to figure out whether a neurosurgeon did the right thing.

ps : In 2018 I was describing how Tesla and other companies are trying to get to FSD to an engineering colleague. After listening for 10 minutes he said - "so we are going to get FSD next quarter ?". There is your "reasonable person"

 

[gaspi101]

One of the interesting things I read once was - the entire human advance has been made by extremely talented individuals (a tiny, tiny minority). Otherwise we'd all still be living in caves.

The Great Man theory of history. I am a firm believer of this, and I have no doubt Elon Musk is one such person. DaVinci, Alexander, Napoleon, Cesar, Einstein, Musk...leaps in advancement of civilization are often attributable to one man.

 

[EVNow]

Statements like "this is the mos refreshing drink in the world!" Long ago, there was an ad for Pepsi (I think?) where they showed a kid collecting bottle caps and then redeeming them for a harrier jet. Well, some guy sued because he collected a ton of bottle caps and wanted his harrier jet. Leonard v. Pepsico, Inc. - Wikipedia. "The court found that even if the advertisement had been an offer, no reasonable person could have believed that the company seriously intended to convey a jet worth roughly $23 million for $700,000, i.e., that it was mere puffery."

Interesting. Most people with some knowledge of FSD believed Musk's statements to be "puffery". Infact after the FSD day - the stock dropped. During the meeting not one person seem to believe what Musk was saying - not one analyst at that time (or now !) take robotaxi as a serious possibility for Tesla's future.

Infact, specifically this is what I believed and wrote here in a post in the month I bought FSD - March '19.

ps : I don't even consider robo taxis a near term possibility. We can come back to this issue in 2030 and see where we are.

ps : If you were defending Tesla, what arguments would you make ?

 

[gaspi101]

Interesting. Most people with some knowledge of FSD believed Musk's statements to be "puffery".

Infact, specifically this is what I believed and wrote here in a post in the month I bought FSD - March '19.



ps : If you were defending Tesla, what arguments would you make ?

Of course you‘re right about a lot of what Elon says and said. What about the Tesla website which over the years consistently listed the FSD features as “coming later this year.” Telsa only recently changed this . That’s surely not puffery. You can easily argue that this was plainly false advertising, and since it was in the description of features presented to you when placing an order, these were false statements made to induce purchases…

I think you’ll be hard-pressed to find a more avid Tesla fan than myself…but we can’t ignore reality…there are a lot of people that are unhappy and, I think, with good reason.