RUSSO v. BRP US INC (2024)

DECISION AND ORDER

Plaintiffs Michael Russo and Bruce Harrison bring this proposed class action against Bombardier Recreational Products, Inc., and BRP U.S., Inc. (collectively, “Bombardier”). Plaintiffs allege that Bombardier marketed three-wheel motorcycles known as “Rykers” as being equipped with anti-theft technology, but then allowed its dealers to sell Rykers to consumers while knowing that they were not so equipped. Each plaintiff purchased a Ryker that lacked anti-theft technology, and his Ryker was stolen as a result. Plaintiffs bring various legal theories under state law and the federal Magnuson-Moss Warranty Act (“MMWA”). Before me now are (1) defendants’ motion to dismiss certain legal theories alleged in the complaint and to strike plaintiffs’ class allegations, and (2) plaintiffs’ motion to restrict public access to the complaint.

I. BACKGROUND

According to the allegations of the complaint, Bombardier designs, manufactures, and sells three-wheel motorcycles with a unique “Y” architecture (two tires in the front, one in the rear) under the “Can-Am” brand. This lawsuit involves a Can-Am entry-level motorcycle—the Ryker—which is marketed towards beginner riders in an urban environment.

The complaint alleges that Bombardier and its dealers marketed the Ryker as being equipped with a digitally encoded security system (“DESS”) that uses an immobilizer and specifically programmed keys for each bike. According to Bombardier's representations, the DESS prevents a Ryker from starting unless the operator uses one of two keys that are sold with the bike. The complaint alleges that, in fact, the Rykers for model years 2021, 2022, and 2023 (the “Class Bikes”) were not equipped with DESS technology. The complaint alleges that this was due to supply-chain shortages associated with the COVID-19 pandemic, which prevented Bombardier from acquiring the microchips needed to implement the immobilizing technology. The complaint alleges that Bombardier knew that the Rykers for these model years were not equipped with DESS technology but helped its authorized dealers create advertising and other literature that represented to potential purchasers that all Rykers were so equipped.

The complaint alleges that, in the absence of the DESS technology, Rykers bikes are exceedingly easy to steal. Without the technology, “any Ryker key can start any Class Bike,” and thus “extra keys (or stolen keys) can be used to start (and steal) any Class Bike.” (Compl. ¶ 71.) Further, the complaint alleges that a thief can start a Class Bike by running a magnet across the ignition area. Thus, a thief does not even need a Ryker key to start a Class Bike and drive it away. (Id. ¶ 74.) The complaint alleges that users of social media have created posts demonstrating how easy it is to steal a Ryker that is not equipped with DESS technology. (Id. ¶¶ 72–73.)

Each named plaintiff alleges that he purchased a Ryker that was not equipped with the DESS technology, and his bike was stolen. Plaintiff Russo alleges that, on April 22, 2023, he purchased a new 2022 Can-Am Ryker Sport from a Bombardier authorized dealer in Cedarburg, Wisconsin. The dealer did not inform him that, despite representations in marketing materials and the owner's manual that the bike was equipped with DESS technology, it was not so equipped. At the time of his purchase, the dealer provided Russo with two DESS keys that were supposed to be specifically programmed to his motorcycle, but were not. On July 2, 2023 at 10:00 p.m., Russo drove his Ryker to work and parked the bike in the employee parking lot. Russo worked third shift, and about halfway through the shift, his coworker warned him of suspicious activity near his bike. When Russo arrived outside to investigate, he saw thieves driving away on his Ryker. After the theft, Russo read online that any Ryker key could be used to start any bike. Russo then went to his dealer to complain. To demonstrate the problem, he used his own Ryker key to start other Ryker bikes in the dealer's lot. However, neither the dealer nor Bombardier provided Russo with a remedy for his loss.

On April 13, 2023, plaintiff Harrison purchased a new 2023 Can-Am Ryker Sport from a Bombardier authorized dealer in Hallam, Pennsylvania. As in Russo's case, the dealer did not inform Harrison that, despite representations in marketing materials and the owner's manual that the bike was equipped with DESS technology, it in fact was not so equipped. At the time of his purchase, the dealer provided Harrison with two DESS keys that were supposed to be specifically programmed to his motorcycle, but were not. Less than two months after purchasing the Ryker, the bike was stolen from Harrison's home. Harrison called the dealer and asked how his bike could have been stolen if, as the dealer had told him at the time of purchase, the keys he received were the only keys capable of starting the bike. The dealership employee informed Harrison that the dealership was aware of recent thefts of Class Bikes and that the dealership itself had recently experienced thefts from its own inventory. However, neither the dealer nor Bombardier provided Harrison with a remedy for his loss.

Harrison and Russo commenced this action against Bombardier to obtain compensation for the loss of their bikes. In addition, they propose to represent a nationwide class of all current and former owners of Class Bikes, and subclasses for all owners who purchased their bikes in Wisconsin and Pennsylvania. Plaintiffs seek damages and injunctive relief on behalf of the proposed classes. Plaintiffs organize their legal theories into eight counts: (1) breach of express warranty, (2) breach of the implied warranty of merchantability, (3) violation of the Magnuson-Moss Warranty Act, (4) statutory fraud under Wisconsin law, (5) violation of Wis. Stat. § 100.18, which is part of Wisconsin's deceptive trade practices act, (6) violation of Wis. Stat. § 100.20, a different part of the deceptive trade practices act, (7) violation of Wisconsin's motor vehicle dealer law, and (8) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Defendants have filed a motion to dismiss certain of the legal theories identified in the complaint. In the same motion, defendants move to strike plaintiffs’ class allegations and to strike their requests for injunctive relief and punitive damages. I address defendants’ motion in this order.

In addition to the motion to dismiss, I address plaintiffs’ motion to restrict public access to the complaint. Plaintiffs filed this motion because they are concerned that the complaint will further disseminate knowledge of how easy it is to steal a Class Bike, which might facilitate additional thefts.

II. DISCUSSION

A. Subject-Matter Jurisdiction Over MMWA Claims

Defendants contend that this court lacks subject-matter jurisdiction over plaintiffs’ claims under the Magnuson-Moss Warranty Act (“MMWA”). A suit under the MMWA may be brought in either state or federal court, but the Act makes the federal jurisdiction it confers subject to three conditions: (1) the amount in controversy of any individual claim must be greater than or equal to $25, (2) the aggregate value of all claims in the suit must be greater than or equal to $50,000, and (3) if the case is brought as a class action, there must be at least 100 named plaintiffs. 15 U.S.C. § 2310(d)(3). Here, the case is brought as a class action, but there are fewer than 100 named plaintiffs. Thus, the MMWA does not confer original jurisdiction. However, the court has subject-matter jurisdiction over the state-law claims at issue in this case under the amendments to the diversity jurisdiction made by the Class Action Fairness Act of 2005 (“CAFA”). See 28 U.S.C. § 1332(d). Plaintiffs contend that jurisdiction under CAFA extends to the MMWA claims and that, in any event, the court has supplemental jurisdiction over the MMWA claims under 28 U.S.C. § 1367 because the MMWA claims form part of the same case or controversy as the state-law claims. Defendants dispute that CAFA and the supplemental jurisdiction provide grounds for exercising jurisdiction over the MMWA claims.

I recently addressed these exact issues in detail in a different case. See In re Generac Solar Power Sys. Mktg., Sales Practices, and Products Liab. Litig., ––– F. Supp. 3d ––––, 2024 WL 2504032 (E.D. Wis. 2024). There, I concluded that both CAFA and § 1367 can be used to confer federal jurisdiction over an MMWA claim when the requirements of the MMWA's own jurisdiction-conferring provision are not met. For the reasons I gave in the Generac case, defendants’ motion to dismiss the MMWA claims for lack of subject-matter jurisdiction will be denied.

B. Motion to Strike Class Allegations

In moving to strike plaintiffs’ class allegations, defendants do not rely on Federal Rule of Civil Procedure 12(f), which is the part of the Civil Rules that governs motions to strike. The rule provides that a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Instead, defendants use their motion to strike to raise the issue of whether plaintiffs’ claims can be certified for class treatment under Federal Rule of Civil Procedure 23. In other words, defendants ask me to determine, based on the pleadings alone, that no class could be certified in this case.

Although federal courts have entertained motions to strike class allegations, see Donelson v. Ameriprise Fin. Servs., Inc., 999 F.3d 1080, 1091–92 (8th Cir. 2021); Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011), they are potentially problematic and should be granted only in limited circumstances. To begin with, there is no federal class-action pleading standard akin to Rule 8 of the Civil Rules. Defendants have not cited, and I have not found, authority holding that a proposed class representative must plead anything in particular to maintain the action as a proposed class action. To be sure, we can assume that a plaintiff must plead that she intends to represent a class, so that the court and the defendant are advised of the nature of the action. But a plaintiff does not have to plead all the facts and circumstances that might demonstrate that class certification is warranted. Rule 23 does not require fact pleading. See Nix v. Fulton Lodge, Nos. 10463 & 13818, 1970 WL 788, at *3 (N.D. Ga. Nov. 16, 1970); cf. Chapman v. Yellow Cab Coop., 875 F.3d 846, 849 (7th Cir. 2017) (noting that the Civil Rules do not create “a fact-pleading or code-pleading system”). Because the facts relevant to class certification are not limited to those alleged in the complaint, a court will rarely be in a position to decide class certification at the pleading stage. See Bryant v. Food Lion, Inc., 774 F. Supp. 1484, 1495 (D.S.C. 1991). Nevertheless, if the complaint clearly shows that a motion to certify the proposed class would be futile, then a court may resolve the issue of class certification in the context of a motion to strike. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1383 (3d ed. 1998) (“It seems like the sensible approach here is to permit class allegations to be stricken at the pleading stage—in part or in their entirety—if it is apparent from the pleadings that the class cannot be certified or that the definition of the class is overbroad.”).

Here, defendants argue that the proposed nationwide class of all current and former Class Bike owners, and the proposed subclasses of current and former owners from Wisconsin and Pennsylvania, cannot be certified because plaintiffs cannot satisfy Rule 23(b)(3)’s predominance requirement.¹ At the outset, however, I note that a Rule 23(b)(3) class is only one of the three “types” of class actions available under the Civil Rules. Plaintiffs also propose to certify classes under subsections (b)(1) and (b)(2) of Rule 23. (Compl. ¶¶ 155–56.) Defendants have not attempted to show that class certification under these subsections would be impossible. For this reason alone, defendants’ motion to strike must be denied.

But defendants have also not convinced me that class certification under Rule 23(b)(3) is impossible. Defendants contend that plaintiffs cannot satisfy the predominance requirement for the proposed nationwide class because the warranty laws of the 50 states will differ. Defendants note that different states take different approaches to things like privity and notice requirements, whether a buyer must rely on a representation before it becomes an express warranty, and the definition of merchantability. While this may be true, at this stage of the case it is premature to find that any differences in state law will matter to the outcome of the class's claims. In the language of choice of law, any apparent conflict among the states’ laws may prove to be a “false conflict.” In re Air Crash Disaster Near Chicago, Ill., 644 F.2d 594, 605 & n.2 (7th Cir. 1981). Further, even if there are true conflicts, it would be premature to say that the differences cannot be accounted for through the creation of subclasses, see Fed. R. Civ. P. 23(c)(5), or by certifying a class on only certain issues, see Fed. R. Civ. P. 23(c)(4). Indeed, the Seventh Circuit has recognized that complications arising from separate state warranty laws can be handled through the creation of subclasses. Butler v. Sears, Roebuck & Co., 727 F.3d 796, 802 (7th Cir. 2013). Accordingly, it is premature to find that differences in state law will preclude certification of a nationwide class.²

As for the Wisconsin and Pennsylvania subclasses, defendants contend that the subclasses’ express-warranty and statutory theories cannot be certified because individualized issues of reliance will predominate over any common issues. Here, defendants focus on the reliance element that courts sometimes employ when determining whether a particular statement by the seller qualifies as an express warranty. This element, when used, relates to the question of contract formation: did the seller's statement induce the buyer to purchase the product, such that it became part of the basis of the parties’ bargain? See Wis. Stat. § 402.313 (Wisconsin version of UCC 2-313); 13 Pa. Cons. Stat. § 2313 (Pennsylvania version). Here, plaintiffs allege that the DESS technology was listed as a standard feature of the Rykers they purchased, including in the operating manual that was furnished with each bike. (Compl. ¶¶ 4, 47, 81–84.) If these allegations are true, then the seller promised that the buyer would receive the technology, and the failure of the seller to provide it would be a breach of contract. Proof of individualized reliance is unnecessary under these circumstances, since a promise to supply the product's standard features would be part of the parties’ sales contract, and a party need not prove reliance to prevail in an action for breach of contract. See Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 25 (Pa. 2011) (party does not have to read express warranty and rely on it to maintain an action for breach of that warranty); see also Pagoudis v. Keidl, 406 Wis. 2d 542, 554 (2023) (elements of breach of contract claim are (1) existence of a contract, (2) breach, and (3) damages).³ Thus, based on the pleadings alone, I cannot say that a motion to certify the Wisconsin and Pennsylvania subclasses would be futile.

Finally, defendants contend that a Rule 23(b)(3) class could not be certified because plaintiffs cannot demonstrate that damages are capable of measurement on a classwide basis. See Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013). Defendants note that the proposed classes include not just those whose bikes were stolen due to the lack of DESS technology, but any person who owned a Class Bike at any time. The classes thus include those who purchased a Class Bike, rode it without incident, and then sold it used. In their opening brief, defendants questioned how damages could be calculated uniformly for all class members. In response, plaintiffs offered a common damages theory. They argued that Bombardier's failure to include the promised DESS technology with each bike made each bike worth less than what each plaintiff paid for it. In other words, had Bombardier disclosed how easy it would be to steal a Ryker, no plaintiff would have paid the price he or she did at the point of sale. According to plaintiffs, the difference in value between a Ryker equipped with anti-theft technology and a Ryker that is exceedingly easy to steal can be computed uniformly for each class member through expert testimony. This difference in value would represent the damages owed to each class member.

In their reply brief, defendants do not address plaintiffs’ proposed damages theory or attempt to show that it is untenable. At this stage of the case, and with no briefing by defendants on the question, I am in no position to conduct the “rigorous analysis” necessary to determine whether plaintiffs’ damages theory is viable. Comcast, 569 U.S. at 35. Accordingly, the alleged lack of a classwide damages theory does not provide grounds for striking plaintiffs’ class allegations.

C. Motion to Dismiss Legal Theories/Strike Requested Relief

1. Rule 12(b)(6) standards

Defendants next move to dismiss some of the specific legal theories mentioned in the complaint and plaintiffs’ requests for injunctive relief and punitive damages. Notably, defendants do not dispute that the complaint adequately states a “claim,” that is to say, a grievance. See ACF 2006 Corp. v. Mark C. Ladendorf, Attorney at Law, P.C., 826 F.3d 976, 981 (7th Cir. 2016). Plaintiffs’ grievance is that they purchased Rykers bikes that did not come with a promised standard feature (DESS technology), and their bikes were stolen as a result. Defendants do not contend that this grievance fails to state a claim for relief under some legal theory, such as breach of express warranty. Although they were not required to do so, see Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992), plaintiffs organized their complaint into eight separate “counts.” Defendants’ motion targets certain of those counts. The counts, however, are not independent “claims” that are distinct from plaintiffs’ single grievance arising from their purchasing bikes that, unbeknownst to them, lacked the promised DESS technology. Instead, they are the multiple legal theories under which plaintiffs might obtain relief. See ACF 2006 Corp., 826 F.3d at 981. Because plaintiffs are not required to plead legal theories in the complaint, see id., dismissal of the counts could not result in dismissal of plaintiffs’ complaint.

Still, on a motion to dismiss, a court can resolve pure legal questions that relate to the pleaded facts. See Lott v. Levitt, 556 F.3d 564, 569 (7th Cir. 2009). Relatedly, if a plaintiff pleads facts that show he cannot prevail on a specific legal theory, the court may dismiss the theory on the ground that the plaintiff has pleaded himself out of court. See Shott v. Katz, 829 F.3d 494, 497 (7th Cir. 2016). But because a plaintiff does not need to plead facts that correspond to every element of a cause of action, a court may not reject a legal theory at the pleading stage simply because the plaintiff did not plead a fact that he must prove to prevail on that theory at trial. See Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022); Chapman v. Yellow Cab Coop., 875 F.3d 846, 848 (7th Cir. 2017) (same).

With these standards in mind, I turn to defendants’ arguments for dismissal of certain counts.

2. Count II: Breach of Implied Warranty of Merchantability

Defendants move to dismiss Count II of the complaint, which alleges that the sale of Rykers without DESS technology amounted to a breach the implied warranty of merchantability. Defendants contend that, as a matter of Wisconsin and Pennsylvania law, the bikes were merchantable even though they were not equipped with anti-theft technology.

Both Wisconsin and Pennsylvania law have adopted section 2-314 of the Uniform Commercial Code relating to the implied warranty of merchantability, see Wis. Stat. § 402.314; 13 Pa. Cons. Stat. § 2314, and the parties do not point to any differences in how these states would apply their implied-warranty law to the facts of this case. Thus, for ease of exposition, I will cite only Wisconsin's version of the UCC and the Wisconsin cases interpreting it.

Under the UCC, unless disclaimed or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Wis. Stat. § 402.314(1). In their motion to dismiss, defendants accept the complaint's allegations that they are merchants with respect to the Rykers bikes and challenge only the allegation that the bikes were not merchantable. As is relevant here, to be merchantable, goods must pass without objection in the trade and be fit for the ordinary purposes for which they are used. Id. § 402.314(2)(a) & (2)(c). Defendants point to cases applying this definition to motor vehicles and holding that a vehicle is “generally considered merchantable” when it can “provide safe, reliable transportation.” Taterka v. Ford Motor Co., 86 Wis. 2d 140, 146 (1978). Defendants contend that the lack of anti-theft technology did not render the Rykers unsafe or unreliable, and that therefore the Rykers must be deemed merchantable.

I agree with defendants that, to be merchantable, a vehicle does not have to be theft-proof. However, the complaint does more than allege a failure to sell a theft-proof vehicle. The complaint alleges that the Rykers were sold in a configuration that made them unusually easy to steal. Without the DESS microchip, any Ryker key could be used to start any Ryker bike. (Compl. ¶ 71.) Further, the lack of a DESS microchip allowed a thief to start a Ryker bike using an ordinary magnet. (Id. ¶ 74.) If these allegations are true, then the Rykers bikes might not have been merchantable. Although a vehicle may be merchantable even if it is not theft-proof, at some point the ease with which a bike can be stolen may make it incapable of providing reliable transportation. If the risk of theft is high enough, then it would be unwise for an owner of a Rykers to park it in an area accessible to the public. That, in turn, would severely limit an owner's ability to use the vehicle for its ordinary purpose of providing transportation. Accordingly, because the complaint does not plead facts establishing that the Class Bikes were merchantable, I will not dismiss plaintiffs’ breach-of-implied-warranty theory.

3. Count VI: Violation of Wisconsin Direct Marketing Law

In Count VI of the complaint, plaintiff Russo alleges that defendants violated Wisconsin's direct-marketing regulations, which are designed to protect consumers from deceptive trade practices in telephone, email, fax, mail, and door-to-door transactions. See https://datcp.wi.gov/Pages/Publications/DirectMarketing242.aspx (last visited June 12, 2024). The regulations appear in the Wisconsin Administrative Code, and are promulgated by the Department of Agriculture, Trade, and Consumer Protection (“ATCP”). See Wis. Admin. Code Ch. ATCP 127. An injured consumer may bring an action for damages for violation of the ATCP regulations under Wis. Stat. § 100.20(5). See Kaskin v. John Lynch Chevrolet-Pontiac Sales, Inc., 318 Wis. 2d 802, 808–09 (Ct. App. 2009). In the present case, plaintiff Russo alleges that defendants violated the ATCP regulations that relate to “face-to-face transactions” by making misleading representations about the Rykers and by failing to make certain required disclosures. See Wis. Admin. Code §§ ATCP 127.64(1)(c) & 127.72(4)–(7), (15).

Defendants move to dismiss Count VI on the ground that Russo alleges that he purchased his Ryker at a dealership in Cedarburg, Wisconsin, rather than directly from Bombardier (Compl. ¶¶ 87–88, 280) and has therefore pleaded himself out of court on any claim that he and Bombardier entered into a face-to-face transaction. In response to this argument, plaintiff states that he intends to prove that the dealer was Bombardier's agent, and that therefore his face-to-face transaction at the dealership falls within the scope of the ATCP regulations. Defendants dispute that the dealer was Bombardier's agent, but I may not decide this issue based on the pleadings alone. Plaintiff was not required to plead facts corresponding to every element of his claim in the complaint, Zimmerman, 25 F.4th at 493, and therefore the failure to plead facts establishing an agency relationship is not fatal.

Nonetheless, plaintiff's agency theory points to a more fundamental problem with this claim. The relevant direct-marketing regulations apply only to door-to-door sales and other forms of marketing that take place away from the seller's regular place of business. See Wis. Admin. Code § ATCP 127.60 (defining face-to-face transaction as requiring a face-to-face “solicitation”); id. § ATCP 127.01(22) (defining “solicitation” as “a communication received by a consumer at a place other than the seller's regular place of business”). A sale made at a dealership would be made at the dealer's regular place of business. Further, if the dealer were acting as Bombardier's agent, then the dealership would be a regular place of business for Bombardier, too. More to the point, the sale of a motorcycle at a motorcycle dealership is simply not direct marketing. As noted, the direct-marketing regulations target things like phone, mail, and door-to-door solicitations, not sales made at stores and other retail outlets. The former marketing practices are susceptible to abuses and, for that reason, have been subject to regulation under laws similar to Wisconsin's ATCP Chapter 127. See Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 705–06 (1992) (Kennedy, J., concurring) (discussing direct-marketing regulations and the reasons for them); Breard v. City of Alexandria, La., 341 U.S. 622, 626–28 (1951) (same). Unsurprisingly, plaintiff has not cited, and I have not found, any Wisconsin cases applying the ATCP Chapter 127 regulations to sales made at a retail store or a dealership.⁴

In short, because a sale made at a dealership is not direct marketing, plaintiff's legal theory under Wis. Stat. § 100.20(5) and the ATCP regulations fails as a matter of law. Accordingly, I will dismiss Count VI of the complaint.

4. Punitive damages under Pennsylvania consumer-protection law

Defendants next move to strike plaintiff Harrison's prayer for punitive damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Defendants do not argue that plaintiff's legal theory based on the Pennsylvania law fails, only that, even if he eventually prevails, he would not be entitled to punitive damages. Defendants note that an intermediate appellate court in Pennsylvania has stated that punitive damages are not available under the consumer-protection law, see Richards v. Ameriprise Fin., Inc., 152 A.3d 1027, 1039–40 (Pa. Super. Ct. 2016), and they contend that I am bound by that decision under Erie Railroad v. Tompkins, 304 U.S. 64 (1938). Plaintiffs contend that it is premature to decide the punitive-damages issue and that it is possible that the Pennsylvania Supreme Court will disagree with the decision of the intermediate appellate court.

I agree that it would be premature to decide this issue. Under Erie, I must attempt to predict how the state's highest court would answer the question presented. See Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 635 (7th Cir. 2002). This is a difficult task that has the potential to unduly interfere with the development of state law. See id. at 637–38. Although the decision of the state's intermediate appellate court can be controlling, that is not a foregone conclusion, since the federal court may conclude that there are convincing reasons for thinking that the state's highest court would disagree with the lower court. See Mitchell v. Dunham Enters., Inc., 99 F.4th 978, 987 (7th Cir. 2024). Further, there is little benefit to deciding the punitive-damages issue at such an early stage of the case. The Pennsylvania consumer-protection theory might fail on the merits prior to trial, and therefore the issue might never need to be decided. Accordingly, I will not strike the prayer for punitive damages.

5. Injunctive relief

Finally, defendants move to strike plaintiffs’ prayer for injunctive relief. In their prayer, plaintiffs request that I (1) enjoin defendants from continuing to misrepresent and conceal material information about the lack of DESS technology, and (2) require defendants to repair, recall, and/or replace the Class Bikes or provide the class with notice of the lack of DESS technology. Defendants contend that they have already issued service bulletins to their dealers about the problem, and that the dealers are in the process of issuing properly functioning DESS keys to Ryker owners free of charge. Thus, defendants contend, their voluntary conduct has rendered the request for injunctive relief moot.

Defendants frame their mootness argument in terms of standing under Article III. However, the named plaintiffs unquestionably have standing to prosecute this case because they seek damages to redress their economic injuries. See Fed'n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (“a defendant's change in conduct cannot render a case moot so long as the plaintiff makes a claim for damages”). Indeed, because the named plaintiffs’ Rykers were stolen before they commenced this suit, they never had standing to pursue the requested injunctive relief. See Town of Chester, N.Y. v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017) (plaintiff must demonstrate standing for each form of relief sought). At most, then, the request for injunctive relief is a placeholder on behalf of members of the proposed class who still own their bikes. Thus, the propriety of injunctive relief is an issue relevant only to class certification and to the relief that might be awarded to a certified class. It does not affect this court's jurisdiction to address the named plaintiffs’ individual claims for damages. As discussed above, it is premature to address issues relating to class certification, and therefore I will not address defendants’ mootness argument at this time. Defendants may renew this argument, if appropriate, at the class-certification stage.

D. Motion to Restrict Access to Complaint

Plaintiffs filed the original complaint under seal to avoid further disseminating information about how easy it is to steal Class Bikes. Although the complaint does not contain any information that has not already been made public, plaintiffs are concerned “about placing in the public sphere a complete, unredacted version of the Complaint, which consolidates much of the relevant information in the same place.” (ECF No. 2, ¶ 7.) Plaintiffs do not propose to keep the entire complaint under seal indefinitely. Instead, they ask that it remain sealed until the parties and the court “reach a consensus about what should and should not be made public.” (Id. ¶ 8.)

Although I appreciate plaintiffs’ concern, at this point I can see little benefit to keeping the complaint sealed. The parties have already discussed in their briefs the ways in which the Class Bikes are vulnerable to theft. Those briefs were not filed under seal or redacted. Further, I have described the same information in this opinion, which will be published. The complaint does not contain additional details that might aid a potential thief. While the complaint refers to various online videos and social media posts that demonstrate how easy it is to start a Class Bike using any Rykers key, the demonstrations merely illustrate the problem. They do not offer a potential thief any new information that might help them steal a bike beyond what the parties have already disclosed in their briefs. In any event, if the information is available on social media sites, then potential thieves are likely to find it regardless of whether the complaint remains sealed. Accordingly, the public's right to review the parts of the record that influenced my decision on the motion to dismiss outweighs any danger of increased motorcycle theft. See Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). Plaintiffs’ motion to restrict the public's access to the complaint will be denied.

III. CONCLUSION

For the reasons stated, IT IS ORDERED that defendants’ motion to dismiss certain legal theories alleged in the complaint and to strike plaintiffs’ class allegations (ECF No. 8) is GRANTED IN PART and DENIED IN PART. The motion is granted to the extent that Count VI of the complaint is dismissed. In all other respects, the motion to dismiss is denied.

IT IS FURTHER ORDERED that plaintiffs’ motion to restrict public access to the complaint (ECF No. 2) is DENIED. The Clerk of Court shall make the complaint accessible to the public.

FOOTNOTES

1.   Rule 23(b)(3) provides in relevant part that the court must find that “the questions of law or fact common to the class members predominate over any questions affecting only individual members.”

2.   Defendants rely on Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 674 (7th Cir. 2001), in which the Seventh Circuit observed that choice-of-law problems may make certification of a nationwide class on a breach-of-warranty theory difficult. Notably, however, the court did not conclude that these problems were insurmountable; instead, it remanded the case to the district court to resolve the factual and legal disputes surrounding class certification. Id. at 678. Thus, Szabo does not hold that certification of a nationwide warranty class is impossible.

3.   Some Wisconsin Court of Appeals cases list “reliance by the buyer” as an “element” of an express warranty. See, e.g., Malzewski v. Rapkin, 296 Wis. 2d 98, 109 (Ct. App. 2006). The cases that mention this reliance element cite other cases that ultimately trace back to a Wisconsin Supreme Court case interpreting the express-warranty provision of the Uniform Sales Act, the precursor to Article 2 of the Uniform Commercial Code. See Acme Equip. Corp. v. Montgomery Co-op. Creamery Ass'n, 29 Wis. 2d 355, 359 (1966). The Sales Act provided that a statement by the seller became an express warranty if, among other things, “the buyer purchase[d] the goods relying thereon.” Id. (quoting Wisconsin's version of the Uniform Sales Act). This shows that the reliance element, when used, relates to contract formation, not to the enforceability of any express warranties that were made.

4.   Plaintiff suggests that any sales made away from Bombardier's “corporate offices” is a sale made at a place other than its regular place of business. (Br. in Opp. at 37.) But if the dealer were Bombardier's agent, then the dealership's regular place of business would also be Bombardier's, just like every location of a chain retailer would be the retailer's regular place of business even though the retailer also maintained a separate corporate headquarters. Thus, plaintiff's distinction between the dealership and Bombardier's corporate offices does not save his claim.

LYNN ADELMAN, United States District Judge