In a decision that could be useful to defendants in highly-regulated industries that face class action claims predicated on violations of federal law, a recent Sixth Circuit opinion confirmed that implied preemption applies to state-law claims predicated on violations of the EPA’s vehicle fuel economy and emissions regulations. This decision confirms the expansion of the implied preemption defense to a new industry, and may signal further expansions in the future. 

Background: What is Preemption?

Preemption is the idea that state law cannot interfere or conflict with federal law. It stems from the Supremacy Clause of the U.S. Constitution, which establishes that “the Laws of the United States . . . shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2.

Preemption has traditionally been used as an affirmative defense to support dismissal of state-law claims that plainly interfere with federal laws or regulations. Preemption may occur if a federal law contains an express preemption provision.  Preemption may also occur even in the absence of an express preemption provision, if a court concludes that a federal law implicitly preempts contrary state laws.

Implied preemption comes in two flavors: 1) field preemption, where federal law so occupies the field that Congress intended for no other laws to apply; and 2) conflict preemption, where a particular state law conflicts with federal law so that it is either impossible to fully comply with both, or, if not impossible, compliance with the state law would impose a significant obstacle to the purposes behind the federal law.

In recent years, defendants have sought to take advantage of one type of implied conflict preemption known as Buckman preemption, under which state-law claims that rest on an assumption that fraud was committed against a federal agency are preempted. In Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001), plaintiffs alleged injuries from defective bone screws that had been approved by the Food and Drug Administration (FDA). The Supreme Court found the state law claims preempted because they would “inevitably conflict with the FDA’s responsibility to police fraud consistently with the Administration’s judgment and objectives.” Id. at 350.

In re Ford Motor Co.

It is into the world of Buckman preemption that the Sixth Circuit stepped. In re Ford Motor Co. F-150 & Ranger Truck Fuel Economy Marketing & Sales Practices Litigation, 2023 WL 3029837 (6th Cir. Apr. 21, 2023), involves a putative class of consumers who claimed they were harmed by Ford’s allegedly false fuel economy and emissions testing figures for certain vehicles. Ford submitted these figures to the Environmental Protection Agency (EPA), and the EPA certified and published the results. The consumers claimed that, in essence, Ford committed fraud on the EPA, which in turn harmed them. They said that because the published fuel economy estimates were false, they were deceived into purchasing the vehicles, in violation of several state laws.

The Sixth Circuit determined that by claiming that Ford had committed fraud on the EPA in submitting false testing results, the consumers were necessarily alleging a violation of federal regulations. Yes, the claimants also asserted that Ford’s alleged misconduct violated state consumer protection laws, but the alleged violation of state law could not exist without the underlying claim of fraud on the EPA—in other words, the consumers’ claims that they were defrauded rest upon the assumption that the EPA was defrauded first. The consumers’ state-law claims therefore “essentially challenge the EPA’s figures,” and in doing so implicitly challenge the EPA’s process for reviewing, accepting, and publishing fuel economy results. The consumers’ claims thus “inevitably conflict” with the EPA’s regulatory regime, and the claims were preempted.

Implications

In the wake of Buckman, prior cases had already found that state-law claims resting upon fraud-on-a-federal-agency premises are impliedly preempted. See, e.g., Garcia v. Wyeth-Ayerst Laboratories, 385 F.3d 961 (6th Cir. 2004) (fraud on the FDA in the context of drug approval); Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010) (fraud on the FCC); Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199 (9th Cir. 2002) (fraud on the EPA in the context of pesticides). In re Ford continues the expansion of Buckman preemption to encompass alleged fraud on the EPA in the context of vehicle fuel economy and emissions regulations.

In re Ford confirms that Buckman preemption remains a powerful defense to claims that defendants’ violation of federal laws amount to a violation of state laws. But state claims that are parallel to—but do not wholly depend upon—the existence of fraud on a federal agency may be able to dodge Buckman preemption.

Photo of Simeon Botwinick Simeon Botwinick

Simeon Botwinick is an associate in the Washington, DC office. He handles trademark, copyright, and patent matters, with an emphasis on counseling and litigation, and has worked with clients in the pharmaceutical, automotive, typeface, and emergency service industries. Simeon’s pro bono practice focuses…

Simeon Botwinick is an associate in the Washington, DC office. He handles trademark, copyright, and patent matters, with an emphasis on counseling and litigation, and has worked with clients in the pharmaceutical, automotive, typeface, and emergency service industries. Simeon’s pro bono practice focuses on legal aid direct representation.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.