in subparagraphs (A) and (B) of section 2310(d)(3). It asserts, however, that plaintiffs' number must be reduced by those whose braking problems first manifested themselves after the expiration of the manufacturer's express warranty limits, and, because the implied warranty claims available under the Act are defined as those arising pursuant to "an implied warranty arising under state law," 15 U.S.C. § 2301(7), by those whose states' privity requirements would place GM beyond the reach of their implied warranty claims.
Defendant places chief reliance on Walsh v. Ford Motor Co., supra, in support of its argument that plaintiffs have failed to assemble the 100 or more of their kind having viable warranty claims necessary to jurisdiction under the Act. In Walsh the court held that, in order to present a claim to be validly counted toward the Magnuson-Moss Act's minimum numerical requirement for class action status, each alleged defect must have been discovered within the express warranty period prescribed by the manufacturer. 588 F. Supp. at 1536. To hold otherwise, the court reasoned, would be to enable a "latent defect" theory to be used to circumvent altogether the manufacturer's limits on its express warranty and "place an undue burden on the manufacturer. [It] would, in effect, be obliged to insure that a vehicle it manufactures is defect-free for its entire life." Id.; accord, Abraham v. Volkswagen of America, Inc., 103 F.R.D. 358, 362 (W.D.N.Y.1984).
The reasoning of Walsh is not, however, applicable to the present case. Plaintiffs here contend that GM knew the X-car braking system of its X-cars concentrated excess braking force on the rear axle at the time the vehicles left the assembly line but nevertheless failed either to rectify the situation or to disclose it to their purchasers. Complaint paras. 8, 12-16. Thus, plaintiffs charge, the defect did not remain "latent" until the vehicles first exhibited control problems for the drivers, but, rather, was patent -- at least to GM -- in the sense that, as each automobile was sold, it exposed the owner (and the public) to the potential of a loss of vehicle control.
It was the time of the sales, therefore, that plaintiffs maintain the loss for which they make claim here -- the diminished value of the cars they purchased -- was incurred, for it was then that GM broke its warranty that the brakes would function safely, and that the automobiles were merchantable and fit for the purpose of providing the ordinary transportation plaintiffs expected of them.
It appearing, therefore, that there are at least 100 plaintiffs here who, as purchasers of new X-cars, allege viable express warranty claims, it becomes unnecessary to decide, for purposes of the instant motion, whether certain implied warranty claims which arguably fail to meet state privity-of-contract rules must be subtracted in calculating the required numerosity of the plaintiff class representatives. For, as the court stated in Walsh :
Although . . . claims for breach of implied warranty are separate and distinct causes of action, [the court] fails to see why that would require a plaintiff to assemble 100 or more individuals on each claim, before jurisdiction would take hold.