Defendant's Attorney:

Description: Newark, New Jersey consumer law lawyers represented the Plaintiffs who sued on a Magnuson-Moss Warranty Act violation consumer class action.

Plaintiffs Laura and James Sampson, Anthony Ventura and Joanne
Fulgieri Ventura, Elizabeth Wheatley, and Shirley Reinhard, on her own behalf and
on behalf of the Estate of Kenneth Reinhard, (“Plaintiffs”) bring this action for
themselves and on behalf of all persons in the United States who purchased or leased
any 2013-2021 Subaru equipped with an autonomous emergency braking (“AEB”)
system that includes “Pre-Collision Braking” and “Reverse Automatic Braking”
(“AEB Class Vehicles”) and on behalf of all persons in the United States who
purchased or leased any 2013-2021 Subaru equipped with Lane Keep Assist (“LKA
Class Vehicles”), against Subaru of America, Inc. (“SOA”) and Subaru Corporation,
formerly known as Fuji Heavy Industries, Ltd., (“Subaru Corp.”) (together with
SOA, “Subaru” or “Defendants”). The allegations herein are based on personal
knowledge as to Plaintiffs’ own experiences and are made as to other matters based
on an investigation by counsel, including analysis of publicly available information.

Autonomous emergency braking systems are one of the most highly
touted advancements in automobile safety. As described by Consumer Reports, with
AEB systems installed, “[t]he vehicle stops independently when it senses a crash is
imminent to avoid a crash, or to reduce the severity of a crash that can’t be avoided.”1
Forward-oriented systems activate when the car is driving forward, and rearwardoriented
systems activate when the car is in reverse.2 When working properly, these
systems are intended to reduce the incidence of collisions and the resultant injuries.

Subaru’s Pre-Collision Braking, along with Lane Keep Assist, is a part
of the “EyeSight Driver Assist Technology” suite of safety features. As described
by Subaru on its website3:

Omitted

As further described by Subaru, Pre-Collision Braking, a forwardoriented
system, “helps you avoid or reduce frontal impacts by alerting you and
applying full braking force in emergency situations,” and “can even bring you to a
full stop if necessary.”4 Similarly, Reverse Automatic Braking, a rearward-oriented
system, “senses objects behind your Subaru when backing up at a low speed and
applies the brakes when necessary.”

While Pre-Collision Braking relies on forward-facing cameras to
monitor the area in front of the vehicle, Reverse Automatic Braking relies on 4 ultrasonic
sensors, or radar, to detect objects behind the vehicle. For both systems, if an
obstacle is detected, the system is supposed to sound an alarm and flash a warning,
and then activate the brakes if the driver does not do so.

The front cameras are also employed by other EyeSight features,
including Lane Keep Assist. The cameras are supposed to monitor the road for lane
markings and sound alarms if the vehicle strays over the lines or sways between
them. If the driver does not respond quickly enough, Lane Keep Assist is supposed
to correct the vehicle’s steering to keep the vehicle in the lane.

Subaru has widely disseminated within the United States advertising
alleging the superior safety of its EyeSight-equipped vehicles. Subaru particularly
emphasized the Pre-Collision Braking or forward AEB system described infra.
Indeed, Subaru’s car commercials have become ubiquitous on television, promising
consumers piece of mind that is said to come from Subaru’s superior commitment
to safety and development of the EyeSight systems, which can allegedly prevent
your family from needing medical care or keep your easily distracted and
inexperienced teenaged driver safe.

For these systems to work as intended and advertised, Subaru is
responsible for ensuring that its suppliers manufacture the component systems
correctly and that they are installed properly at the factory. Subaru is also
responsible for ensuring that the AEB System itself has adequate programming to
handle real-world driving conditions and that the components systems communicate
properly with one another. For example, the front-facing cameras or the rear-facing
sensors must communicate information to the braking system and the ABS Control
Module to apply the brakes, they must communicate with the Transmission Control
Module (“TCM”) to shift the car into the proper gear, and they must communicate
with the Engine Control Module (“ECM”) to limit power from the engine so that car
is no longer propelled forward if the system. Calibrating these systems to work
together properly is Subaru’s responsibility.

Subaru failed to inform Plaintiffs and members of the AEB Class
(defined below in Class Action Allegations) before or during the time of sale that
the AEB systems in Class Vehicles have manufacturing and workmanship defects
including but not limited to poor calibration of the software from multiple control
modules, including the ABS Control Module, such that they are prone to activating
the brakes when there are no objects in front of the vehicle and/or behind the vehicle
when it is backing up. The AEB systems also sometimes fail entirely to activate
when there are persons or objects in motion in front of the vehicle. This occurs due
to miscommunication between all the systems involved in automatic braking,
including the sensors, the brakes, and the transmission (the “AEB System Defect”).
The AEB System Defect prevents the AEB Class Vehicles from behaving as
designed and advertised in real-world driving conditions.

As a result of the AEB System Defect, AEB Class Vehicles will
abruptly slow down or stop entirely without driver input when there are no obstacles
Case 1:21-cv-10284-RMB-KMW Document 1 Filed 04/27/21 Page 5 of 187 PageID: 5
in front of or behind the vehicle. This presents a clear-cut safety hazard, increasing
the chances of a collision.

Conversely, the AEB System also fails to activate in the situations it
was designed to detect and mitigate, such as when a pedestrian or vehicle stops
abruptly in front of or behind the AEB Class Vehicle. Thus, the AEB System Defect
makes the AEB System unpredictable and makes driving the vehicle unsafe. At the
same time, the defect renders the system useless when it is most needed.

The Lane Keep Assist feature is also defective. Subaru also failed to
disclose to Plaintiffs and the members of the LKA Class, before or at the time of
sale, that the Lane Keep Assist feature in LKA Class Vehicles has design,
manufacturing and/or workmanship defects including but not limited to poor
calibration of the software from multiple control modules, including the Power
Steering Control Module, such that they attempt to correct the vehicle’s steering
when the driver is trying to change lanes, is driving on a road with construction
barriers, or if the road has multiple lines due to construction. Further, the Lane Keep
Assist system will malfunction and shut down entirely while the vehicle is motion
and cannot be used again until the car is restarted (the “LKA Defect” and, together
with the AEB System Defect, the “Defects”). The LKA Defect prevents the Class
Vehicles from behaving as designed and advertised in real-world driving conditions.
Case 1:21-cv-10284-RMB-KMW Document 1 Filed 04/27/21 Page 6 of 187 PageID: 6

As a result of the LKA Defect, the Lane Keep Assist system in the LKA
Class Vehicles jerks the steering wheel without cause. Moreover, the system
prevents the vehicle from change lanes and even steers the vehicle into other
vehicles. On other occasions, it simply fails to function completely. Thus, the LKA
Defect makes the Lane Keep Assist feature makes driving the vehicle unsafe and the
operation of vehicle unpredictable for members of the LKA Class.

Based on pre-production testing, including design failure mode
analysis, quality monitoring team data, quality control audits, early warranty claims,
replacement part orders, and consumer complaints to Subaru’s authorized network
of dealers, as well complaints to NHTSA, Defendants were aware of the Defects in
the Class Vehicles as early as 2012. Despite being aware of the Defects and
numerous complaints, Subaru knowingly, actively, and affirmatively failed to
disclose the Defects. Further, Defendants actively concealed the existence of the
Defects, including in advertising and manuals, which describe the EyeSight, “Pre-
Collision Braking”, Reverse Automatic Braking Systems and Lane Keep Assist.
Defendants did this to increase profits by selling additional Class Vehicles at inflated
prices.

Outcome: Settled

See: Subaru EyeSight Settlement

Plaintiff's Experts:

Defendant's Experts:

Comments: