Watching Ford follow Hyundai, Kia, Honda, and GM in getting hit with a class-action lawsuit over its cars’ advertised fuel economy, one wonders if the plaintiffs’ lawyers behind these actions have tried to figure out a way to sue the manufacturers of the metaphorical floodgates that are now open. This isn’t to suggest that Ford’s C-Max hybrid and Fusion hybrid, the vehicles at issue in the lawsuit, use as little fuel in the real world as their 47-overall-mpg EPA stats suggest. Even with lighter-footed drivers than those in the Car and Driver offices, C-Max and Fusion hybrids have fallen way short of the official EPA numbers, delivering 37 and 39 miles per gallon respectively to Consumer Reports. (Both returned fuel economy of 32 mpg in our testing). Our upside-down system for quantifying fuel economy makes this sound worse than it is—2.56 to 2.7 gallons per 100 miles instead of 2.13—but it’s a big drop.

Ford has, understandably, centered its C-Max and Fusion hybrid advertising on the cars’ EPA numbers. Both are rated at 47 mpg across the board—city, highway, and combined. The plaintiffs argue that Ford oversimplifies the EPA numbers in its ads: They don’t say that these are EPA-based estimates, or describe the EPA’s testing procedure, or that drivers probably won’t see comparable numbers driving these cars in the real world. Altogether, the plaintiffs say, the high numbers in the advertising led them to buy C-Max and Fusion hybrids when they otherwise wouldn’t have, to pay more for them than if the fuel-economy numbers were more accurate. And they all say they’ve used more fuel than they were promised they would.

But what cars don’t exhibit a gap between EPA estimates and real-world performance? For everyone who says their Honda Civic beats the 40-mpg-highway EPA number, there are three more who haven’t broken 30 yet. So many factors affect how much fuel a car needs—tires, road surfaces, temperature, driving style, driving conditions, elevation and atmospheric pressure, grade of fuel, and break-in of the engine, to name a few—it’s extremely difficult to come up with a widely applicable mileage estimate. We assume that Ford, like most automakers, to a certain extent “games” the EPA tests—they ensure their cars can meet certain parameters of the test even if those don’t have the biggest impact on real-world fuel economy. That’s a problem with the EPA’s regimen though, not a particular car company. Altogether, these are strong reasons to scrap the EPA fuel-economy estimations altogether. Until then, if the C-Max hybrid or the Hyundai Sonata are indeed rated at 47 miles per gallon on the EPA test cycle, the companies should be allowed to say so.

Lawsuits for Everybody!

At the point where so many automakers advertise heavily their EPA-estimated fuel-economy numbers, they’re nearly all exposed to similar lawsuits. How similar? The firm representing Ford owners left behind a reference to Hyundai in the brief it filed last week, a vestigial hangover from when the firm used the same text in a suit against Hyundai earlier this year. Most lawyers reuse pieces of litigation briefs, especially the boilerplate you see above—it’s the norm and it’s considered ethical—but it underscores just how much overlap we’re seeing in suits against carmakers.



One-hundred bucks was the cash payback for Honda owners included in a class-action suit settled last spring, who could also opt for a $1000 discount on a new Honda. (The plaintiffs’ attorneys scraped up $8 million in that settlement.) Typically, people who bought these cars see little more money. The benefit of class-action lawsuits in general, we hope, is that companies are punished for wrongdoing and deterred from taking advantage of people—particularly for amounts of money it’s otherwise not worthwhile to fight. There will definitely be some deterrent action as a result of this latest California Gold Rush of plaintiffs’ suits; perhaps carmakers will more-carefully word their advertising, or add stickers to showroom cars saying “You won’t match the EPA estimates.” But at the end of the day, we’ve got an EPA system that delivers unrealistic numbers, and an EPA that is on this topic almost impossible to sue.

By Justin Berkowitz

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