Products Liability Law Daily CarMax, other dealers settle FTC charges of inadequate safety recall disclosures
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Friday, December 16, 2016

CarMax, other dealers settle FTC charges of inadequate safety recall disclosures

By Linda O’Brien, J.D., LL.M.

CarMax, Inc. and two other major used auto retailers—Asbury Automotive Group and West-Herr Automotive Group—have agreed to settle FTC charges that they advertised how rigorously they inspect their used cars, yet failed to adequately disclose that some of the cars were subject to unrepaired safety recalls, the agency announced today. The proposed consent orders for the three dealers will prohibit them from making unqualified inspection or safety-related claims about their used vehicles if any are subject to open, or unrepaired, safety recalls (In re Matter of CarMax, Inc., FTC File No. 142-3202; In re Matter of Asbury Automotive Group, FTC File No. 152-3103; In re Matter of West-Herr Automotive Group, FTC File No. 152-3205).

In its complaint against Virginia-based CarMax, the FTC cited its claims about rigorous used car inspections, including its "125+ Point Inspection" and that its cars undergo, on average, "12 hours of renewing—sandwiched between two meticulous inspections." The complaint also notes a TV commercial touting a team inspection and reconditioning, which included a message that appears for three seconds in tiny type at the bottom of the screen stating, "Some CarMax vehicles are subject to open safety recalls." Despite highlighting their inspections, the FTC alleged that CarMax failed to adequately disclose that some of the cars had open recalls. These recalls included defects that could cause serious injury, including the GM key ignition switch defect, as well as the Takata airbag defect.

Similarly, in its complaint against Georgia-based Asbury Automotive Group, doing business as Coggin Automotive Group and Crown Automotive Group, the FTC alleged that the company made claims such as: "Every Coggin Certified used car or truck has undergone a 150 point bumper-to-bumper inspection by Certified mechanics. We find and fix problems—from bulbs to brakes—before offering a vehicle for sale." However, it was alleged, the company advertised some certified used vehicles without adequately disclosing that some of the cars were subject to open recalls, including one that could cause fuel to leak and the engine to misfire or stall, and one that could cause a car to move in an unexpected or unintended direction.

The FTC’s complaint against West-Herr Automotive Group, the largest auto group in New York, cited claims about vehicles backed by the "West-Herr Guarantee" and touting a "rigorous multi-point inspection with our factory trained technicians." However, the complaint asserted that the company failed to properly disclose that some of the vehicles were subject to recalls for defects that could result in serious injury.

Under the proposed consent orders, CarMaxAsbury, and West-Herr are prohibited from claiming that their used vehicles are safe, have been repaired for safety issues, or have been subject to an inspection for safety-related issues, unless they are free of open recalls, or the companies clearly and conspicuously disclose that their vehicles may be subject to unrepaired recalls for safety issues and explain how consumers can determine whether a vehicle is subject to a recall for a safety issue that has not been repaired, and the claims are not otherwise misleading.

The proposed orders would prohibit the companies from misrepresenting whether there is or is not an open recall for safety issues for any used motor vehicle, whether they repair such vehicles, and any other material fact about the safety of the used vehicles they advertise for sale. The proposed orders also would require the companies to inform recent customers, by mail that the vehicles they bought as far back as July 1, 2013, may be subject to open recalls.

In a statement regarding the six auto recall advertising cases, the Commission notes that unrepaired auto recalls pose a serious threat to public safety. Although federal law does not prohibit auto dealers from selling used cars with open recalls, Section 5 of the FTC Act enables the Commission to stop car sellers from engaging in false or misleading advertising practices that mask the existence of open recalls. These three enforcement actions "will help empower consumers to make more informed and safer purchasing decisions in a market that, absent a change in federal law, continues to include cars subject to open recalls," according to the statement.

Companies: CarMax, Inc.; Asbury Automotive Group; West-Herr Automotive Group

MainStory: TopStory MotorVehiclesNews

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