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.

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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 serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.