Pro Se Prius Owner Can’t Drive 55; Court Bounces Toyota Greenwashing Case


I guess it was just a matter of time before this clean tech icon became the subject of greenwashing claims.  In a complaint filed last month in federal court in Oakland, California, pro se plaintiff and disgruntled Prius owner Kenneth Bernstein accuses Toyota of greenwashing by misrepresenting the car’s fuel economy.

Bernstein states that he bought a Prius in 2006 because the salesman told him that the car got between 55 and 60 miles per gallon.  After driving 95,000 miles, Bernstein alleges that his Prius has averaged only about 32 mpg.

According to the complaint (bernstein_complaint.pdf), Toyota advertised fuel efficiency figures of 55 mpg for the Prius when it knew or should have known that the actual fuel efficiency achieved “under normal driving conditions” was substantially lower:

Toyota advertised [the Prius] with false statements of its fuel efficiency and the cost saving realizable from its purchase, specifically, advertising the remarkable overall fuel efficiency of 55 Miles Per Gallon of gasoline . . . when Toyota knew, or by the exercise of reasonable care should have know (sic), but omitted to state, that such statements were untrue, deceptive, or materially misleading, and that the actual performance for [the Prius] is and was up to 42% below the miles per gallon of fuel efficiency or cost savings that Toyota advertised. 

Bernstein alleges that Toyota continues to market the model years 2004-07 Prius using old and inaccurate fuel economy numbers despite subsequent changes in the EPA’s testing guidelines that resulted in lower fuel economy for the 2008 model year. 

Bernstein also contends that Toyota impermissibly and deceptively altered federally mandated disclaimer language regarding fuel efficiency numbers and sometimes omitted the disclaimer altogether.

Unfortunately for Bernstein, in an August 7, 2009 Order (bernstein_order.pdf) Judge Marilyn Hall Patel dismissed the complaint because it failed to properly allege any basis for federal jurisdiction. 

Specifically, the complaint alleged diversity jurisdiction but failed to allege that the plaintiff and defendants are citizens of different states, and the complaint contained no grounds for federal question jurisdiction because it did not make any claims under a federal statute.

I talked to Bernstein briefly, and he may try to cure the deficiencies of his complaint and re-file in federal court.  Another option would be to file in California state court, where a very similar greenwashing suit involving the Honda Civic hybrid is currently pending.

Some of the allegations here are very similar to those at issue in the Honda case, in which the plaintiff accused Honda of false advertising for stating that consumers can drive the Civic hybrid like they would a “conventional car” and achieve “terrific gas mileage.”

Eric Lane Avatar

Eric Lane

Eric Lane, the founder and principal of Green Patent Law, is an intellectual property lawyer and registered U.S. patent attorney in New York and is a member of the bar in New York and California. Eric has more than two decades of experience working with wind, solar PV, CSP, biofuels, and geothermal, energy storage technologies, carbon capture and sequestration, medical devices, data communications, mechanical, chemical, internet and software.