Ninth Circuit Sides with Seventh, Finding the Private Right of Action under the Odometer Act Limited to Mileage Fraud

Per Bodine v. Graco, Inc., 533 F.3d 1145 (9th Cir. Jul 24, 2008):

Does the Motor Vehicle Information and Cost Savings Act ("the Odometer Act" or "the Act"), 49 U.S.C. §§ 32701-32711, and its implementing regulations, 49 C.F.R. pt. 580, allow a private right of action where the fraud relates to something other than the vehicle's mileage-in this case, its accident history?

Two of our sister circuits have split on this issue. Owens v. Samkle Auto. Inc., 425 F.3d 1318, 1320 (11th Cir.2005) (per curiam) (holding that "an allegation of intent to defraud in connection with an Odometer Act violation sufficiently states a claim," even when the intent to defraud does not relate to mileage); Ioffe v. Skokie Motor Sales, Inc., 414 F.3d 708, 709 (7th Cir.2005) ("[A]n Odometer Act claim that is brought by a private party and is based on a violation of [the implementing regulations] requires proof that the vehicle's transferor intended to defraud a transferee with respect to mileage."), cert. denied, 546 U.S. 1214, 126 S.Ct. 1432, 164 L.Ed.2d 133 (2006).

Finding the reasoning in Ioffe persuasive, we conclude that the private right of action under the Odometer Act is limited to allegations of fraud relating to a vehicle's mileage.