Class action attorneys say Ford has no standing to oppose latest motion

By John O'Brien | Aug 20, 2013

HUNTINGTON – Plaintiffs attorneys in three class actions filed against Ford Motor Company say the company is attempting to punish them for organizing a leadership team.

On Aug. 15, the plaintiffs attorneys filed their reply to Ford’s argument that it is too soon to appoint interim co-lead counsel and a plaintiffs steering committee. Ford contends each class action must be before the same court before that can happen.

There are three class actions filed in U.S. District Court for the Southern District of West Virginia in Huntington and a fourth in South Carolina federal court.

“Ford’s response to Plaintiffs’ motion for appointment of Interim Lead Counsel epitomizes the ‘fox… [in] the chicken house’ fears that have led courts throughout the United States to conclude that defendants lack standing to interfere in such preliminary leadership designations…” the plaintiffs attorneys wrote.

“Ignoring this established jurisprudence, Ford asks this Court to punish Plaintiffs’ counsel for avoiding contested leadership motion practice and privately – and prospectively – ordering proposed leadership in this litigation in a streamlined manner that is in the best interests of the proposed class.”

Plaintiffs attorneys submitted their motion on July 30. It asks that five attorneys – including two from West Virginia – be appointed interim co-lead counsel.

Those two West Virginians are Timothy Bailey of Bucci, Bailey & Javins and Niall A. Paul of Spilman Thomas & Battle, both of Charleston.

They are joined in their request by Adam J. Levitt of Grant & Eisenhofer in Chicago; Stephen M. Gorny of Bartimus, Frickleton, Robertson & Gorny in Leawood, Kan.; and Mark DiCello of The DiCello Law Firm in Mentor, Ohio.

The three lawsuits make the same allegations – that those who purchased Ford vehicles manufactured between 2002-10 would not have paid as much for them or purchased them at all if they were made aware of the sudden acceleration problems.

The vehicles at issue were manufactured between 2002 and 2010. They were equipped with an electronic throttle control but not adequate fail-safe systems to prevent incidents of sudden unintended acceleration, the complaint says.

“In addition, and most significantly, regardless of the cause of these admittedly foreseeable events, the Ford vehicles share a common design defect in that they lack adequate fail-safe systems, including a reliable Brake Over Accelerator system that would allow a driver to mitigate sudden unintended acceleration by depressing the brake,” the complaints say.

“Each person who has owned or leased a Ford vehicle vulnerable to sudden unintended acceleration during the time period relevant to this action paid more for the Ford vehicle than they would have paid, or would not have purchased or leased the Ford vehicle altogether, because of the defective nature of the Ford vehicles resulting from the absence of a fail-safe such as a BOA to prevent sudden unintended acceleration events in each of them.”

The complaints say they have also been filed before the tolling of the statute of limitations because the plaintiffs could not have known their vehicles were vulnerable to sudden unintended acceleration because Ford concealed this from them.

Lincoln and Mercury vehicles from the same years are included in the complaints.

Charleston attorney Edgar F. Heiskell III is also asking to be a part of the Plaintiffs Steering Committee.

Others asking to be placed on the PSC are John T. Murray of Murray and Murray in Sandusky, Ohio; John Scarola of Searcy Denney Scarola Barnhart & Shipley in West Palm Beach, Fla.; Joseph J. Siprut of Siprut PC in Chicago; Keith G. Bremer of Bremer Whyte Brown & O’Meara in Newport Beach, Calif.; E. Powell Miller of The Miller Law Firm in Rochester, Mich.; Grant L. Davis of Davis Bethune & Jones in Kansas City, Mo.; and Gregory M. Travalio of Isaac Wiles Burkholder & Teetor in Columbus, Ohio.

Ford filed its response Aug. 8.

“Should the District of South Carolina choose to stay Thomas and then transfer it to this Court, a motion to appoint Interim Lead Counsel would be appropriate,” Ford’s response says.

“Until that time, this Court does not have power to compel any action in Thomas; choosing ‘lead counsel’ in this case would only confuse the question of who speaks for the purported class.

“In reality, no one does. Until a class is certified, nothing in these cases is binding on absent class members.”

Ford has also filed a motion to dismiss and a motion to strike what it calls “objectionable” paragraphs in the complaints.

The paragraphs Ford finds objectionable” allege that in the 1980s, the company intentionally disposed of internal reports regarding sudden acceleration events and that it concealed the information from the National Highway Traffic Safety Administration.

Ford says those allegations have already been rejected by the NHTSA and a Florida appellate court.

“Second, the allegations are simply irrelevant to Plaintiffs’ claims and, therefore, immaterial and impertinent,” the memorandum in support says.

“The allegations in the Objectionable Paragraphs are scandalous, injurious to Ford’s reputation, and have no bearing on Plaintiffs’ present claims. The allegations are clearly designed only to inflame the jury and the public.

“Moreover, the continued presence of these objectionable allegations of decades-old conduct will prejudice Ford by requiring extensive and unnecessary expenditures of resources in litigation.”

The company recently agreed to pay $17.35 million to settle an investigation by the National Highway Traffic Safety Agency.

The NHTSA alleged Ford took too long to recal Escapes that could have defects that cause unintended acceleration. Ford recalled 423,000 Escapes in 2012.

Ford denied it broke any laws in the settlement agreement

From the West Virginia Record: Reach John O’Brien at

More News

The Record Network