Global Forum Shopping – ein Verfahren von ungeahntem Ausmaß: Way Cleared for Foreign Toyota Owners to Sue Over Acceleration Defects (law.com / by Amanda Bronstad, The National Law Journal, September 14, 2010)
A federal judge has granted permission for millions of Toyota owners in foreign countries to file a separate consolidated complaint against Toyota Motor Corp. over claims associated with the unintended acceleration recalls.
U.S. District Judge James Selna in Santa Ana, Calif., issued a temporary order on Monday allowing those outside the United States to assert economic damages claims against the Japanese carmaker.
During a hearing later on Monday, Selna said that he was „wrestling with“ the problem that the primary consolidated complaint, filed last month seeking economic damages against Toyota, could violate the due process rights of individuals who appear to be excluded from the class, such as foreign buyers of Toyotas. „They’re entitled to be at the table in some fashion,“ he said, and don’t deserve to be „stepchildren“ to the class.
He said he would issue another tentative order by Friday addressing the matter and anticipated discussing it in more depth during a hearing scheduled for Sept. 20.
The foreign plaintiffs‘ claims came into doubt after lawyers overseeing the multidistrict litigation (MDL) against Toyota filed their first consolidated complaint for economic damages on Aug. 2. In it, they claimed that Toyota knowingly hid defects associated with unintended acceleration beginning in 2002 while falsely assuring consumers about the safety of its vehicles.
The suit excluded foreign plaintiffs. It was filed on behalf of a nationwide class of consumers and businesses that purchased 55 makes and models of Toyota, Lexus and Scion vehicles since 1998.
Monica Kelly, a partner at overseeing the MDL, last month issued an order to show cause why the foreign plaintiffs‘ complaint, which was not approved by plaintiffs‘ lead counsel in the MDL, should not be stricken.
The MDL involves more than 200 lawsuits filed after Toyota recalled more than 8 million vehicles for defects associated with unintended acceleration — specifically, problems with accelerator pedals and floor mats. The consolidated MDL complaint alleges that the defects include problems with the electronic throttle control system.
The complaint cites California consumer-protection laws, including the Consumer Legal Remedies Act and the California Unfair Competition Law. It also alleges breach of contract, breach of implied warranty of merchantability, fraud by concealment and unjust enrichment.
The foreign plaintiffs also assert violations of California consumer laws, conspiracy, unjust enrichment and negligence.
During the hearing, Steve Berman, partner at Seattle’s Hagens Berman Sobol Shapiro, co-chairman of the plaintiffs‘ steering committee for economic loss claims, defended the consolidated complaint, which he said includes foreigners who purchased Toyota vehicles in the United States
„We didn’t want to speak poorly of the claims in any way,“ he said.
Selna replied that most of the individuals in Kelly’s complaint wouldn’t be part of the class under Berman’s definition.
Selna re-named Kelly as lead counsel for the foreign plaintiffs, but he asked her to re-file her complaint to represent only consumers asserting consumer damages, since none of the named plaintiffs in her original complaint suffered from injuries or deaths.
He allowed a group of plaintiffs from Germany to file a separate complaint.
During the hearing, Toyota’s lawyer, Lisa Gilford, a partner in the Los Angeles office of Atlanta’s Alston & Bird, said the company planned to file a motion for forum non conveniens in response to Kelly’s complaint. If granted, the motion would send her cases back to each individual plaintiff’s home country. Gilford originally asked for 90 days to prepare that motion; Selna gave her 60.
Still, he acknowledged the „daunting task“ of addressing claims from 10 countries.
„There’s a story to be told with respect to each country,“ he said. He suggested that Kelly and Toyota’s lawyers work out a plan to focus on certain countries with the most Toyota consumers, such as Mexico and China, before moving on to the rest.
Following the hearing, Kelly told The National Law Journal that in light of the „extremely important“ ruling on Monday, she planned to add more countries to her complaint, including Russia, India and several in Europe and South America. In all, 146 countries could be represented in the complaint, she said.
She predicted that Selna would be unlikely to send back cases to other countries when key documents are located in California. Also, Toyota would have to hire an expert in each country to bring that motion, she said.
„That won’t happen in 60 days,“ she said. „It’s impossible.“