Legal posturing takes strange turn

Litigious Toyota owners and their legal counsel are popping up everywhere in the US -- and the situation's turning weirder every day.

In a country where fast-food restaurants can be sued for serving coffee too hot, Toyota is probably already socking away the spondoolies for a massive legal defence fund in the aftermath of recalls for sudden unintended acceleration (SUA) and the braking feel of the Prius.

According to the latest news, from The San Francisco Chronicle, Toyota owners are threatening legal action against the company, even if they haven't experienced SUA. Their attorney, Steve Berman, claims that the very fact of the recalls has eroded the owners' trust in their own cars. This reportedly provides them with grounds for seeking legal redress against Toyota -- not because Toyota vehicles have malfunctioned and nor because issuing a recall is the wrong thing to do.

Berman reckons that the recall will affect each vehicle's resale value -- and the only remedy is a full refund of the car's purchase price. Berman has claimed, on behalf of his clients that the cars are inherently unsafe -- even though Berman is not an engineer and has not supplied any evidence to support his assertion.

It was estimated in the article that, if successful, the 'class action' against Toyota could cost the manufacturer billions of US dollars. While the article mentioned a number of six million cars, the total number -- not including the separate brake-related recall for the Prius -- is up over eight million vehicles. Approximately half of those are allegedly aimed at rectifying poorly fitted floor mats.

"When we talked with Toyota owners, they all voiced the same desire -- to drive the car back to the lot, hand them the keys and pick up a check," said Berman. "Fortunately, we think the law allows for exactly that solution, and we are asking the courts to make it happen."

Berman's is not the first class action lawsuit against Toyota, but it is understood to be the first seeking damages in full from Toyota, on the behalf of owners yet to sustain any sort of material loss. Other cases also involve suing for reduced resale value, but typically the claim is for an amount equal to the car's projected resale value less its realised value. How you would calculate that without actually selling the car in the first instance seems hard to quantify.

"I don't know of any parent who would be willing to put their kids in a potentially unsafe car in exchange for a few hundred bucks," Berman offered in a measured way to explain why he's going for the full monty instead.

The Chronicle reports also that one of Berman's own fraternity, Matt Cairns, doesn't condone Berman's class action.

"If they prevail, such plaintiffs will effectively have received free transportation for the period of their ownership, of a car that met their every need, something all of us would appreciate when we decide we want a new ride," he said. Cairns is the president-elect of The Voice of the Defence Bar.

The article's writer seems to imply that Berman may be seeking a different 'class' of legal action against Toyota -- a full refund for the stress and worry of owning a Toyota -- to distinguish this from all the other class actions related to SUA involving Toyotas.

If correct, this would ensure that Berman and his clients could pursue their own lawsuit against Toyota and not be lumped in with the other claimants, who may have to lodge a claim against Toyota as part of a broader 'master-class' action, if a panel of judges has their way. Such a master class action would reduce multiple lawsuits against Toyota to just one. Berman's argument would steer his clients clear of this outcome and they could also claim more for their trouble.

In the non-Berman camp, known as the Attorneys Toyota Action Consortium (ATAC), the legal eagles are reported to be suing Toyota for 'racketeering', since the company has allegedly known of the acceleration problems afflicting its products since at least 2000.

"It's become increasingly apparent that Toyota profits were not built on quality products, but on a willful pattern of deception, fraud and racketeering," said Northeastern University law professor, Tim Howard, the man coordinating the ATAC action against Toyota.

If successful in this claim, Howard and his mob would cost Toyota US $10 billion for that alone.

Does anyone suspect this is all over the top?

US media is starting to think so, it seems, since well-known blogging site, Jalopnik.com, the Wall Street Journal and Forbes have all started to scrutinise one particular Prius-related SUA claim occurring just in the last week.

A certain Prius driver, one James Sikes came to the attention of the American media on Tuesday of last week, following a call to the emergency dispatch number for the Californian Highway Patrol. Sikes requested assistance to tame his car as it allegedly accelerated out of his control.

The Sikes story is instructive, and it has prompted this report in Forbes, which is interesting and arguably casts some considerable doubt on Sikes' own story -- as well as castigating some sectors of the American press for accepting Sikes' word too readily against Toyota.

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