Randy Barnhart

A Truth to Live By

Recently, an appellate court reiterated a fundamental truth which should govern all lawyers. “A lawyer’s reputation is one of his[/her] most important professional assets.” The court highlighted the importance of that truth with the following literary footnote:

Indeed, there is more than a kernel of truth in Iago’s pronouncement in Othello:

“Good name in man and woman . . .,
Is the immediate jewel of their souls:
Who steals my purse steals . . . nothing;. . .
But he that filches from me my good name
Robs me of that which enriches him not
And makes me poor indeed.”

William Shakespeare, Othello, Act III, Scene II

15-Passenger Vans: Decades of Warnings and Fatal Crashes - Part 1

This series of posts is adapted from my article, of the same title above, which appeared in the December/January 2011 edition of Trial Talk, a publication of the Colorado Trial Lawyers Association.

INTRODUCTION

Fifteen passenger vans debuted in 1972 when Ford Motor Company transformed what it built as a cargo van into a passenger vehicle by adding five rows of seats. {1} Today, according to 2008 registrations, there are over 500,000 15-passenger vans on the roads.  {2} 

For years the transportation of choice for church groups, schools and athletic organizations, 15-passenger vans are unregulated, deemed to be commercial buses, and thus subject to few of the safety standards and protections of passenger cars or those that apply specifically to school buses.

Many tragic example of the dangers of the vehicles have been reported. Numerous lawsuits have been filed around the country. Due to their carrying capacity, a single rollover can kill or injure many people, including children and young adults. Seat belt use in 15-passenger vans is reduced by their unusual location and geometry. The problems are acute in the second, third and fourth row of seats. Some models have only lap belts in certain positions.

Next - Part 2 - Government Action?

See my micro-blog, focused on the danger of defective 15-passenger vans.

Consumer Protection Act - Opposing Summary Judgment - Part 2

The intent and public policy of the Colorado Consumer Protection Act  should also be borne in mind. “The CCPA was enacted for this very purpose, to protect vulnerable consumers and the consuming public as a whole.” Crowe v. Tull, 126 P.3d 196, 209 (Colo. 2006). Moreover, the “availability of ‘other statutory or common law causes of action based on the same set of facts does not affect the plaintiff's right to assert a claim under the CCPA.’” Crowe, 126 P.3d at 210. “The purpose of the CCPA is to provide ‘consumers who are in a position of relative bargaining weakness with protection against a range of deceptive trade practices.’” Curragh Queensland Min. Ltd. v. Dresser Indus., Inc., 55 P.3d 235, 240 (Colo. App. 2002).

One way to show that your CCPA allegations are sufficiently stated with particularity is to compare them with allegations which the Colorado court of appeals has already found to be sufficient. In State ex rel. Suthers v. Mandatory Poster Agency, Inc., 09CA0253, 2009 WL 4981891 (Colo. Ct. App. Dec. 24, 2009), cert. dismissed (Mar. 10, 2010), the court held that the CCPA allegations in the complaint satisfied both the statutory elements of the CCPA and the procedural requirements of Rule 9. While your claims under the CCPA may differ, see if there is a correspondence to the sufficient allegations in Mandatory Power:

• “Defendant MPA is a Michigan corporation, and its principal place of business is located in Michigan.”
• “Defendant conducted business in Colorado under the assumed names Colorado Food Service Compliance Center and The Colorado Labor Law Poster Service.”
• “Defendants listed a Colorado address for both entities that was nothing more than a mail drop.”
• “Defendants did not maintain an office, or conduct any business operations, in Colorado other than mailing flyers from Michigan to Colorado.”
• “Defendants’ solicitations violated the CCPA.”
• “Defendants’ misrepresentations included misleading consumers into believing that MPA was a Colorado company or a government or government-affiliated company dedicated to compliance with governmental regulations when defendants are a Michigan company engaged in selling posters available for free through true governmental entities.”

Good luck ...

Consumer Protection Act - Opposing Summary Judgment - Part 1

Defendants always file a a motion for dismissal or for summary judgment on Colorado Consumer Protection Act claims. One typical defense strategy is to misconstrue the claim in the papers for summary judgment motion. Classic misdirection to bamboozle the court.

By misconstruing a CCPA claim, however, defendants fail to carry their initial burden on summary judgment. It is firmly stated in case law that the “moving party has the burden of establishing the nonexistence of a genuine issue.” Briggs v. Am. Nat. Prop. & Cas. Co., 209 P.3d 1181, 1185 (Colo. App. 2009) cert. denied, 09SC324, 2009 WL 3720172 (Colo. June 22, 2009). Plaintiffs too often overlook this first step in opposing summary judgment.

If a defendant fails to carry its burden, no burden shifts to the plaintiffs, and summary judgment can and should be denied on that basis alone. At least ask the court to so rule.

It is always prudent, however, in opposing summary judgment to show that a host of genuine issues, some undisputed, some disputed, exist either of which precludes summary judgment.

As courts should knows, “[w]hen the pleadings and affidavits show material facts are in dispute, it is error to grant summary judgment. The facts must be viewed in the light most favorable to the non-movant.” Mullen v. Allstate Ins. Co., 232 P.3d 168, 171 (Colo. App. 2009). On motions to dismiss, “the court considers the facts alleged in the pleadings, taking them as true and viewing them in the light most favorable to the plaintiff, as well as documents attached to, incorporated by reference in, or otherwise referred to in the complaint.” Gen. Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010).

Moreover, a “motion to dismiss . . . is looked on with disfavor and should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief.” Sweeney v. United Artists Theater Circuit, Inc., 119 P.3d 538, 539 (Colo. App. 2005).

 More later ...

Litigating a Colorado Consumer Protection Act Claim

In a case against Ford and a Ford dealership, the firm is striving to recover compensation for severe injuries when a Ford car suddenly accelerated, ending in a serious crash.  On behalf of the injured people, the firm brought a Colorado Consumer Protection Act claim against the dealership, which has now moved for what's called a "more definite statement" pursuant to CRCP 12(e).

The defendant dealership presented the trial court with the following legal-sounding stuff:

To prove a violation of the CCPA, Plaintiffs must prove five distinct elements:

(1) that the defendant engaged in an unfair or deceptive trade practice;
(2) that the challenged practice occurred in the course of defendant's business, vocation, or occupation;
(3) that it significantly impacts the public as actual or potential consumers of the defendant's goods, services, or property;
(4) that the plaintiff suffered injury in fact to a legally protected interest; and
(5) that the challenged practice caused the plaintiff's injury."

Citing Hall v. Walter, 969 P.2d 224, 235 (Colo. 1998).

The dealership then argued that plaintiffs had not alleged sufficient facts or made adequate averments for it to understand and respond to. Okay, let's see what's not definite about the following statements:

At all times pertinent hereto, the dealership held itself out as a certified Ford Service Facility. As such, the dealership recommended to plaintiff that the proper repair to an acknowledged safety issue in the vehicle was the replacement of the gas pedal assembly. - That's (1) and (2) above.

The recommendation to plaintiff for the sale of the gas pedal assembly was done with the intent to induce him to purchase the unit to fix the dangerous safety problem of sudden unexpected acceleration. - That's (3) above.

The dealership did not inform plaintiff that its technician had not consulted any Ford technical materials nor had he contacted Ford to obtain its advice for the correct diagnostic or repair procedures to solve a problem of sudden unintended acceleration. - That's (1), (2) and (3) above.

The dealership's conduct constitutes a violation of one or more sections of the Colorado Consumer Protection Act,C.R.S. §6-1-101, of seq. Specifically, but not exhaustively, the dealership:

a. Knowingly made a false representation by omission or otherwise as to the source, sponsorship, approval, or certification by Ford of its goods and/or services in violation of §6-1-105(b);

b. Knowingly made a false representation by omission or otherwise as to its affiliation, connection, or association with or certification by Ford in violation of §6-1-105(c); - That's (1) and (2) above.

c. Knowingly made a false representation by omission or otherwise as to the characteristics, uses, and benefits of the replacement gas pedal assembly and/or its services in violation of §6-1-105(e); - That's (1) and (2) above.

d. Represented by omission or otherwise that the replacement gas pedal assembly and/or the replacement service were of a particular standard or quality when the dealership knew or should have known that they were of another in violation of §6-1105(g); and/or - That's (1) and (2) above.

e. Failed to disclose material information concerning the replacement gas pedal assembly and/or its replacement services which information was known to the dealership at the time of the sale of the replacement gas pedal assembly to Plaintiffs and that such failure was intended to induce Plaintiffs to purchase the replacement gas pedal assembly in violation of §6-1-105(u). - That's (1) and (2) and (3) above.

The activities described in this Claim and described in this Complaint were undertaken in the course of the dealership's business and significantly impact the public as well as actual and potential consumers of the dealership's goods and services. - That's (1), (2) and (3) above.

Such practices have had such impact in the past and constitute a significant potential to impact customers to do so in the future. - That's (3) above.

Plaintiffs have been injured as a direct and proximate result of the dealership's conduct, including permanent physical impairment, ongoing physical pain and suffering, financial loss and emotional distress. - That's (4) and (5) above.

According to the dealership, the "plaintiffs have not alleged sufficient facts to enable [it] to analyze and substantively answer those allegations related to alleged violations of the CCPA."

Huh?

CTLA 2010 Presentation - Attack, Deny, Delay: Industry’s Playbook for Avoiding Consumer Justice

NHTSA - 47,000 Auto Complaints/Year Divided by 21 Staff = Disaster

I subscribe to Google alerts about Sean Kane, who was recently quoted in a news report by 10news.com reporting San Diego:

"They clearly have a job that's nearly impossible," said auto safety expert Sean Kane.

He's talking about the National Highway Traffic Safety Administration, the federal agency in charge of tracking complaints. ...

10News discovered in the past five years, NHTSA received more than 235,000 complaints detailing problems about vehicles on the market and on the road.

But there are only 21 people working on in the agency's Office of Defects to investigate the complaints.

Do the math: 235,000 complaints over 5 years equals 47,000 complaints per year, divided by 21 staffers at the ODI (Office of Defects Investigation)  equals over 2,200 complaints per staffer per year.

No wonder far too many ODI "investigations" are little more than calling the auto manufacturer and saying "Hello, we got a complaint.  Please send us any info?" The typical big auto response: "Must be driver error."

Call your congressional representatives and senators!

iPhone, Pundits and Bad Legal Opinions - Readers Beware

Everybody has an opinion. Lately, everybody has a legal opinion. You have heard of jail-house lawyers, felons who make the most of their life sentences by reading case law all day. Now, everyone's a lawyer without doing any reading at all. Consider this by one Wilson Rothman (twitter), sci-tech columnist for msnbc.com and cook, about the iPhone 4 and the news that lawsuits have been filed over its apparent defects in reception capabilities:

What's annoying is that lawyers catch wind of this healthy debate and think, "How can I use this to make money?" So, within a week, the first anti-iPhone 4 class action suits have been filed. There are a lot of serious terms being hurled hither and yon, my favorite being "breach of implied warranty of fitness."

But how on earth is anyone going to prove this stuff? It's not enough to show that the iPhone 4 has some reception quirks — I imagine you'd also have to prove that other phones don't. Good luck with that.

See msnbc column here.

Actually, what's more annoying is that sci-tech/cook pundits get wind of these lawsuits and think: how can I fill my next column with some edgy commentary which disparages lawyers and the American legal system? The foregoing by Rothman is complete garbage. His msnbc editor, if indeed he even has one, is as clueless as Rothman.

It is doubtful that the iPhone 4 lawsuits are going to try to prove up the breach of implied warranty claim by showing that the iPhone 4 has "reception quirks." And one does not typically have to prove that other products in the category are free of quirks.  Rothman clearly cooked all that up out of sheer desperation for something to say.

What's truly ironic is that Rothman himself, in the very same silly column, alludes to what could be evidence of a breach of implied warranty!

Steve Jobs' promise that calls would be better because of the new body design? That must have been wishful thinking.

If in fact Steve Jobs made that promise, then that, Mr. Rothman, might be some evidence which would support a breach of warranty claim, or a breach of contract claim, or perhaps a consumer protection act claim.

If Apple customers bought the iPhone 4 on the strength or authority of that promise, which promise of better reception was not in fact kept, how could a lawsuit for breaking that promise, a promise on which customers relied, be "asinine," as Rothman writes in his "legal" opinion masked as a tech column?

No, what is asinine is Rothman failing to exercise a moment's reflection on his opinions to see that he refutes himself.

Rothman is not the only would-be blogger-lawyer with asinine legal opinions which Apple customers read at their peril. See this for more bad legal advice: The Apple-AT&T class action suit should have come years ago.