Porsche Puts Out Fires Before they Start

Posted on March 29, 2012 02:01 by Jeff Curran

Porsche AG issued a recall today for 1232 of its 2012 911 Carrera S Coupes, stating that a fuel line could become disconnected due to its proximity to a coolant line.  The result could be fuel leakage, causing the engine to stop or possibly to catch fire.  So why is this important?  Companies issue recalls every day – why should you (or anybody else) care about this one?    

I’ll tell you why.  Porsche issued this BEFORE any fires were caused, property was damaged or lives were even potentially lost.  They just thought it MIGHT happen, and they did something about it before something actually happened.  I just figured more people needed to realize that car companies aren’t  actually the greedy, heartless things they are portrayed to be.  The kicker is that car companies do stuff like this all the time – it’s just that nobody ever pays attention to these because they don’t “sell”.  I realize nobody is going to jump on this nationally, because it’s not “news” in the popular sense.  But the next time you hear somebody deride “Big Auto”, at least think of this.  Granted, there aren’t a lot of cars involved (and yes, they are very, very nice cars), but it really is the thought that counts here.  

And if you want to learn more really interesting stuff about the finer points of Automotive product litigation, come see us at the Automotive SLG Breakout session Wednesday afternoon at the DRI Product Liability Conference in Las Vegas April 11-13.   The best part? It’s 100%  free with your registration – you do not pay one extra dime for the intellectual genius that will be provided. Remember where you heard it, and we’ll see you in Vegas.  

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What Happens in Vegas...

Posted on March 23, 2012 02:21 by Jeff Curran

Actually, it’s what’s happening in Vegas.   It’s spring, and we’re beginning to see a light at the end of the winter tunnel.  Grass is starting to grow, trees are beginning to bud, flowers are blooming, etc.  What better way to celebrate the annual coming of Spring than at DRI’s Product Liability Seminar in Las Vegas?  OK, I confess that Spring and Las Vegas are not “causally connected”, as we DRI-ers like to say.  You can actually go out to Vegas any time of year, and they will welcome you with open arms no matter what the season.  But, what you can’t do just any time of year is go out there and get both the camaraderie of your DRI friends AND the CLE education from leading product liability lawyers and experts from around the country.  So, if you’ll join us April 11-13 at the Venetian for the DRI Product Liability Seminar, you’ll get networking, friends, education, Vegas AND Spring, all at the same time.  You don’t want to be the one who has to hear about it after the fact,  so make plans to join us.  And if you want some really good Automotive CLE, come to the Automotive SLG Breakout session Wednesday afternoon where you’ll hear Neal Walters (the guy who puts the “class” in “class action”) Tracy Ferak (the component part liability guru) and Chris Massenburg (who will tell you all about where the Big Auto companies find themselves economically these days) present some seriously useful stuff.  I’ll see you there – I’ll be the tall guy in the suit.  

Jeff Curran is Of Counsel with Gable Gotwals in Oklahoma City. Jeff focuses his practice primarily in the areas of product liability, insurance matters, entertainment law and commercial litigation.


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Listen up, all you internet users (which is basically everybody but my mother, who still views the Internet as the work of the devil, and will quote from the book of Revelation in support of her theory).  Three bills you need to be aware of, because they may change the way you view (or more correctly, the way you are allowed to view) the Internet.  and from what I’m reading, there are some pretty darned big sites and companies that are ready to either “go dark” in protest (Wikipedia, for example, which is where I do most of my legal research) or lend a big supporting hand to the protests of the current bills being considered (Google is one – who can live a day without Googling something?  I mean for cryin’ out loud the Company has made itself into a verb!!).  Those bills are:

1.  Stop Online Piracy Act (or “SOPA”).

2.  Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP or PIPA, which is easier but less descriptive.  I’ve never seen a bill with a name so long it requires not one but two abbreviations).

3.  The Online Protection & ENforcement of Digital Trade Act (or “OPEN” Act – again- what is it with thinking up names for these acts? But I guess “OPAENDTA” doesn’t quite roll off the toungue).  

Sounds simple enough, right?  I mean, who doesn’t want to stop people from stealing stuff and using the Internet to get away with it? Uh, hold on--not so fast there, scooter.   Here’s a quick overview, along with the pretty darned serious problems that exist.  The main thought is that there is a serious problem (which there really is) regarding piracy on the Internet.  As paraphrased from the OPEN site (http://keepthewebopen.com) the problem can be illustrated like this: downloading a movie from a foreign website is like buying a foreign product, but there really aren’t any trade laws equipped to deal with the online purchases from foreign sites.  

The SOPA bill allows the Department of Justice and copyright holders to seek court orders against websites accused of enabling or facilitating copyright infringement.  The court order could include barring online advertising networks and payment facilitators from doing business with the allegedly infringing website, barring search engines from linking to such sites, and requiring Internet service providers to block access to such sites. The bill would make unauthorized streaming of copyrighted content a crime, with a maximum penalty of five years in prison for ten such infringements within six months. The bill also gives immunity to Internet services that voluntarily take action against websites dedicated to infringement, while making liable for damages any copyright holder who knowingly misrepresents that a website is dedicated to infringement.

Proponents of SOPA say it protects the intellectual property market and corresponding industry, jobs and revenue, and is necessary to bolster enforcement of copyright laws, especially against foreign websites.   Opponents say that it violates the First Amendment, is Internet censorship, and will threaten whistle-blowing and other free speech actions. A number of protest actions have been planned, including boycotts of companies that support the legislation, and major Internet companies “going dark” for a day (coinciding with hearing dates).  

PIPA (or ‘PROTECT IP”, or whatever else you want to call it), appears to be SOPA’s twin, but in the Senate.   

OPEN is, from what I can glean, a “bipartisan” bill written in response to the harsh criticism SOPA is receiving. (I always tend to squint my eyes when I see the word “bipartisan”).  
Even the White House has entered the fray, with a post just a few days ago regarding the subject.  Here’s a part of that post:  

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small.

And when the White House says “whoa”, you know there is likely a heckuva lot of pressure (political, economic, you name it) coming down against the proposed Act.  

So who’s right?  Well, everybody.  Is there a lot of intellectual property piracy on the open internet seas?  Absolutely.  Does it need to be dealt with?  No question.  Do the SOPA and PIPA bills overreach and create more problems than they purport to solve?  Yep.  The bills do use the U.S. Court system to create a type of “internet police” as it pertains to copyrighted material.  They also greatly increase the work flowing to litigators and litigation firms among other things, driving up (WAY up) the cost of doing business, which will most certainly hurt businesses generally and small businesses especially,  because whether they are involved or not, others will be so involved, which will drive up the overall cost of products across the board as the increased cost is passed on to the consumer as much as possible.  And how/why is it that the US Courts will be essentially graced with the responsibility of policing the Internet for the entire world?    
Now that I’ve lit the fire and started the debate, feel free to discuss amongst yourselves (hey- it isn’t my job to give answers, just point out the questions).    
  
Jeffrey Curran is Of Counsel with Gable Gotwals in Oklahoma City, OK

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Welcome one and all to something that will undoubtedly change both history and the world as we know it: the first installment of what will hopefully be a regular publication which we have decided to call From the “What the…?”File.  Basically, I’ll be picking up on out-of-the-mainstream stuff which any of us could have lived without knowing, but it will at least be stuff that is both interesting and has a bit of a twist.  At least in theory, anyway.  So, without further ado, here goes the collector’s item first issue.  I can confidentially say that that when you’re done, you too will be saying “What the…?”

European Copyright – The Write Stuff?

OK, not many of us care about Euro Copyright issues – I fully admit that.  But this is actually kind of interesting (even if it is Euro-centric).  It seems that way back in 2006, a Hollywood-funded, Netherlands-based anti-piracy group (known as ‘BREIN’, and please don’t ask me what it stands for) asked a musician to compose music for an anti-piracy video. The video in question was to be shown at a local film festival, and under these strict conditions the composer accepted the job.

However, the anti-piracy ad was recycled for various other purposes apparently without the composer’s permission. When the composer bought a Harry Potter DVD early 2007 (presumably a licensed one), he noticed that the campaign video with his music was on it. According to the composer And this was no isolated incident. He is now claiming that his work has been used on tens of millions of Dutch DVDs, without him receiving any compensation for it. The total claimed lost revenue is roughly a million Euros (which is about $1.3 mil US). 

But wait -- there’s more.  You’d think that the guy would have received some collection support from local rights societies.  You’d think.  But soon after he discovered the unauthorized distribution and after contacting a local music royalty collection agency not only did he not receive any royalties, one of their Board members offered to help ONLY if the composer assigned all his rights to the organization AND gave the guy a third of what was collected.   Ultimately the board member resigned and the anti-piracy group denied it was their fault in the first place.  But what’s more shocking – that anti-pirates are pirates themselves, or that there is corruption in the music industry? Hmmm – tough question.

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When I read the latest story in the Detroit News about Toyota’s new technology that will help steer a car away from an impact that can’t be avoided, the first thing that popped into my mind was the old advertising phrase “we do the work so you don’t have to!”  (Those of us old enough to remember the ‘scrubbing bubbles’ will chuckle at that).  I was a bit skeptical, and envisioning cars that told me to just sit back, enjoy the ride and leave the driving to them.  But when I read the whole article, I was totally amazed at what they are working on – a system that will steer a car away from an impact (apparently from anything – a person, car, rock, whatever) that in the car’s judgment, cannot be avoided.  Of course a zillion questions come to mind, probably the foremost being, how will the car be able to “judge” what is unavoidable and what is not?  Honestly, I don’t know and probably couldn’t fully understand it even if they were willing to divulge their secrets.  The guess here is that it is a combination of all physical factors – speed, direction, weight of the car, time, what is in front of you, what is around you, etc.  (I do know it involves super-fast and super-sensitive radar, which is pretty cool in itself).  All of this information will have to be processed and a decision made in time for the car to maneuvered appropriately – i.e., tiny fractions of a second. This is not science fiction either - it is happening right now.  The brilliance of engineers never ceases to amaze me, I’ll be honest.  

If you want to hear more about this and other eye-popping technology that is literally coming soon to a dealership near you, join us at the DRI’s Strictly Automotive Seminar September 15 - 16 at the the Marriott Dearborn Inn in Dearborn, Michigan.  We’re having right in the heart of automobile country, and the list of in-house attendees and speakers is incredible –  in alphabetical order, Chrysler, Delphi, Ford, GM, Kia, Mazda, Nissan, TK (Takata) and Toyota will all be there en masse, as will national counsel for most of these folks, NHTSA people, and a swarm of others.  We’ve got a tour planned of a working manufacturing plant (the Ford Rouge Factory), and speakers on a number of ripped-from-the-headlines auto topics, including the new “smart car” technology, distracted driving,  as well as the behind-the-scenes true story about what’s really going on with Toyota and the alleged sudden acceleration issues and litigation.  In other words, you can’t afford NOT to go!

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Categories: Automotive | Product Liability

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The Supreme Court last week significantly limited the doctrine of preemption as it applies to automobile manufacturers who choose a particular method allowed by a safety standard in the manufacture of automobiles.  In Williamson v. Mazda ___ U.S. ___, No. 08-1314 (2011), Mazda had chosen to use a lap-only restraint system for the middle or “aisle” position in the back seat of a minivan.  Thanh Williamson was killed in an accident while in the aisle position.  The Williamson family sued in California State court, claiming the lack of a shoulder restraint system constituted a defect.  The state trial court dismissed on the pleadings and California Court of Appeal upheld the dismissal, both relying on Geier v. American Honda, 529 U.S. 861 (1993) which had found that an earlier version of the regulation involved –  FMVSS 208 (requiring installation of passive restraint devices) -  preempted a state tort suit.   The 1989 version of FMVSS 208 had provided manufacturers with a choice of lap-only or lap-and-shoulder restraint devices for the middle position seat.  However, that version had basically stated a cost objective for allowing the choice.  The Supreme Court, with a vote of 8-0 reversed (Justice Kagan recusing) reversed and remanded because the Court found that the reasoning behind the regulation was different than in Geier.  The Court emphasized that in Geier, requiring an airbag system under that statute would have “stood as an obstacle” to the purpose of the regulation, which had been to get manufacturers to implement passive restraint systems while also being able to refine the safety of such systems.  In Williamson, the Court found that there was no such motivation on the part of the DOT – the choice was given simply as a cost concern, and thus there was a distinction drawn between Williamson and Geier.

Interestingly, there were two concurring opinions filed.  Justice Sotomayor went to great lengths to stress the importance of the Solicitor General’s opinions on the matter (the Solicitor General at the time just happened to be now-Justice Kagan).  Also, Justice Thomas concurred, but stressed a large degree of displeasure with the majority’s reliance on the DOT’s reasons or the Solicitor General’s position – he believed that because the saving clause of the National Traffic and Safety Act “explicitly preserves state common-law actions”, the debate need not go further.  So while the Williamson decision was indeed 8-0, it was certainly not unanimous. 

What manufacturers are faced with now is that  unless the DOT basically comes out and says “we’re really concerned about something important” when making a regulation and giving manufacturers a choice, then there likely will be no preemption found.  Ford found out the effect quickly, as this week it  had a preemption case returned by the Supreme Court to the court below for consideration under the Williamson guidelines (Priester v. Ford Motor Co., 10-668).  So, the days of reliance on Geier seem to be over for the most part.  Absent a DOT-stated objective to the contrary, manufacturers will apparently be opening themselves up to tort actions by making any design choice other than the maximum standard prescribed. 

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Categories: Product Liability | Supreme Court

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Distracted Driving

Posted on February 18, 2011 03:21 by Jeff Curran

"Sorry about running into your car like that, but my friend just emailed me the funniest picture of her Chihuahua in a tuxedo-– I just HAD to respond!"

Is this what it has come to?  It was bad enough when people in cars would just put on ties or makeup while driving.  But now they’ve got texts, emails, Words With Friends, Angry Birds... the list goes on.  Distracted driving has become a problem of epidemic proportions, on a sad parallel with drunk driving.  A lot of times people think they are paying some attention, but just don’t realize how slowed their perception and reaction times are.  Generally, it takes from roughly 3/4 of a second to a full second to perceive something and then another 3/4 to begin to react to it.  So, at a nice steady 60 mph on a normal road, you’re going 88 feet per second, and you’ll travel about 160 feet before you even start to brake. To stop after braking, you’re talking roughly three hundred feet – a whole football field. And that’s with no distractions!  Delaying for even a second will throw another 88 feet into that equation.  So you begin to see how serious even a small distraction can be, much less a text, phone call, or extra level of "Angry Birds - Seasons".

Come to the Auto SLG breakout Friday April 8 at the Product Liability Conference in New Orleans and hear a lot more on this subject that is sweeping the nation. 

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Categories: Product Liability | Seminar

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The Federal government recently released the findings of the NASA-led study of Toyota's electronic throttle control system as a potential cause of the alleged sudden and unintended acceleration of Toyota and Lexus vehicles.   In short, the study found no evidence of any electronic defect that would cause any sudden or unintended acceleration.  But what exactly does it mean for Toyota, for the MDL cases, and for the pending State Court cases?  Without a doubt it is a good thing for Toyota, as the study was unbiased and run by some of the best and brightest engineers there are.   The proof of an electronic defect as a cause of an accident was going to be a nightmare anyway, as showing the existence of a given set of electrical circumstances at any point in time would have been difficult, to say the least.  But getting this study out is a big break for Toyota because it takes some of the "mystery" out of the scenario, and in essence leaves the situation as one of proving/disproving mechanical defects (floor mats, accelerator pedals).  And other manufacturers are also breathing a collective sigh of relief, as had the study come back with a specific finding of an electronic problem, those other manufacturers would have been next up on the block.

As for the cases themselves, the MDL cases aren't slated to start trial until April of 2013 at the earliest (with a few selected "test" cases).  There will undoubtedly be a number of State court cases that come to trial before then, and that is where we'll see how the effect of this study truly plays out.  It will be interesting to see if Plaintiff's attorneys can come up with a way to combat the Federal study (most assuredly they will try).  The guess here is that the study will  cause earlier (and probably lower, on the whole) settlement of more of those cases, though some will certainly come to trial regardless. The practical effect of the study will then be left in large part to the discretion of the various State court judges in charge of whichever of those cases come to trial.

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Categories: Product Liability

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Rental Car Company Liability in Product Recalls

Posted on November 23, 2010 04:20 by Jeff Curran

A recent article in the Detroit Free Press discussed potential liability of rental car companies that rent vehicles involved in recalls.  Does a delay in compliance to the recall by the rental car company relieve the manufacturer of liability? 

I would respectfully suggest that while there may not be any statutory law that requires such action by the rental car companies, common law  certainly does.  Imagine the potential liability issues involved where a company gets actual notice a car may be defective, then puts it out on the road armed with that knowledge (witness the cited California Enterprise case as but one example).  I would also wonder about the possibility of a defense akin to a learned intermediary doctrine urged to help insulate the manufacturer in such an instance.

But then, I could be wrong.

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Categories: Product Liability

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Voluntary Auto Recalls

Posted on August 27, 2010 07:51 by Jeff Curran

It seems to me that the auto manufacturers have decided the overall cost is simply lower when the recall is voluntary than when the alleged problem comes down to a forced recall.  By "cost", I'm not talking about simply the cost of recalling the cars, which of course is not insignificant.  I just think the overall bottom line is simply helped when it is done voluntarily.  It looks better all the way around - to consumers who see what looks like a proactive company (and thus may become repeat customers), and even ultimately to jurors who see the same thing should it get that far.  It tends to soften the company's image a bit in my estimation - to humanize the image of the "faceless corporation".   I'm sure they also save on attorney fees and the costs of fighting the recalls.  Ultimately companies (especially those that are publicly-traded entities) have to focus on the bottom line, and what's good for the company.  Here, it just sounds like the general consensus is that this path helps the company more.  Plus they get more control over the voluntary recalls (scope, time, etc.), so there's that element as well. 
 
I'm not saying there isn't any degree of altruism involved, because I know these companies are made up of people who do care.  I'm just saying that this brand of altruism happens to coincide with what is judged as best for the bottom line.  Maybe it's just the modern brand of capitalism?

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Categories: Corporate America

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