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Theodore Boutrous, coming off a significant U.S. Supreme Court victory for Wal-Mart Stores Inc., has joined the legal team of Toyota Motor Corp., which simultaneously announced plans to pursue the appeal of a ruling affecting class actions in the sudden acceleration litigation. Boutrous and Theane Evangelis Kapur, both of Los Angeles-based Gibson, Dunn & Crutcher, were brought in as counsel for Toyota in the 200 economic-loss cases in the multidistrict litigation in federal court in Santa Ana, Calif., according to a June 27 notice of association of counsel. The economic loss cases have been consolidated into a single class complaint. The notice includes Gibson, Dunn & Crutcher. In bringing Boutrous on board, Toyota prepared to file an interlocutory appeal before the U.S. Court of Appeals for the 9th Circuit to reverse U.S. District Judge James Selna’s rejection of its motion to dismiss the consolidated class action, which was filed on behalf of consumers nationwide seeking economic damages for the diminished values of their vehicles, according to a separate June 27 filing by Toyota. Toyota recalled nearly 10 million vehicles due to accelerator pedal and floor mat defects blamed for sudden acceleration. Toyota intends to argue on appeal that a large portion of consumers in the consolidated class action lacked standing because they did not suffer actual injuries, whether monetary or in property damage to their cars, most of which didn’t even accelerate. A 9th Circuit decision in Toyota’s favor could substantially reduce the size of the class by splitting it into subclasses, according to Toyota’s June 27 filing, which requests certification of its interlocutory appeal. “Because the uncertainty regarding standing is germane to every economic loss case in this MDL, resolution of this issue also could substantially decrease the number of claims pending, dramatically changing the dynamics of the litigation and promoting more expedient adjudication,” Toyota attorney Lisa Gilford, a partner in the Los Angeles office of Alston & Bird, wrote in the filing. Selna’s ruling — which did not pertain to the 100 additional personal injury or wrongful death cases in the MDL — was his second rejection of Toyota’s move to dismiss the consolidated class action. On Nov. 30, he denied a similar motion, finding that consumers who overpaid for their vehicles, made lease payments that were too high or sold their vehicles at a loss had established sufficient economic injuries. He did dismiss claims by some consumers who failed to assert sufficient injuries beyond the fact that they had purchased a Toyota vehicle that was later recalled, but gave plaintiffs’ lawyers an opportunity to amend the consolidated class action. Steve Berman, managing partner of Seattle’s Hagens Berman Sobol Shapiro, co-lead counsel of the plaintiffs’ steering committee in the economic loss cases, said in a prepared statement that he anticipated the 9th Circuit would uphold Selna’s ruling. “We learned that Toyota added to their swelling ranks of attorneys, hiring Gibson Dunn’s Ted Boutrous to handle the appeal,” he said. “While he is a very talented advocate, no amount of legal talent can convince the Court of Appeals to breathe life in a fundamentally flawed appeal. It is like asking Mario Andretti to drive a car without wheels.” In the amended action, the plaintiffs added that consumers relied on advertising materials promoting the safety of Toyota vehicles. They also said the vehicles lacked a fail-safe mechanism that would have prevented them from accelerating out of control. Selna ultimately found those claims convincing. “Plaintiffs bargained for safe, defect-free vehicles, but instead received unsafe, defective vehicles,” he said in a April 29 tentative order. “A vehicle with a defect is worth less than one without a defect. The overpayment for the defective, unsafe vehicle constitutes the economic-loss injury that is sufficient to confer standing.” However, during a hearing that same day, Selna said he was inclined to certify an interlocutory appeal to determine whether consumers in the consolidated class action had standing to sue. Toyota noted his embrace of its plans to appeal in the recent filing. “The Court has recognized that there are substantial grounds for a difference of opinion on the controlling question whether Plaintiffs who have not experienced the alleged defect — and who have not experienced an actual, realized economic loss as a direct result of the claimed defect — allege an injury sufficient to invoke this Court’s jurisdiction, or to state a claim under California law,” Toyota wrote. Boutrous represented Wal-Mart in the largest gender discrimination class action in history. On June 20, the Supreme Court found that the plaintiffs’ lawyers, who were attempting to certify a class of nearly 1 million female workers, had failed to identify a companywide policy that promoted discrimination against women in promotions and pay at thousands of stores nationwide. The ruling — one of the most important involving class certification standards in more than a decade — limited the ability of plaintiffs’ lawyers to pursue huge damages through a single class action lawsuit. Boutrous, who sits on Gibson Dunn’s executive and management committees, is co-chairman of the firm’s appellate and constitutional law group, media and entertainment group and crisis management group, as well as its transnational litigation and foreign judgments group. He also keeps an office in Washington. Kapur is an appellate and general commercial litigation associate in Los Angeles. She has worked with Boutrous on a number of cases, including the Wal-Mart appeal before the Supreme Court and the federal constitutional challenge to Proposition 8, California’s ban on gay marriage, which is pending before the 9th Circuit. Neither Boutrous nor Kapur returned calls for comment. Amanda Bronstad can be contacted at [email protected] .

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