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Note: This article has been amended to include a statement issued by Toyota following the Oct. 11 hearing. A proposed class action alleging economic losses on behalf of consumers in California and a few other states, caused by alleged sudden, unintended acceleration by Toyota vehicles, will begin in July 2013, the federal judge overseeing the multidistrict litigation said on Oct. 11. U.S. District Judge James Selna in Santa Ana, Calif., told the parties that a class action would be the second case to go to trial, following a personal injury and wrongful death action that he previously had scheduled for Feb. 19, 2013. In setting what he called an “ambitious” target date, Selna rejected Toyota Motor Corp.’s argument that its lawyers needed time to file additional motions regarding claims originating in the other states to adequately prepare for the bellwether class action trial. They argued that 75% of such claims had been filed outside California. Selna also rejected a suggestion by plaintiffs’ lawyers that the case — filed on behalf of consumers in California, New York and Florida — should assert claims under California state laws. He said he was “highly unlikely” to certify a class of consumers in New York and Florida under California law. “I don’t think you’re going to convince me,” he told Steve Berman, managing partner of Seattle’s Hagens Berman Sobol & Shapiro, co-lead counsel for the plaintiffs in the economic loss cases. Berman filed the proposed bellwether class action on Sept. 20. More than 200 class actions and economic loss cases were coordinated in the multidistrict litigation against Toyota. An additional 100 cases allege personal injury and wrongful death. The courts use bellwether cases to decide legal and evidentiary issues for all of the related litigation and — potentially — move the parties closer to settlement. Selna said he was not averse to hearing a class action bellwether trial involving more than one state. But he emphasized that consumers in those states must assert claims under the laws of their own states, not California’s. California law tends to be more consumer-friendly than those of other states, many of which require plaintiffs to prove a manifestation of a defect to qualify for economic damages. Berman acknowledged an alternative proposal more in line with Selna’s remarks would be to include subclasses of consumers in New York and Florida brought under New York and Florida laws. Toyota’s lawyer, Cari Dawson, a partner at Atlanta’s Alston & Bird, immediately countered that the proposed states were of the plaintiffs’ choosing, not Toyota’s. She suggested including claims on behalf of consumers in additional three states — Ohio, Illinois and Georgia. “I doubt I would add another state to any class action,” Selna responded. But he said that New York or Florida didn’t have to be the states. He suggested the parties work out a compromise on the states to be included in the proposed bellwether. Dawson also attacked the proposed bellwether as the “procedural maneuvering” of plaintiffs’ lawyers designed to “game the system.” The case was brought on behalf of 23 class representatives and implicates 40 million vehicles over 13 years — not an adequate bellwether that could “facilitate resolution” of the litigation, she said. “The key question is whether Plaintiffs’ proposed economic loss classes consisting of significantly different consumers with more than 30 vehicle models spanning 13 model years, the vast majority of whom do not claim an unintended acceleration event, should be certified at all,” Toyota spokeswoman Celeste Migliore said in a prepared statement following the hearing.”Backed by strongly supportive case law, we are confident that no common class of litigants exists and that plaintiffs are not entitled to individual or class-wide relief.” Selna’s proposal launched an argument over discovery. Berman said plaintiffs’ lawyers already had provided Toyota with depositions of 10 class members who, with 32 named plaintiffs in the proposed class action, would be enough for Toyota to mount an adequate defense. He added that the plaintiffs had provided Toyota with 80 fact sheets. Dawson said Toyota still needed to conduct discovery in actions originating outside California. Not doing so would violate Toyota’s due process right to assert defenses under other state laws, she said. Selna said he was not prepared to allow that expansion of discovery — if for no other reason because of the enormous resources entailed that would steer the litigation away from its trial dates. In addition to the class action, Selna suggested that another personal injury or wrongful death bellwether case — this time, of Toyota’s choosing — should go to trial in late 2013. The first case, selected by the plaintiffs, involves a Utah resident named Paul Van Alfen who lost control of his allegedly accelerating 2008 Camry while on an exit ramp off Interstate 80. The crash killed Van Alfen and another passenger and injured two other passengers in the car. Selna dismissed that case on federal jurisdictional ground on Sept. 29, but plaintiffs’ lawyers filed an amended complaint, dropping as a defendant Utah dealership that serviced the vehicle. During the hearing, Selna approved the revised complaint as the first bellwether. The next hearing in the multidistrict litigation proceeding is Dec. 9. Contact Amanda Bronstad at [email protected].

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