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A federal appeals court has granted Toyota Motor Corp.’s request to immediately review a lower court ruling that allowed millions of consumers to sue the company for damages even though their cars didn’t experience a defect or sell for reduced prices following the company’s recall of more than 8 million vehicles to repair the defect. The U.S. Court of Appeals for the 9th Circuit granted Toyota permission to appeal on Nov. 15. The company, which has retained appellate attorney Theodore Boutrous, was expected to file its opening brief sometime next month. At issue is whether consumers who purchased or leased Toyota vehicles have standing to sue for economic damages absent any manifestation of a sudden, unintended acceleration defect or any related monetary loss. Plaintiff attorneys argue that the recalls, which focused on accelerator pedals and floor mats, did not address defects such as the electronic throttle control system or the lack of a brake override that caused acceleration. Toyota maintains that those consumers should not be part of the multidistrict litigation pending in federal court in Santa Ana, Calif. “The fact remains that the vast majority of plaintiffs in this litigation do not claim to have experienced an unintended acceleration event or to have incurred an economic loss,” Celeste Migliore, a Toyota spokeswoman, said in a prepared statement on Nov. 17. “We do not believe those who continue to drive their vehicles each day without issue belong in this case, and we look forward to presenting our argument to the 9th Circuit.” Eliminating those consumers from the MDL would substantially reduce the size of the litigation, she added. In fact, they comprise a large majority of the class. “A decision on these issues could significantly reduce the time, burden, and expense of litigating this case and, by potentially decreasing substantially the number of claims pending against Toyota, may help move the remaining cases forward more quickly,” Migliore said. 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 he wasn’t surprised by the 9th Circuit’s decision. “In fact, we anticipated that the Court of Appeals would rule as it did; the court almost always takes a case when asked to by a district judge,” he wrote in a prepared statement. “The good news for Toyota owners is that since the case was presented to the Ninth Circuit, we have seen a number of cases come through the court that boosts our confidence that the Ninth Circuit will uphold Judge Selna’s original ruling.” He referred to U.S. District Judge James Selna, who on May 13 ruled that the claims for economic damages could go forward based on the injuries alleged — in particular, that plaintiffs relied on advertising promoting the safety of Toyota’s vehicles when they purchased their cars. About 200 cases have been coordinated as a single consolidated complaint in the MDL. Another 100 lawsuits have been filed over injuries and deaths attributed to accidents allegedly caused by sudden acceleration. Toyota petitioned Selna to certify for interlocutory appeal the question of whether plaintiffs had standing to sue if they had not suffered monetary or property damages. On July 19, Selna granted that request, finding there could be “substantial grounds for difference of opinion.” In establishing Toyota’s reasons for appeal, Boutrous, a partner at Los Angeles-based Gibson, Dunn & Crutcher, cited numerous conflicts in the courts nationwide on the issue. In an Aug. 8 filing before the 9th Circuit, Berman opposed Toyota’s request, arguing that previous court decisions, including Selna’s, supported the consumer claims. “As the district court correctly determined, Plaintiffs need not have experienced the terror of being stuck in a runaway vehicle, property damage, personal injury, or death to have access to federal court,” he wrote. Consumers also need not sell their cars to determine that their vehicles have lost value, he added. Contact Amanda Bronstad at [email protected].

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