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Former 20-year car salesman and whistleblower David Stivers of Loxahatchee, Fla., probably knows more about the dark side of auto leasing and financing than any insider. And after 11 years of Stivers sharing his expertise from the witness stand against the auto industry for consumers and lawyers seeking class actions nationwide, the 4th District Court of Appeal in December ruled that his lips should remain zipped in Florida against Ford Motor Credit Co. The decision, the first of its kind in Florida, creates a significant exception to the state’s 1990 Litigation in the Sunshine Act. The law states that any confidentiality agreement preventing disclosure of a public hazard, such as a manufacturing defect in tires, may not be enforced. But the statute is vague. It refers to a public hazard as not only a product, but a condition, person or procedure “that has caused or is likely to cause injury.” So the 4th District stated that whistleblowers such as Stivers may not publicly discuss his allegations of economic fraud against Ford Motor Credit because fraud does not constitute a hazard. The decision, Stivers’ lawyers fear, may force future litigants to remain silent about economic fraud allegations after they settle their lawsuits. Stivers in 1992 filed suit in Palm Beach Circuit Court against Ford Motor Credit, the former Barnett Bank, and two car dealerships, Holman Enterprises Inc. in Pompano Beach and Cuillo Enterprises Inc. in West Palm Beach. Stivers, who worked as a salesman for both dealers, claimed he was blackballed by the auto industry because he blew the whistle on alleged deceptive leasing and financing practices. But a three-judge DCA panel decided that Stivers, 47, is bound by a gag order that he signed as part of the 1996 settlement of his original whistleblower suit. In reaching its decision that affirmed Palm Beach Circuit Judge Peter D. Blanc’s January 2000 order on Ford Motor Credit’s 1997 suit against Stivers, Judge Robert M. Gross wrote that a public hazard “connotes a tangible danger to public health or safety.” Economic fraud does not, he added. “We are very surprised at this decision; if this is how you can buy a person’s silence, it’s too bad,” said Rebecca Covey, a sole practitioner in Fort Lauderdale who represented Stivers during his four-year legal battle. On Jan. 11, Stivers’ appellate attorney, Diane H. Tutt, and her associate, Sharon C. Degnan of Fort Lauderdale, requested a rehearing by the full 4th DCA. Ford Motor Credit in 1997 sued Stivers in Palm Beach Circuit Court to enforce the gag order after Stivers, who now has his own consulting firm, was listed as an expert witness against Ford Motor Credit in a Florida suit, says company attorney Robert K. Tucker of the Miami office of Hinshaw & Culbertson. Tucker says the DCA ruling is unique and deals only with Stivers’ narrow situation and shouldn’t dilute the Sunshine in Litigation Act. According to trial court records, Stivers said he asked Florida Attorney General Bob Butterworth to investigate deceptive credit practices of the auto industry. Those practices included switching purchasers to a lease, secretly raising the price of vehicles by thousands, laundering defective cars and trucks across state lines, and marking up interest rates and giving dealerships kickbacks. Butterworth and Stivers appeared in 1995 on the television news program, “Prime Time Live” and then before a joint session of lawmakers in Tallahassee, showing the “Prime Time” tape. The same year, the Legislature approved tough new vehicle leasing and financing disclosure laws. “I saw it as a moral imperative,” says Stivers, reflecting on his first legal encounter with Ford Motor Credit. “I didn’t think I was signing away my ability to talk about many of the things that occurred.” “What if I’m asked to testify about a safety problem that has caused or is likely to cause physical injury to someone?” Stivers asked. Adds his trial attorney, Covey: “The line between economic fraud and personal injury can be very gray; one can lead to the other.”

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