Judge considers decertification of Ford consumer classes

SAN FRANCISCO — Attorneys defending Ford Motor Co. tried to convince a judge Monday to decertify several large subclasses in litigation regarding an allegedly defective touchscreen computer interface offered as a popular option across a wide range of vehicle models.

The plaintiffs claim the auto company knew the MyFord Touch computer system was defective and frequently left consumers with inoperable navigation systems, radios, rear-view cameras and defrosters, among other problems.

They claim Ford lied to consumers by putting up an error screen that indicated the computer was performing “scheduled system maintenance,” which fooled some of them into thinking their problem was being addressed when it was really being ignored by the company. Whalen v. Ford Motor Co., 13-CV03072 (N.D. Cal, filed July 2, 2013).

Randall W. Edwards, a partner with O’Melveny & Myers LLP who represents Ford, contended the company thought it had repaired the computer system and later learned the fixes weren’t as good as originally hoped.

He said plaintiffs had to prove Ford was aware of the problem and intentionally hid it from consumers throughout the entirety of the class period for the cases to stay together.

Edwards said the case should be split up because Ford’s knowledge of the problem changed over time and that made each plaintiff’s case highly individualized.

“Ford never had a guilty state of mind,” he said.

“So it turns on both what they knew about the software, what the software actually did, all of which could vary over time?” asked U.S. District Judge Edward M. Chen of San Francisco.

John E. Tangren, a partner with DiCello Levitt & Casey who represents the plaintiffs, said he has internal emails proving Ford employees knew the software fix was a Band-aid solution that didn’t address consumers’ actual problems in a meaningful way.

He referenced an email from a Ford engineer who “characterized the latest version as lipstick on a pig.”

“Your argument would be that the underlying architecture was so defective that it was really irreparable and they knew it,” Chen mused. “They would say it was redressable and was redressed.”

Tangren argued Ford’s reading would make it too easy for any defendant in a consumer case to say they tried to do the right thing and promise to do better next time.

“They could come back and say, ‘Even though we knew it was terrible, we had these plans to make it better, and we believed in our heart of hearts that it would be.’”

Edwards said the lipstick email was sent six months before the software fix was released, and there was no proof that engineer had meaningful knowledge of what the end result would look like.

The defense attorney also contended all used vehicles in the class should be removed because the plaintiffs’ expert didn’t provide any evidence on whether a used vehicle with the touchscreen interface was marked up more than an identical vehicle without the computer system.

Plaintiffs alleged new vehicles were marked up about $1,000 for inclusion of the MyFord system.

“There’d have to be some analysis about whether the MyFord Touch, unlike everything else in the vehicle, had zero depreciation,” Edwards argued.

“Ford has no information about dealer markup [on used vehicles],” he added.

Chen took the matter under submission.