Carmakers’ bid to pause anti-theft device proceeding denied

A federal judge overseeing a multidistrict vehicle anti-theft device litigation involving Kia America Inc. and Hyundai Motor America denied the automakers’ bid to pause the proceedings.

However, U.S. District Judge James V. Selna in Santa Ana partially granted the automakers’ bid to certify interlocutory appeal to the 9th U.S. Circuit Court of Appeals regarding a handful of negligence claims under New York, Ohio and Wisconsin law. He denied review of the remaining claims.

“The question posed here pertains to three of the 16 pending claims, and the court sees no reason that litigation on the remaining 13 claims should not proceed on schedule,” Selna wrote in his order on Monday. “Defendants persuasively argue that the lack of clarity on the role of foreseeability and special relationship is a controlling question of law because duty is an essential element of negligence claims.”

Gretchen F. Cappio, a partner at Keller Rohrback LLP in Seattle, is chair of the committee representing governmental entities that sued Kia and Hyundai for allegedly making cars with substandard anti-theft features that they argued led to a nationwide wave of burglaries and thefts of certain vehicle models in the recent years. In re: Kia Hyundai Vehicle Theft Litigation, 8:22-ml-03052 (C.D. Cal., filed Dec. 22, 2022).

Cappio declined to comment on Selna’s order.

After greenlighting a $200 million preliminary settlement among Kia, Hyundai and a nationwide plaintiff class in November, Selna rejected the automakers’ motion to throw out all of the governmental entities’ and subrogation plaintiffs’ claims regarding civil liability, public nuisance and negligence across several states.

The states include: Indiana, Maryland, Missouri, New York, Ohio, Washington and Wisconsin.

Steven G. Madison, a partner at Quinn Emanuel Urquhart and Sullivan LLP, led the Kia and Hyundai defense. In his motion to stay the proceedings and certify the case for appeal, he argued there was a “controlling question of law” as to whether the supposed foreseeability of the car thefts supported a duty to protect against criminal conduct by third parties.

Madison did not respond to inquiries by press deadline Tuesday.

Cappio, in an opposition to the defense’s motion, argued the petition to the appellate court was an improper delay tactic and “the existence of a duty is a mixed question of law and fact … there are no grounds for differing opinions because the court correctly applied the law to the facts here.”

In his order, Selna said Missouri and Indiana “rather clearly provide for foreseeability in the duty analysis, but there is substantial ground for difference of opinion on the questions as it pertains to the New York, Ohio and Wisconsin negligence claims.”

Selna ruled that although the defense did not show their question had any bearing on the public nuisance claims, “resolving the ambiguity of the duty analysis, despite not applying to all of [the government’s] claims, would simplify the resolution of the negligence claims brought by New York, Ohio and Wisconsin ahead of trial.”

Were the question not answered and the case proceeded to trial, “there remains the possibility of appeal on those particular claims, appellate review, and the claims’ return to this court,” Selna added.