Category Archives: Litigation

BMW fire story smacks of money grab

Screen Shot 2017-05-12 at 4.00.25 AMStand and deliver, BMW! Behold the latest attack by the posse TeslaMondo has repeatedly warned about:

  • Plaintiff attorney looking for airtime
  • Journalist with airtime to lend
  • “Safety expert” on plaintiff payroll but never identified that way

This skunk team is responsible for a long string of automotive spook stories going back decades, some well-known, some not, all of them concocted to squeeze settlements from Big Auto. Here are some you might not remember. More recently, the Toyota acceleration farce, the Tesla autopilot farce, and now the BMW fire farce.

Does the auto industry sometimes screw the public whilst chasing $$$? Of course: GM ignition scandal, VW diesel weasel scandal, Takata airbag scandal. Sometimes it’s a borderline case of malfeasance with no clear culprit, as in the Ford/Firestone fiasco. So car companies can be ornery.

But we need to make our own assessments. We must never allow ourselves to be informed by the likes of Brian Ross from ABC News, plaintiff attorneys like Joseph Santoli (where this BMW story likely originated despite his low placement in the story) or canned “safety experts” like Sean Kane, dissected in detail here.

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Oh, another contract? Yawn.

While we’re distracted by bickering between Mobileye and Tesla, Tesla has quietly signed a massive Powerpack contract with the state of California. These boring contracts for boring batteries represent the proliferation of clean energy. That sounds an awful lot like the very mission of Tesla, and the backbone of the TSLA stock story. But, sigh, battery contracts aren’t sexy.

Somewhat sexier — though not Mobileye sexy — is Michigan’s refusal to grant Tesla a dealer license in Michigan. Tesla expected as much. Now the company has a legal building block for its next maneuver, whatever that may be. TeslaMondo hopes it involves giving violent wedgies, resulting in broken underwear straps, to Michigan politicians.

Sexier still — Oil industry consultant Todd A. Katz tries to pry inside info from Tesla using a Musk-like email address, in a plot apparently hatched in a middle school espionage class. Katz would have gotten farther by simply walking briskly through Tesla HQ while wearing jeans and a sport coat, and keeping his head down while tapping a phone — banking on the notion that people won’t make direct eye contact with Musk anyway. There’s a serious side to this folly, however. TeslaMondo has repeatedly fretted about Elon Musk’s personal safety. Polarizing figures attract unwanted attention from all manner of humanity, from the lunatic fringe to clean-shaven business execs who suddenly find themselves on the wrong end of a market trend. Sometimes, in a wrap-around effect straight from an Atari game, the clean-shaven business execs go off one side of the screen and emerge as lunatics on the other side. “The list of people that would not mind if I were gone is growing.” That’s Musk, in the Ashlee Vance book. Is it possible to rattle the petroleum industry, car industry, space industry, energy industry — and come out alive? We’ll find out.

And now, the sexy stuff. Mobileye and Tesla had an amicable breakup just a little while ago. “Us parting ways was somewhat inevitable. There’s nothing unexpected here from our standpoint,” Musk said. “We’re committed to autonomy. They’ll go their way, and we’ll go ours.” There now. Anything inflammatory? No, in fact, that was Elon on his best behavior. It was the guy on the other bar stool that started with the mouth. Tesla had little choice but to respond with a full can of Musk.

This fake turmoil sets stage for lawsuits

Criswell predicts TeslaMondoCan Autopilot survive sue-happy USA? That’s what TeslaMondo pondered last year. Well, let’s look at the current conditions:

High-profile accident? Check.
Hyperbolic headlines? Check.
Consumer advocates chiming in? Check.
Regulators chiming in ? Check.
Congress chiming in ? Check.

All that’s missing now are the opportunistic lawsuits. TeslaMondo predicts a settlement-seeking lawsuit within a month, claiming Tesla was reckless in deploying Autopilot. Followed immediately by polished sound bites from plaintiff lawyers and their bespoke safety advocate, Sean Kane from Safety Research & Strategies.

In short, there’s blood in the water. Musk should NOT testify before any Congressional committee right now, for his every word will be replayed in court.


GM, alleged dealer chum, slapped by court

GM tried to pull the plug on a New York dealer for underperforming state averages. But the dealer successfully argued that such averages are polluted by local advantages/disadvantages, so they’re bogus metrics. Here’s the money shot from Automotive News:

“The Gellers’ suit argued that their dealership and others in the import-heavy New York City market were unfairly compared with stores in the Buffalo area, for example, where Chevy’s market share is about four times greater, partly because of the presence of thousands of GM factory workers.”

So GM, the company that lobbies against Tesla’s factory-direct business model and touts its wonderful family of neighborhood dealers, is an abusive parent.


Can Autopilot survive sue-happy USA?

American motorists fall into two categories: current plaintiffs and future plaintiffs. We like to sue. In fact, we sue better than we drive. The Audi acceleration fiasco of the 1980s and the Toyota acceleration fiasco of 2009-2011 never left American shores despite worldwide use of the same vehicles. Well, fast-forward to now. So-called “hackable” cars are already facing nuisance suits, and now autonomous driving is about to face sue-happy USA.

The plaintiffs’ bar is already backstage, bobbing and weaving, anticipating the opening bell. So are the legal defense teams at auto companies big and small. So are journalists. So is the NHTSA. And so is Sean Kane, the press-savvy “safety advocate” who is quite unloved by car companies.

Tesla has now entered Kane’s vocabulary. He mentions Autopilot near the end of this warm-up post about autonomous motoring. It’s just a casual mention, but look for this subject to become a lot less casual very soon. Lawyers have to eat, you know, and so does Kane. The first high-profile accident involving Autopilot, and that means ANY accident, and the plaintiff tales of woe shall begin. Kane’s post ends with an implication that driverless cars run the risk of merely transferring crucial mistakes from the driver’s seat to the programmers behind the algorithms. They might be “the new problem.” This is quite appropriate foreshadowing by Kane, for that’s exactly who will be dragged into court to explain why a car mistook a puddle for a hole and slammed on the brakes.

Wait. Sean who? And why does he deserve such a long post on a site that favors brevity?

He’s the new Nader. He was the man behind the curtain during the Ford/Firestone and Toyota acceleration debacles. And he’ll undoubtedly orchestrate the light and sound show for the first wave of autonomous driving lawsuits. He runs Safety Research & Strategies in Massachusetts. Care to guess what kind of “strategies”? Litigation strategies would be an excellent guess. He’s paid by plaintiff attorneys, but he hates to say so because it erodes his neutrality, ergo his credibility. Journalists turn a blind eye to his pay stream when quoting him. His sound bites are just too darned good to resist. So journalists bill Kane as anything from “safety expert” to “safety advocate” to “safety consultant,” thereby purifying their source.

Behold the “safety expert”:

LA Times

NBC News

ABC News

Kane even brings journalism awards to reporters. You may recall the Toyota unintended acceleration demonstration by ABC News with Brian Ross, featuring Kane’s paid contractor/professor. It was debunked as fake, but still won an Edward R. Murrow award for ABC News!? Remember all the scary headlines emanating from the LA Times, Well, Kane supplied the goods. The spook stories made the Times a Pulitzer finalist that year, though no electronic Bigfoot ever surfaced in Toyotas, even after a NHTSA/NASA endoscopy of Toyota products. Even the sticky-pedal recall, for which the Times patted itself on the back, proved a paper tiger. To date, there are still zero YouTube videos of a sticking pedal despite a Toyota on every corner, a camera in every hand, and a defect that was surely visible and repeatable in one’s driveway. But good stories win awards, and lots of good stories get their fodder from Mr. K.

Even Congress consulted Kane, for a while at least. Skip to 1:25:44 here to watch him finally get smoked out. Warning: It’s ugly. But that was a few years back. People will forget what a weasel Kane is. When the first autonomous driving lawsuits hit the press, and the inevitable Congressional hearings begin, Kane will once again get an invitation because, well, what other safety “experts” exist? If you’re answer is Clarence Ditlow or Ralph Nader, save that thought. We’ll get to them. (UPDATE: Ditlow has died).

Kane’s pay stream doesn’t automatically render his work junk. Plaintiffs are sometimes in the right. What renders his work junk is the work itself. If the phony acceleration demo on ABC News is Exhibit A, then:

Exhibit B: Kane’s compilation of sudden unintended acceleration complaints against Toyota, which begins on page 53 here. If you copy and paste the entire thing into Word, and do a few keyword searches, you’ll quickly extract irrelevant complaints about hesitation, high idle, cruise control inaccuracy, pedal placement, air conditioning cycle, and the list goes on. Search for “hemroids” (sic) for a chuckle. Yes, a woman blames Toyota for exactly that. If it takes you just a few minutes to pull out these weeds, why can’t a professional gardener do it?

Exhibit C: The seminal accident that snowballed into the Toyota acceleration farce of 2009-2011 was the Lexus “911” crash in California. The police report shows a guy named Frank Bernard had just wrestled the very same car due a mismatched rubber mat pushing the throttle. Yet when Kane writes about the accident, on page 4 here, he totally omits Bernard. Why? Because Kane and his lawyer chums were banking on a much bigger and scarier electronic defect in Toyotas. Bernard and his lousy floor mat story were in the way, so POOF — he disappeared. Yes, Sean Kane, the relentless custodian of chapter & verse on sudden acceleration, the meticulous chronicler of countless consumer complaints, somehow has a blind spot for the most pivotal witness in the most impactful sudden acceleration incident of all time.

Exhibit D: When you’re on a mission to extract a settlement from a big company, you steer public opinion by any means necessary. If there’s a crowd and an open mike, well dammit you’d better take advantage of the opportunity to say something, anything, to help your case — er, your cause. Why else would Kane participate in an irrelevant UAW/Teamster protest about the closing of the NUMMI plant?

Kane at union protestJust keep Kane’s name in mind as autonomous driving and related tort law approach a big shift. If Kane touches a news story about Tesla, Autopilot, or autonomous driving in general, file it in the proper mental folder, along with the guano from his agitator predecessors, Clarence Ditlow, Joan Claybrook and Ralph Nader. Ditlow and Nader still supply sound bites to the press, and they’ve already begun planting all the right seeds for autonomous driving litigation. Those guys aren’t paid by tort lawyers, at least not directly, but they suffer from the same credibility problem that afflicts Kane. Sure, they’ve ushered some genuine safety advances to market, some as elemental as airbags and seat belts, but they’ve also befouled public discourse for decades with lawsuit-friendly safety spooks that turn out to be nothing more than wet dreams for lawyers and hype-hungry journalists. Here’s a pretty good compilation of just such news stories.

The credibility shortfall of safety experts goes all the way back to the Chevy Corvair, the car killed by Nader. Years after Nader helped form the NHTSA, the agency commissioned Texas A&M University to test the Corvair. The conclusion? Nothing wrong with the car. Nader’s direct disciples, Ditlow and Claybrook, each have contributed to safer motoring — but have also made fools of themselves.

Ditlow gets as much airtime as Kane. When there’s no litigation in involved, Ditlow can function as objective observer. But when there’s blood in the water, he’s loco. Ditlow cheered the phony Dateline NBC story about exploding Chevy Silverado gas tanks, even after Jane Pauley and Stone Phillips read an on-air apology about faking the whole thing. He also co-authored “Sudden Acceleration — the Myth of Driver Error.” Oy!

Claybrook, the NHTSA chief under Jimmy Carter, railed against SUVs as “gussied-up pickup trucks” in 2003, a decade after the unibody crossover revolution had already yanked the very definition of “SUV” into Silly String. She also seriously proposed that motorcycles be force-fitted with side wheels to stabilize them. Oy!

Claybrook is now semi-retired. Ditlow still runs the Center for Auto Safety, Kane’s alma mater. The CAC website looks like a high school HTML project at best. Kane’s site, by contrast, is excellent. It even has fiery explosions. He pulls all the right levers behind his li’l curtain.

Above all, he’s sacrosanct. Neither Ford nor Firestone nor Toyota really gave Kane a smackdown despite all the trouble he caused them. Toyota conducted a behind-the-scenes “message” test about how to counter him, but never acted on it. Kane is the dog nobody can kick because he plays Underdog to the big corporate villain.

Tesla’s CEO, however, was abandoned as a child and raised by wolverines. Annoying him could have far bloodier consequences. Ask Randall Stross.

Editor’s note: Some of this material appeared long ago in the comment section of this article, but mysteriously disappeared some years later, along with the responses to it, all of which were none-too-favorable to Kane. Odd, isn’t it? Well, now that Tesla has popped onto Kane’s radar, this seems the perfect time to put this stuff back on Google’s radar. Merry Xmas, Mr. K.

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LOL Michigan

Michigan Governor Rick Snyder TeslaMondo

Michigan Gov. Rick Snyder

A cabal of politicians and car dealers writhes in a steamy love pretzel in Michigan, each partner enthralled with each other’s sliminess. And GM is holding the camera, sporting wood all the while. Meanwhile, Daimler has sold its remaining shares of TSLA while downplaying the significance. Will Toyota follow?* Hope so. If we witness a dip to $200/share this winter, it’s time to load up on more TSLA and ride the falcon wings in 2015. This is so easy, it seems almost illegal. Hey, wait — never mind almost. Tesla IS illegal! Seems that Musk and gang are like the Dukes of Hazzard, justGeneral Lee Dukes of Hazzard Model S TeslaMondo making their way the only way they know how. But that’s just a little bit more than the law will allow. Maybe it’s time for a General Lee version of the Model S.

Better minds have prevailed elsewhere. A summary of pro-Tesla statements:

Federal Trade Commission
Bunch of law professors and economists
Massachusetts Supreme Judicial Court ruling

*UPDATE, 10/23: Toyota does indeed sell some of its shares.

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Fire hysteria lawsuit fizzles out

Shareholder lawsuit TeslaMondoRemember the shareholder suit filed shortly after the fire hysteria in fall 2013? The one that claimed Tesla snookered shareholders by failing to disclose some fundamental design defect that leads to fires, and so the share price suffered and people lost money, blah blah blah? It’s going nowhere. US District Judge Charles Breyer says there’s zero basis for such a case. “I’m at a total—I mean total—loss understanding the basis for this lawsuit,” Breyer said. “Tesla said that this car was found to be one of the safest cars ever developed. That seems to be the case. There’s no evidence that that’s not true.” Remember, the day that suit was filed, TSLA was trading at only $137. Anyone who panic-sold last year deserves not just the judge’s rebuke, but also an hour of standing in the corner, wearing a dunce cap.

A similar suit was filed just a few months ago. It’s likely headed for the same (s)crap heap.

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Serial lemon squeezers still juiceless

Tesla lemon law caseThe dyamic duo — Wisconsin resident Robert Montgomery and mascot Vince Megna — will face Tesla in federal court, after Tesla offered about $16k less than the $108,622 the pair demanded for an allegedly defective Model S. Sounds like Tesla’s offer came pretty close to the $95,000 price of Montgomery’s car but left no room for attorney fees. No wonder the offer was rejected.

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That whining sound, in stereo

Mercedes boss Steve CannonBenz boss is indeed S-Class*

When an auto CEO takes time to tell the press all about Tesla’s alleged shortcomings, it means (choose one):

1. He’s worried about Tesla’s future.

2. He’s worried about his own.

The newbie Tesla Model S outsold the S-Class last year. Considering the S-Class has been the Benz flagship for the past 50 years, this qualifies as an upset, in every shade of the word. Mercedes CEO Steve Cannon is understandably upset about losing his high-end sedan crown, even to an extended family member. Tesla and Mercedes are indeed cousins, you know, what with Mercedes parent Daimler owning about four percent of Tesla and paying for Tesla innards for its B-Class EV.

But let’s not bash Cannon for talking trash about a relative, suggesting it has “limited potential.” We’ve all done it. In fact, “limited potential” describes an entire side of my extended family. Let’s bash him instead for eagerly aligning with the old school in a business suddenly awakening to a new school. Or let’s not bash him at all. He just bashed himself with great skill by revealing his own limited potential.

Mercedes boss Steve CannonSerial lemon squeezers crying over wrist slap

Tesla suer Robert Montgomery and his mascot Vince Megna have quickly gone from viral video antagonists to blubbering infants after Tesla pointed out the dynamic duo pursued a lemon case with Volvo and may have tampered with their allegedly faulty Tesla. Now Megna is calling Tesla a bully and is offering to settle for the price of the Model S and lawyer fees, which presumbly include the cost of Megna’s video campaign. So Tesla now has the terrific opportunity to pay for its own lampooning. The offer is good through the end of April 22, assuming it can be construed as “good” at all.

* “S” for scared.

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Will NHTSA help Tesla in court?

lawsuitYou might recall that last fall, during the Tesla fire hype, habitual class-action peddler Howard G. Smith filed a suit charging Tesla with all manner of uncouth behavior including concealing “material defects” in the Model S from hapless investors. Now that the NHTSA has closed its investigation without finding a defect, you’d think that cripples the lawsuit — yes?

Not necessarily. Look that happened to Toyota. Even NASA’s finding of “no defect” in Toyota electronics hasn’t always moved juries to side with Toyota. That’s how unpredictable litigation can be. Hence, the Howard Smiths of the world.

Usually, however, a NHTSA all-clear does indeed destroy plaintiffs’ cases. How do we know? The favorite “safety consultant” of the plaintiffs’ bar, Sean Kane of Safety Research & Strategies Inc., came right out and said so to the NYT during the Ford-Firesteone fiasco circa 2001.


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