Orange County California continues to make fun of itself

So earlier today Orange County District Attorney Tony Rackauckas decided to rear up on his hind legs and grab some national attention by filing a class action suit “on behalf of the residents of Orange County”.

(image from the District Attorney’s office)

Clearly the worst problems in Orange County California appear to be, it’s not getting enough national press. If this is what occupying their district attorney then truly, Orange County must be a little slice heaven.

Keep in mind, this is the county, one of the most prosperous in California, that managed to go bankrupt in the mid nineties. I suppose by now the embarrassment from that has faded so this issue must loom large in the sights of ace law enforcer Joseph “Tony” Rackauckas. Sure, the Orange County has struggled with plummeting property values, rampant mortgage fraud and home foreclosures, losing jobs but this Toyota thing, well, it has to be addressed.

Here’s a PDF of the complaint. Here’s a bit of it:

3. This case is based on several simple and provable facts: (a) millions of California consumers purchased defective Toyota vehicles; (b) Toyota knew that these defects existed; (c) Toyota failed to disclose these defects, and actually took affirmative steps to hide the defects and mislead the public about them; (d) as a result, none of the California consumers knew about, or reasonably could have known about, the defects; (e) millions of California consumers have been harmed by owning or leasing Toyota vehicles that contain defects which completely undermine the safety and reliability of the vehicles; and (f) the value of every Toyota vehicle owned by California consumers has been reduced because of these defects.

So one has to wonder what evidence Rackauckas has that congress apparently lacks, oh, and the entire news media since we’ve seen no evidence that Toyota has done any of this. What we have seen is a lot of very bad reporting, some folks with claims that are backed no physical evidence and make little sense and a general, “We hate Toyota” sentiment that seems to be driving this in some areas.

Here’s the kicker:

Relief sought by the OCDA
The OCDA is seeking to permanently enjoin Toyota from continued unlawful, unfair, deceptive, and fraudulent business practices as it pertains to both consumers and competitors. The OCDA is seeking civil penalties in the amount of $2,500 for every violation of the Unfair Business Practices Act. The Plaintiff is also seeking recovery of attorneys’ fees, investigation costs, and any other equitable relief as deemed just.

So the “relief” is twenty-five hundred bucks for each Toyota owner plus legal fees? As usual, the attorney’s here bill for millions and the actual people might see as much as $2500. Great deal if you can get it, for the attorneys.

And because everyone deserves a chance to tell their own story I called the DA’s office in Orange County. I spoke with one of their spokespeople there and I asked a few questions to try wrap my mind around this thing.

I asked how many complaints the DA’s office had received regarding Toyota vehicles. The response was that this action on the part of DA Rackauckas is not based on consumer complaints from Orange County residents. Why Orange County first? Why not let the Feds deal with this. The response, from DA Rackauckas’ own speech is as follows:

As these cases continue to pile up, I became increasingly uneasy, knowing that many thousands of California consumers have purchased defective Toyota vehicles. I became increasingly concerned that Orange County consumers may be purchasing many more Toyotas without knowing the full facts.

I feel it is the duty of the Orange County District Attorney’s Office to protect the public and our consumers from unlawful, unfair, and fraudulent business practices. I feel it is our duty to make sure Toyota is not gaining an unfair business advantage over other car companies who are not doing what Toyota is doing.

Nice of OC to step up and offer to fight Toyota on behalf of, well, everyone. A little more history, directly from DA’s speech this morning:

You may remember that in 2002, we joined forces with the Robinson, Calcagnie & Robinson law firm in taking action against giant international oil companies to clean up poison from ground water. As a result, we forced the oil companies to clean up over 300 sites and pay over $25 million in penalties and millions more in unlimited costs for cleanup of contaminated sites.

(editors note: I can only find records of OCDA getting a little less than $10 million in these suits)

It’s no secret that our office has been enduring a severe budget crisis. We have to prosecute the same number of cases with 10 percent less prosecutors and investigators. As important as protecting the public from unfair business practices and this case may be, I could not take prosecutors away from prosecuting murderers, rapists and gang members.

We all know that as soon as we file this suit against the world’s largest, most successful car corporation, they are going to be parachuting in lawyers, with all kinds of legal tactics up their sleeves. We need the assistance of a law firm, with expertise in these types of cases, to help us defend against the barrage of legal attacks we expect from this gigantic international corporation. Believe me, they will spare no expense to hire an army of lawyers from fancy firms.

Brave, I guess, but then fighting paper dragons often sounds much more impressive than it is. So, the mostly broke office of the Orange County District Attorney is going to take on Toyota over what they perceive as some kind of mounting crisis because no one else will? And they’re going to do it armed with what facts? And taxpayer paid outside attorneys? With what evidence? Based on news reports? And let’s be clear here, getting oil companies to pay to “study” and clean up after 143 leaky gas stations is a lot different than somehow proving Toyota has been knowingly selling defective cars and intentionally hurting people. The evidence with the oil companies was measurable. And even that settlement didn’t clean up all the gas stations, it only provided that the oil companies would spend several million dollars studying the sites to determine if a clean up was necessary. And the OCDA got $5 million in legal fees. Funny thing, those same oil companies with the Lake Tahoe water district for a similar issue. The result, Lake Tahoe got $60 million. Not such a great deal for Orange County residents, eh?

What’s more, let’s pretend for a moment that DA Rackauckas has a point and he’s doing god’s work here. Why just Toyota? There are more than handful of other recalls on other vehicles from other companies, some going back years. So why just Toyota?

As I’ve said here before, I’ll lead parade with torches to the Torrance offices if someone can show me proof Toyota has done what many in the media and the DA of Orange County is claiming. Keep in mind, I have a big, fat car loan right now on a 2010. My kid drives a Corolla. I have no desire to prop up a company that would knowingly hurt people to make money least of all, hurt my family and I.

But where’s the evidence?

And without that, people like this asinine DA in Orange County have caused me harm. Armed with a “timeline” they’ve damaged the resale value of my property, this DA and the media, without evidence and without care to actually reporting facts. It’s my opinion that I can prove that. I can point to the hundreds of bad, misleading and inaccurate articles that have damaged what my property is worth. I can point to idiotic grandstanding by the media and now, an officer of the court, namely, the District Attorney of Orange County California all of which have done nothing to “protect the consumer” and a lot of harm millions of Toyota owners all over the United States.

Where’s my lawsuit?

If were an OC resident right now, I’d be pissed my tax dollars trying to chase some Toyota gravy train that is highly unlikely to ever come in. And let’s be honest here, he’s not doing it for people of Orange County, Rackauckas is doing it for himself and for the other attorney’s. This District Attorney has a history of chasing these kind of budget problems. Only last year DA Rackauckas came under fire from a death penalty proponent for prosecuting so many death penalty cases? Why? They’re expensive. And in a time of budgetary problems it seemed pointless to spend the money prosecute these cases and incur the additional cost of asking for the death penalty in a state that has no death penalty.

He’s going to spend Orange County tax dollars paying outside attorneys to prosecute this case and he’s doing it to try and build himself a bigger name. And that’s pathetic because I don’t think that’s what Orange County residents elected him for.

There is no way this can end well

And here’s where I rip CNN a new one.

Let’s face it, running a huge multi-national, like the proverbial sausage factory, isn’t pretty but that doesn’t stop millions of people from gobbling up the product.

This story, no matter how it ends, is going to be real ugly for Toyota.

Apparently, a person whom CNN describes as “former in-house defense attorney Dimitrios Biller” resigned from Toyota, cashing in a four million dollar severance package and walked out with more than 6,000 documents and emails from his former employer. In the article, Biller claims the documents are damaging to Toyota, “Not potentially, they are. They are very damaging,”

There’s little doubt in my mind that just about any lawyer could produce documents that were damaging to a former client. That’s the nature of legal representation, right or wrong, we’re only pondering half the story if we can’t admit that. So even under the best circumstances, this is going to be another nightmare for Toyota.

So the real question is, so what does he have? What do these documents show us?

So what did CNN learn?

The documents — some of which were reviewed by CNN — were sent by Biller to Toyota officials. There are numerous references to so-called “Books of Knowledge,” highly confidential information on design, safety systems and testing records allegedly generated by Toyota engineers on everything from roll-overs and roof safety to sudden unintended acceleration.

Here’s a photograph of one of the not-so-secret “Books of Knowledge” I took in January of 2009. It happens to be “the Book” for the third generation Prius. The man holding it is known simply as the “The Chief”. He’s Chief Engineer of the Prius, Akihiko Otsuka.

And this picture…

And this picture of The Chief actually consulting the book to respond to a question…

So, yeah, secret book of knowledge. The Chief referred to this “book”, well, folder, that appeared to contain a vast amount of very well organized data on the the third generation Prius, many times throughout the presentation and questioning.

Here’s how CNN described it;

highly confidential information on design, safety systems and testing records allegedly generated by Toyota engineers on everything from roll-overs and roof safety to sudden unintended acceleration.

Of course any company that designs and builds a car has this information. In fact, I would guess that every car company has this information on every vehicle they’ve made and yes, it’s confidential. Is that surprising or somehow “damaging” to Toyota?

Again, the question is, depends on what’s in there. But by no means does mere existence of this information mean Toyota has done something wrong. This is shoddy, tawdry reporting. Give me an example of something that’s damning from these documents which CNN claim they have examined. CNN does, later on, but it’s, well, read on please…

So far, we know an ex-Toyota lawyer grabbed a bunch of privileged communications and is now, now that he’s out and has his four very-large bonus, he’s claiming these documents are damaging.

Further on we read about a specific liability case. A case, as it turns out, which Biller defended Toyota in. The accident was a Camry rollover which Toyota settled for $1.5 million. The plaintiff’s lawyer in the case is quoted as saying,

Embry, who added Toyota provided just enough information to show Toyota vehicles “met the minimum standards.”

Perhaps sad but again, what I would expect from any company defending itself in a multi-million dollar and not proof of guilt by any means.

Again, from the CNN article:

Included in Biller’s documents is an e-mail he said he sent to his bosses summarizing negotiations. It says, “TMS [Toyota Motor Sales USA] concluded that it would be better to pay a premium to settle this case and avoid producing the ‘Books of Knowledge.’”

So Toyota decided to pay off this claim rather than divulge what is basically a blueprint for building the Prius, even more, they’re the results of building the vehicle using those plans and testing it. I’m sure there’s a lot of folks that would like to get that information for free. GM claims to have spent three quarters of a billion dollars designing, building and testing the Volt, so far. Who wouldn’t love to see “the Book” on the Volt? Do you think GM would fight to keep that information secret?

Although Toyota calls the materials “trade secrets,” Embry said,

Exactly.

So why, if Biller knew a judge had ordered all information produced, didn’t he produce it? He said he tried but was stopped by a superior who told him, “You have to protect the client at all costs.”

“Even if that includes,” Biller asked, “committing criminal acts or violating the law?”

The answer, Biller said, was yes.

Did he break the law? “No, I did as much as I could as a lawyer for a client to not break the law,” he said.

At least he follows orders.

For awhile.

Toyota says publicly that Biller is full of it and they will continue to fight to keep those documents private. I can’t blame them but I will add this, if there is something in there that is truly damning, I’d be at the head of the line to kick some Toyota ass. But the evidence has to be there. I won’t do it on the allegations of a former lawyer who left Toyota years ago because of a “nervous breakdown”, grabbed a bunch of privileged communications and then, four years later, threatens to make them public.

I want evidence. Where is the evidence? We have enough allegation and assumption on this issue. Enough to clog the news organs of this country all too much. Where are the real facts?

There’s no doubt CNN should be reporting this story. My question for them, when will they actually do some reporting? If their goal was act as flack for this former lawyer, job well done. If their goal was to inform the public, they haven’t really bothered to tell us anything important, have they?

And as I said at the top, there’s no way this can end well for Toyota. It just adds more ironic gasoline to the fire. Even if Toyota is successful in keeping “the Book” and rest secret, then they lose image wise. If they make it public, everyone gets everything they spent millions learning.

Yes, this is going to suck for Toyota.

And by the way, just for laughs, here’s The Chief and I later in the day…

The runaway Prius saga

Tonight, my co-host, Danny Cooper of priuschat.com and I record our weekly What Drives Us podcast. Rather than write out my thoughts, I’m spending more time digging into this. If you’re interested in an update, please check out our podcast. We’ll have a lot to say about it.

Suffice to say, for now, that the reporting on this continues to be abysmal, the stories fantastic and no rational explanation backed up by physical evidence has yet been offered, by anyone. Aside form Toyota, the big loser here is the American car buyer who is being slathered in innuendo and assumption and none the wiser for it.

What we can learn and what we will not learn

An interesting op-ed from Electronics, Design Strategy News on drive-by-wire and how we evaluate these systems. Here’s the closing graph;

The only parties in this little tragedy with an interest in improving the state of the art are the engineers, whom no one will consult, and the victims, whom the lawyers will silence. It would be better for everyone if it were a principle of civil law that, when a failure inflicts damage, the vendor and independent parties must place all of the diagnostic information they find into the public domain, and the courts may not use this information to assess or assign damages. Such a notion might somewhat restrict the income opportunities of litigators, but it would unquestionably assist the engineering community in learning from its mistakes.

I couldn’t agree more.

The one thing I learned from watching over ten hours of the House hearings was that the entire charade was merely an opportunity to grandstand for the various House reps’ own causes, whatever they might be, free trade, more business in their district, championing for “victim’s rights” the whole thing was, if you’ll forgive the term, Kabuki of the most tawdry sort exemplified by Delegate Eleanor Holmes Norton using the excuse of standing up for Toyota owners world-wide when she attempted to extract a commitment from Akio Toyoda that her Camry hybrid “would never be recalled”.

Transparency is the one thing that we all benefit from, car company, car owners, engineers. It’s the one thing we’re least likely to get.

“Lexus lady”

Here’s some discussion from Leo LaPorte regarding the “Lexus Lady” some of who’s testimony you’ll find down below.

Once again, the one thing most parties in this can’t say is that drivers make mistakes and sometimes when they do, it leads to terrible things. I can’t say, without seeing the evidence, which incidents are driver’s mistakes or potential defect issues but I can note that this is the option NO ONE is talking about in the media. Apparently, in congress and in the media, all drivers are perfect it’s only vehicles and regulators that screw up.

UPDATE: Oh man, and I thought what I wrote was pretty harsh. Check this out.

Privacy

One of the things that came up several times during the congressional hearings are the “block boxes” in Toyotas. Of course, when one uses the term “black box” most of us tend to think of the flight data recorders in airplanes, mandated by law and regulated tightly by the FAA. Whether or not the data recorders available in some vehicles record as much data are airplane recorders isn’t self-evident. I’m looking into that. However, apparently, at least according to the testimony before congress, Toyota is the only one that encrypts this data so it is not readily available for examination without Toyota’s help. I don’t know if that’s true or if it is not. But that’s not exactly the point of this post.

Let’s pretend that Toyota’s data recorders are in every Toyota vehicle. Let’s further pretend that these data recorders gather a wide range of detailed data that might help determine, in the case of an accident, what happened. While congress is demonstrating their affected outrage that Toyota encrypts this data the thing not being said is, what if that data only proves that “sudden acceleration” is driver error? What if the data is inconclusive?

Now, let’s hypothetically deal with another scenario. If, in fact, data from vehicle data recorders would point to a reason for “sudden acceleration” that puts Toyota to blame. Then, I would opine, that Toyota should be taken to task for these mistakes/defects, whatever we wish to call them. I’m not here blindly defending Toyota against all reason. I’m merely suggesting that without evidence, Toyota is not necessarily the first, best place to look for blame.

Back to the vehicle data recorders. How many of you want to make public, information from a vehicle data recorder that would, hypothetically, deliver all the details of your driving? Think about it. Were you speeding? Will it show that the Bluetooth was active at the time of the crash? Will it show that you were engaging a high G turn at the time of the accident? How many drivers want this vehicle data made public after an accident when it demonstrates that the driver was or might have been at fault?

My point is obvious, yes, the data should be made public for the good of all drivers, no matter what car we’re talking about. Just keep in mind that, as history and statistics show us, most of the time it’s the driver, not something else, that caused the accident. When you have irrefutable data to prove that, suddenly “personal responsibility” takes on a whole new dimension. We should have detailed data recorders in all cars as a safety measure but we also need to keep in mind that data may not always be our friend. It is, what it is, data, and bytes are notoriously unsympathetic to human feelings.

Perhaps the wrong history to cite

How long before someone invokes the Audi’s “SAI”s (Sudden Acceleration Incidents) from the 80′s thinking this will further bolster their case against Toyota?

I’m waiting.

“God intervened”

This is possibly the most utterly pathetic tale of “out of control” I’ve ever heard.

And wow, you’re thinking how can I mock someone so emotionally affected by something obviously potentially deadly to her? Well, I’m not necessarily mocking Ms. Smith. I am however mocking her story, none of it makes sense. Remove the emo element, listen and watch with your brain. This is the kind of thing makes for great 24 hour cable news fodder but in the end, what does it tell us? What does her testimony mean?

I’ve said this before and I’l say it again, this is much ado about very little. And my heart goes out to the families of those who have died but I don’t know that this is Toyota’s fault. There’s this thing that no one, and mean NO ONE in the media or the political sphere is discussing because they’re not allowed to discuss it. It’s called pilot error. Sometimes pilot errors cause heinous plane crashes. Sometimes pilot errors cause cars crashes, well, not sometimes, frequently. It’s also human to not want to accept blame. None of that change the actual circumstances to make it more palatable for us or the families of victims. It doesn’t surprise me that no one in congress can even bear the mention of “human error”. When brought up yesterday one congresscritter went into full metal, “How dare you” mode. Of course one of her constituents couldn’t be at fault. It had to be evil Toyota dodging blame. The pathologically spineless humans that seem to infest congress appear to be only capable of expressing outrage when the source of their ire doesn’t contain any possible votes (or campaign money, hmmmm, Toyota).

Without any evidence to the contrary, I’m going with the cause of most accidents, human error. At least until the human stories sound better than this one.

Hey, it’s the POG on the brake recall on the BBC

BBC World News Hour, one of my favorite shows called me to talk about the Prius braking issue. If you want hear the interview, here it is…

BBC World News interview

Want to see a 2010 Prius update?

Here it is, from yesterday…

Here’s the update FAQ on the Toyota recall now including the 2010

Check it out over at priuschat.com.

This is exactly what I am talking about

In this thread.

From a WaPo story on Toyota. It goes over how at least one insurance may have warned NHTSA about accelerator problems as early as 2007 but read on braver visitor, the punchline awaits…

“When we see something that might be helpful, we pass it along,” said Dick Luedke, a State Farm spokesman.

Luedke declined to go into detail about the alerts, except to characterize them as “numerous” and not “everyday” occurrences. He directed further questions to NHTSA.

NHTSA spokeswoman Karen Aldana said the agency received a claim letter from State Farm in September 2007 regarding a Camry crash. (emp. mine)

“Our investigative staff reviewed the report and added the information to our complaint database,” she said in a statement.

Aldana offered no comment on the other alerts from State Farm on Toyotas.

Now that is some excellent reporting. Almost content free. How many people had crashes? Had bad were they? Could they could connected to a common fault? Everyone is talking in this story but as the song goes, “They ain’t sayin anything”.

This could be huge, important information that could be devastating to Toyota and their customers. It could be trivial. We don’t know. We can’t evaluate it for ourselves because the critical details aren’t there.

Oh, and yes, NHTSA is a big issue here and one reason why, I would opine, that Toyota isn’t saying a lot.