Madison - St. Clair Record

Friday, December 6, 2019

Paint flake class actions against Big 3 remain open in Madison, Cook and Sangamon

By Steve Korris | Mar 28, 2007

Brad Lakin

Once upon a time a judge in Madison County could hear a motion to certify a class action for a class that probably included him.

Such a case came up in 2000.

Associate Judge Lewis Mallott accepted a Lakin Law Firm case about cars Chrysler made from 1990 to 1997, though he had owned a 1995 LeBaron.

Chief Judge P.J. O'Neill backed him up, denying a motion of Chrysler parent DaimlerChrysler to substitute Mallott for cause.

DaimlerChrysler then substituted without cause. In Illinois, any party can substitute once without cause.

Three years later DaimlerChrysler would secure an appellate mandate transferring the suit to Sangamon County, where it remains open.

The suit claims paint "delaminated" and flaked off vehicles Chrysler made from 1990 to 1997. It seeks fresh paint or other compensation.

A similar suit against Ford remains open in Madison County. Another, against General Motors, remains open in Cook County.

In all, the flaky paint suits against the Big Three have run for 24 years.

In 1998, Chicago attorneys Paul Weiss and Michael Freed filed suit against General Motors in Cook County chancery court.

They filed 10 suits against DaimlerChrysler, in Cook County and elsewhere, but DaimlerChrysler kept succeeding on motions to dismiss.

In 1999, Weiss, Freed and other class action attorneys in Chicago signed an agreement with the Lakin firm to funnel suits to Madison County.

In one of the first suits after the agreement, the Lakin firm proposed a class action for Ford owners with flaky paint.

Plaintiff Joyce Phillips worked for the firm. Ford called it a conflict of interest but Circuit Judge Phillip Kardis disagreed and the suit continued.

In 2000, Tom Lakin's son Brad Lakin filed a complaint in Madison County proposing a class action against DaimlerChrysler.

Lakin sued on behalf of Madison County residents Thomas Boxdorfer and Joanna Lane, who bought Chryslers from Dave Mungenast in Alton.

O'Neill assigned the suit to Circuit Judge Andy Matoesian.

For DaimlerChrysler, Amy Gunn of Edwardsville moved for transfer of venue to Sangamon County. She called the series of suits "unholy war."

She argued that venue belonged in Sangamon County because DaimlerChrysler's registered agent for Illinois was there.

Before Matoesian could hear the motion, the Lakin firm removed him by substitution.

O'Neill assigned the suit to Mallott.

At DaimlerChrysler, someone checked records and found that Mallott bought three Chryslers, including a 1995 LeBaron.

For DaimlerChrysler, Theodore MacDonald of Edwardsville moved to substitute Mallott for cause.

MacDonald wrote that the LeBaron "places him squarely in the class."

DaimlerChrysler also moved to dismiss on grounds of forum non conveniens, so plaintiffs could sue in Michigan.

The Lakin firm opposed substitution for Mallott, arguing that he did not belong to the class because he sold the LeBaron.

The firm also argued that Mallott's paint didn't delaminate.

At a hearing on substitution, DaimlerChrysler attorney Charles Newman said, "Plaintiff's counsel know something, I guess, or they surely would not have made that statement about the court's car."

Roy Dripps of the Lakin firm said a paralegal stated in an affidavit that she checked judicial ownership of vehicles.

Newman said, "They have not explained and indeed we cannot explain their statement that the court's vehicle never exhibited this condition."

He said, "Do we need to engage in discovery of the judge about the judge to determine whether or not he is in fact in the class?"

O'Neill asked if Mallott could claim damages if he sold the car.

Newman said the proposed class included original and current owners.

Dripps backtracked. He said, "Perhaps our response, given the time constraints, was unartfully drafted."

He said, "What we were referring to specifically is their utter lack and failure to allege any paint problem with Judge Mallott's vehicle."

He said, "The fact that he did not recuse himself suggests that he has no knowledge that there was no paint problem."

Dripps said he would amend the complaint to exclude judges from the class. O'Neill granted leave to amend it.

In a month the amendment did not arrive. DaimlerChrysler asked O'Neill to reconsider his order denying substitution.

Six days later O'Neill denied reconsideration.

DaimlerChrysler then exercised its right to substitution without cause.

O'Neill assigned the suit to Circuit Judge Phillip Kardis, who immediately set a hearing on DaimlerChrysler's forum and venue motions.

A week after the hearing Kardis denied the motions. He derided the argument against Illinois jurisdiction as "legerdemain."

He wrote, "Presumably, Chrysler would also argue to the Illinois Department of Revenue that it should pay nothing in Illinois taxes."

He wrote, "…not only have the plaintiffs chosen a forum in which they reside but they have also chosen the place where the damage was suffered."

In 2001, DaimlerChrysler appealed Kardis's order to the Fifth District Appellate Court in Mount Vernon.

In 2003, the Fifth District reversed Kardis.

Justice Stephen Welch wrote, "The cause of action did not spring into existence in Madison County."

He wrote, "…this is at least the tenth time that the defendant has been sued on similar or identical grounds."

He wrote, "Either venue is proper or it is not proper. The decision is not discretionary but is one of law."

Although DaimlerChrysler sold vehicles to Madison County dealers, he wrote, the sales were conducted in Michigan.

Another year passed before Kardis signed an order transferring the suit to Sangamon County.

Circuit Judge Patrick Kelley took the case.

The Lakin firm amended the complaint to narrow it from a nearly national class action to 10 states.

The new complaint added four plaintiffs – Deborah Franke, Stan Alcon, Alan Zuckerman and Charles Watson.

DaimlerChrysler moved to dismiss the amended complaint. Last May, Kelley denied the motion.

In November the Lakin firm moved to compel DaimlerChrysler to depose Zuckerman in California, where he lives.

For DaimlerChrysler, John Rogers of St. Louis wrote that nonresidents who sue in Illinois must appear in Illinois for deposition.

He wrote, "If Plaintiff Zuckerman cannot travel to Illinois, he should not have sued DaimlerChrysler in Illinois."

He wrote that Watson and Alcon refused to appear for depositions.

Alcon and Watson voluntarily dismissed their claims Dec. 18.

Springfield attorney Thomas Londrigan, a member of the plaintiff team, wrote that Alcon sold his Chrysler and Watson suffered a stroke.

Kelley has not set a hearing on Zuckerman's deposition.

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