EAST ST. LOUIS – Former U.S. attorney Stephen Wigginton’s transition to the private sector includes representing a class of clients suing Chrysler over the alleged hacking of the “uConnect” information and entertainment system.
A year-and-a half into the case, defendants are preparing to argue for dismissal over plaintiffs’ failure to prosecute.
The suit started on Aug. 4, 2015, when Wigginton still worked for taxpayers.
Belleville attorney Christopher Cueto, brother of former St. Clair County judge Lloyd A. Cueto, filed the complaint along with Michael Gras of his firm.
Attorney Brian Flynn of Belleville stood as lead plaintiff, with George Brown and Kelly Brown of Missouri standing second and third.
The plaintiffs claim hackers could seize control of their vehicles through uConnect.
Harman International Industries is named as a second defendant.
The complaint relies on an article that Wired magazine published on July 31, 2015,
“Hackers remotely kill a Jeep on the highway with me in it,” the headline reads.
In the fall, Wigginton moved to dismiss two of three plaintiffs from the suit, but U.S. District Judge Michael Reagan denied the motion.
“To dismiss one claim or one party from a case that will otherwise continue, a plaintiff must instead file an amended complaint,” Reagan wrote.
“[G]iven the current posture of the case, it looks as if the plaintiffs will need leave if they choose to file a second amended complaint.”
Reagan set a Dec. 23 deadline, which passed without action on Wigginton’s part.
In the original complaint, Gras and Cueto wrote that researchers were able to control radio, locks, wipers, center console display, and other peripheral functions.
“They then demonstrated their ability to control engine functionality by shutting the vehicle down in highway traffic,” the complaint states.
“On a closed course, the researchers showed their ability to affect steering and disable braking.”
The lawyers wrote that Chrysler instituted a safety recall on July 23, 2015, but it didn’t fix a fundamental design flaw.
“As technology develops, this problem will only get worse,” they wrote. “These vehicles will never be safe or secure.”
They argue that Chrysler and Harman should remedy the defect or refund the purchase price of their vehicles.
They propose a national class action under federal warranty law.
They also propose state class actions for Illinois and Missouri under warranty laws of those states and under theories of fraud, negligence and unjust enrichment.
Belleville lawyer Lloyd M. Cueto, son of the former judge, entered his appearance for plaintiffs on Aug. 11.
Chrysler retained John Rogers of the Thompson Coburn firm in St. Louis, and he moved to dismiss the suit on Sept. 25, 2015.
Rogers wrote that plaintiffs alleged no hacking or any risk of it.
“Plaintiffs don’t allege a single problem with their vehicles whatsoever,” he wrote.
He wrote that the federal Motor Vehicle Safety Act would preempt a recall order.
Harman counsel Elizabeth Mazzocco of Chicago also moved to dismiss the suit.
Plaintiffs then matched Chrysler by hiring a big firm across the river.
On Nov. 3, 2015, Christopher Baucom and Lucas Pendry of Armstrong Teasdale entered appearances for Flynn and the Browns.
As soon as they entered, Baucom and Pendry moved to extend the time for answering Chrysler’s motion.
Instead of answering, they amended the complaint on Dec. 22, 2015.
They added a fourth plaintiff, Michael Keith of Michigan.
Wigginton, who had resigned as U.S. attorney in November 2015, entered his appearance for Flynn, the Browns, and Keith last Feb. 16.
Rogers withdrew as Chrysler counsel on Feb. 19, leaving Kathy Wisniewski of Thompson Coburn to file a pair of motions to dismiss.
One motion argued preemption, the other argued failure to state a claim.
For Harman, Mazzocco also moved to dismiss.
On Feb. 23, Wigginton, Pendry, and Gras represented Flynn and the Browns at a scheduling conference before U.S. Magistrate Judge Donald Wilkerson.
On March 21, Wiggington answered the motions to dismiss.
“The injuries plaintiffs allege are unremarkable examples of just the type of economic injuries which courts commonly and consistently find to be quintessential injuries in fact sufficient to provide standing,” Wigginton wrote.
He wrote that plaintiffs would not have purchased the affected vehicles and their value had already diminished.
In discovery last June, Chrysler found a dealer’s form showing the Browns received an employee advantage discount.
The form provided arbitration for warranty disputes.
The Browns had not produced the form in discovery for their case.
On July 11, Sharon Rosenberg of Thompson Coburn moved to compel arbitration of their warranty claims.
She moved to stay the entire case until arbitration ended.
On July 25, Wigginton answered that the arbitration clause was unconscionable.
He wrote that it didn’t apply to other claims of the Browns.
He wrote that even if their claims were referred to arbitration, it didn’t apply to the claims of Flynn and Keith.
“The Browns did not produce the form because they did not have it,” he wrote.
On Sept. 23, Reagan directed the Browns to proceed with warranty arbitration.
“The advantage agreement wasn’t unconscionable under Missouri law,” Reagan wrote.
“There’s nothing to suggest that the Browns were pressured into signing the agreement, that the arbitration provision was hidden in the discount contract, or that anyone lied to the Browns about the arbitration provision.”
Reagan stayed their other claims for 60 days.
“If this court beat the arbitrator to the punch on a ruling concerning the non-warranty claims under Missouri law, say by ruling that the diminished value damages weren’t viable in a fraud suit under Missouri law, the arbitrator may feel hamstrung by the court’s decision as it concerns the warranty claims under that same source of law, or he could reject the court’s logic and all involved could face inconsistent decisions,” he wrote.
“In addition, there is a chance that the arbitrator’s ruling might press the Browns to drop their suit against Chrysler or press Chrysler to settle the entirety of the Browns’ case against them, thereby saving the court and the parties’ resources.”
Reagan stayed all claims of the Browns against Harman, finding his rulings on damages could impact the arbitrator’s ruling on warranty claims against Chrysler.
He ruled that Flynn and Keith could proceed.
“It’s doubtful that the other plaintiffs in this case will drop their claims under Michigan and Illinois law if the arbitrator rules that the Browns’ warranty claims are bunk under Missouri law, and it’s likewise doubtful that Chrysler and Harman would settle with the other plaintiffs if the arbitrator thought that the Brown’s Missouri warranty claims against Chrysler had merit,” Reagan wrote.
Though Reagan let Flynn and Keith proceed, he signed a separate order dismissing many of their claims and denying a recall.
“Only four owners in a universe of over a million reported anything close to a safety related problem,” he wrote.
Reagan found no allegation that the four were injured, severely or otherwise.
“So Flynn and Keith lack standing to press injuries based on a risk of injury or death and the fear of that injury,” he wrote.
“That leaves them only with economic damages, meaning that the negligence claims must go.”
He wrote that they sufficiently alleged economic loss, but he rejected several of their theories for recovery.
On Oct. 25, Wigginton moved to dismiss two counts that the Browns brought against Chrysler under U.S. law and Missouri law.
He moved to lift the stay on other claims, writing that, “there are no longer any claims in this action that will be submitted to arbitration, and therefore, no claims to be stayed pursuant to the Federal Arbitration Act.”
On Nov. 7, he moved to dismiss the same two counts and six more.
Reagan denied the motion on Nov. 22, finding the Browns cited no rule of procedure or case law in support of their voluntary dismissals.
He wrote that Rule 41 allows dismissals under certain circumstances.
“The rule is limited to dismissals of actions, not parties or claims, meaning that the rule cannot be used to cleave away one claim or one party from a larger case,” Reagan wrote.
Reagan granted leave to amend the complaint, but Wigginton didn’t amend it.
On Dec. 23, Rosenberg advised Reagan that Chrysler would move to dismiss all claims of the Browns for failure to prosecute.
As of Jan. 3, Chrysler hadn’t filed a motion.
Reagan has set trial in May 2018.