Toyota’s Motion is Extra-Judicialious!

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Two judges have turned down Toyota’s request to bar Plaintiffs from speaking to the press about their unintended acceleration cases.

Guadaloupe Alberto of Flint, Michigan died in April 2008, when her 2005 Camry accelerated out of control, left the roadway and struck a tree. Alberto was known as a cautious driver; the 2005 Camry is known as one Toyota’s most problematic UA vehicles. Alberto v. Toyota is now set for trial in February 2014.

In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma in a 2005 Camry. As she sped down the ramp, Bookout realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. The Camry, however, continued speeding down the ramp, across the road at the bottom, and finally came to rest with its nose in an embankment. Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries. Bookout v. Toyota is also soon headed for trial in the District Court of Oklahoma County, Oklahoma.

On Sept. 4, Toyota moved for a gag order in Alberto, to stop the family and its attorneys, including West Virginia lawyers Benjamin Baily and Edgar “Hike” Heiskell III, from talking to the press.

“Defendants believe that statements to the media and the release of witness deposition testimony will have a substantial likelihood of materially prejudicing the proceedings and jury selection as prospective jurors should consider only the evidence present at the trial,” the automaker argued.

In a very brief decision, Judge Archie Hayman of the of Genesee County, Michigan found: “There is no great risk of unfair prejudice to the parties or the integrity of the trial process posed by the public discussion of this matter which has occurred to date” and that “The relief sought by the Toyota Defendants would create an impermissible and constitutionally improper prior restraint on the parties and the public’s right to information about the operation of the courts.”

Judge Patricia G. Parrish denied a similar motion in Bookout, but cautioned the plaintiffs about making statements to the press regarding the case. The courtroom will be open, but no recorders, video or audio will be allowed.

Oh, the irony. In 2010, with its corporate back against a wall of bad press over unintended acceleration, Toyota began rolling out the safety advertising campaigns. Sales were falling off a cliff, and Toyota was gonna claw it back with – no doubt, multi-million-dollar – soft-focus, feel-safe commercials and slogans.

As noted in a September 2010 Advertising Age article entitled “Toyota to Push Safety in Upcoming Ad Blitz:

Toyota Motor Sales U.S.A.’s overall sales fell 34% in August and are down 1% for the year – it’s the only major manufacturer with a decline for 2010. Executives admit that consumers have doubts about the safety and quality of Toyota vehicles, so the automaker is planning an advertising blitz to counter that perception. For years, Toyota’s brand message has been based on quality, durability and reliability, with a dash of value thrown in at the tagline. But with both Toyota loyalists and possible converts now skeptical of that message, the automaker is putting safety first. What we’re dealing with is a perception issue, and brand perceptions are not brand realities,” said Bob Carter, Toyota Division general manager. “If a customer has removed us from their consideration list, it was because of a perception of Toyota safety.”


And Carter vowed to continue the safety message theme – well into 2011 and until consumer attitudes changed.

There was the Safety-is-the-Star campaign, which highlighted Toyota’s Star Safety System™ — five vehicle stability technologies such as ESC — that were standard on all new  models. As noted in an NYT Wheels blog of June 2010:


“The commercials are pointed straight at the heart. Moms holding babies, concerned-looking young men and entire families testify in silence, overlaid with bold red type that announces “everyone deserves to be safe” and “peace of mind.” In the backgrounds, components assemble and disassemble themselves in a ballet of technological reassurance.”

There was the customer loyalty campaign, in which Toyota pushed the idea that true-blue Toyota owners have been undeterred by the bad press. As noted by HuffPost Business in March 2010:

“The new campaign, by Toyota’s main ad agency Saatchi & Saatchi, emphasizes what Toyota says are real satisfied buyers testifying that they still feel safe in their new Toyotas even after weeks of revelations about accelerator problems. “And our own personal experience? These cars that we’ve had have been exceptionally safe,” baby boomer Mark Murphy says in one ad. The ad says he and his wife, Donna, bought Corolla and a Sienna on Feb. 20.”

And, the safety strategy is still in heavy rotation, as noted by Forbes magazine in September:

“Behind Toyota’s family-focused campaign is a serious message aimed at adults – safety first. As the festival season draws to a close, Toyota has focused on two “Let’s Go Places – In Safety” spots. The first, “Let’s”, shows a dad teaching his daughter to drive with a few pointers, like “Let’s be ready”, “Let’s do our homework”, and “Let’s look both ways before crossing” before ending with a crash test of the car with the message: “Just in case. Let’s be ready.” The second commercial, “May You”, features a series of drivers in dangerous scenarios, showing off the car’s sensor technology – a skid control, pre-collision system and blind spot monitor.”


These are not to be confused with Toyota’s exceptionally successful campaign “Your Other You” described by the company’s ad agency Saatchi & Saatchi as “a unique interactive experience enabling consumers to play extravagant pranks. Simply input a little info about a friend (phone, address, etc.) and we’ll then use it, without their knowledge, to freak them out through a series of dynamically personalized phone calls, texts, emails and videos. First, one of five virtual lunatics will contact your friend. They will seem to know them intimately, and tell them that they are driving cross-country to visit. It all goes downhill from there.”

Saatchi & Saatchi totally nailed one. One 2009 Matrix owner Amber Duick was so freaked out by the campaign’s fake cyberstalker, she wound up suing Toyota and Saatchi & Saatchi for $10 million. Not sure what Duick wound up settling the case for. Toyota got a lot of mockery for its stupidity and a ruling by a California Appeals Court that if you trick someone into a contract, the contract is voided. Toyota had argued that Ms. Duick agreed to be punked because she checked a box agreeing to take a personality test. Hilarious!

Toyota is allowed to spend Gods knows how much telling everyone everywhere that no one cares more about safety than Toyota (and of course former DOT secretary Ray LaHood), but God forbid Mrs. Alberto’s loved ones or lawyers should be allowed to answer a reporter’s question – or mention that deposition in which, Toyota’s NHTSA liaison, Christopher Santucci, testified that Toyota and ODI had discussions in 2004 about the scope of PE04021 in 2004, during a critical phase of an investigation into UA in Camry and Lexus vehicles. Later, in March 2004, ODI investigator Scott Yon wrote a memo noting that the scope of the investigation would be narrowed to eliminate longer duration events where applying the brake pedal didn’t stop the vehicle. This definition of UA removed from consideration all of the incidents with the most harmful outcomes – injury and death – and eventually closed the investigation with no finding.

See Safety Research & Strategies reports on Toyota Unintended Acceleration