If General Motors really thought it could convince people that it has turned over a new leaf, cutting ties with King & Spalding should have been its first step. This was the outside corporate law firm most responsible for covering up GM’s ignition switch defects during product liability litigation, for viciously fighting families who sued the company, and for winning the company complete immunity for injuries and deaths caused by its pre-2009 crashes (including those involving cars with faulty ignition switches).
GM didn’t fire King & Spalding. Instead, it put the firm in charge (along with GM’s other outside law firm, Jenner & Block) of its internal investigation into the ignition switch disaster, deciding what if anything the company – including its lawyers – did wrong. The report was just released. It found no cover-up and was, in the words of consumer advocates, “little more than a whitewash.” Fifteen company engineers and lawyers were blamed and fired. All senior management, including the company’s general counsel, were exonerated. And King & Spalding, whose corporate lawyers sat beside at least one of those engineers as he lied during depositions, emerged unscathed - that is, save for disclosure that its legal advice to GM was to settle cases, fearing that if jurors (i.e., Americans) heard about this, they’d be really pissed-off. True that.
So what else have GM’s corporate lawyers been up to lately?
Its first legal response to the ignition switch scandal was to run straight to bankruptcy court to try to “shut down a rising tide of class-action lawsuits stemming from its recall of 2.6 million cars because of a dangerously defective ignition switch that it now links to 13 deaths.” Notes Bloomberg, “GM is fighting more than 100 lawsuits over the recalled cars’ declining prices, claims for injuries and deaths and the alleged waste of corporate assets. GM said in an April regulatory filing that it plans to defend itself ‘vigorously’ against all lawsuits.”
Then this week, GM lawyers responded to the parents of Brooke Melton, who are trying to reopen their wrongful death lawsuit (the case that first exposed the ignition switch defect and company cover-up), by “trying to move the case to federal court so it can use bankruptcy as a shield from the claim."
GM lawyers have also “asked a federal judge in Washington to keep confidential information related to its 2009 government rescue” from the Center for Auto Safety, which has been somewhat stymied in its attempt to get information via a Freedom of Information Act request, and “sued the Treasury in 2011 for business information that GM turned over to the government before the bailout.” GM is demanding to intervene in the lawsuit, saying it “has an interest in protecting its confidential information.…”
Now, we turn to GM's "compensation plan" for injuries and deaths. GM has hired a new attorney - Kenneth Feinberg - who, as we have noted before, is the “go to” guy to divvy up money to victims in two situations: 1. victims harmed by large events, who have no recourse in the courts (as for the 9/11 victims); and, 2. victims harmed by extremely negligent companies, who are facing large numbers of claims and who want to stop or weaken lawsuits (as in BP’s Gulf Coast disaster.) Regarding the BP case, both the judge in the case and legal ethics experts said that Feinberg, while touting himself as an independent administrator, was really BP’s lawyer, and so had engaged in “unethical conduct that has been misleading claimants and posing a serious threat to the administration of justice.”
So there's that. And as in the early stages of the BP case, so far Feinberg has not disclosed the nature of his legal relationship with GM or what he is being paid. Bad enough. But GM has made it very clear that it is he - a lawyer with no expertise is auto crashes - who will make very complicated factual determinations about what caused auto crashes. We haven’t heard a peep from Mr. Feinberg yet, but I think it’s safe to assume that GM’s other attorneys will be advising him.
Last week, the Center for Auto Safety sent a letter to Mr. Feinberg, saying this disaster goes far beyond the limited number of crashes GM has admitted to, so far. The group found that GM "filed 2,004 reports on injuries and deaths stemming from accidents in cars that have been recalled for ignition-related defects" and urged Feinberg "to investigate each incident to determine whether the ignition-switch defect played a role in it." Here are some additional excerpts:
As more becomes known about the extent of the cover-up in the ignition switch scandal, the number of victims has increased dramatically. GM has recalled other vehicles that it should have recalled years ago which reveals another class of victims above and beyond the ignition switch victims.…
The defective ignition switch in the recalled Delta platform vehicles goes beyond the airbag failing to deploy. The vehicle loses the electric power steering and power brakes which can lead to loss of control resulting in a crash. Look no further than the Brooke Melton case which first exposed the ignition switch defect. It involved a loss of control due to the ignition defect, not airbag nondeployment. GM has stubbornly refused to include Brooke Melton in its list of ignition switch death victims.…
The Center did a search of FARS [the nationwide census providing NHTSA, Congress and the American public yearly data regarding fatal injuries suffered in motor vehicle traffic crashes] for just deaths to Ion and Cobalt occupants in the front seats of vehicles where the airbag did not deploy and found 303 deaths. … What must be done is to search for all the recalled vehicle for every fatal crash involving the recalled vehicles, obtain the police report and any additional information on the crash, then review the information and determine whether the death and any injuries in the crash were due to the ignition switch defect. … Natasha Weigel was killed in the crash of a 2005 Cobalt while riding in the back seat. GM does not count Natasha as a victim of the ignition switch defect even though loss of control after the ignition switch failed was the cause of the crash. This crash also killed Amy Rademake, who was in the front seat and who GM counts as a victim. Such cruel distinctions make no sense.
All victims of concealed GM defects and delayed recalls deserve compensation just as do victims of the ignition switch defect. While GM seems willing to compensate all ignition switch personal injury victims both before and after the bankruptcy, GM’s intentions as to other victims are not so clear. Already GM has gone to the Bankruptcy Court in New York and asked Judge Gerber to block the ignition switch economic loss class actions. That’s not right. Nor is it right to use the bankruptcy shield or statutes of limitations to preclude victims of other GM defects, particularly ones GM concealed, from recovering compensation.
No, it’s not right. GM’s corporate lawyers have never done the right thing. It's long past time that they start.