ASKED & ANSWERED: Tom Branigan

By Steve Thorpe Recently Heather Peters, a former lawyer, chose to take Honda Motor Co. to small claims court in California rather than participate in a class action suit against the company. She claimed that her 2006 Honda Hybrid automobile achieved much lower fuel economy than advertised and was seeking to recover the money she said it cost her in gas. The case is still pending. Tom Branigan of Bowman and Brooke LLP, who specializes in complex commercial cases involving the auto industry, comments on the case. Thorpe: How different is Small Claims Court from the usual avenue a class action would follow? Branigan: The differences between small claims court and the superior court in California or a circuit court in Michigan are very significant. Small Claims Court is tantamount to the "People's Court" that we sometimes see portrayed on television. For example, the rules of evidence do not apply and the parties are not represented by counsel in most small claims courts. The amount a plaintiff can recover is also capped. The entire process will move much faster in small claims court as well. Compared to a class action in a superior court or circuit court, where each side of the case will typically be represented by sophisticated and experienced legal counsel, the case in small claims court will have far less process -- neither party will have counsel and the case will proceed with greater speed. Class actions, on the other hand, tend to be bogged down by the processes that can apply only to matters of that sort. In fact, the process related to providing potential class members notice of the case and an opportunity to participate or "opt out" can be very time consuming (months not days) and very costly (not unusual for the notice to cost high six figures). Class actions are not often tried to a jury. Instead, they more often end in a settlement that provides relatively little to the actual plaintiffs. On the other hand, cases in small claims courts typically are resolved by the court or a jury where juries are permitted. Thorpe: Do you think the Detroit automakers are watching this with any interest? How might the outcome affect them long term? Short term? Branigan: I think the Detroit and foreign automakers will watch this small claims case with some interest because it is unique, but I doubt that it will substantially change the course of class action litigation against the auto industry or other product manufacturers. In my view, only a small percentage of plaintiffs will feel qualified to handle such a case or even want to do the work to prosecute their own lawsuit against any manufacturer. Instead, I think most plaintiffs will rightly perceive that they need expertise and help that lawyers can offer to prosecute a product related claim against a manufacturer. And it is important to note that the plaintiff in this small claims action against Honda is a lawyer so I don't consider her to be a typical litigant in small claims court. Thorpe: Do you think attorneys should be watching this? Are they potential losers in this scenario? Branigan: I think lawyers will watch this case, too, but few lawyers will be concerned that this will change the practice in any dramatic way. It is more of a legal interest story than a real game changer, I think. There are other things happening today that are more of a game changer than this small claims court case. For example, we are witnessing an increase in coordinated Internet advertising by lawyers looking for claims. The Internet makes it much easier for lawyers to promote litigation and for claimants to find those lawyers. In reaction to this, we are also seeing a growing interest by some defendants who are the subject of Internet claim promotion and trolling to fight back with product disparagement, false advertisement and defamation litigation of their own. We are also seeing an increase in the use of multidistrict litigation ("MDLs") by plaintiff lawyers who want to bring a large number of claims in one court without having to meet the requirements for a class action. We are also seeing increasing efforts to bring regulatory intervention and investigation along with litigation as a method of bring more pressure on manufacturers to settle litigation or to modify products already in the market place. There are a few things that I think are bigger game changers -- bigger than the small claims case against Honda. Thorpe: If Ms. Peters prevails and gets a SCC settlement, does that affect the ongoing class action suit in any way? Branigan: I do not think will have a great affect on the class action. Her settlement should be limited to her specific claim and the class action will continue on its own. Some writers have predicted that this small claims case, if successful, will spur on "copycat" litigation. For reasons stated above, I really don't expect to see that happen. For example, the Washington Post reported that last week (on Jan. 10) the small claims court commissioner presiding over the Honda case requested additional arguments on whether the claim was barred bar by a California statute of limitations and also whether certain notice requirements might also bar the case completely. Regardless of what the answers to those questions may turn out to be, the process involved in determining and presenting the correct legal answers in a compelling and convincing way to the Court is technical and just not that easy. This is why people and corporations, more often than not, hire the pros -- lawyers -- to represent them. Published: Tue, Jan 24, 2012

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