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O'Melveny & Myers, LLP

Ford Defeats Class Certification, Wins Summary Judgment in Spark Plug Case
O'Melveny recently obtained a complete victory for clients Ford Motor Company and Ford Motor Company of Canada, Ltd. in Gullihur, et. al. v. Ford Motor Company, et. al., a purported class action alleging strict products liability, negligence, negligent misrepresentation, and violations of California's unfair competition law for purported engine defects in certain Ford trucks and SUVs. The putative class purportedly contained as many as 1 million vehicles.

The O'Melveny team included Newport Beach partner Tom Riordan, counsel Mark Teeter, and associates Molly Magnuson and Marjory Gentry. The team was supported by case manager Charmy Harker and assistants Terry Grossman and Tina Pappas.

The plaintiffs alleged that the cylinder heads and spark plugs in their Ford vehicles were manufactured with a defective short-thread design that, coupled with the use of aluminum instead of steel, was insufficient to hold the spark plug securely in the cylinder head for an unspecified period of years and miles beyond the expiration the vehicles' original factory warranties.

The plaintiffs contended that the alleged defect results in the spark plug being ejected from the cylinder head, causes thousands of dollars of damage to the engine, and creates a traffic safety risk. The plaintiffs also alleged that Ford misrepresented the quality of the class vehicles and failed, in violation of Section 17200, to adequately inform consumers of maintenance issues associated with the alleged defect.

The O'Melveny team defeated class certification. Adopting the reasoning presented in O'Melveny's opposition brief and at oral argument, the Court was persuaded that it would be impossible to prove causation on a class-wide basis since class members encountered problems at a wide range of mileages and under very different circumstances. The Court held that the plaintiffs could not demonstrate the fact of damage on a class-wide basis, as they would be required to do under California's economic loss rule. Download the order.

The Court then granted Ford's motion for summary judgment on the plaintiffs' individual claims, and entered final judgment in favor of Ford. The Court found the plaintiffs' tort claims were barred by the economic loss rule. The Court also ruled that the plaintiffs could not prove the necessary reliance on the allegedly misleading owner's manual and maintenance schedule, which they had not read before purchasing the vehicles. Finally, the Court dismissed the plaintiffs' 17200 claim under its equitable powers on the ground that the relief sought was disproportionate to the alleged wrong.

04-28-2007

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Swanson, Martin & Bell, L.L.P.

Without Notice of Termination, a Written Farm Lease Continues as an Annual Lease on a Year to Year Basis on the Same Terms.
Son originally entered into a written sharecrop lease with father in 1999. Thereafter, father did not provide notice of termination and son continued to farm on a year to year basis. Kansas Supreme Court ruled that the sharecrop lease is “in effect . . . on the same terms and conditions as in the original lease. Court ruled that oral sharecrop leases similarly were in effect as no notice of termination had been given and son had worked and applied fertilizer to the property in the fall in anticipation of planting in the spring. However, son’s estate’s failure to timely plant the spring crops was an abandonment of the leases, which required the farmland owner to mitigate damages, and which entitled the farm owner to re-lease the farmland to a new sharecrop tenant. Farm owner is required to pay “appropriate restitution . . . for the expense of the fertilizer and the value of the labor expended . . . in the fall” field preparations. In re: Estate of David E. Sauder,

04-27-2007

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Swanson, Martin & Bell, L.L.P.

Standard or Union Mortgage Clause Creates A Separate Contract Between the Insurer and the Mortgagee, Even If the Insured's Claim May Be Denied Because of Insured's Acts or Non-Compliance With The Policy Terms.
Property owner was alleged to have participated in setting the fire which caused the claimed loss. Insurer claimed that it had no duty to pay the insurance proceeds to the lending mortgage holder for the subsequent mortgage default because of property owner’s alleged behavior. The Kansas Supreme Court held that K.S.A. 40-2,118(c) does not nullify or invalidate all standard or union mortgage clauses nor does it preclude an insurer from voluntarily providing such coverage. The plain and unambiguous language of the insurer’s policy contained a valid and enforceable standard or union mortgage clause, regardless of the insured’s acts or non-compliance with the policy terms. Iron Horse Auto, Inc. v. Lititz Mutual Ins. Co.,

04-27-2007

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Swanson, Martin & Bell, L.L.P.

Collection Actions Seeking Recovery For Unpaid Credit Card Charges Must Be Brought Within Five Years of The Last Payment Made on the Account
Credit card company extended consumer credit. After consumer quit making payments under an arranged payment plan, credit card company filed suit more than five (5) years after consumer made the last payment. Trial court and Court of Appeals rejected credit card company’s argument that consumer’s use of the card constituted an acceptance of the terms stated in its customer agreement and, therefore, established the existence of a written contract pursuant to which consumer promised to pay money. Court rejected the R.S.Mo. 516.110 ten (10) year statute of limitation applicable to a breach of an agreement in “writing . . . for the payment of money or property,” instead applying the R.S.Mo. 516.120 five (5) year statute of limitation applicable to “all actions upon contracts, obligations or liabilities, express or implied . . .” Capital One Bank v. Creed,

04-27-2007

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Husch Blackwell Sanders LLP

Lively Joins Blackwell Sanders
Blackwell Sanders is pleased to announce the addition of John Lively to the firm’s Corporate Department. Lively joins the firm’s investment management practice group. Joining the Kansas City office as a partner, Lively has vast experience in providing counsel to investment advisers and investment companies.

Lively joins Blackwell Sanders from Raymond James Financial, Inc., where he was the managing attorney of that company’s Asset Management Group from 2005 to 2007. In his capacity with Raymond James Financial, Lively was responsible for oversight of legal and compliance staff of the company’s proprietary institutional investment advisers, the advisory function of one of the company’s dually registered broker/dealer investment advisers, the proprietary service providers to a family of registered mutual funds, as well as several private funds managed and offered by the company.

Prior to joining Raymond James Financial, Lively was assistant general counsel with AIM Management Group from 2000 to 2005, where he provided guidance and advice in areas involving registered and unregistered investment companies and their service providers. Lively was an attorney with Dechert in Washington, D.C., from 1998 to 2000. There he practiced in the area of investment management law and dealt with matters involving registered and unregistered investment companies, as well as regulations involving investment advisers, broker-dealers and banks. Lively was a manager at PricewaterhouseCoopers LLP from 1997 to1998. As manager at PwC, he consulted with bank holding companies and their subsidiaries on regulatory and compliance issues involving bank and securities activities.

Lively received his J.D. from The Catholic University of America, Columbus School of Law (1998) and his B.S. from The Citadel (1991).

04-27-2007

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Schiff Hardin LLP

Schiff Hardin LLP Welcomes the Return of Renee Cipriano as a Partner in the Environment Group in the Chicago Office
Renee Cipriano has rejoined Schiff Hardin LLP as a partner in the Environmental Group from Sonnennschein Nath & Rosenthal LLP (Chicago) where she was a partner.

Ms. Cipriano brings particularly distinguished credentials in government service and private practice along with significant prior Schiff Hardin experience to her new role at the firm. Earlier, at the outset of her career, she was an Assistant Attorney General in the Environmental Control Division of the Illinois Attorney General before initially joining Schiff Hardin as an associate in from 1992 to 1995. Then Ms. Cipriano returned to government service as Associate Director and Chief Counsel of the Illinois Environmental Protection Agency from 1995 to 1998. She returned to Schiff Hardin in 1998 as a partner before being appointed in 1999 to the position of Senior Advisor on Environment and Natural Resources to Illinois Governor George H. Ryan and then to the cabinet-level position of Director of the Illinois Environmental Protection Agency for the State of Illinois in 2001, serving under both Republican and Democratic administrations, under Governors Ryan and Rod R. Blagojevich respectively until she returned to private practice in 2005.

In her capacity as Illinois EPA Director, Ms. Cipriano advised the Governor on environmental and energy policy and legislation while overseeing a staff of 1,200 and a budget exceeding $1 billion. In this position, she served as an Illinois Commissioner on the Great Lakes Commission; the Environmental Chair of the National Brownfields Association, Illinois Chapter; the Board of Directors for the Clean Energy Community Foundation; and on the Special Task Force on the Condition and Future of the Illinois Energy Infrastructure.

Highlights of Ms. Cipriano's government service include::

* Creating the Green Illinois Initiative, a State program to promote environmental stewardship, sustainability, and planning for a healthier and greener future.
* Launching of the Green Fleets Program, the Green Dealers Program, and Illinois Clean School Bus Program. These efforts promote the use of clean fuel technology and alternative fuels, including specifically bio-diesel and ethanol.
* Spearheading the development and passage of the State’s comprehensive Right to Know Law. This legislative program makes Illinois the nation’s leader in public notification and community relations activities when a release of a contaminant is discovered.
* Launching the national recognized program "Green Pays on Green Days." This Program was successfully implemented through partnership efforts that included Illinois EPA, WMAQ-TV/Chicago, various Illinois companies, Partners for Clean Air, and others to promote voluntary actions to improve air quality.
* Expanding of one of the nation's most successful brownfields program to clean up and redevelop abandoned industrial sites.
Creating the Basinwide Management Advisory Group as initiate the review and redefinition of how Illinois plans for the protection of water quality.
* Creating the first-ever Environmental Justice Officer position in the State of Illinois and Advisory Group to continue development of an environmental justice policy in Illinois.
* Implementing Illinois EPA’s first uniform Enforcement Management System for compliance and enforcement activities.
Serving as Chair of the Governor's Environment and Natural Resource Cabinet; Governor's Energy Cabinet, and Governor's Balance Growth Cabinet.

Ms. Cipriano's practice focuses on providing environmental strategic planning and counseling to a number of clients, including the energy industry, with respect to several local and national initiatives. This includes an emphasis on government relations and public law and policy. She has extensive experience handling complex regulatory authorization/permitting matters, local government approvals, local siting matters, public hearings and community outreach, and situational management. She also has overseen complex multidimensional infrastructure projects, brownfields redevelopment projects and energy projects.

Ms. Cipriano is a member of the President's Circle of the Chicago Council on Foreign Relations. A former Vice Chair of the Air Quality Committee of the American Bar Association, Section on Natural Resources, Energy and the Environment, Ms. Cipriano has also lectured on environmental matters for a variety of national and local professional associations.

Ms. Cipriano received her undergraduate degree (B.A., Sociology, 1985) from Loyola University and her law degree (J.D., 1988) from Loyola University Chicago School of Law. She is admitted to practice in Illinois.

04-27-2007

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Ross, Dixon & Bell, LLP

Paul K. Song Joins RDB’S Orange County Office
Ross, Dixon & Bell is pleased to announce that Paul K. Song has joined the firm as a senior associate in its Orange County office. Mr. Song will serve as a member of the firm’s Commercial Litigation and Insurance Practice Groups and will focus on complex commercial litigation, employment defense and insurance bad/faith matters.

Mr. Song joins RDB after practicing at Sedgwick, Detert, Moran & Arnold and Haight, Brown & Bonesteel where he litigated extensively in both State and Federal courts on business, employment, insurance and mortgage banking matters. Mr. Song has represented large to mid-size companies and public entities on a variety of employment matters arising from claims of wrongful termination, sexual and gender harassment, retaliation, disability and race and gender discrimination. He has also spent a significant amount of time on insurance coverage issues under directors and officers, fidelity, and general liability policies.

Mr. Song earned his law degree from Southwestern University School of Law. While earning his degree, he completed clerkships with the California Attorney General’s Office, the United States Equal Employment Opportunity Commission, and the Los Angeles County Counsel’s Office, Metropolitan Transportation Authority Division. Mr. Song received his bachelor’s degree from the University of California, Irvine where he was on the Dean’s List.

04-27-2007

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