Just when you thought it was over... intended accellerationsuit

[Alex Kowalski (Kathy Peters) <kpeters@wppost.depaul.edu>]

(From the Chicago Daily Law Bulletin):

APPEALS COURT OK'S CONSUMER FRAUD COUNT IN AUDI CLASS
ACTION

An Illinois Appellate Court panel held on Thursday that a class-action
lawsuit can proceed alleging consumer fraud violations related to
unintended accelleration of Audi cars.

The 1st District Appellate Court has considered the case three times,
with the most recent ruling coming Thursday after the Illinois Supreme
Court remanded the matter.  The panel on Thursday reversed a trial
judges's dismissal of allegations that Audi violated Illinois' Consumer
Fraud and Deceptive Practices Act regarding the automaker's
concealment of facts about the Audi 5000's safety risks.

The three-judge appeals court panel limited the Consumer Fraud Act
claims to Audi 5000s bought before the automaker issued two press
releases that warned of unintended accelleration.  The justices returned
the case to the trial court for more proceedings.  

"It is the result that I somewhat expected," Aron D. Robinson, a lawyer
for an estimated 250,000 class members, said Thursday.

A 1st District Appellate Court panel in December 1995 revived the class
action, reversing a decision it reached two months earlier.  Perona v.
Volkswagen of America.

The defendants then asked the state Supreme Court to review the matter
and while the petition for leave to appeal was pending, the high court
issued its opinion in Connick v. Suzuki Motor Co.

The high court's ruling in Connick held that "an omission or concealment
of a material in the conduct of trade or commerce constitutes consumer
fraud," Justice David Cerda wrote in Thursday's opinion.  

Robinson, with the Chicago law firm of Robert A. Holstein & Associates,
said the appellate panel's ruling today basically follows the Connick
decision.  

After issuing the Connick ruling, the Supreme Court then vacated the
Appellate Court's Perona opinion and remanded the matter to the
Appellate Court for reconsideration.

The plaintiffs named as defendants in the case are Audi's parent
corporation and Volkswagen of America Inc., as distributor of the
vehicles, and Volkswagen's parent.

The lawsuit contends that Audi 5000s manufactured from the 1983
through 1986 model years contained defects that caused or contributed
to the unintended sudden accelleration.  The alleged defects caused at
least 513 accidents that resulted in five deaths and 271 injuries,
according to the suit.

Litigation resulting from the alleged problems began in March 1987 when
three groups of plaintiffs filed class-action complaints.  A single
consolidated complaint was filed in October 1987 on behalf of all
persons who had bought or leased an Audi 5000 from 1983 through
1986.

A settlement agreement was reached to provide each of the
approximately 390,000 Audi owners with a rebate of up to $2,000 for the
purchase of a new car.  That agreement was vacated, however, and
ultimately the complaint was amended five times.

The fifth amended complaint alleged several defects in the transmission
linkage, cruise control system, shift lock system and the placement of the
gas and brake pedals.  Audi had recalled the cars three times, but denied
any defects.

The manufacturerer maintained that driver error was responsible for the
incidents, but issued two press releases regarding the unintended
accelleration.

Cook County Circuit Judge Walter Bieschke dismissed the fifth amended
complaint based upon failure to allege specific defects under the
Consumer Fraud Act and failure to allege proper notice on its Uniform
Commercial Code warranty claims and Magnuson-Moss warranty Act
claims.  The appellate Court panel on Thursday held that Bieschke
properly dismissed claims under the UCC and Magnuson acts.

Cerda stated in the opinion that the plaintiffs sufficiently "alleged a
consumer fraud violation based on a material omission by Audi".

Cerda added, "Finally plaintiffs alleged that the unintended accelleration
was a material fact in that they would not have purchased their Audi
5000 automobiles if Audi had previously disclosed those safety risks. 
Those allegations are sufficient as they apply to Audi 5000s purchased
before the two press releases were issued by Audi.  Once the press
releases were issued, it could not be said that Audi failed to disclose the
defects," Cerda added in the 18-page opinion, joined by Justices Alan J.
Greiman and Michael J. Gallagher.

Howard R. Barron of Schiff, Hardin & Waite, representing the
defendants, could not be reached for comment early Thursday.



.....

So, on and on it goes.