"Judge adds a twist to Explorer profits trial"

Yesterday's Sacramento Bee had an interesting update on the Ford Explorer trial now pending in Sacramento County Superior Court. As I previously reported, this case is a class action involving UCL and CLRA claims. According to the Sacramento Bee article, the trial court is considering whether the UCL or CLRA empowers it to order Ford to disgorge its ill-gotten profits:

The plaintiffs' lawyers have argued that Ford rushed the Explorer to market in 1990 to beat the competition and marketed it as a safe family vehicle, even though Ford engineers knew that its tall, narrow design made it prone to rolling over.

Ford then reaped $2.135 billion in ill-gotten profits, the plaintiffs claim. They argue that Judge David De Alba, who is hearing the case without a jury, has the power to order Ford to give back the money.

The plaintiffs' case relies in part on the testimony of Dr. Alan Goedde, an economist and hired expert on damage awards.

He analyzed Ford documents and determined the company made hundreds of millions of dollars because it did not take another year or more to fix the Explorer's safety problems.

Goedde was scheduled to testify Wednesday, but Ford's lawyers objected that his evidence was irrelevant because it concerned profits that De Alba could not order Ford to relinquish.

Ford lawyer Peter Herzog of St. Louis said the plaintiffs could offer evidence only about their claim that Explorers sold in the 1990s had lost value once problems with defective Firestone tires and rollovers came to light in 2000.

The plaintiffs' attorneys claim each Explorer lost approximately $1,100 to $1,300 in resale value, for a total of about $500 million.

De Alba asked why it was within his authority to award any profit "over and above that number."

San Francisco lawyer Elizabeth Cabraser responded that De Alba could order Ford to disgorge its profits if he found its behavior to have been "reprehensible and highly profitable."