3G Telematics Plaintiffs' 'Improper' Motion Violates Appellate Stay, Says Ford

Ford objects to the “improper” plaintiffs’ motion for an advisory opinion for leave to amend their 3G telematics class action complaint and for an “indicative ruling” under Federal Rules of Civil Procedure 15 and 62.1.1, said the automaker’s opposition Wednesday (docket 3:22-cv-01716) in U.S. District Court for Southern California in San Diego. The four plaintiffs allege that the 3G modems on Ford vehicles they bought or leased were rendered inoperable, as were the roadside assistance features that depended on those modems, after AT&T’s 3G phaseout in 2022. They allege the carmaker knew as early as 2019 that AT&T’s phaseout of the 3G network was inevitable and yet continued to manufacture vehicles with 3G modems. U.S. District Judge Michael Anello denied Ford’s motion to compel the plaintiffs’ claims to arbitration, and Ford is appealing that denial to the 9th U.S. Circuit Court of Appeals (see 2312040038). Ford’s Dec. 1 notice of appeal “divested the trial court of jurisdiction and automatically stayed further district court proceedings,” said its opposition. Despite that automatic stay, the plaintiffs seek to “circumvent resolution” of Ford’s appeal on the merits “by omitting their allegations that Ford’s authorized dealerships are agents of Ford,” it said. Such an amendment would be “futile,” it said. Principles of estoppel “would still permit consideration of the original as pleaded claims that were considered,” it said. Even if that weren’t the case, and even if the plaintiffs removed the allegation, “their causes of action require that some underlying agency relationship exist between Ford and its authorized dealerships,” it said. The plaintiffs’ claims for fraudulent omission, violation of California’s Consumer Legal Remedies Act and for breach of implied warranty “all require some underlying relationship” between Ford, the plaintiffs and the sales transaction with the authorized dealerships, it said. Ford’s appeal is based on the arguments made in its motion to compel arbitration, said its opposition. The carmaker argues that it may enforce the arbitration provisions as the alleged principal of the dealerships that countersigned the sales and lease contracts, it said. Ford also argues it may enforce the arbitration provisions as a third-party beneficiary of the lease contracts, and that it may enforce the arbitration provisions based on the doctrine of equitable estoppel, it said. The plaintiffs’ removal of agency allegations wouldn’t “moot the issues on appeal,” it said. Ford will meet and confer with the plaintiffs “so as to obviate the need to file a formal motion to enforce the appellate stay,” it said.