Judge's son withdraws from Nissan odometer class action

Michelle Massey, East Texas Bureau Sep. 6, 2007, 4:26am

T. John "Johnny" Ward Jr.

MARSHALL -- Longview attorney T. John Ward Jr., son of federal judge T. John Ward, withdrew from class counsel on Aug. 28 in a suit against Nissan for inflated odometer mileage.

The New York Sun is reporting that the request for withdrawal came after a staff reporter spoke to Ward's co-counsel regarding the Nissan case. The reporter questioned the attorney whether the Nissan case might benefit from Ward's father, U.S. District Judge T. John Ward, presiding over a similar odometer class action filed against Honda.

Co-Counsel David Miller of Addison told the New York Sun that he saw no conflict with the younger Ward in the Nissan case.

Miller said, "We don't think it raises any questions."

However, prior to the Ward Jr.'s withdrawal, some pleadings filed in the Nissan seem to provide an informal link between the two cases.

On behalf of the plaintiffs in the Nissan case, the class counsel filed a motion asking U.S. District Judge David Folsom to "take judicial notice of the proceedings" in the Honda case. In addition, the plaintiffs' attorneys told Judge Folsom how the counsel's three-year experience in the Honda case would serve the interests of the plaintiffs' in the Nissan case. Attorney Ward's Motion to Withdraw did not explain his reason for leaving the Nissan class action.

Representing plaintiffs in both the Nissan and Honda case are James Homes of Henderson, Stephen Woodfin of Kilgore, David Miller of Addison and Jay Kutchka from the law firm of Jones, Jackson, and Moll of Fort Smith, Ark. Attorneys William Sweetnam and Paul Weiss of Chicago, Ill., are representing plaintiff one of the plaintiffs in the Nissan case.

On behalf of plaintiff Rebecca Womack and others similarly situated, attorney John Ward Jr. entered the Nissan case almost two months after the original complaint was filed on Nov. 16, 2006, in the Marshall division of the Eastern District of Texas. The class action suit alleges Nissan designed 2004 and newer vehicles with odometers that inflate driven mileage by at least 2 percent.

According to court records, plaintiffs believe inflated mileage is achieved through the installation of computer software within the vehicles that alters the odometer beyond manufacturer's design tolerance.

Plaintiffs allege that this alteration and inflation is in violation of the Federal Odometer Act. Through these "intent to defraud" actions plaintiffs argue that their warranties were shortened by 700 to 1,600 miles and the vehicles' resale value was lower.

Within Defendant Nissan's Answer filed March 2, Nissan argues that the plaintiff's original complaint does not state a claim relevant to the Federal Odometer Act and that the plaintiffs do not have standing to pursue such claim. Moreover, defendants support their denial of allegations by stating that the plaintiff's claim is not ripe.

Within recent months, the Nissan defendants have filed separate motions to dismiss, transfer, and stay, which Judge Folsom has denied or found moot. A hearing is set for Sept. 6 on a motion regarding discovery and a motion to dismiss for insufficient service of process.

The Womack plaintiffs are seeking treble damages or statutory damages of $1,500 per vehicle.

Similar to the previous case, Judge Ward Sr. is presiding over the Honda class action filed in April of 2004 in the Marshall District of the Eastern District of Texas. On behalf of Karen Vaughn and others similarly situated, class counsel filed suit against American Honda stating their odometers allowed between 2.5 percent and 4 percent inflation in mileage.

After more than three years, Honda agreed to a proposed settlement on Aug. 31. While Honda maintains the settlement is not an admission of guilt, it will prevent the expense of further litigation costs and fees.

Stipulations of the agreement include action against Hondas and Acuras bought or leased between April 13, 2002, and Nov. 7, 2006. If the settlement is approved, Honda will establish a claim center and publish a short notice on the claim procedures three times in USA Today.

The proposed stipulation states that Honda will pay to extend mileage based warranties by 5 percent, and reimburse at 15 cents per mile those who during their lease were charged excess mileage. In addition, Honda will reimburse repairs that occurred in the 5 percent extended warranty period.

If Judge Ward approves the settlement as is, plaintiffs' attorneys will receive $9.5 million in fees and $300,000 in costs.

Vaughn v. Honda. Case No. 2:04cv00142 (with settlement inclusion of McQuiston v. Honda Case No.: 2:06cv253). Judge Ward presiding.

Womack v. Nissan. Case No.: 2:06cv00479. Judge Folsom presiding.

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