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Michigan AG's office asks state Supreme Court to hear lawsuit involving Ford transmissions

Jordyn Grzelewski
The Detroit News

Michigan Attorney General Dana Nessel's office wants the state Supreme Court to take up a lawsuit against Ford Motor Co. over allegedly defective transmissions — a move in part aimed at getting the newly-Democrat-controlled court to reverse its interpretation of a state consumer protection law. 

The Michigan Supreme Court's Hall of Justice is seen, Friday, Jan. 17, 2020, in Lansing, Mich.

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The AG's office, in announcing the move Friday, said that it made the request so the state's highest court could "revisit" its interpretation of an exemption in the Michigan Consumer Protection Act that her office contends leaves consumers open to "significant risk." The AG's office filed an amicus brief with the court Thursday supporting a motion by the plaintiffs in the Ford lawsuit asking the court to reconsider its decision not to hear the case.

Since the court declined to consider the case, its makeup has shifted from a conservative majority to a liberal one.

The case — Cyr, et al, v Ford Motor Co. — originally was filed in Wayne County. The case includes plaintiffs who opted out of a class-action lawsuit over allegedly faulty transmissions in Ford Fiesta (model years 2011-2016) and Focus (model years 2012-2016). The class-action suit, which has since been settled, involved about 2 million vehicles, and revolved around claims about dual-clutch transmissions in the vehicles "slipping" or "stuttering."

Though a lower court sided with the plaintiffs who have sought separate recourse from the class-action suit, a subsequent Michigan Court of Appeals decision agreed with Ford that it was exempt from the plaintiffs' claims under the MCPA claims.

Now, the plaintiffs are asking the state's highest court to reconsider a previous decision not to hear their case. Meanwhile, Ford contends that the state Supreme Court's interpretation of the consumer protection act is the correct one.

"Consumers should have protections," Ford spokesman Said Deep said in a statement Friday. But, "The Court of Appeals’ unanimous ruling on the MCPA statutory exemption concluded they do under other existing statutes or regulations. The Michigan Supreme Court fully reviewed an application to appeal that decision and decided not to take the case."

The AG's office is asking the court to reverse two past decisions, from 1999 and 2007, respectively — Smith v Globe Life Insurance and Liss v Lewiston-Ricards Inc. It argues the decisions in those cases "weaken the MCPA," to the detriment of consumers.

In those cases, the court ruled that an exemption contained in the MCPA applied "whenever the general transaction is specifically authorized by law, regardless of whether the specific misconduct alleged is prohibited," according to a release from Nessel's office.

"For too long, the Supreme Court's erroneous interpretation has gutted this critical law and weakened this office's ability to help consumers," Nessel said in a statement. "It is time to breathe life back into the Michigan Consumer Protection Act and revive the law's original purpose, protecting Michigan's residents from unscrupulous businesses."

"Smith and Liss transformed what should be a narrow exemption under the MCPA into a broad shield for regulated entities — resulting in the protection of businesses over consumers," the brief argues. "This case provides this Court with the opportunity to change course and give teeth to the MCPA once again."

The brief also argues that a reversal of the two decisions would amount to enacting "the Legislature's true vision for the MCPA" — a claim that at least one legal expert disputes, given that the state legislature has not moved to amend the law in the 22 years since the first decision came down. 

"If a court ... interprets legislation in a way that the legislature says, 'No, that's not what we meant,' then what happens is they pass an amendment saying, 'Here's what we really mean,'" said Erik Gordon, a professor at University of Michigan's Ross School of Business. "The current attorney general says that this interpretations is contrary to the intent of the legislature — but the legislature over the last 20 years hasn't said that."

Instead, Gordon sees this move by Nessel, who is Democrat, essentially as a way to maneuver around the GOP-controlled state legislature.

"The Democrats don't control the legislature, which would be the way to do this," he said. "So instead of asking the legislature, where you're going to get a 'no,' I think they're hoping that they'll get a 'yes' from the Democrat-majority Supreme Court."

If that's the strategy, Gordon said it makes sense to use the Ford lawsuit as an avenue to get the Supreme Court to reverse precedent on the consumer protection exemptions that are in question: "I think from the attorney general's point of view, it's a good vehicle, because it involves a lot of people, it's a big case, (and) it's not a trivial case."

Twitter: @JGrzelewski