Reply Brief — Winrod v. Ford Motor Co.

ax: —~

Supreme Court, U.S.

FILE D

MAY 17 1989

JOSEPH F. SPANIOL, JR.

CLERK

EE —

| PETITIONERS' REPLY TO BRIEF IN OPPOSITION

| No. 88-1594

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988:

DEBRA J. WINROD, et al.,

Petitioners,

Vv.

FORD MOTOR COMPANY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITIONERS’ REPLY MEMORANDUM

TABLE OF CONTENTS

TABLE OF AUTHORITIES.........

PETITIONERS' REPLY MEMORANDUM

ii

TABLE OF AUTHORITIES

Page

City of Riverside, et al. v. Santos

Rivera, et al., 477 &.S. 561,

106 Sup. Ct. 2686, 91 Law. Ed.

St PD Seccc ce csa severe veesene 5, 6

Delaware Valley Citizens Council

for Clean Air, et al. v. Common-

wealth of Pennsylvania, et al.,

(U.S Dd. C E.D. Pa., 1984),

ooo Ss SF

ESOC! ee 3

STATUTORY PROVISIONS

ee RE bi «yl & > ee 5

Contrary to the assertions made in the

Brief of Ford Motor Company, this case was

neither easy nor simple. Counsel for Ford

Motor Company intentionally caused the

litigation to be more time consuming and

more difficult than it need have been. For

example, when Ford made its opening dis-

covery request, Plaintiffs' counsel offered

Ford counsel a copy of Plaintiffs' attor-

ney's entire file, but Ford's attorney

rejected it as being inadequate and

insufficient.

Plaintiffs' counsel made frequent and

sustained efforts to settle the case, but

Ford denied liability until the end. Just

before trial, Ford made a settlement offer

which contained an inadequate attorney fee

factor of approximately $1,000.

Ford asserts that the case was simple

or "simplistic." Plaintiffs' Complaint was

15 pages long and contained seven counts.

Plaintiffs’ allegations and evidence were

interwoven to present claims of violation

of the Magnuson-Moss Act, violations of the

Ohio Consumer Sales Practices Act, claims

for relief under the Ohio Commercial Code

(Uniform Commercial Code), and claims for

equitable relief.

Ford asserts that the trial court con-

cluded that Plaintiffs' request for " * * *

nearly $25,000 in attorney fees and expenses

was entirely unreasonable * * * is simply

mot true. The trial court made no such

observation. The trial court stated no

reason for its award and no reason for

reduction of Plaintiffs’ request.

The Plaintiffs presented Attorney

Douglas Roberts who was quite learned in

the area of Magnuson-Moss and consumer com-

plaints as a professional witness on

fees. Mr. Roberts testified that the

value of the services of Plaintiffs' coun-

sel through trial, plus expenses was

$21,063.99. Additional time was required -

of Plaintiffs' counsel in preparing for and

presenting the fee petition and the hear-

ing thereon, and additional expenses in-

cluded fees for the expert witness and fees

for the extra counsel who had to be em-

ployed to present all of the fee petition

testimony and evidence. Where Plaintiffs’

counsel's fee is contested, Plaintiffs are

entitled to recover fees and expenses in-

curred in presenting the contested fee

matter. Delaware Valley Citizens Council

for Clean Air, et al. v. Commonwealth of

Pennsylvania, et al., (U.S.D. Ce. B.D. Fa.,

1984), 581 F. Supp. 1414.

Ford presented no testimony or evidence

of the value of Plaintiffs' counsel's serv-

ices. Ford has relied totally upon an

argumentive posture unsupported by any

evidence or testimony as to the value of

Plaintiffs' counsel's services or the

validity of the expenses incurred by

Plaintiffs.

It is apparent that Ford has adopted

a policy that it will make obtaining

Magnuson-Moss relief so extraordinarily

expensive to both the Plaintiffs and to

Plaintiffs' counsel that Plaintiffs' coun-

sel will not again undertake a Magnuson-

Moss case. Competent counsel will not

accept such cases unless there is reasonable

prospect to be paid for their time and

expense. Ford Motor Company has been

successful in preventing Plaintiffs from

obtaining a reasonable fee and expense

award, and, if the Winrod decision stands,

it will succeed in discouraging other Ohio

consumers from availing themselves of the

Magnuson-Moss remedy.

At page 10 of its Brief, Ford relates

that, "The Franklin County Court of Appeals

acknowledged implicitly that the time sub-

mitted by Petitioners did not reflect sound

billing judgment."' This non sequitur is

totally without support in the record.

Ford misconstrues Hensley et al. v.

Eckerhart, et al., 461 U.S. 124 103 Sup.

Ct. 1933 76 Law. Ed 2d 40 1983, and City

of Riverside, et al. v. Santos Rivera, et

al., 477 U.S. 561, 106 Sup. Ct. 2686, 91

Law. Ed. 2d 466 1986, when at page 10, it

says there is no support for the proposi-

tion that an award of attorney fees must be

based solely on actual time expended. The

time expended criteria is expressly stated

in Magnuson-Moss at 15 U.S.C., §2310(d) (2).

Plaintiffs' Brief in this case illus-

trates the conflict between the Franklin

County Court of Appeals Decision and City

of Riverside v. Santos Rivera, supra. City

of Riverside says proportionality must not be

used. Franklin County Court of Appeals in

Winrod v. Ford says proportionality is the

rule.

Petition for Writ of Certiorari should

be granted to resolve this conflict, to re-

establish the efficacy of Magnuson-Moss reme-

dies in the State of Ohio as well as else-

where throughout the nation, and to implement

Congressional policy in enacting Magnuson-

Moss. Without certiorari in this case,

Magnuson-Moss is as dead as a door nail in

Ohio.

Respectfully submitted,

AL prbbh|

Jok#n MW’. Leibold IU7

300 North High Street

Columbus, Ohio 43202

614/267-5354

Counsel for Petitioners

May 1B, 1989