plaintiff's emergency motion to order "park it now" directive for recalled gm vehicles

8/12/2019 Plaintiff's emergency motion to order "Park it now" directive for recalled GM vehicles

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CHARLES SILVAS and GRACE SILVAS,

Plaintiffs

(

(((

((

(

v. Case No.: 2:14-cv-00089

GENERAL MOTORS, LLC,

Defendant

PLAINTIFFS EMERGENCY MOTION FOR A MANDATORY INJUNCTION ANDRELIEF UNDER 28 U.S.C. 1651(a) TO COMPEL DEFENDANTS TO ISSUE A PARK

IT NOW ALERT IN THE INTEREST OF PUBLIC WELFARE AND SAFETY ANDBRIEF IN SUPPORT

TO THE HONORABLE JUDGE GONZALES RAMOS:

COME NOW Charles Silvas and Grace Silvas (together, Plaintiffs) before the

Honorable Judge of this Court and file this Emergency Motion for a Mandatory Injunction and

Relief Under 28 U.S.C. 1651(a) to Compel Defendants to Issue a Park it Now Alert in the

Interest of Public Welfare and Safety and Brief in Support. In support thereof, Plaintiffs would

show the Court as follows:

Case 2:14-cv-00089 Document 7 Filed in TXSD on 03/24/14 Page 1 of 42


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TABLE OF CONTENTSPAGE

TABLE OF CONTENTS .............................................................................................................. ii

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

INTRODUCTION ......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 8

I. PROCEDURAL BACKGROUND .................................................................................. 8II. FACTUAL BACKGROUND ....................................................................................... 10

SUMMARY OF THE ARGUMENT .......................................................................................... 16

ARGUMENT ............................................................................................................................... 19

I. THIS COURT MAY ORDER A MANDATORY INJUNCTION COMPELLING GMTO

ISSUE A PARK IT NOW ALERT PURSUANT TO FEDERAL RULE OF CIVIL

PROCEDURE 65 ...................................................................................................... 19

A. Standard for Relief ................................................................................... 20B. The Injunction is Undoubtedly in the Public Interest as there is an

Urgent and Paramount Need for the Requested Injunction toPrevent Further Extreme Bodily Injury and Death .................................. 20

C. The Plaintiffs are Likely to Succeed on the Merits .................................. 24D. The Plaintiffs, and Others, Will Suffer Irreparable Harm in the

Absence of the Requested Relief ............................................................. 26

E. The Balance of Equities Tips in the Plaintiffs Favor .............................. 28

II. THIS COURT POSSESSES THE AUTHORITY TO COMPEL GM TO ISSUE A

PARK IT NOW ALERT PURSUANT TO THE ALL-WRITS ACT, 28 U.S.C.

1651(a) ................................................................................................................. 29

III. NO SECURITY REQUIREMENT IS REQUIRED UNDER RULE 65 ................................. 30



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CONCLUSION ............................................................................................................................ 32

CERTIFICATE OF CONFERENCE ........................................................................................... 34

CERTIFICATE OF SERVICE .................................................................................................... 35



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TABLE OF AUTHORITIESPAGE

UNITED STATES SUPREME COURT CASES

City of Los Angeles v. Lyons,461 U.S. 95 (1983) ........................................................................................................... 20

Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,458 U.S. 50 (1982) ............................................................................................................. 9

Stern v. Marshall,

131 S. Ct. 2594 (2011) ....................................................................................................... 9

Virginian Ry. Co. v. Sys. Federation No. 40,300 U.S. 515 (1937) ......................................................................................................... 20

Winter v. Natural Resources Defense Council,

129 S. Ct. 365 (2008) ....................................................................................................... 28

FEDERAL CIRCUIT COURT CASES

Canal Auth. of the State of Fl. v. Callaway,

489 F.2d 567 (5th Cir. 1974) ........................................................................................... 20

Dahl v. HEM Pharmaceuticals Corp.,7 F.3d 1399 (9th Cir. 1993) ............................................................................................. 27

In re BP RE, L.P.,

735 F.3d 279 (5th Cir. 2013) ............................................................................................. 8

Fox v. City of West Palm Beach,383 F.2d 189 (5th Cir. 1967) ............................................................................................. 20

Frazin v. Haynes & Boone, L.L.P. (In re Frazin),

732 F.3d 313 (5th Cir. 2013) ............................................................................................. 9

Libertarian Party of Tex. v. Fainter,741 F.2d 728 (5th Cir. 1984) ........................................................................................... 19

Royal Ins. Co. v Am. v. Quinn-L Capital Corp.,

960 F.2d 1286 (5th Cir. 1992) ......................................................................................... 29

Sierra Club v. FDIC,992 F.2d 545 (5th Cir. 1993) ........................................................................................... 19



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Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc.,60 F.3d 27 (2d Cir. 1995) ................................................................................................. 19

U.S. v. Texas,

601 F.3d 354 (5th Cir. 2010) ........................................................................................... 19

Wesch v. Folsom,6 F.3d 1465 (11th Cir. 1993) ..................................................................................... 29-30

FEDERAL DISTRICT COURT CASES

Electronic Data Sys. Corp. Iran v. Social Security Organization of the Govt of Iran,508 F. Supp. 1350 (N.D. Tex.), affd in part, vacated in part, 651 F.2d 1007 (5th

Cir. 1981) ......................................................................................................................... 28

Hansen Beverage Comp. v. Cytosport, Inc.,2009 WL 5104260 (C.D. Cal. Nov. 4, 2009) ................................................................... 28

Hunt v. United States Securities & Exchange Commn,

520 F. Supp. 580 (N.D. Tex. 1981) ................................................................................. 28

In Re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, andProducts Liability Litigation,

8:10-ML-0121 JVS (Ca. 2011), Doc. No. 1414 (May 13, 2011) .................................... 20

Orantes-Hernandez v. Smith,541 F. Supp. 351 (C.D. Cal. 1982) .................................................................................. 26

Stringham v. Bick,

2007 WL 60996 (E.D. Cal. 2007) .............................................................................. 26-27

BANKRUPTCY COURT CASES

In re Farmland Industries, Inc.,

378 B.R. 829 (B.A.P. 8th Cir. 2007), rev'd on other grounds, 567 F.3d 1010 (8thCir. 2009) ........................................................................................................................... 9

In re General Motors Corp., et. al.

407 B.R. 463 (Bankr S.D. NY 2009) ................................................................................. 9

In re Western Asbestos Co.,313 B.R. 859 (N.D. Cal. 2004) .......................................................................................... 9



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STATE COURT CASES

McMurrey Refining Co. v. State,149 S.W.2d 276 (Tex. Civ. App.Austin 1941, writ refd) ........................................... 19

RULES &REGULATIONS

All-Writs Act, 28 U.S.C. 1651(a) ..................................................................................... passim

Federal Rule of Civil Procedure 65 ..................................................................................... passim

SECONDARY AUTHORITIES

11 Wright & Miller, Federal Practice & Procedure 2948 at 460 ...................................... passim

43A C.J.S. Injunctions 15 ................................................................................................... 19, 20

49 U.S.C. 31131(b)(1) .............................................................................................................. 20

Federal Rule of Civil Procedure 65 ..................................................................................... passim

Reina Calderon, Bond Requirements Under Federal Rule of Civil Procedure 65(c): An

Emerging Equitable Exemption for Public Interest Litigants, 13 B.C. Envtl. Aff. L. Rev.125 (1985) .................................................................................................................................... 30



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"Something went wrong with our process in this instance, and terrible things happened.

~ GM C.E.O. Mary Barra, commenting on the recent recalls



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INTRODUCTION

At any given moment, an ignition switch in a wide variety of GM or Chevrolet vehicles

could fail, killing or maiming countless individuals. In the wake of widespread and massive

nationwide recalls of its vehicles, GM, through its C.E.O. Mary Barra, has apologized for the

lives lost, promised intense review[s] of its internal processes and fast-tracking of pending

safety issues, and claimed that GM will seize the opportunity that this tragic situation created.

See Kim Axelrod, GM CEO Mary Barra Apologizes for Recall Delay,

http://www.cbsnews.com/news/gm-ceo-mary-barra-apologizes-for-recall-delay/ (last accessed

Mar. 22, 2014). Ironically, although Ms. Barra recently claimed that GM will take every step to

make sure this never happens again, it has expressly refused to tell the more than one million

drivers of recalled vehicles to park them now, placing these individuals at the mercy of

defective vehicles that may, at any moment, lose power steering, power brakes, and fail to

deploy airbags in the likely event of a crash. See id.

GMs disastrous system failures are purportedly triggered by something as simple as a

key chain on the vehicles key or a bump in the road, as the ignition switch shifts from the run

position into the accessory or off position, with a corresponding reduction or loss of power.

See March 11, 2014 Letter from GM to Ms. Nancy Lewis re: NHTSA Recall No. 14V-047,

attached as Exhibit A, at 1 (Until the recall repairs have been performed, it is very important

that customers remove all items from their key rings, leaving only the vehicle key.); see also

GM Safety Recall Notice, attached as Exhibit J (Th[e] risk increases if your key ring is carrying

added weight (such as more keys or the key fob) or your vehicles experiences rough road

conditions or other jarring or impact related events.). Yet, it is telling that GM reveals to its

customers, lightening their key chain may not helpas rough road conditions or other jarring



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impact related events could cause the vehicle to experience full loss of power, steering, braking

and air bag deployment. See Exhibit I. While Barras statements reflect GMs belated attempt to

fall on its proverbial sword, the simple truth is that the Sword of Damocles still dangles by a

thread (or a key fob) over the heads of millions of Americans.

GMs refusal to honestly speak has gone on too long more than four and a half years

since GM came out of bankruptcy, new of the life-threatening danger, and yet concealed the risk

from drivers.. GM belatedly admits that there has been a death for every year of its silence. But,

a recent report suggests that the death toll is actually in the hundreds. See March 13, 2014 Letter

from Center for Auto Safety to the Honorable David J. Friedman, attached as Exhibit B (On

March 7, the Center for Auto Safety (CAS) wrote you about NHTSAs failure to utilize its

Special Crash Investigations (SCI) of 2005 Cobalts and 2004 Ions and Early Warning Reports

(EWR) of death claims filed by GM to open a defect investigation and order a recall.

Examination of NHTSAs Fatal Analysis Reporting System (FARS) reveals 303 deaths of front

seat occupants in the recalled 2005-07 Cobalts and 2003-07 Ions where the airbag failed to

deploy in non-rear impact crashes.). This new figure is drawn from data on only two of the six

recalled models, the Chevrolet Cobalt and Saturn Ion; the death toll is expected to climb as the

full gamut of defective vehicles and incidents comes to light.

Excluding, for a moment, the 303 deaths cited in the CAS report, the thirteen confirmed

deaths highlight the critical urgency of Plaintiffs Motion. To place Plaintiffs Motion in

perspective, at least thirteen (and upwards of 303) people have perished because of GMs

deception and inaction, because of GMs silence. These thirteen people were taken from their

families, often in horrific fashions, and died an entirely preventable death. Here are some of the

victims of GMs silence:



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This is Michael P. Sharkey, Jr. Twenty-one year old Michael was

driving his 2006 Cobalt down Route 22 in Washington County, New

York, when his vehicle suddenly traveled down an embankment and hit a

rock wall. Michael burned to death when the vehicle burst into flames.

This is Sarah Trautwein. Sarah lost control of her 2005 Cobalt when

she was driving in Gilbert, South Carolina in 2009. The vehicle suddenly

and violently hit a tree, killing the nineteen-year old instantly.

This is Amy Rademaker (top) and Natasha Weigel (bottom). Fifteen-year-

old Amy was riding with her two friends, Natasha Weigel and Megan Ungar-

Kerns, in a 2005 Cobalt when the vehicle traveled onto the south shoulder of a

Wisconsin highway and into a sound ditch. The vehicle brutally collided with a

telephone junction box and two trees, taking the lives of Amy and eighteen-year-

old Natasha Weigel. Tests conducted on the vehicle after the horrific accident

revealed that the ignition switch on the Cobalt was in the accessory position. The

airbags, the passengers only hope, never deployed.

This is Hasaya Chansuthus. In 2010, twenty-five-year-old

Hasaya was coming home from a friends house when her 2006

Cobalt suddenly and without warning, ran off of the road onto the



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right shoulder of westbound Interstate 24 in Tennessee. The vehicle slammed into a tree, and the

airbags never deployed

This is Joshua Wooten, shown when he was eight years old.

Twenty-year-old Joshua was driving his 2006 Cobalt over a hill in

Tennessee when the vehicle lost control and unexpectedly turned and

collided with a SUV carrying seven passengers. Joshua died from his

severe and traumatic injuries. The seven passengers in the SUV were

all badly hurt. Joshuas car had a history of power steering failures,

with the steering column locking up.

This is Chris Prinkii. Mr. Prinkii, forty-

three years old at the time, was driving his 2007

Cobalt through the Apache Junction in Arizona.

The vehicle unexpectedly veered into oncoming

traffic and Mr. Prinkiis vehicle collided head-

on with another vehicle. The airbags did not

deploy. Mr. Prinkii died on the scene.

This is Richard Bailey. In 2008, Mr. Bailey was driving around a

curve in his 2007 Cobalt on California Highway 62, the vehicle

unexpectedly veered the wrong way, crossed the center-median and

flipped over. Mr. Bailey suffered major internal injuries, a fractured spine

and head trauma before he died. Two passengers survived the accident,



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but sustained irreparable injuries.

Despite the tragic loss of life exemplified above and the unquestionable risks the

defective vehicles posed to public safety, GM kept quiet. GM remained silent in 2001 when it

received evidence that there was a problem with the now-recalled ignition switch in a

preproduction Saturn Ion. See Exhibit A at 9.;see also GM Recall Timeline, attached as Exhibit

C.

GM remained silent in 2001, when evidence came to light showing that there was a

problem with the now-recalled ignition switch in a preproduction Saturn Ion. See Exhibit A at

9.;see also GM Recall Timeline, attached as Exhibit C.

GM remained silent in 2004, when two old-GM engineers reported that the Ions ignition

switch could accidently turn off if inadvertently hit by the drivers knee. See Exhibit A;see also

GM Recall Timeline, attached as Exhibit C. Engineers reportedly considered several remedies to

increase torque in the key cylinder, but no action was taken after consideration of the lead time

required, cost and effectiveness of each of these solutions. See Exhibit A;see also Exhibit C.

GM remained silent throughout 2005, when it received numerous reports of its

customers vehicles stalling, including a fatal crash in which a Cobalts airbags did not deploy.

A proposal to redesign the ignition key was approved by GM, then cancelled for undisclosed

reasons. See Exhibit A;see also Exhibit C. Old-GM sent its dealers a bulletin instructing them

to tell customers who complained of stalling to remove extra items from their key chains. See

Exhibit A;see also Exhibit C. Old-GM also developed a key insert to prevent the key ring from

hanging so low, but warranty records indicate that only 474 customers received one, compared to

the more than one million vehicles sold. See Exhibit A;see also Exhibit C.

GM remained silent in 2006, when more than 30 complaints had been filed with the



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National Highway Traffic Safety Administration (NHTSA) about unexpected stopping and

stallingat least a dozen of these complaints involved the 2005 Chevrolet Cobalt. See Exhibit

A;see also Exhibit C.

GM remained silent in 2007, when it began tracking frontal-impact Cobalt crashes with

no airbag deployment and discovered that in ten of such incidents, the ignition was in

accessory mode in four of the accidents. See Exhibit A; see also Exhibit C. GM also

remained silent about the defects when it elected to discontinue the Ion that same year, and when

over 80 complaints about unexpected stopping or stalling were filed with NHTSA, including at

least 30 involving the now-recalled 2005 Chevrolet Cobalt. See Exhibit A;see also Exhibit C.

GM remained silent in 2008, when NHTSA received 90 complaints about unexpected

stopping or stalling for the now-recalled vehicles, including at least eight involving the 2006

Chevrolet HHR. See Exhibit A;see also Exhibit C.

GM remained silent in 2009, as the NHTSA complaint toll reached 120, including at least

one 2007 Chevrolet Cobalt. See Exhibit A;see also Exhibit C.

GM remained silent in 2010, as the NHTSA complaint toll reached 170, including at least

thirty-five involving the 2006 Chevrolet Cobalt. See Exhibit A;see also Exhibit C.

GM remained silent in 2013 when a technical expert discovered that the ignition switches

in Ions and early-model Cobalts did not meet GMs torque specifications. See Exhibit A;see also

Exhibit C. Records reveal that Delphi Mechatronics provided Old-GM with documents

uncovering the 2006 ignition design change. See Exhibit A;see also Exhibit C.

GMs silence over the past thirteen years speaks volumes. It resounds with an egregious

and unprecedented failure to disclose a known defect, and reaches a crescendo of complete and

utter disregard for human life. And, just [a]s we must account for every idle word, so must we



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account for every idle silence.1 The time for GMs silence is over.

1Benjamin Franklin.



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BACKGROUND

I. PROCEDURAL BACKGROUND

This lawsuit, originally filed in Nueces County Court of Law No. 4, Cause Number:

2014CCV-60443-4, arises out GMs egregious and unprecedented concealment, and failure to

disclose, a known defect in GM vehicles. Defendants removed this case to federal court on

March 21, 2013, and simultaneously filed a Motion to Transfer Venue, requesting that the Court

transfer this case to the United States Bankruptcy Court for the Southern District of New York

(New York Bankruptcy Court), alleging that that court reserved exclusive and continuing

jurisdiction over all controversies concerning the interpretation and enforcement of the Sale

Approval Order between Old GM and New GM, including all attempts by third parties to impose

liability on New GM, and for obligations of Old GM that were not expressly assumed by New

GM under the ARMSPA. At this time, Plaintiffs elect not to remand this case back to state

court, though Plaintiffs could easily do so given GMs blatant fraudulent removal of this case,

which was a thinly veiled attempt to circumvent the Hon. Judge Klagers Order to produce

certain documents on the morning of March 24, 2014. See Temporary Restraining Order and

Order Setting Hearing for Preliminary Injunction, attached as Exhibit D.

Contemporaneous with this Motion, Plaintiffs file a Response to Defendants Motion to

Transfer Venue, demonstrating how GMs Motion lacks merit and why the case must not be

transferred to the New York Bankruptcy Court. Briefly and solely by way of background here,

GMs Venue Motion is not yet ripe for determination. First, the Venue Motion is misleading

insofar as New GM claims that exclusive jurisdiction rests with the Article I Bankruptcy Judge

instead of this Honorable Article III Court.2 In every instance, there is no such thing as

2 In re BP RE, L.P., 735 F.3d 279, 289 (5th Cir. 2013) makes clear that the jurisdiction of every bankruptcy



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exclusive Article I jurisdiction other than the jurisdiction that passes by referral from an

Article III Courts limited and referred bankruptcy jurisdiction. The exclusive jurisdiction

rests with this Article III Court, just as it exists with every Article III United States District

Court.3

In addition to the missing merits of the Venue Motions claim of exclusive (bankruptcy

court) jurisdiction, the case now before this Honorable Court arises exclusively from post-

bankruptcy conduct. Plaintiffs allege that, following the July 2009 bankruptcy, GM acted

negligently and in violation of the Texas Deceptive Trade Practices-Consumer Protection Act, by

concealing its knowledge of the ignition switch defect, even while continuing to profit from the

sale of replacement parts to drivers of the vehicles. Simply put, there is no bankruptcy

jurisdiction over litigation arising from post-bankruptcy conduct between two non-debtors (here

Plaintiffs and New GM, neither having been in any bankruptcy proceeding) that would allow

such dispute to go forward in an Article I Court. See, e.g.,Northern Pipeline Construction Co. v.

Marathon Pipe Line Co.,458 U.S. 50 (1982);see also Stern v. Marshall,131 S.Ct. 2594 (2011).4

court is exclusively derivative of an Article III Court:

In striking down the Bankruptcy Act of 1978 in Northern Pipeline,458 U.S. at 5760, 102 S.Ct.

2858,FN3 the plurality took the opportunity to examine and discuss the Framers' division of power

between the branches and the importance of the Federal Judiciary's independence from the

Executive and Legislative Branches. Art. III both defines the power and protects the

independence of the Judicial Branch. Id. at 58, 102 S.Ct. 2858. Only courts satisfying the

requirements of Article III may exercise the federal judicial power.Id.at 59, 102 S.Ct. 2858.Id.at

60, 102 S.Ct. 2858. [Emphasis added.]

3 Frazin v. Haynes & Boone, L.L.P. (In re Frazin), 732 F.3d 313 (5th Cir. 2013).

4 In re Farmland Industries, Inc., 378 B.R. 829, 835, (B.A.P. 8th Cir. 2007), rev'd on other grounds, 567

F.3d 1010 (8th Cir. 2009) (bankruptcy court lacks subject matter jurisdiction of suit between shutout 363 sale

bidder and purchaser of debtor's assets based on fraud in connection with the sale);In re Western Asbestos Co., 313

B.R. 859 (N.D. Cal. 2004) (bankruptcy court does not have related to jurisdiction over prepetition agreement among

two nondebtors, their insurer, and attorneys for asbestos claimants).



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II. FACTUAL BACKGROUND

A. General BackgroundAn auto manufacturer should never make profits more important than safety and should

never conceal defects that exist in its vehicles from consumers or the public. GMs Vehicle

Safety Chief, Jeff Boyer recently proclaimed that: Nothing is more important than the safety of

our customers in the vehicles they drive. Yet, GM failed to live up to this commitment.

The first priority of a car manufacturer should be to ensure that its vehicles are safe, and

particularly that its vehicles have operable ignition systems, airbags, power-steering, power

brakes, and other safety features that can prevent or minimize the threat of death or serious

bodily harm in a collision. In addition, a car manufacturer must take all reasonable steps to

ensure that, once a vehicle is running, it operates safely, and its critical safety systems (such as

engine control, braking, and airbag systems) work properly until such time as the driver shuts the

vehicle down. Moreover, a manufacturer that is aware of dangerous design defects that cause its

vehicles to shut down during operation, or its airbags not to deploy, must promptly disclose and

remedy such defects.

Beginning in 2001, Old-GM sold millions of vehicles throughout the United States and

worldwide that have a safety defect in which the vehicles ignition switch can unintentionally

move from the run position to the accessory or off position, resulting in a loss of power,

vehicle speed control, and braking, as well as a failure of the vehicles airbags to deploy. Old-

GM began installing these ignition switch systems in models from 2001 through at least 2007

and possibly later.

Following the July 2009 bankruptcy, GM continued to conceal the ignition switch defect.

For more than four and a half years, GM never let on to drivers that it knew of a defect that



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caused the vehicles to have a sudden engine power loss. GM knew that many drivers regularly

returned to dealerships for repairs and to purchase various replacement parts (which GM profited

from), but GM allowed those transactions to continue without issuing any warning of the life-

threatening dangers.

GM promised that these new systems would operate safely and reliablya promise that

turned out to be false in several material respects. In reality, GM concealed and did not fix a

serious quality and safety problem plaguing its vehicles. At the same time that GM was

extolling the safety and reliability of its vehicles, it was also concealing a defect that caused its

vehicles to have a sudden engine power loss. Try as it might to conceal this defect, it came to

light in a recent recall of 1.7 million vehicles, revealing that GM vehicles have the propensity to

shut down during normal driving conditions and create an extreme and unreasonable risk of

accident, serious bodily harm, and death. Worse yet, the defects in GMs vehicle could have

been easily avoided.

B. Plaintiffs Vehicles1. Recall notices raise issues concerning GM vehicles

On February 7, 2014, General Motors filed a Defect Notice to recall 2005-2007 Model

Year Chevrolet Cobalt and 2007 Pontiac G5 vehicles. The Defect Notice stated the ignition

switch torque performance in these vehicles might not meet GMs specifications resulting in the

non-deployment of airbags in crash events. The notice called for the recall of approximately six

hundred thousand vehicles. See Plaintiffs Second Amended Complaint, attached as Exhibit E.

Seventeen days later, on February 24, 2014, GM issued a notice to the National Highway

Traffic Safety Administration (NHTSA), see Exhibit L, which expanded the recall to include

2003-2007 Saturn Ions, 2006-2007 Chevrolet HHRs, 2006-2007 Pontiac Solstices and 2007



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Saturn Skys, bringing the number of vehicles affected by the recall to 1,367,146. Id. This

NHTSA notice furnished information on hand with GM dating back 10 years, and dealt directly

with GMs recall obligations and product warranties which have been known by GM for many

years. Id.

Notably, the recalls did not provide immediate relief for vehicle owners. Rather, GM

disclosed that dangerous defects existed and stated that GM would implement a repair plan,

without specification. This NHTSA notice revealed that GM had information for the past ten

years about the defect, and further dealt directly with GMs recall obligations and product

warranties which have been known by GM for many years. See id.; see also Exhibit A.

2. Remarkably, GM knew of the condition since 2001

As early as 2001, during pre-production development of the Ion, Old-GM became aware

of issues relating to its ignition switch passlock system. See Exhibit D; see also Exhibit A.

The 2001 report stated the problem included a low detent plunger force in the ignition switch.

In 2003, before the launch of the 2005 Cobalt, Old-GM became aware of incidents wherein the

vehicle engine would suddenly lose power in the event the key moved out of the run position

when the driver inadvertently contacted the key or steering column. An investigation was opened

and, after consideration of lead-time required and the cost and effectiveness of potential

solutions, the investigation was closed with no action taken. See Exhibit D;see also Exhibit A.

Throughout 2005, Old-GM received similar field reports of vehicles losing engine power

when the key moved out of the run position. See Exhibit D; see also Exhibit A. A proposal

was approved to redesign the key head, but later cancelled. Instead of recalling the vehicles to

replace the defective ignition switches, old-GM issued a Service Bulletin to dealers (the

Bulletin). The Bulletin recognized that there was a potential for the driver to inadvertently turn



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off the ignition due to low ignition key cylinder torque/effort. See Exhibit D;see also Exhibit A;

October 25, 2006 GM Safety Bulletin, attached as Exhibit K.

Although old-GM developed an insert for the key ring that changed it from a slot design

to a hole design, to prevent the key from easily jogging the ignition switch out of the run

position, the redesigned ignition switch was not installed in vehicles until the 2007 model year.

The defective ignition switch has been linked to numerous crashes and fatalities. See Exhibit D;

see also Exhibit A.

On June 1, 2009, Old-GM filed a petition under Chapter 11 of the Bankruptcy Code. On

July 5, 2009, the Bankruptcy Court issued an order that approved the sale of substantially all of

Old-GMs assets to GM. Following the bankruptcy, GM knew all of the information developed

since 2001 about the ignition switch defect, but continued to actively conceal it from drivers.

Given the vast number of instances of sudden engine power loss and non-deployment of airbags

related to the defective ignition switch and GMs knowledge of many or all of the instances, GM

should have aggressively taken remedial measures to address these defects. See Exhibit D; see

also Exhibit A. GM failed to do so. See Exhibit D;see also Exhibit A. In fact, this first recall

was not implemented until 2014 over four and a half years after GM came out of bankruptcy

with knowledge of the life-threatening danger, and nearly thirteen years after the first reported

instances of engine power loss. See Exhibit D;see also Exhibit A. By concealing the danger for

so long, GM put countless lives at risk. To this day, GM has refused to state unequivocally that

the defective vehicles should remain parked until an appropriate repair method is developed and

implemented.

The ignition switch defect in GM vehicles has adversely affected the companys

reputation as a manufacturer of safe, reliable vehicles with high resale value, as compared to



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vehicles made by its competitors. In the wake of the news reports about this serious problem,

GM customers and consumers generally are as they should be skeptical about the quality and

safety of GM vehicles. See Exhibit D;see also Exhibit A. Indeed, it is likely that the entire fleet

of GM vehicles has been stigmatized by this defect, but most specifically the vehicles directly

affected by this recall and certainly no consumer has confidence that after a 10-year fraudulent

concealment scheme was brought to light GM has still withheld See Exhibit D;see also Exhibit

A. Every GM product is now tainted by this fraud.

GMs intentional and deliberate mishandling of the ignition switch defect, including but

not limited to its denial of any problem, even after receiving a substantial number of reports of

sudden engine power loss, including ones that resulted in serious physical injury or death, its

failure to begin developing an appropriate repair procedure, and all other allegations set forth in

Plaintiffs Complaint, has adversely affected Plaintiffs and other drivers of the defective

vehicles. Plaintiffs and other drivers are now stuck with dangerously defective vehicles that

cannot presently be made safe to drive.

C. Plaintiffs Experiences

The Plaintiffs own a 2006 Chevrolet Cobalt, a model that is subject to the ignition switch

recall. They experienced incidents of sudden engine power loss beginning in 2010. The vehicle

was inspected and the ignition switch was replaced. Despite the repair, the Plaintiffs continue to

experience incidents of sudden engine power loss.

The Silvas Plaintiffs have lost trust in the GM and Chevrolet brand names, and the Cobalt

in particular, and are skeptical that their Cobalt will ever be completely safe. They are concerned

that over one million unsafe vehicles remain on the road, putting not only putting drives and

passengers at risk, but all others who share the road with them.



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As things stand, Plaintiffs vehicle cannot be safely driven, due to GMs negligence and

deceptive conduct, and there is little doubt that the resale value of the Silvas Chevrolet has and

will continue to diminish due to general consumer skepticism about GM and Chevrolet vehicle,

and with every incident the resale value drops even more.



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SUMMARY OF THE ARGUMENT

Even though GM now acknowledges that their vehicles are defective, it has donenothing

to inform consumers to STOP DRIVING THEIR RECALLED VEHICLES. Any and every

driver that is currently operating a recalled vehicle could fall victim to the defect, rendering the

driver simply another tick on GMs ever-increasing death tally. Any and every traveler on the

nations roads and highways could fall victim to the defect when another driver continues to

operate their recalled vehicle because GM has not told them to do otherwise. Tick. Any and

every passenger in a GM vehicle could fall victim to the defect when they ride in a recalled

vehicle because GM has not told the drivers to stop using the vehicles. Tick. Any and every

pedestrian walking on streets on which GM recalled vehicles drive could fall victim to the defect.

Tick. At any given moment, the ignition switch defect can surface in a recalled GM vehicle,

causing the vehicle to unexpectedly cut power steering, power brakes, and fail to deploy life-

saving airbags in the event of a catastrophic accident. Tick. Driving a recalled GM vehicle is

like carrying a stick of dynamite with a slow-burning fuse. When it goes off, it will be sudden,

violent, and deadly.

As explained in more detail below, this Court should order GM to issue a Park It Now

Alert to consumers driving one of the 1.7 million vehicles subject to the ignition switch defect,

instructing them of the imminent dangers that driving these vehicles poses and urging them not

to operate the vehicles until the defect is fully identified and a comprehensive solution is created.

Plaintiffs are likely to prevail on themerits of their claims. Through a series of recalls, GM has

now partially admitted the existence of an ignition switch defect that it should have remedied

years ago, but instead, for years, concealed and failed to remedy over a period of many years.



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Moreover, GM's conduct even now isdeceptive, claiming that by simply removing key rings or

chains from the vehicles key will fully ameliorate the potential for ignition switch failures.

GMs conduct in concealing and failing to address this problem constitutes false, misleading,

deceptive, and unconscionable conduct under the Texas Deceptive Trade Practices-Consumer

Protection Act, Bus. & C. 17.41 et. seq.(DTPA), such that Plaintiffs are likelyto prevail on

their claims.

It is also clear that Plaintiffs, and the public at large, will suffer irreparable injury in the

absence of this injunction. While GM proposes partial fixes, additional incidents of ignition

switch failures will certainly occur. Injuries and fatalities are the inevitable consequence of such

additional incidents. Moreover, millions of GM owners, dependent on their cars for

transportation, are afraid to drive their cars and are put to the choice, every day, between risking

their lives and safety, and the lives and safety of others by driving their cars, or doing without the

transportation on which they depend.

Not only do Plaintiffs and the general public face irreparable injury if GM is not required

to issue a Park It Now Alert, but, in addition, the balance of the equities clearly favors such an

injunction. The problem with the vehicles has already been identified and GM has already

recalled millions of cars and stopped selling new ones while it tries to create a solution for the

problem. However, the only fail-safe solution in the meantime is Park It Now Alert.

Comparing this simple fix with the lives likely to be saved and the injuries likely to be averted

shows that the equities clearly favor the injunction Plaintiffs seek.

Finally, and perhaps most importantly, this injunction is in the public interest. As

expressed previously, an uncontrollable vehicle is a danger not only to its driver and passengers,

but to every other innocent driver and passenger on the road, as well as to unsuspecting



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pedestrians and bystanders, any of whom may be injured or killed by a car that suddenly and

unexpectedly loses power steering and power brakes. Only by directing consumers to park the

recalled vehicles can GM protect the public from this dangerous defect in its cars and SUVs.



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ARGUMENT

I. THIS COURT MAY ORDER A MANDATORY INJUNCTION IN THE FORM OF COMPELLING

GM TO ISSUE A PARK IT NOW ALERT PURSUANT TO FEDERAL RULE OF CIVILPROCEDURE 65.

A. Standard for Relief

Generally, in order to prevail on a motion for preliminary injunction, a plaintiff must

establish that (1) there is a substantial likelihood that it will prevail on the merits, (2) there is a

substantial threat that the party will suffer irreparable injury if the preliminary injunction is

denied, (3) the threatened injury to the party seeking the injunction outweighs the threatened

injury to the party to be enjoined, and (4) granting the preliminary injunction will not disserve

the public interest. See Sierra Club v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993); see also

Libertarian Party of Tex. v. Fainter, 741 F.2d 728, 729 (5th Cir. 1984) (applying the factors to a

request for a mandatory injunction). Courts may issue a preliminary mandatory injunction for

the purpose of prevention and protection. 43A C.J.S. Injunctions 15;see Tom Doherty Assocs.,

Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (noting that a mandatory

injunction . . . is said to alter the status quo by commanding some positive act); see also U.S. v.

Texas, 601 F.3d 354, 362 (5th Cir. 2010) (finding order to be mandatory injunction where the

order compels defendants to promptly and affirmatively act in a specific and extraordinarily

extensive manner).

A courts ability to award preliminary mandatory injunctions is well-recognized in cases,

such as the one at bar, affecting the lives of many, especially where the acts complained of are

willful or fraudulent. See id.; see also McMurrey Refining Co. v. State, 149 S.W.2d 276 (Tex.

Civ. App.Austin 1941, writ refd). In other words, a mandatory injunction is proper when



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there is an urgent and paramount necessity for issuing the writ in order to prevent extreme or

other serious damage that would ensue from withholding it. See 43A C.J.S. Injunctions 15;see

also Fox v. City of West Palm Beach, 383 F.2d 189, 194 (5th Cir. 1967) (There is no question

that mandatory injunctions are to be sparingly used and upon a strong showing of necessity and

upon equitable grounds which are clearly apparent. But where the necessity exists and the

grounds are shown courts will not hesitate in granting the remedy.) (emphasis added). The

Fifth Circuit has held that a mandatory injunction is appropriate where the currently existing

status quo is causing a party to suffer irreparable injury. Canal Auth. of the State of Fl. v.

Callaway, 489 F.2d 567, 576 (5th Cir. 1974).

As set forth herein, Plaintiffs show that the facts and the law clearly favor their request

for mandatory injunction.

B. The Injunction is Undoubtedly in the Public Interest, as there is an Urgentand Paramount Need for the Requested Injunction to Prevent ExtremeBodily Injury and Death.

A mandatory injunction compelling GM to immediately issue a Park it Now Alert to

consumers driving recalled vehicles is in the public interest. It is well established that [t]he risk

of serious injuries and deaths to other citizens [can] support[] the decision to grant a preliminary

injunction. City of Los Angeles v. Lyons, 461 U.S. 95, 135 (1983). Courts have much greater

latitude in granting injunctive relief in furtherance of the public interest . . . than when only

private interests are involved. Virginian Ry. Co. v. Sys. Federation No. 40, 300 U.S. 515, 552

(1937). Moreover, Congress has opined, albeit in a different context, it is in the public interest

to enhance commercial motor vehicle safety and thereby reduce highway fatalities, injuries, and

property damage. 49 U.S.C. 31131(b)(1).

Federal courts have permitted the use of injunctions in nationwide automobile litigation



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cases. For instance, in theIn Re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales

Practices, and Products Liability Litigation, 8:10-ML-0121 JVS (C.D. Cal. 2011), the Plaintiffs

requested an injunction requiring the implementation of a fail-safe brake override mechanism for

all models and all model years. See Order in In Re: Toyota Motor Corp. Unintended

Acceleration Marketing, Sales Practices, and Products Liability Litigation, 8:10-ML-0121 JVS

(Ca. 2011), Doc. No. 1414 (May 13, 2011), attached as Exhibit G. Toyota moved to strike

Plaintiffs request for an injunction on numerous grounds. Exhibit G. The California district

court judge rebuffed Toyotas attempts to challenge the requested injunctive relief, stating that

Toyota did not show that a court-ordered recall would frustrate Congress intent to reduce

traffic accidents and deaths and injuries to persons resulting from traffic accidents, or that

Plaintiffs proposed remedy would actually conflict with an ongoing NHTSA investigation. See

id. Accordingly, the judge permitted the request for injunctive relief to stand. See id.

Currently, the recall at issue involves approximately 1.7 million vehicles.5 GM concedes

that the ignition switch defect has already been responsible for at least thirty-one crashes and

thirteen deaths. See Exhibit A, Appendix B.6 Unfortunately, this is likely only the tip of iceberg.

As Congress, the United States Justice Department, and federal investigators embark on hearings

and probes into GMs conduct, the full scope of GMs fraudand the detrimental effect on the

populousis sure to come to light. See March 11, 2014Letter from Members of the United

States Congress House of Representatives Committee on Energy and Commerce to Mary T.

5

The vehicles covered by the ignition switch recall are the 2005 2007 Chevrolet Cobalt and Pontiac G5, the 2003 2007 Saturn Ion, the 2006 2007 Chevrolet HHR, the 2006 2007 Pontiac Solstice, and the 2007 Saturn Sky.

The airbag defect (faulty seat-mounted side airbags) recalls cover 1.18 million vehicles, including 2008 - 2013

Buick Enclaves and GMC Acadia SUVs, 2009 2013 Chevrolet Traverses, and 2008 2010 Saturn Outlooks.

Finally, GM recalled 63,900 Cadillac XTS sedans from the 2013 2014 model years to fix short circuits in the

brake booster-pump wiring that could lead to fires and 303,000 Chevrolet Express and GMC Savannas from 2009

2014 to fix an instrument panel to meet safety standards.

6As set forth above, the death toll could actually be in the hundreds. See Exhibit B.



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Barra, attached as Exhibit F (requiring GM to explain why it took a decade to issue the recalls

for vehicles with faulty ignition switches linked to 13 deaths); see also March 12, 2014 CBS

News Report, available at: http://www.cbsnews.com/news/feds-open-criminal-probe-into-

general-motors-over-recall/ (last accessed March 23, 2014) (The U.S. Attorneys office in New

York has opened a criminal investigation into General Motors to determine if there was any

criminal wrongdoing on the part of GM stemming from the automakers faulty ignition switch

recall . . . .).

Indeed, today, United States Senator Richard Blumenthal sent a letter to Attorney

General Holder requesting his immediate intervention and assistance on behalf of victims of

severe damage financial harm, physical injury, and death resulting from serious ignition

switch defects in General Motors (GM) cars. Mar. 24, 2014 Letter from Senator Blumenthal

to Attorney General Holder, attached as Exhibit I (requesting the United States intervene in

pending civil actions to oppose any action by GM to deny responsibility for consumer damages

on grounds that those damages may have resulted from deceptive and fraudulent concealment

and other misconduct by GM.). Senator Blumenthal expressed further expressed:

Without your active involvement, they may have no meaningful remedy. Giventhe crucial role the United States government played in creation of the current

General Motors Corporation, I believe the federal government has a moral, if notlegal, obligation to take all necessary steps to protect innocent consumers.

Like many Americans I was appalled and astonished by GMs recent admission

that it knew of these disabling defects and their disastrous effects well before the2009 reorganization. Their deliberate concealment caused continuing death and

damage, and it constituted a fraud on the bankruptcy court that approved itsreorganization. It also criminally deceived the United States government and the

public.

As a consequence of this fraudulent and reprehensible concealment, the United

States Bankruptcy Court unknowingly authorized a purchase of GMs assets bythe "new GM," which seemingly shielded this new GM from legal responsibility

for these product defects or other illegality occurring prior to 2009. This shield



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from legal responsibility was granted with the federal government's support despite vehement opposition from consumer advocates, and despite objections I

raised as Attorney General of Connecticut. Indeed, I led a group of eight stateattorneys general who warned that this blanket shield from all liability would

prove unfair and unwise.

Tragically, these warnings have proved true and consumer victims may now bebarred from any just remedy. They have filed various state court actions, which

GM has removed to federal court and asked to be transferred to the United StatesBankruptcy Court, knowing that the GM reorganization there cannot be reopened

under technical procedural rules and recourse will likely be blocked.

In seeking your assistance, I am greatly encouraged by your decision to initiate afederal criminal investigation into the flagrant illegality of GMs concealment.

The recent Toyota settlement further reflects your resolve in protectingconsumers.

A number of steps by you and the United States Department of Justice clearly

would advance the public interest, the rule of law, and rights of victims of GM'swrongdoing.

First, I urge that DOJ require that GM establish a fund to fully compensate

consumers who suffered injury, death, or damage as a result of these lethallydefective vehicles. This civil remedy could be done as an interim step, even

before completing your criminal investigation and prosecution.

Second, I recommend that you intervene in pending civil actions to oppose anyaction by GM to deny responsibility for consumer damages on grounds that those

damages may have resulted from deceptive and fraudulent concealment and othermisconduct by GM.

Third, either through DOJ or an appropriate federal consumer protection agency,

ensure that consumers are adequately aware of the potential dangers of operatingthese vehicles prior to repair of the defective ignitions.

I know you share my strong feeling that innocent victims of these defective cars

whose life-changing injuries and deaths resulted from GM's pernicious andpurposeful misconduct should be fairly compensated, and that justice should be

done through appropriate criminal enforcement. As always, I appreciate yourthoughtful consideration.

See id. One thing is certain: the risk that the defective vehicles pose to consumers and the public

in general is far from gone. See Mar. 16, 2014 Email from Robert C. Hilliard to GM, attached as

Exhibit H (pleading with GM, over two weeks ago, to [e]ncourage, advise and reason with



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those in power at GM to do whatever it takes to change GMs message from a typical recall

notice to a PARK IT IMMEDIATELY ALERT.)..

The ignition switch defect can arise at any time and in any of the recalled models,

resulting in an uncontrollable vehicle and the total failure of a vital safety mechanism. GM

implicitly acknowledges that drivers are continuing to operate recalled vehicles. See Ignition

Switch Recall: Understanding the Safety Recall, available at: http://www.gm.com/ignition-

switch-recall.html (last accessed Mar. 23, 2014) (If you are driving an affected vehicle, until the

safety recall repairs have been performed, it is very important that you remove all items from

your key ring, leaving only the vehicle key.) (emphasis in original). With millions of defective

vehicles still on the road, capable of falling prey to a faulty ignition switch at any given moment,

there is a substantial risk of severe bodily harm and even death to the American public. This

substantial risk is posed not only to the drivers of the defective vehicles, but also their innocent

and unsuspecting passengers, pedestrians, and other motorists and travelers on U.S. roadways.

Clearly, the requested preliminary injunction is in the interest of these persons, and equally

clearly, there is nopublic interest that would be injured by the grant of preliminary relief here.

C. The Plaintiffs are Likely to Succeed on the Merits.

GMs conduct was false, misleading, deceptive, and unconscionable under the DTPA.

See generally V.T.C.A., Bus. & C. 17.50(a). Following the July 2009 bankruptcy proceedings,

GM knew about the existence of the ignition switch defect and the fact that it had already caused

many deaths and injuries. GM knew that given the severity of the risk, many drivers would

refuse to continue driving their vehicles if they knew about the defect, and would have stopped

paying to maintain their vehicles. This would have meant, among other things, fewer drivers

purchasing GM replacement parts at authorized GM dealerships, and less revenue accruing to



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GM. GM chose to conceal the defect, leading more drivers to put themselves and their families

at risk, and leading to more non-defect related repair transactions at GM dealerships. GMs

refusal, even now, to make people safe by issuing a Park It Now Alert continues to subject

individuals to property damage, bodily injury, and death, and continues to lead people to spend

money on unrelated repairs at GM dealerships.

This constitutes a continuation of GMs fraudulent, misleading, deceptive, and

unconscionable business practices within the meaning of the DTPA. Bus. & C. 17.41, et

seq. The DTPA prohibits failing to disclose information concerning goods or services which

was known at the time of the transaction if such failure to disclose such information was

intended to induce the consumer into a transaction into which the consumer would not have

entered had the information been disclosed. 17.41(b)(24). Courts have found violations of

the DTPA in similar cases. See Sam Montgomery Oldsmobile Co. v. Johnson,624 S.W.2d 237,

240-43 (Tex. App.Houston [1st Dist.] 1981, no writ) (appellate courts affirmed trial court

judgment that defendant violated 17.41(b)(5) and (7) by failing to reveal to consumer that the

mobile home that consumer had purchased had been on the sales lot for 11 months without

maintenance) Milt Ferguson Motor Co. v. Zeretzke, 827 S.W.2d 349, 357 (Tex. App.San

Antonio 1991, no writ.)(judgment against GM affirmed for violations of 17.41(b)(5) and (7)

when GM represented that car was a quality vehicle, but there was a crack in the engine that was

a manufacturing defect and subsequent repairs did not fix the car). Plaintiffs will also show that

they relied on GMs statements and omissions in deciding to spend money on repairs for their

vehicle at authorized GM dealerships.

Not only are Plaintiffs likely to succeed on their DTPA claim but, Plaintiffs are likely to

establish their right to injunctive relief requiring GM to issue a Park It Now Alert. A Park It



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Now Alert protects drivers of GM vehicles in the event of an ignition switch failure regardless

of the underlying cause of the failure. It is the only fix that is guaranteed to promote public

safety because it is the only fix available that does not depend on the accuracy of any particular

theory of the underlying cause of the problem.

C. The Plaintiffs Will Suffer Irreparable Harm in the Absence of the Requested

Relief.

It is clear that, in the absence of the preliminary injunctive relief they seek, Plaintiffs and

the public at large will suffer irreparable injury. This injury is of two types. First, without the

Park It Now Alert, additional instances of ignition switch failures (of which there have already

been many) may lead to auto accidents involving damage to property, injuries to drivers,

passengers, pedestrians and/or bystanders, and even fatalities. There have already been at least

thirteen deaths associated with ignition switch failures in GM cars and SUVs. In the absence of

a Park It Now Alert, there are likely to be additional such fatalitiesthe ultimate irreparable

injury.

It is clear that a petitioner makes a showing of irreparable harm where his physical health

or well-being is or might be compromised failing issuance of the injunctive relief sought. In

Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982), the plaintiff class of Salvadoran

refugees satisfied the irreparable harm element of the analysis in that they faced removal to El

Salvador absent relief. The California district court took judicial notice of the violent conditions

in El Salvador and ruled that removal to a country overrun with civil war and violence may lead

to an injury which is irreparable in the most literal sense of the word. Id. at 372. Risk of

adverse impact on an applicants well-being also amounted to irreparable harm in Stringham v.

Bick, 2007 WL 60996 (E.D. Cal. 2007), report and recommendation adopted by Stringham v.

Bick, 2001 WL 806619 (E.D. 2007). In granting the petitioners request for a preliminary



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injunction seeking altered conditions of incarceration the district court noted as a sufficient

showing of irreparable harm, among other things, the petitioners migraine headaches and need

for access to bathroom facilities of a specific type. Id. at *13. The Stringham Court also likened

the physical harm issue to Dahl v. HEM Pharmaceuticals Corp., 7 F.3d 1399 (9th Cir. 1993), as

being the case most nearly analogous to the instant matter, in that the subject pf physical health

was at issue. 2007 WL 60996 at *10.

Second, for every accident or incident stemming from an ignition switch failure,

Plaintiffs vehicles decrease in value. Every incident of ignition switch failure contributes to lost

trust and faith in the GM and Chevrolet brand names, and the Cobalt in particular, adding to the

growing public skepticism that GM and Chevrolet vehicles will never be reasonably safe. There

is little doubt that the resale value of the Silvas Chevrolet has and will continue to diminish due

to general consumer skepticism about GM and Chevrolet vehicle, and with every incident the

resale value drops even more.

Nor, obviously, will relief at the end of this lawsuit suffice. Every day of delay in issuing

a Park It Now Alert puts the Plaintiffs and additional persons at risk from incidents of ignition

switch failures, subjecting Plaintiffs to increased diminution in the value of their vehicles which

is inversely related to plummeting trust in the GM and Chevrolet brands. An alert in six months

simply will not protect Plaintiffs and the public at large to the same extent as a fix now. The

question becomes: how many more people need to die to compel GM to take action?

Similarly, monetary damages at the end of the case cannot adequately compensate

Plaintiffs and the public at large. That such damages will not make up for bodily injuries or

fatalities is, of course, self-evident. Additionally, emotional damages and the stress and fear of

ignition switch failures cannot be compensated through mere back-payment of losses. See Am.



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Trucking Assns., 559 F.3d at 1059.

D. The Balance of Equities Tips in the Plaintiffs Favor

In balancing the equities, courts must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested relief. Winter

v. Natural Resources Defense Council, 129 S. Ct. 365, 374 (2008). In so doing, the court will

look to the possible harm that could befall the various parties. See id. Where the harm that a

plaintiff would suffer in the absence of an injunction is irreparable, and the harm the defendant

would suffer if any injunction were improperly granted is purely financial and compensable, the

balance of equities favors the injunction. See id.; see also Hansen Beverage Comp. v. Cytosport,

Inc., 2009 WL 5104260, *24 (C.D. Cal. Nov. 4, 2009).

This balancing analysis has been embraced by GMs recent announcement explicitly

recognizing that the balance of equities favors public safety over any inconvenience to GM.

GMs CEO Mary Barra named Jeff Boyer as GMs head of global safety, only one day after

telling employees that GM is pushing to resolve safety issues more quickly. See Tom Krisher,

GM CEO Apologizes for Deaths Tied to Recalled Cars, available at:

http://www.bostonglobe.com/business/2014/03/18/chief-executive-barra-apologizes-for-deaths-

tied-recalled-cars/H7UxdKeioBwOUYpM6XEDJM/story.html (last accessed Mar. 23, 2014).

Jeffs appointment provides direct and ongoing access to GM leadership and the Board of

Directors on critical customer safety issues, Barra said in a GM statement. This new role

elevates and integrates our safety process under a single leader so we can set a new standard for

customer safety with more rigorous accountability. If there are any obstacles in his way, Jeff has

the authority to clear them. If he needs any additional resources, he will get them. See

http://www.usatoday.com/story/money/cars/2014/03/18/general-motors-safety-chief-



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named/6558483/. According to Boyer, Nothing is more important than the safety of our

customers in the vehicles they drive. Todays GM is committed to this. Id. Barra further

expressed, I am very sorry for the loss of life that occurred, and we will take every step to

make sure this never happens again. Id.

The injunction Plaintiffs seek will not, in fact, cause any material harm to GM. While it

is true that GM may potentially be forced to pay for rental cars or provide loaner cars or other

types of reimbursement along those lines, that cost is likely to pale in comparison to the costs it

will certainly incur in the event that it fails to tell drivers to Park It Now, such as the cost of

defending and paying judgments and settlements in lawsuits arising from future ignition switch

defect accidents.

Furthermore, the cost of additional future accidents must be considered in light of the

harm to GMs reputation and goodwill that it already has suffered, and will continue to suffer, if

it fails to alert drivers of the dangers of driving recalled vehicles as compared with the benefits to

its reputation and goodwill if it acts promptly to make sure this never happens again. Id. On

balance, the harm to GM of complying with this injunction is clearly outweighed by the

irreparable injury to Plaintiffs and the general public if the injunction is not granted.

II. THIS COURT POSSESSES THE AUTHORITY TO COMPEL GMTO ISSUE A PARK IT NOWALERT PURSUANT TO THE ALL-WRITS ACT,28U.S.C. 1651(a).

Alternatively, Plaintiffs seek relief under the All Writs Act, 28 U.S.C. 1651(a). The All

Writs Act provides:

The Supreme Court and all courts established by Act of Congress may issue allwrits necessary or appropriate in the aid of their respective jurisdictions and

agreeable to the usages and principles of law.

Specifically, the All Writs Act empowers federal courts to issue injunctions in aid of their



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jurisdiction. Wesch v. Folsom, 6 F.3d 1465, 1470 (11th Cir. 1993) (emphasis added); see also

Royal Ins. Co. v. Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1298 (5th Cir. 1992).

As set forth herein, Plaintiffs and the public at large will suffer irreparable harm in the

event that the Court does not grant this injunction. The continued risks that driving defective

GM vehicles poses to drivers, passengers, pedestrians, and bystanders creates an urgent situation

necessitating immediate relief and expedited consideration of Plaintiffs request for an All Writ

Injunction.

III. NO SECURITY REQUIREMENT IS REQUIRED UNDER RULE 65.

A bond is not necessary in this instance. A district court issuing a preliminary injunction

or a restraining order has the discretion to dispense with the security requirement of Rule 65(c)

under limited circumstances. For example, some courts will not require security if a party lacks

the financial resources to post a bond, or if the bond requirement might discourage the initiation

of a suit to enforce important federal rights or "public interests." See Reina Calderon, Bond

Requirements Under Federal Rule of Civil Procedure 65(c): An Emerging Equitable Exemption

for Public Interest Litigants, 13 B.C. Envtl. Aff. L. Rev. 125 (1985); see also Crowley v. Local

No. 82, 679 F.2d 978, 1000-1001 (1st Cir. 1982), rev'd onother grounds,467 U.S. 526 (1984)

(district court acted within its discretion in not requiring bond when plaintiffs were not able to

afford security and bond requirement would adversely affect enforcement of Title VII (42 U.S.C.

2000e-2000e-17) rights).

In making its decision, the court may balance the potential hardships to the parties. See,

e.g.,Pharmaceutical Soc'y v. N.Y. State Dep't of Soc. Servs.,50 F.3d 1168, 1174-1175 (2d Cir.

1995) (upheld waiver of bond requirement based on lack of financial resources and fact that



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litigation was ultimately in public interest); Temple Univ. v. White, 941 F.2d 201, 219-220 (3d

Cir. 1991) (court of appeals authorized waiver of bond for injunction requiring state department

of public welfare to make interim Medicaid payments while program establishing appropriate

rates was brought into conformity with regulations, reasoning that equities of potential hardships

to parties weighed in favor of waiving bond requirements).

A court may waive security when the party seeking injunctive relief has "considerable

assets" and thus would be able to pay damages to a party later found to be wrongfully enjoined

or restrained. See Continental Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 782-783 (10th Cir.

1964) (under Fed. R. Civ. P. 65(c), judge has discretion to waive posting of security in absence

of showing likelihood of possible harm). The Second Circuit has held that a district court has

discretion to decline to require a bond when the parties' continuing relationship will afford the

plaintiff an opportunity to recoup its losses if the injunctive relief is wrongly entered. Doctor's

Associates, Inc. v. Distajo, 107 F.3d 126, 136 (2d Cir. 1997) (injunctions issued to stay

prosecution of parallel state suits in order to effectuate order compelling arbitration). The

Second Circuit has also held that a district court may dispense with the bond requirement if the

injunctive order is issued to aid and preserve the court's jurisdiction over the subject matter

involved. Id. Security may also be waived when granting injunctive relief carries no risk of

monetary loss to the party enjoined or restrained. Id.

In the instant case, the Plaintiffs lack the financial resources to post a bond and there is no

risk of monetary loss to the party enjoined or restrained. If the Court is inclined to require a

bond, Plaintiffs request that the bond be minimal.



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CONCLUSION

For the foregoing reasons, this Court should grant Plaintiffs Emergency Motion for a

Mandatory Injunction and Relief Under 28 U.S.C. 1651(a) to Compel Defendants to Issue a

Park it Now Alert in the Interest of Public Welfare and Safety and Brief in Support.

Respectfully Submitted,

HILLIARD MUOZ GONZALES LLP

By: /s/ Robert C. HilliardRobert C. Hilliard

State Bar No. 09677700Federal ID No. 5912

[email protected] Gonzales, Jr.


[email protected] D. Tobin


[email protected] Reilly

Texas Bar No. 24079195Federal I.D. No. 1357491

[email protected]

719 S. Shoreline Boulevard,Suite 500

Corpus Christi, TX 78401Telephone No.: (361) 882-1612

Facsimile No.: (361) 882-3015

-and-

By: /s/ Thomas J. HenryThomas J. Henry

State Bar No. 09484210Greggory A. Teeter

State Bar No. 24033264Travis Venable



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State Bar No. 24068577Federal I.D. No. 1531849

THOMASJ.HENRYINJURYATTORNEY521 Starr St.

Corpus Christi, Texas 78401Telephone No.: (361) 985-0600Facsimile No.: (361) 985-0601

-and-

/s/ Daniel Girard

Daniel GirardCalifornia State Bar No. 114826

[email protected] Gibbs

California State Bar No. [email protected]

Dave SteinCalifornia State Bar No. 257465

[email protected]

GIRARD GIBBS LLP601 California Street, 14th Floor

San Francisco, California 94104Telephone: (415) 981-4800

Facsimile: (415) 981-4846

-and-

/s/ Shelby JordanShelby A. Jordan

Fed Bar # 2195State Bar # 11016700

JORDAN, HYDEN, WOMBLE ANDCULBRETH, P.C.900 Bank of America North

500 N. Shoreline,Corpus Christi, Texas, 78471

Telephone No.: (361) 884-5678Facsimile No.: (361) 888-5555

[email protected]

ATTORNEYS FOR PLAINTIFFS



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CERTIFICATE OF CONFERENCE

I certify that on March 24, 2014, I attempted conferred with Darrell Barger and he is

opposed to PLAINTIFFS EMERGENCY MOTION FOR A MANDATORY INJUNCTIONAND RELIEF UNDER 28 U.S.C. 1651(a) TO COMPEL DEFENDANTS TO ISSUE A

PARK IT NOW ALERT IN THE INTEREST OF PUBLIC WELFARE AND SAFETY ANDBRIEF IN SUPPORT

/s/ Robert C. Hilliard

Robert C. Hilliard



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CERTIFICATE OF SERVICE

I certify that on March 24, 2014 a true and correct copy of the foregoing was served upon

counsel of record electronically and by facsimile, as follows:

Edward L. Ripley

Eric M. EnglishKING & SPALDING, LLP

1100 Louisiana, Suite 4000Houston, Texas 77002

713.751.3290 fax

Arthur Steinberg

Scott DavidsonKING & SPALDING, LLP

New York, NY 10036-2601

212.556.2222 fax

Darrell L. BargerHARTLINE DACUS BARGER DREYER LLP

800 North Shoreline Blvd.Suite 2000, North Tower

Corpus Christi, Texas 78401361.866.8039 fax

Kyle H. Dreyer

HARTLINE DACUS BARGER DREYER LLP

6688 N. Central Expressway, Suite 1000Dallas, Texas 75206

214.267.4214 fax

/s/ Robert C. Hilliard

Robert C. Hilliard


plaintiff's emergency motion to order "park it now" directive for recalled gm vehicles

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