Plaintiffs Use Catalyst Theory to Win Attorneys’ Fees After Ford Class Action Mooted By Recall

by Thompson Coburn LLP

On November 2, 2015, a group of plaintiffs won a motion for attorneys’ fees against Ford Motor Company, even though Ford’s voluntary recall of vehicles mooted the plaintiffs’ lawsuit. In MacDonald v. Ford Motor Company, the U.S. District Court for the Northern District of California detailed how such fees could be granted by applying a “catalyst” theory to California Civil Code § 1021.5.

Section 1021.5 and the Catalyst Theory

Section 1021.5 provides an exception to the general rule that each party to a lawsuit must bear its own attorneys’ fees. Under section 1021.5, a court can award attorneys’ fees to a “successful party” when a lawsuit results in the enforcement of an important right affecting the public interest if (a) the enforcement creates a significant benefit for the general public or a large group of people; (b) the necessity and financial burden of enforcement make the award appropriate; and (c) the fees should not in the interest of justice be paid out of the plaintiff’s recovery.

A plaintiff does not have to win in the lawsuit to be a “successful party” under the catalyst theory. A party is “successful” if (a) the lawsuit was a substantial factor in motivating the defendants to provide the relief sought; (b) the lawsuit had merit and achieved its catalytic effect by threat of victory and not because it would be a nuisance or expensive, and (c) the plaintiffs attempted to settle before filing the lawsuit.

Notably, the Court did not require direct evidence that the lawsuit prompted Ford to act. Rather, as the Court explained, “the chronology of events may raise an inference that the litigation was the catalyst for relief.”

Facts and the Court’s Analysis

On June 28, 2013, plaintiffs filed a lawsuit against Ford alleging violations of the California Legal Remedies Act (CLRA), Unfair Competition Law (UCL), Song-Beverly Act, and the Magnuson-Moss Warranty Act. Plaintiffs claimed certain Ford cars had defective cooling pumps that could cause an abrupt loss of power to the car.

Ford moved to dismiss plaintiffs’ complaint. On March 31, 2014, the Court granted in part and denied in part Ford’s motion. The CLRA and UCL claims survived. On September 2, 2014, Ford informed the National Highway Traffic Safety Administration (NHTSA) of its intent to perform a voluntary safety recall.

Ford presented evidence that its decision to issue the recall was independent of the lawsuit. In 2009, Ford’s Early Warning Data Trend Specialist, Kenneth Lilly, determined that certain Ford cars had an above average stall rate. Then, in February 2014, Transport Canada (Canada’s counterpart to the NHTSA) emailed Ford’s Canadian subsidiary to report incidents of stalling Fords. Consequently, in April 2014, Lilly (again) reviewed the data. Unaware of the lawsuit, he then reported the issue to others at Ford. After further analysis, Ford’s Technical Review Group recommended a safety recall; and Ford’s Field Review Committee approved the recall on August 25, 2014.

Nevertheless, the Court found that the “chronology of events … raise[d] an inference that the litigation was the catalyst for relief.” The Court was not convinced that an email inquiry from Transport Canada inspired Lilly to report the issue when several complaints to NHTSA and a class action lawsuit did not. It also found Ford’s actions were “just too much of a coincidence to be a coincidence,” noting Lilly’s report came only after Ford lost its motion to dismiss the CLRA and UCL claims. Additionally, the Court was troubled by the lack of evidence relating to the identity of the person who made the final decision to issue the recall and whether this person was aware of the plaintiffs’ lawsuit.

The Court is scheduled to hear the parties’ arguments over the amount of the attorneys’ fee award on January 14, 2016. Plaintiffs’ papers, filed on December 2, 2015, indicate plaintiffs seek at least $800,000 in attorneys’ fees.

Key Issue for Automakers

The Court’s attention to the timing of events reinforces the need for automakers to have constant internal coordination on safety issues, recalls and product/defect litigation. With the automotive industry facing an unprecedented number of recalls, the implementation of such internal processes will help satisfy the organizational communication, transparency and accountability expected of automakers by federal regulators. The bright spot is that an effective internal process will also help automakers get ahead of a plaintiff who tries to claim he or she was a catalyst for a recall.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thompson Coburn LLP | Attorney Advertising

Written by:

Thompson Coburn LLP

Thompson Coburn LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.