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EAST ST. LOUIS – Chrysler has stepped up against a claim that hackers could seize control of vehicles, and the lawyer pursuing the case, Stephen Wigginton, appears to be stepping away from it.
Chrysler took action in U.S. district court on June 23, filing a summary judgment motion that treated the plaintiff’s class action theory as science fiction.
Former U.S. attorney Wigginton took no action for weeks, on the record.
After filing 22 documents for plaintiffs in 14 months, he filed nothing after May 12.
Wigginton exposed Chrysler trade secrets in April, through a California lawyer trying to enforce a subpoena for the Illinois action in a California court.
Chrysler quickly restored confidentiality through motions in both courts.
Magistrate Judge Donald Wilkerson ordered sanctions on May 30, ruling that Chrysler could submit a bill of costs for its response to the exposure.
On June 6, Chrysler submitted a bill for $16,337.50.
On June 13, lead plaintiff Brian Flynn objected to Wilkerson’s order and asked District Judge Michael Reagan to grant an appeal.
Michael Gras of Belleville, one of seven lawyers for Flynn, sealed the objection.
Chrysler counsel Sharon Rosenberg of St. Louis responded on the record on June 20, writing that she found no authority for Gras’s propositions.
“Plaintiffs never acknowledge the critical fact that they did not simply discuss Chrysler’s confidential documents in public filings, but quoted directly from those documents,” Rosenberg wrote.
She wrote that the California court denied enforcement of the subpoena.
At a hearing before Wilkerson, Chrysler challenged plaintiffs to support a contention that the confidential information was public.
“Plaintiffs offered nothing then and they come forward with nothing now,” she wrote.
She wrote that it was bad faith to argue it was public when plaintiffs can’t show the court where to find it in the public domain.
“This is especially so when, in response to pointed questioning from judge Wilkerson, plaintiffs’ counsel Steve Wigginton expressly denied that the source of the quoted confidential information was from Chrysler’s confidential documents, and he told the court that it could be found in public documents by doing a simple google search,” she wrote.
Rosenberg indicated that Chrysler ran a search and couldn’t find it in the public domain.
She wrote that they claimed their violation was substantially justified.
“This is essentially an argument that their violation was not willful,” she wrote.
“This is not a case involving a good faith dispute about whether a document should have been marked as confidential in the first place.
“The issue here is whether magistrate Wilkerson properly exercised his discretion in sanctioning plaintiffs for unilaterally choosing to ignore a confidentiality designation and their obligations arising out of that designation.”
Rosenberg denied that Chrysler needed to demonstrate prejudice from the exposure.
“In any event, no one knows what damage may have been caused by plaintiffs’ public filing as damage could play out over time,” she wrote.
On June 21, for Flynn, Christopher Cueto of Belleville objected to the bill of costs.
Cueto wrote that Chrysler withdrew its motion to strike the subpoena action in California shortly after filing it.
“More importantly, this motion to strike is plainly not included in the scope of the court’s sanction order and as such is an improper taxable expense,” he wrote.
He wrote that Chrysler billed for filing a declaration that “was only necessary because Chrysler got what they wanted and the documents became sealed.”
“This has nothing to do with the alleged violation of the protective order and therefore plaintiffs should not have to pay expenses associated with it,” he wrote.
On June 23, Chrysler counsel Kathy Wisniewski moved for summary judgment.
Wisniewski wrote that plaintiffs couldn’t provide any instructions that would enable anyone to remotely hack a Chrysler vehicle.
“This is not surprising because no hacker has ever taken remote control of a stranger’s car, not once,” she wrote.
“Legal liability cannot be premised on hypothetical, never realized possibilities.
“This is especially true when, as here, no one even knows how the hypothetical can be transformed into reality.”
Wisniewski wrote that in 2015, researchers Charlie Miller and Chris Valasek conducted an experiment on a Jeep Cherokee.
She wrote that they had abundant resources and access to the vehicle and they remotely took control of certain functions.
She wrote that Wired magazine reported the experiment on July 21, 2015. Five days before publication, Chrysler released a free software fix to address the vulnerability Miller and Valasek identified.
Before Flynn filed the suit, Chrysler closed access to a port that allowed Miller and Valasek to hack the Cherokee.
Wisniewski wrote that before Flynn sued, Chrysler announced a safety recall expanding its free software fix.
“This motor vehicle recall, like all others, was conducted under the watchful eye of the National Highway Traffic Safety Administration,” she wrote.
After the recall, Miller and Valasek congratulated Chrysler on mitigating the flaws, she wrote.
“Out of the 1,416,709 vehicles affected by the hacking vulnerability, today there are less than 5,000 that have yet to receive the recall fix,” she wrote.
She wrote that plaintiffs claim they wouldn’t have purchased their vehicles or would have paid less if they had known of the alleged defect. She wrote that they claim their vehicles will be worth less upon resale.
“It is indisputable that the alleged defects underlying plaintiffs’ claims have been fixed for free,” she wrote.
She wrote that plaintiffs now have non defective vehicles to sell.
“Indeed, there is no evidence that any plaintiff has sold a vehicle at any reduced price,” she wrote.
Reagan has set a jury trial next May.
