Legal Briefing: Nervous Toyota Owners Have Questions


A daily look at legal news and the business of law:

Nervous Toyota Owners Ask:
What If Electronics Are Also at Fault?
A large number of reported sudden-acceleration accidents involve Toyotas not on the current recall list. Sunday's Chicago Tribune profiles a handful of these tragic cases. James Lentz, the Toyota's (TM) top U.S. sales executive concedes that fixing floor mats and sticky accelerators won't not eliminate the acceleration problem, and he says Toyota is still examining the cars' electronics.

So is the National Highway Safety Transportation Board, although so far it asserts it has no reason to believe electronics are the problem. Dave Gilbert, a Southern Illinois University professor in its automotive technology department, asserts he has found a design problem in the computer system of four Toyota models that prevents it from detecting and shutting down short-circuits that could cause sudden acceleration in real-world conditions in most cars.

While Toyota's chief executive has denied Toyota's electronics are a problem, from the consumers' perspective the question is irrelevant. Regardless of why, the facts speak for themselves: Nonrecalled Toyotas suddenly accelerating mean Toyota owners cannot rely on the recall lists to reassure themselves that their cars are safe. Toyota owners are currently remaining loyal, having had a long positive experience with the brand, but the recalls are having an impact. (Full disclosure: I drive a 1993 Toyota Corolla that I'm very happy with.)

And beyond customers, think of what Toyota's handling of the recalls and repair efforts mean to plaintiffs and their attorneys. Given the damaging lobbying memo, whistleblower documents and the apparent inadequacy of the current recalls, Toyota is going to really have to step up its efforts if it wants to survive this crisis in anything like its present form.

Will the Biggest Private Equity Deal Ever Go Bust?
People have warned since 2007 that private equity firms' debt binge, and the banks' codependent facilitation of it, paralleled mortgage lending and appears to be yet another bubble ready to burst. Sunday's New York Times profiles the biggest private equity deal of all time -- the $48.8 billion buyout of TXU, Texas's largest utility. The deal closed in October 2007 and was in essence a bet that natural gas prices would keep rising. If they didn't, the deal's economics stopped making sense. (Echoes that old mantra that house prices never fall, doesn't it?) Sure enough, natural gas prices tanked.

Another fact about the deal with extra resonance these days: Goldman Sachs (GS) played many different roles -- investor, investment banker, lender and ultimately recipient of commodity trading business from the utility. In fact, the Times notes, "Goldman was on so many sides of the deal that its representatives made other lenders nervous. . . because it was hard to ascertain whose interests the bank was serving." The other major players were the private equity shops Kolhberg, Kravis and Roberts and Texas Pacific Group.

Although the utility - -named Energy Future Holdings since the buyout -- reported profits last quarter, they largely resulted from accounting measures as revenues continued their decline. With some $22 billion in debt due in 2014, it's not clear how the company will survive absent a sharp, sustained rise in natural gas prices in the near future, something current market conditions and investment in new gas production make unlikely.