Ford’s Downgrading of C-Max Fuel-Economy Numbers Seriously, Really, Has Nothing to Do With Lawsuits

Last week, Ford announced that it would be revising the 2013 C-Max hybrid’s fuel-economy rating downward “to better match performance and improve customer satisfaction,” which sounds a lot like the automaker equivalent of “mistakes were made.” In a press release, Ford emphasized that the change from 47 mpg city and highway to 45 and 40, respectively, is entirely voluntary. Ford explained that it followed the EPA’s rules for determining the C-Max’s fuel economy ratings by basing them on the Fusion hybrid‘s scores. In fact, the release said, Ford could even continue using the current numbers—you know, if it wanted. Current C-Max owners will receive “goodwill payments” of $550 (or $325 for lessees) to cover the difference.

Absent from the announcement—understandably—was any mention of the major lawsuit pending against Ford in the Southern District of New York. And it’s potentially a monster. Under a process called “multidistrict litigation,” a panel of federal judges consolidated the lawsuits about the C-Max hybrid’s fuel economy, and transferred them to the SDNY, although it could have just as easily been another federal court. This is a common step in cases where there are many similar lawsuits, filed in many different parts of the country, and means that the courts don’t need 20 judges to decide the same issues and defendants don’t need to be in 20 courts at once. Most of the C-Max lawsuits aren’t from individual people, but are class-action suits, being run by law firms looking to sue on behalf of all 30,000-or-so C-Max owners in the country. That downward revision in the C-Max hybrid’s EPA rating, meanwhile, at least means no future C-Max owners will be added to the lawsuit.

On July 30, the judge overseeing the C-Max cases set the schedule for what’s called “pre-trial litigation,” the phase of a lawsuit when most cases are won or lost. The first big deadline—and the one that might matter most from a public-relations standpoint—is September 27, when the plaintiffs will file their “consolidated complaint.” It’s a written version of their allegations against Ford, and it will probably top 100 pages. Taken together, stuff is getting real for Ford. Really fast.

• Instrumented Test: 2013 Ford C-Max Hybrid
• Instrumented Test: 2013 Ford C-Max Energi Plug-In Hybrid
• 2Instrumented Test: 2013 Ford Fusion Hybrid

Ford hasn’t yet given the details of those goodwill payments. The smart move, from Ford’s position, would be to send those checks with strings attached. “By cashing this check,” an enclosed letter would say, “you waive any potential claims against Ford for the fuel economy of your C-Max, agree not to participate in the class-action lawsuit pending against Ford, and promise to send chocolate chip cookies to our corporate headquarters.” This sort of offer is legal—although the thing with the cookies probably would be novel—so long as it’s not done in fine print and makes it clear to readers that a class-action suit might bring them more money.

For argument’s sake, let’s say Ford’s goodwill checks actually do include a release. Further, let’s pretend that every recipient gets the full $550, and every one of them decides to take the offer. Total cost to Ford: $16.5 million plus stamps. If the lawsuit goes ahead with full force, Ford will probably spend more than that just on its lawyers’ bills. With careful advertising and “goodwill checks,” Ford may even be able to avoid damage to its public image.

Source: CarAndDriver