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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION CHARLES SILVAS and GRACE SILVAS, Plaintiffs v. GENERAL MOTORS, LLC, Defendant ( ( ( ( ( ( (

Case No.: 2:14-cv-00089

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 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:

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TABLE OF CONTENTS PAGE TABLE OF CONTENTS .............................................................................................................. ii TABLE OF AUTHORITIES ....................................................................................................... iv INTRODUCTION ......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 8 I. II. PROCEDURAL BACKGROUND .................................................................................. 8 FACTUAL BACKGROUND ....................................................................................... 10

SUMMARY OF THE ARGUMENT .......................................................................................... 16 ARGUMENT ............................................................................................................................... 19 I. THIS COURT MAY ORDER A MANDATORY INJUNCTION COMPELLING GM TO ISSUE A “PARK IT NOW” ALERT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 65 ...................................................................................................... 19 A. B. Standard for Relief ................................................................................... 20 The Injunction is Undoubtedly in the Public Interest as there is an Urgent and Paramount Need for the Requested Injunction to Prevent Further Extreme Bodily Injury and Death .................................. 20 The Plaintiffs are Likely to Succeed on the Merits .................................. 24 The Plaintiffs, and Others, Will Suffer Irreparable Harm in the Absence of the Requested Relief ............................................................. 26 The Balance of Equities Tips in the Plaintiffs’ Favor .............................. 28

C. D.

E. 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 NO SECURITY REQUIREMENT IS REQUIRED UNDER RULE 65 ................................. 30 ii

III.

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CONCLUSION ............................................................................................................................ 32 CERTIFICATE OF CONFERENCE ........................................................................................... 34 CERTIFICATE OF SERVICE .................................................................................................... 35

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TABLE OF AUTHORITIES PAGE 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 Gov’t of Iran, 508 F. Supp. 1350 (N.D. Tex.), aff’d 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 Comm’n, 520 F. Supp. 580 (N.D. Tex. 1981) ................................................................................. 28 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) .................................... 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 (8th Cir. 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 ref’d) ........................................... 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. GM’s disastrous system failures are purportedly triggered by something as simple as a key chain on the vehicle’s 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 help—as “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 Barra’s statements reflect GM’s 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. GM’s 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 NHTSA’s 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 NHTSA’s 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 GM’s deception and inaction, because of GM’s 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 GM’s 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-yearold Amy was riding with her two friends, Natasha Weigel and Megan UngarKerns, 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-yearold 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 friend’s 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. Joshua’s car had a history of power steering failures, with the steering column “locking up.”

This is Chris Prinkii. Mr. Prinkii, fortythree 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. Prinkii’s vehicle collided headon 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 Ion’s ignition switch could accidently turn off if inadvertently hit by the driver’s 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 Cobalt’s 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 stalling—at 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 GM’s 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. GM’s 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 GM’s silence is over.

1

Benjamin 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 GM’s 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 GM’s blatant fraudulent removal of this case, which was a thinly veiled attempt to circumvent the Hon. Judge Klager’s 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 GM’s 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, GM’s 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
2

In every instance, there is no such thing as

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 Court’s 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 Motion’s claim of exclusive (bankruptcy court) jurisdiction, the case now before this Honorable Court arises exclusively from postbankruptcy 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 57–60, 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 4

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

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 Background

An 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. GM’s 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 vehicle’s 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 vehicle’s airbags to deploy. OldGM 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 lifethreatening dangers. GM promised that these new systems would operate safely and reliably—a 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 GM’s vehicle could have been easily avoided. B. Plaintiffs’ Vehicles 1. 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 GM’s 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 GM’s 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 GM’s 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-GM’s 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 GM’s 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 company’s 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. GM’s 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 GM’s 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 done nothing 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 GM’s ever-increasing death tally. Any and every traveler on the nation’s 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 lifesaving 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 the merits 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 is deceptive, claiming that by simply removing key rings or chains from the vehicle’s key will fully ameliorate the potential for ignition switch failures. GM’s 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 likely to 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 CIVIL PROCEDURE 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 court’s 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 ref’d). 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 Urgent and Paramount Need for the Requested Injunction to Prevent Extreme Bodily 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 the In 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 Toyota’s 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 GM’s conduct, the full scope of GM’s fraud—and the detrimental effect on the populous—is sure to come to light. See March 11, 2014 Letter 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.
6

As 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-intogeneral-motors-over-recall/ (last accessed March 23, 2014) (“The U.S. Attorney’s 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 automaker’s 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. Given the crucial role the United States government played in creation of the current General Motors Corporation, I believe the federal government has a moral, if not legal, obligation to take all necessary steps to protect innocent consumers. Like many Americans I was appalled and astonished by GM’s recent admission that it knew of these disabling defects and their disastrous effects well before the 2009 reorganization. Their deliberate concealment caused continuing death and damage, and it constituted a fraud on the bankruptcy court that approved its reorganization. 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 GM’s assets by the "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 state attorneys 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 be barred 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 States Bankruptcy 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 a federal criminal investigation into the flagrant illegality of GM’s concealment. The recent Toyota settlement further reflects your resolve in protecting consumers. 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's wrongdoing. 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 lethally defective 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 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. Third, either through DOJ or an appropriate federal consumer protection agency, ensure that consumers are adequately aware of the potential dangers of operating these 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 and purposeful misconduct – should be fairly compensated, and that justice should be done through appropriate criminal enforcement. As always, I appreciate your thoughtful 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 GM’s 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/ignitionswitch-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 no public interest that would be injured by the grant of preliminary relief here. C. The Plaintiffs are Likely to Succeed on the Merits.

GM’s 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. GM’s 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 GM’s 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 GM’s 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 fatalities—the 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 applicant’s 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 petitioner’s request for a preliminary 26

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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 petitioner’s 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 GM’s recent announcement explicitly recognizing that the balance of equities favors public safety over any inconvenience to GM. GM’s CEO Mary Barra named Jeff Boyer as GM’s 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-deathstied-recalled-cars/H7UxdKeioBwOUYpM6XEDJM/story.html (last accessed Mar. 23, 2014). “Jeff’s 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. Today’s 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 GM’s 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 GM TO ISSUE A “PARK IT NOW” ALERT PURSUANT TO THE ALL-WRITS ACT, 28 U.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 all writs 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 29

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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 on other 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 MUÑOZ GONZALES LLP By: /s/ Robert C. Hilliard Robert C. Hilliard State Bar No. 09677700 Federal ID No. 5912 bobh@hmglawfirm.com Rudy Gonzales, Jr. State Bar No. 08121700 Federal ID No. 1896 rudyg@hmglawfirm.com Catherine D. Tobin State Bar No. 24013642 Federal ID No. 25316 catherine@hmglawfirm.com Marion Reilly Texas Bar No. 24079195 Federal I.D. No. 1357491 marion@hmglawfirm.com 719 S. Shoreline Boulevard, Suite 500 Corpus Christi, TX 78401 Telephone No.: (361) 882-1612 Facsimile No.: (361) 882-3015 -andBy: /s/ Thomas J. Henry Thomas J. Henry State Bar No. 09484210 Greggory A. Teeter State Bar No. 24033264 Travis Venable

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State Bar No. 24068577 Federal I.D. No. 1531849 THOMAS J. HENRY INJURY ATTORNEY 521 Starr St. Corpus Christi, Texas 78401 Telephone No.: (361) 985-0600 Facsimile No.: (361) 985-0601 -and/s/ Daniel Girard Daniel Girard California State Bar No. 114826 dcg@girardgibbs.com Eric Gibbs California State Bar No. 178658 ehg@girardgibbs.com Dave Stein California State Bar No. 257465 ds@girardgibbs.com GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, California 94104 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 -and/s/ Shelby Jordan Shelby A. Jordan Fed Bar # 2195 State Bar # 11016700 JORDAN, HYDEN, WOMBLE AND CULBRETH, P.C. 900 Bank of America North 500 N. Shoreline, Corpus Christi, Texas, 78471 Telephone No.: (361) 884-5678 Facsimile No.: (361) 888-5555 sjordan@jhwclaw.com 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 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 /s/ Robert C. Hilliard Robert C. Hilliard

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

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. English KING & SPALDING, LLP 1100 Louisiana, Suite 4000 Houston, Texas 77002 713.751.3290 fax Arthur Steinberg Scott Davidson KING & SPALDING, LLP New York, NY 10036-2601 212.556.2222 fax Darrell L. Barger HARTLINE DACUS BARGER DREYER LLP 800 North Shoreline Blvd. Suite 2000, North Tower Corpus Christi, Texas 78401 361.866.8039 fax Kyle H. Dreyer HARTLINE DACUS BARGER DREYER LLP 6688 N. Central Expressway, Suite 1000 Dallas, Texas 75206 214.267.4214 fax /s/ Robert C. Hilliard Robert C. Hilliard

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