Monday, October 6, 2014

King & Spalding's Theodore Hester hallucinates for Toyota

Ted, what were you smoking?

Letter from Ted Hester* to House Oversight Committee, Feb 9, 2010

Here are some choice quotes from this letter that seems to be departing from ordinary reality.
[emphasis and interleaved comments are mine]:


1. "Absent the occurrence of the [floor mat and sticky pedal] conditions, the vehicles included in the recalls are safe to drive.  If any of these conditions occur, the vehicle can be brought safely under control."

[At that time, Toyota knew or should have known that these statements are inaccurate and misleading. There were numerous reports of drivers unable to control their cars with the brakes.]

2. (Answering a question about the high UA complaint rate for Tacoma) "Neither the complaint data review nor the field study identified any vehicle-based cause for the customer complaints."

[This is directly contradicted by pre-existing evidence from 2007 that I know of and that Toyota knew of and that Ted knew or should have known of in 2010, and that evidence is even more abundant today.]

4. "A brake override system introduces automatic throttle reduction when the throttle is in an open condition." "The braking system [BOS] will operate regardless of the reason for the open throttle."

[No, Ted, the BOS does not work when the throttle was opened by ECU command, and Toyota knew this at the time this letter was written.]


5. [in response to a question about the vehicle electronics causing UA] "Toyota's design process is exhaustive and robust. Toyota does not believe there are any problems with the electronics of its vehicles."

[Toyota executives knew and admitted in early 2010 that its design process was not exhaustive and robust. Lentz, in testimony two weeks later, said the company had not completely ruled out an electronics malfunction.]

6. "Toyota has built-in redundaceis to the system and fail safe modes that allow Toyota to say with confidence that the ETCSi is not the cause of unintended or unwanted acceleration."

[This statement is materially false, and Toyota knew or should have known it at the time.]

7. "Exponent found that the EETCSi systems performed as designed, and did not exhibit any acceleration or precursor to acceleration, despite concerted efforts to induce unwanted acceleration."

[This could not have been too concerted because Dr. David Gilbert, a professor of automotive electronics at Southern Illinois University, who is at least a peer to Exponent's scientists, figured out how to induce UA in 20 minutes by a standard testing protocol. Exponent claimed that this was not a "real-world" test. But it was. Exponent also did not test the vehicle models that were subject to recall, and so that was not a concerted effort. Toyota certainly knew that short circuits, software errors, and EMI could induce UA and that their system design was quite shaky in certain aspects like stack overflow, and their engineers could well have guided Exponent to test specific vulnerabilities, but they did not. Ted, weren't you aware of willful blindness issues? Willful blindness is criminal.]

8. "Test reports documenting the extensive other testing of the ETCSi system are enclosed."

[This "other" could mean "other than Exponent" or "Exponent's other tests aside from their concerted efforts to induce unwanted acceleration." Could Ted mean "other testing" of the ETCS that does not related to UA? (In which case, what good is it?) If it was other testing related to UA, done in the past, this contradicts's Jim Lentz's sworn but inconsistent testimony that there were no other past investigations of the ETCS regarding UA. And where are these testing reports?]

That's it for the quotes from this letter. But read it and weep.

Ted, as I understand this letter, Toyota asked you to participate in and aid them in a criminal act. In 2010, Joan Claybrook spoke publicly and said that Toyota's alleged acts of misleading Congress and others, if proven, are criminal violations of 18 USC 1001. And as far as I know, compelling proof of these criminal acts should have been available to you then, and is certainly available to you now. The misleading of Congress is continuing, and even worsening, as the evidence of Toyota's egregious misrepresesntations to Congress continues to pile up and is now replicated in its misrepresentations to the FBI and the DOJ, and furthermore, Toyota has publicly admitted that it did not provide all the documents that are responsive to the continuous document requests issued by NHTSA, Congress, and now the DOJ.

As I understand it, your rules of professional conduct either permit or obligate you to withdraw from a representation if your client seeks your legal advice specifically to perpetrate criminal acts. Why haven't you withdrawn?

*The "Theodore Hester" page of the King & Spalding website, shows that you still represent Toyota as of today (June 17, 2015):

Representative Experience
  • Representing Toyota in investigations and hearings by the House Energy and Commerce Committee, the House Oversight and Government Reform Committee, and the Senate Commerce, Science and Transportation Committee relating to allegations of unintended acceleration.
Take a vacation from Toyota, Ted, and come back to the real world.