The California suit, Helga Carden vs. General Motors Corp., involves the recall of as many as 200,000 Chevrolet Astro and GMC Safari vans, said plaintiff attorneys. The suit alleges that advertising from 1985 to 1995 for the so-called "M-vans" portrayed them as safe when GM knew the vans "were and remain dangerously unsafe" based on its own internal crash tests. GM is contesting the charges. Through a spokesman, Campbell-Ewald, Warren, Mich., an Interpublic Group of Cos. unit, declined to comment.
Plaintiff attorney Jeff Fazio, of Hancock, Rothert & Bunshoft, San Francisco, said he's received roughly 300 Astro and Safari ads from GM that position the vehicles as safe family transportation. "Big on Safety" is the headline in one print ad, he said, and dealer brochures also tout safety features.
But other files held by C-E, including documents from the 1985-'95 period, had been moved to an off-site storage warehouse, according to a Nov. 20 court decision written by William J. Cahill, the discovery referee handling the case for the California court. C-E, Mr. Cahill wrote, told plaintiff attorneys in October 2001 that the documents were among more than 18,000 boxes of C-E records stored at the facility, and that C-E objected to being compelled to search the warehouse because the time involved "would be monumental."
In July of this year, C-E disclosed that document destruction had taken place at the warehouse in late 1999 or early 2000 under what Mr. Cahill's decision described as an "unwritten document-destruction policy that had not been followed for some period of time." C-E said it did not keep records of what had been destroyed, Mr. Cahill wrote.
While businesses often destroy old files, the plaintiff attorneys said the C-E file destruction occurred when the agency and GM knew the California suit, filed in 1997, was pending. In his decision last month, Mr. Cahill ordered C-E to produce the advertising files from the warehouse or provide agency officials who could testify about what had become of them.
An attorney for GM, David Heilbron of Bingham McCutchen, San Francisco, contended the document-destruction issue "is not really germane" and "will be resolved." The suit is set for trial in February in the superior court for Santa Clara County in San Jose, Calif.
`unfair competition' law
The suit contends GM hid the results of its own crash tests, which the suit said showed drivers of the vans had a 60%-plus chance of serious head injuries in a front crash. The suit says the van's steering-wheel column disconnected and rotated forward in frontal-crash tests at the same time the driver's head accelerated downward.
It was brought under California's Unfair Competition Law, which allows individuals to act as "private attorneys general" and seek court enforcement of state laws regarding advertising and marketing practices and other issues. In this case, the suit asks that GM correct the alleged defects in the vans and pay restitution for the Astro and Safari profits it collected through its allegedly wrongful conduct.
"We do not believe under law the plaintiff is entitled to any such relief," said Mr. Heilbron. He said the plaintiff has never been hurt in her 1986 Astro.
The suit alleges that GM switched its strategy from marketing the M-vans as cargo vans to marketing them as passenger vans because Chrysler Corp. at the time was successfully selling its line of car-based minivans to families. GM at the time didn't have comparable products. Instead of targeting at least 70% of the two GM truck-based cargo vans to commercial users, the carmaker "abruptly changed course" in 1985 to at least 70% of sales to families, the plaintiff's attorneys said in their complaint. "GM's marketing of the M-van as a passenger van was false and misleading because the M-van actually was classified as a truck, which was exempt from federal crash-worthiness requirements governing passenger vehicles," the complaint said.
A spokesman for the National Highway Transportation Safety Administration said the M-vans met all the U.S. safety standards at the time or they couldn't have been sold. GM attorney Mr. Heilbron said the vans "have a very good real-world safety record."
Based on actual insurance claims, the 1986-model Astro scored a 68 in the Insurance Institute for Highway Safety's overall injury rating, or just two points under "substantially better than average." The Safari wasn't rated that year. But the National Highway Traffic Safety Administration gave both minivans in the 1990 model year one out of five stars for driver and passenger safety, citing a high likelihood of thigh injury. GM began offering air bags for the vans in 1993, which helped the M-vans' crashworthiness, said Clarence Ditlow, director of the Center for Auto Safety, a consumer group. NHTSA raised the rating on GM's M-vans in the 1996 model year, when it gave each three stars for driver and passenger safety.
Advertising support for the Astro-Safari brands has dropped from 1995, when the Astro was supported with $10 million in measured media and the Safari just $3,000, according to Taylor Nelson Sofres' CMR. In 2001, GM cut Astro's ad spending to $2 million; Safari (it and other GMC models are now handled by Interpublic's Lowe, New York), got nothing, according to CMR. Neither van had measured media ad support through August 2002, CMR reported.
The Astro and Safari haven't been redesigned since their debuts in the 1986 model year. For the 2003 model year, both eight-passenger minivans are equipped with new four-wheel disk brakes for shorter stopping distances and more stopping power.