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No Rest for Toyota

As Toyota continues to plagued by safety recalls (this week, the automaker recalled 17,000 Lexus hybrids for faulty gas tanks), the company is facing legal trouble of another matter, this time over a patent controversy that could result in a ban of Toyota hybrids altogether.

This patent fight originally began in 2004, when Paice LLC, a Florida-based hybrid technology company, sued Toyota for using its patented technology in second-generation Prius vehicles. The court ruled that Toyota had infringed on Paice’s patent and Toyota filed multiple appeals, losing each time. According to Forbes, Toyota has paid $5 million in damages and a small fraction of the court-ordered license fee of $98 a car while it challenges future royalties. In the latest case, Paice is claiming that Toyota’s third-generation hybrids are also infringing on its patents and that Toyota is not paying enough in royalties.

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Paice is ultimately hoping to get the International Trade Commission to ban Toyota hybrids altogether. Toyota has fought to get the case dismissed but to no avail.

According to one expert, who commented on the case last year, a ban is unlikely. But if it does happen, Toyota would be looking at production delays, the inability to sell hybrid vehicles in the United States and millions of dollars in lost revenue while it inevitably tries to work out a licensing agreement.

When taken with the ongoing recall fiasco, this patent infringement mess is further evidence of the difference a year can make in business.

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This time last year, Toyota was seen as the industry gold standard.

But their ongoing troubles paint a picture of a car company that seems to have gotten caught up in believing its own press and lost sight of key details, like safety and technology, that helped make it great. A company that once was the model for quality is quickly becoming a textbook example of the dangers of complacency.

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Does Saying “I Was Wrong” Help Repair the Brand?

For several years now, reputation risk has been among the top threats listed by company executives when they are asked what keeps them up at night. There are several reasons for this. The emergence of 24-hour news, the internet and social media have created a world where corporate snafus that would have been merely a one-day story in the paper into an ongoing PR nightmare. Similarly, advocacy groups are now much more evolved and can launch coordinated campaigns to encourage public outrage. But most of all, most companies simply have no idea how to repair their image after it’s tarnished.

There is no insurance that can fix the problem and even where coverage is available to fund a “PR swat team” to come to the rescue, the short-term damage is already done, and the brand will always be tied to the negative press. In the long term, the reputation smear may prove survivable, but it sure never seems that way in the initial hours, days, weeks and sometimes even months and years following the calamity.

In recent years, the most oft-repeated mantra for avoiding irreparable harm to the brand is to “get out in front of the story.” Basically, after a mishap occurs, be honest, transparent and don’t let your CEO wake up to be blind-sided with an unwanted Wall Street Journal headline. Tell the public that something went wrong and that you’re now doing everything in your power to fix the situation.

That certainly makes sense, and recent examples of companies who were criticized for their delayed response include Toyota, Massey Energy and BP. The fact that all three companies seemed to bury their heads in the sand — for years — when it came to safety issues still would have come out, but the instant backlash perhaps could have been different if the companies took charge of the situation sooner — at least with Toyota anyway.

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I’m not sure there is anything BP could have done differently in the first week or two that would have made people feel much differently about the oil giant than they do today.

But, in trying to be honest and transparent, should the company’s executives go so far as to say “I was wrong” and “I’m sorry”?

Logic says yes.

As journalist and author Kathryn Shultz pointed out today in a guest post on the New York Times‘ Freakonomics blog, however, those who have admitted the error of their ways have not always been greeted with forgiveness.

Quite the opposite, in fact.

Earlier this year, former Assistant Education Secretary Diane Ravitch published The Death and Life of the Great American School System, which denounced a series of school reforms (including educational testing, school choice, charter schools, and No Child Left Behind) that she herself had advocated for years.  When I interviewed Ravitch for Slate, the comments section lit up with the familiar charges: “Why is Diane Ravitch Making a Bundle Saying She Was Wrong All Along?” “Wow! Thanks Diane! It’s only taken you ten years to see the blindingly obvious.” “We’re supposed to be impressed by her contrition?”

And that is the central question: what are we supposed to do about the sincere contrition of those who err?

Schultz, who just wrote a whole book on the topic that looks interesting but I have yet to read called Being Wrong, says that the answer is a lot easier in our personal lives than it is in the public sphere. In our private lives — with relatives, friends or colleagues — the answer is usually forgiveness. People make mistakes and, often, when they are willing to admit and own up to their errors, they should be granted at least some level of reprieve.

But that courtesy is rarely extended to public officials (which is who she is really speaking about here) or corporate representatives (which is who I believe this concept may also apply to)/

When our public officials make mistakes, the costs (which are often not borne directly by them) can be horrifying.

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It seems reasonable to demand not just an acknowledgment of error but some effort at ameliorating the consequences.
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Sometimes, though, this is simply impossible.  No one can bring back the war dead; no one can unspill the oil; no one can compensate a child for twelve years of bad schooling. All that truly contrite leaders can do in such a situation is work off their public debt the best way they know how – and live with the torments of their own conscience.
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But are those torments real?  Many people doubt it, and therefore find the idea of forgiveness galling.  As one commenter observed after listening to a conversation about wrongness over at The Takeaway, “A lot of people’s admitting to being wrong is little more than a PR ploy.  Public apologies do not impress me.

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”  In the acid bath of cynicism that is contemporary American politics, it is all but impossible for public figures to convincingly establish their sincerity.  And fair enough: sometimes, political changes of mind really are craven or self-interested or simply for show.  But sometimes, presumably, they are not.

When our public officials make mistakes, the costs (which are often not borne directly by them) can be horrifying. It seems reasonable to demand not just an acknowledgment of error but some effort at ameliorating the consequences.  Sometimes, though, this is simply impossible.  No one can bring back the war dead; no one can unspill the oil; no one can compensate a child for twelve years of bad schooling. All that truly contrite leaders can do in such a situation is work off their public debt the best way they know how – and live with the torments of their own conscience.

But are those torments real?  Many people doubt it, and therefore find the idea of forgiveness galling.  As one commenter observed after listening to a conversation about wrongness over at The Takeaway, “A lot of people’s admitting to being wrong is little more than a PR ploy.  Public apologies do not impress me.”  In the acid bath of cynicism that is contemporary American politics, it is all but impossible for public figures to convincingly establish their sincerity.  And fair enough: sometimes, political changes of mind really are craven or self-interested or simply for show.  But sometimes, presumably, they are not.

Ultimately, her short post doesn’t offer any concrete solutions. It certainly does present a good amount of evidence that, publicly, forgiveness — especially when the act leads to death or major destruction — is tough to come by. Former Secretary of Defense Robert McNamara is cited as a prime example.

Regardless, I have to believe that, in this day and age, corporate honesty and admission of guilt will better resonate with the public than anything else. But the alternative perspectives raised here sure do lead us to one indisputable conclusion: executives are right to be concerned with reputation risk.

State Farm Enters the Toyota Fiasco

The hits just keep on coming for Toyota.

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On the heels of a $16 million government fine and the potential for billions of dollars in loses after pending litigation shakes out, State Farm has asked Toyota to pay them back for any claims related to the unintended acceleration fiasco. Other insurers, including Allstate, are expected to follow suit and Mark Bunim, an attorney with the mediation firm Closed Case, says these subrogation demands could eventually end up costing Toyota up to $30 million. But the ultimate determination will take some time.

“Someone has to go through each and every auto claim, and then try to make a determination if it involved unwarranted acceleration,” Bunim says. “It could take months.”

This is not the first time State Farm has been at the forefront of action regarding Toyota. Back in 2007, State Farm warned the automaker and the NHTSA about an increase in unintended acceleration reports involving Toyota vehicles. While this warning adds further fuel to the argument that both Toyota and regulators were asleep at the switch, Department of Transportation Secretary Ray LaHood pointed out on his blog that the NHTSA was looking into the problem as early as 2003.

The point is that our safety officials have been looking at this issue from all angles for quite some time.

So the idea that NHTSA is in the business of ignoring information–valuable or otherwise–from automobile insurers, safety organizations, or consumers is just plain wrong.

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Of course, this still doesn’t answer why it took them six years to act. Perhaps they were just being diligent.

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After Record Fine, Toyota Extends Car Discounts. But Will It Continue to Drive Sales?

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For risk managers and others looking at the Toyota recalls as an ongoing lesson in corporate crisis response, seeing the daily headlines about the automaker’s woes is — both figuratively and literally — like watching a car crash.

Sure, in some ways, Toyota has handled the situation adequately, and its rebounding stock price and recent sales suggest that the immediate damage could have been worse. Then again, the company dragged its feet in addressing safety concerns publicly, and all the fines, recalls, class-action lawsuits, Congressional hearings and public scorn suggest that the long-term reputational damage could very well be lasting. This isn’t something that consumers will ever forget.

Especially not now.

Because on Monday, the National Highway Traffic Safety Administration hit Toyota with a record $16.4 million fine, which is more than an order of magnitude larger than the watchdog’s previous highest penalty, a $1 million slap on the wrist to GM for faulty windshield wipers. The $16.4 million figure is also the largest allowed under civil law, according to NHTSA.

Said Transportation Secretary Ray LaHood:

“We now have proof that Toyota failed to live up to its legal obligations,” said Secretary LaHood. “Worse yet, they knowingly hid a dangerous defect for months from U.S. officials and did not take action to protect millions of drivers and their families. For those reasons, we are seeking the maximum penalty possible under current laws.”

On Forbes.com, Ned Douthat advises Toyota to just pay the fine rather than try to fight the regulator’s decision.

Now, Toyota is faced with the choice of contesting the fine in court or simply paying the fine in order to get the episode behind in.  In comparison to the potentially lengthy and expensive legal battle, the nominal $16.4 million fine may be an attractive option.  However, in paying the fine the prestige of the Toyota brand may be forever damaged, as they would be admitting fault in hiding a very serious safety issue in their vehicles and thus endangering millions of drivers.  The number of incidences of stuck accelerators is still relatively small, but the recalls have affected some 8.5 million vehicles.  Furthermore, if Toyota admits fault and accepts this fine, it may open the litigation flood gates to hundreds of class action and personal injury lawsuits related to the stuck accelerator issue.

Amanda Bronstod of Law.com delves deeper into the idea that accepting the fine as handed down will be troublesome for Toyota, as it factually “validates the legitimacy of our allegations that Toyota has been misleading the federal government and consumers.”

With that damned-if-you-do, damned-if-you-don’t decision looming, Toyota also announced on Tuesday that it would extend its sales discount program. The program was successful in March and finally gave the company some positive headlines, but at least one industry expert seems skeptical that even this price-cutting measure will continue to push vehicles under the once-impeccable-but-now-tainted Toyota banner.

Last month’s incentive program helped Toyota “scoop up bargain hunters and loyalists” to achieve a 41% gain in sales over March 2009, said James Bell, an analyst with auto information company Kelley Blue Book.

But the increase was not as robust as it might seem, as results were tempered by the low sales in the same month a year earlier, he said.

“The question now is how many of those bargain hunters and loyalists are left. You have a finite number of people in the auto market at any one time,” Bell said.

Historically, Toyota has been among the stingiest automakers when offering incentives, helped by its historically high resale values and a reputation for building reliable cars, he said.

Last week at the International Auto Show, a Toyota rep spoke on the situation, specifically noting his thoughts that “people don’t buy a car they don’t trust just because you give them a good price.”

We’ll see, I guess.

For more on the risk management angle of the Toyota troubles, check out our past coverage. Morgan also covered “Toyota’s Total Recall” in the April issue of Risk Management.