The case of Heather Peters and the Honda Civic Hybrid sets an alarming trend

What are you going to do, sue? Good luck.

This week's Superior Court verdict suggests there's little to no recourse for consumers.

As Autoblog readers likely have already learned, a Superior Court judge in California has tossed out a judgment issued by a small claims court earlier this year awarding nearly $10,000 to Honda Civic Hybrid owner Heather Peters. She had taken the Japanese maker to court claiming it used misleading advertising promising the sedan would get significantly better mileage than proved true in the real world.

In overruling the lower court, Superior Court Judge Dudley W. Gray II wrote that, "Federal regulations control the fuel economy ratings posted on vehicles and advertising claims related to those fuel economy ratings."

Well, um, no. That was my understanding, too, until I had the chance to pursue the matter with the EPA a couple years back. In fact, I was told, the law simply sets an upper limit. If the tests determine a new model gets 50 mpg – as with Peters' Civic Hybrid – that's the most a maker can advertise or use on the Monroney window sticker. But should a manufacturer like Honda realize through its own tests that the vehicle's real-world mileage might be noticeably less they can mark it down to whatever they think is valid.

Of course, who would do that? With mileage now one of the top things on the consumer's shopping list, who can blame a manufacturer for wanting to put the prettiest lipstick on a gas hog. And this week's Superior Court verdict suggests there's little to no recourse for consumers who only discover that fact after they've given it a big smooch.

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Imagine if everyone frustrated with the mileage of their vehicle took the maker to small claims.

Now, one can also sympathize with Honda. The maker has already had to battle 18 small claims lawsuits in California regarding the under-performing Civic Hybrid. The process is designed to level the playing field; attorneys are barred and small claims judges have a surprising amount of leeway in making their decisions. Imagine if everyone frustrated with the mileage of their vehicle took the maker to small claims. It would see corporate managers spending much of their work week testifying rather than trying to figure out how to actually deliver the fuel economy they tout.

The alternative for an owner is to go into a conventional courtroom where the playing field typically tilts in favor of the corporation because of the legal firepower it can deliver. That's why so many significant automotive lawsuits have, in recent years, turned to the class action process. It lets a wide field of plaintiffs pool their resources to even things back out.

Manufacturers love to rail about class action lawsuits and plaintiffs' attorneys. But, in reality, they often make out far better by going this route when there's a real chance the company is in trouble. Consider the settlement just recently approved by another California judge. Same basic complaint: Honda overstated the mileage of its early Civic Hybrids, adding up to far higher fuel bills and lower trade-in values. Forget the argument that only the EPA controls the mileage numbers used in advertising. In this case, Honda couldn't do more to convince the court to accept a settlement.

Perhaps nothing has been more prone to enhancement than horsepower and 0-to-60 times.

That settlement earned owners between $100 and $200 in cash and discount coupons for the purchase of another Honda. That's become a favorite way of settling class action cases in recent years because it gets lots of otherwise pissed-off customers back into your stores.

Of course, the sweetener is the millions – in some cases, tens, even $100s of millions that those plaintiff attorneys pocket as fees. Might we wonder how many new hybrids they will purchase with their part of the settlement?

Of course, fuel economy ratings aren't the only numbers the industry has manipulated over the years. Perhaps nothing has been more prone, historically, to, ahem, enhancement, than performance figures, especially when it comes to horsepower and 0-to-60 times.

If actual mileage doesn't pan out for consumers, who cares. What are they going to do, sue?

Intriguingly, more and more makers these days decline to even provide acceleration numbers and they take pains to ensure that they can back their hp claims, usually through certification by organizations such as the Society of Automotive Engineers.

No wonder. There have been plenty of lawsuits here, as well. Recall Mazda had to come up with a settlement when it overstated the output of its RX-8 a few years back. And it isn't alone.

One difference is that when a manufacturers muffs it here there's no EPA it can point to and insist it is shielded by law.

The good news is that the EPA regularly tracks how its mileage ratings compare with real-world figures and the agency has adjusted its testing procedures on several occasions. It was particularly aggressive when it came to hybrid ratings a few years back because, yes, the numbers were way overstated.

Protecting the industry, as Judge Gray has done, may only further encourage some makers to tweak vehicles specifically to maximize the way they perform in the EPA tests. If that doesn't pan out for consumers, well, who cares. What are they going to do, sue?

There are probably some good reasons for the courts to try to avoid an endless flood of small claims cases, but if this week's verdict simply provides a shield for the industry then consumers everywhere will prove to be the losers.

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