VW “Clean” Diesel Fraud: A new approach

The many, many federal class action cases against Volkswagen have been consolidated in Northern California, and it looks like consumers are in for a slow slog. My co-counsel, Tim Quenelle, and I put our heads together and have developed a new strategy option.

We believe that we can efficiently handle individual cases for people who bought or leased the vehicles in Oregon. We are now accepting select individual cases for Oregon consumers.

Our goal is to move these cases quickly. The beauty is that if we win VW must pay our fees, so we are able to offer affordable representation to consumers who have been wronged here.

Let us know if you have more information. You can call me at 503.228.6474 or email me at david@davidsugerman.com or 503.228.6474.

VW Clean Diesel Fraud and the “Goodwill” Package

I spent most of last week at the National Consumer Rights Litigation Conference in San Antonio. Among the many benefits is the chance to visit with colleagues who are the best consumer-side advocates in the country. I caught up with my colleague, Elizabeth Cabarser, one of the most talented consumer lawyers I know, and we had a chance to visit about the VW customer goodwill package. Elizabeth pointed out this order StipOrdReGoodwillProgram USDC MI from the U.S. District Court in Michigan, in which Volkswagen stipulated that participation in the program would not impact claims in the fraud case against it.

This is an important development for those who are concerned about the fine-print in the loyalty cards. Elizabeth and her team in Michigan have done a great job in getting this order entered. It’s stronger because Volkswagen stipulated to the order. That means that the issue is completed, and there is no effective means of appealing. This is a good development.

Let’s not lose sight of a few things. These benefits are mixed, and they are tiny. There is still a problem that it looks to me like VW is trying to establish a direct link with customers. Also, it’s possible that part of this is being done so that VW lawyers can point to all the good things they did, in order to argue that VW should not be punished for their misconduct.

That said, for those consumers who wish to take advantage of these benefits, the order provides protection.

David

VW Customer Care Diesel Fraud: Hello South Dakota

Volkswagen announced its customer care program for consumers cheated by the clean diesel fraud. The program gives consumers who register a $500 Visa gift card, a $500 dealer coupon, and three years of free roadside assistance.

The last two benefits are nothing more than slick marketing, designed to drive sales. The first–that Visa card–comes with some wicked fine print.

You have to root around in the shiny website to find the cardholder agreement, and then you have to page through that to get to this gem:

“10. WAIVER OF RIGHT TO TRIAL BY JURY
YOU AND WE ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY
JURY IS A CONSTITUTIONAL RIGHT BUT MAY BE WAIVED IN CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, YOU AND WE KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT. THIS JURY TRIAL WAIVER SHALL NOT AFFECT OR BE INTERPRETED AS MODIFYING IN ANY FASHION THE DISPUTE CLAUSE SET FORTH IN THE FOLLOWING SECTION, IF APPLICABLE, WHICH CONTAINS ITS OWN SEPARATE JURY TRIAL WAIVER.

IN THE EVENT OF ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT, CUSTOMER AGREES THAT SUCH DISPUTE SHALL BE RESOLVED BY BINDING ARBITRATION WITH THE AMERICAN ARBITRATION ASSOCIATION, UTILIZING THE RULES OF PROCEDURE OF SUCH ARBITRATION SERVICE, FURTHER, ANY SUCH ARBITRATION SHALL TAKE PLACE IN SIOUX FALLS, SOUTH DAKOTA AND THE LAWS OF THE STATE OF SOUTH DAKOTA SHALL APPLY. THE DECISION OF AN ARBITRATOR WILL BE FINAL….”

Show of hands: So who wants to go to Sioux Falls to have their case decided by a professional, corporate arbitrator?

It is unclear whether VW is trying to capture the Diesel Fraud claims in this arbitration clause, but the language is broad enough to raise serious questions.

And of course, VW is trying to buy consumers’ loyalty for $1,000. Seems kind of cheap, given the scope of this multi-billion dollar fraud.

At bottom, this is risky business.

-David

VW Diesel Fraud–New filing: Bricker v. Volkswagen Group of America, Inc.

Catching up. Last week, we filed Bricker v. Volkswagen Group of America, Inc., U.S. District Court Case No. 3:15-cv-01785-PK (D. Or.) Along with my frequent collaborator, Oregon attorney Tim Quenelle, I joined forces with my friends at colleagues at Cohen & Malad from Indianapolis.

For those who like such things, here is a copy of the complaint: 1 – Complaint. The case is filed as a national class action. It protects the interests of anyone who purchased or leased one of the affected VW Group vehicles.

The case arises out of the well-publicized diesel engine fraud for Volkswagen “clean diesel” vehicles. In selling various VW and Audi diesel vehicles, the Volkswagen Group represented that these vehicles were high mileage and way low on emissions. As has been widely noted in the press, the high-dollar fraud rested upon sophisticated cheat code or defeat device that switched the vehicles’ operating modes when they were being operated in a parked condition for emissions testing.

The “clean” low-emissions mode did not and could not operate while actual consumers drove the vehicles. Instead of driving green, clean diesel cars, class members were driving dirty diesel vehicles that violated pollution standards.

People paid premium prices for these clean vehicles. In Oregon and Washington, especially, green consumers pay extra for earth-friendly products. VW hyped that clean, green technology in its sales and marketing efforts, and they made a mint. The clean diesel products pushed VW to the number one position in worldwide car sales.

No surprise that we’re hearing from a lot of people. We’ve developed an initial information email for those who have questions. Feel free to email me at david@davidsugerman.com if you need more information, and we’ll mail out the initial information. (I have not posted it here because doing so destroys confidentiality. And we really, really don’t want to do that.)

The case is almost certainly going to be treated as a multi-district litigation (“MDL”) case. When cases are assigned to the MDL, the rules and processes are different. Once it is assigned–probably not for a few months–I’ll update with more information.

In addition to our email packet, I would recommend connecting with us on Facebook if you are concerned about these issues. We tend to post there more frequently.  And of course, if our information and FB posts don’t answer your questions, feel free to call or email.

-David