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Volkswagen “Clean Diesel” Litigation Heats Up


After months of revelations related to Volkswagen’s fraudulent programming of its “clean diesel” cars to outsmart emissions tests, the company’s woes have found a litigation home. Both dealers and consumers are feeling betrayed by the car manufacturer’s defrauding of the car-buying market. Although sold to consumers as “clean,” its diesel cars were emitting as much as 40 times the amount of pollutants permitted under United States law. VW has admitted to creating a program that would effectively “lie” when emissions testing was done. The VW scandal has forced the car giant to admit that its fraudulent behavior included a powerful tool that enabled cars to pass pollution control tests and then go right back to extremely high emissions when driven.

Although no serious injuries have been connected to this scandal, USA Today and the Associated Press say the scandal goes beyond emissions alone. Arguably, the high emissions has led to some deaths, including fatal lung diseases. Although the victims cannot be pinpointed, the methodology to determine that pollutants so significant could have caused fatalities has been reviewed and confirmed as valid by qualified scientists. Over the past seven years, it is possible that as many as 95 people died due to these high levels of pollutants, not to mention the impact on the environment.

About 500 class action lawsuits were filed against Volkswagen across the country. Essentially these cases involve the claim that consumers paid higher prices for these vehicles which are now worthless because they cannot pass emissions and dealers will not accept them back from owners. Now the many cases brought by consumers who purchased these diesel cars have been consolidated into a multidistrict litigation or MDL. MDL litigation is used by the federal courts in situations where there are many litigants across the country with essentially the same or similar claims against a defendant.

A Judicial Panel on Multidistrict Litigation has clear guidelines to help manage these cases. Established in the 1960’s, the Panel considers limited factors to determine whether cases should be transferred. These questions include: whether common questions of fact exist in already pending civil actions so that moving these to a single district will better serve the convenience of both the parties and witnesses; and, whether transferring the cases will support their just and efficient management. The Panel also has great discretion to consider the federal district and the judge that is best able to handle the cases. MDL’s are used to ensure that the courts are not overwhelmed with the same or similar claims which supports the efficiency for the courts and the parties.

In the Volkswagen cases, the Panel determined that the MDL will be presided over by U.S. District Judge Charles Breyer in California’s Northern District. He has significant experience in presiding over MDL’s with an international defendant. The MDL will proceed in California although the Panel heard arguments that other federal judicial venues were preferred. The Panel also considered the fact that the defendant is an international company, something that Judge Breyer has dealt with in the past. Volkswagen sought to have the MDL heard in the Eastern District of Michigan and plaintiffs attorneys sought to have the MDL located in either California, Michigan, New Jersey, Virginia or Tennessee. About 20 percent of the cases had been filed in California. The case is now expected to get through the system quickly since VW has accepted liability for their wrongdoing. Now it is just a matter of how much they will pay for their admitted fraud.

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