01/20/22 | Case Update: Case Dismissed by the Ninth Circuit Court of Appeals
On Nov. 12, 2020, Judge Charles Breyer of the federal District Court for the Northern District of California issued an order dismissing the case. Plaintiffs’ attorneys appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit and hired an expert appellate firm whose attorneys argued the case in front of a three-judge panel in December. Unfortunately, the panel found in favor of Volkswagen and affirmed the district court’s order dismissing the case. Although there are sometimes ways to continue appealing cases like these after dismissal by a panel, counsel in this case (including the appellate experts) do not see a viable path forward. In this instance, this is where the lawsuit ends.
SUMMARY OF THE LAWSUIT
The complaint was filed Aug. 2, 2017 and brought on behalf of individuals who bought or leased CleanDiesel vehicles, but no longer owned (or were no longer leasing) those vehicles in September 2015, when the public learned that Volkswagen had been modifying their CleanDiesel vehicles to cheat on emissions tests. That class of consumers were left out of the previous consumer settlements, and this lawsuit brought their claims against Volkswagen and Bosch, the maker of the software that enabled VW's emissions cheating.
Hagens Berman believes that the roughly $17 billion in settlements that came from the Dieselgate litigation offered remedy to hundreds of thousands of owners, but failed to compensate many front-line victims of VW’s scheme – owners who unwittingly drove hyper-polluting cars for years, but had disposed of the cars before the scheme imploded.
Those who sold their affected VW, Audi or Porsche vehicles before Dieselgate news broke suffered some of the same harm as those who kept their vehicles throughout the litigation – sellers never received the performance and CleanDiesel advantage that VW marketed, and that they paid for.
ABOUT VW's EMISSIONS FRAUD
The EPA determined that the software installed in these vehicles – called a “defeat device” – only turns on full emissions controls when the car is being tested, but otherwise shuts down emissions controls during normal operation.
The lawsuits filed against Volkswagen, Porsche and Audi state that during normal operation, these vehicles emit nitrogen oxides (NOx) at up to 40 times the standard allowed under United States laws and regulations, but these lawsuits only sought to compensate current owners, not those who owned affected CleanDiesel cars for years, but sold them before news of the scandal emerged.
YOUR CONSUMER RIGHTS
While the courts decided against plaintiffs’ claims in this matter, Hagens Berman believes that all three consumer settlements achieved in the Dieselgate litigation have excluded tens of thousands of owners who rightfully deserve compensation for Volkswagen's deception.
CASE TIMELINE
As you may remember, the complaint that started this lawsuit was filed Aug. 2, 2017. It was brought on behalf of individuals who bought or leased "clean diesel" vehicles, but no longer owned (or were no longer leasing) those vehicles in September 2015, when the public learned that Volkswagen had been modifying their "clean diesel" vehicles to cheat on emissions tests. That class of consumers was left out of the previous consumer settlements, and this lawsuit brings their claims against Volkswagen and Bosch (the maker of the software that enabled VW's emissions cheating).
The initial complaint survived Motions to Dismiss by both VW and Bosch, which means that the court has held that the claims can proceed. However, the court did find some other issues with the complaint and asked us to amend it before we move forward, and requested some additional information about how we intend to prove damages.
On Nov. 2, 2018, we filed the Amended Complaint, which modified some allegations, added some additional claims, and removed some claims we had previously agreed to waive. We also filed a Statement Regarding Proof of Premium, which was a statement that the court had previously asked for to support our theory of damages. On Jan. 15, 2019, the defendants (VW and Bosch) filed Motions to Dismiss the Amended Complaint. Among other things, the Motions argue, again, that plaintiffs lack standing to bring the lawsuit because they did not suffer any injury.
The next step is for plaintiffs to file a Response to the Motions. Defendants will then have an opportunity to file a Reply, after which the court will hold a hearing on the motions, and then issue a written opinion deciding whether the case should be dismissed.
Below is a current timeline of the litigation.
Timeline:
- 08/02/17 – Complaint Filed
- 12/08/18 – VW U.S. & Bosch Defendants File Motions to Dismiss Complaint
- 02/02/18 – Plaintiffs File Oppositions to Motions to Dismiss
- 08/24/18 – Court Holds Hearing on VW/Bosch Motions to Dismiss
- 10/0318 – Court Issues Order Granting or Denying VW/Bosch Motions to Dismiss
- 11/02/18 – Plaintiffs File First Amended Complaint & Statement re: Proof of Premium
- 01/15/19 – Defendants' File Motions to Dismiss Amended Complaint
- [UPCOMING] 03/26/19 – Plaintiffs to File Oppositions to Motions to Dismiss
- [UPCOMING] 05/02/19 – Defendants to File Replies in Support of Motions to Dismiss
- [UPCOMING] 05/10/19 – Hearing on Motions to Dismiss
On October 3, 2018, U.S. District Judge Charles R. Breyer issued an order allowing the RICO and state law claims of consumers who sold their affected vehicles prior to the disclosure of the fraud to continue. The order upholds the claims of tens of thousands of prior owners of affected diesel vehicles that Bosch and Volkswagen participated in a conspiracy to create and implement an emissions cheating defeat device in nearly 600,000 cars sold in the United States. Plaintiffs allege the Dieselgate fraud harmed all purchasers of affected vehicles (whether or not they still owned the cars when the fraud was disclosed) because they: (1) paid a premium and/or financing fees for features that they never received; and (2) the premiums caused their vehicles to depreciate more than cars without the premium diesel features would have depreciated over the same period of ownership. Judge Breyer agreed, finding that Plaintiffs had adequately alleged Article III standing to bring their claims. In his order, Breyer stated that the claims on behalf of prior owners were based on a “novel twist” and that plaintiffs “plausibly alleged that Bosch partnered with Volkswagen to implement the defeat device in the affected vehicles, and by doing so participated in the conduct of a years-long enterprise to defraud U.S. regulators and consumers.” Judge Breyer rejected Bosch’s arguments that its actions were not a direct and proximate cause of Plaintiffs’ injuries and concluded: “Plaintiffs’ allegations are sufficient to support that Bosch engaged in racketeering activity in violation of RICO, and that Plaintiffs suffered a concrete injury to their property ‘by reason’ of this activity. The RICO claims against Bosch are well pled.” Judge Breyer also rejected Volkswagen’s arguments that federal law preempted the state law claims against it for misrepresenting the virtues of its diesel cars and concealing the defeat devices. While the Court ordered Plaintiffs to replead their misrepresentation claims with more particularity, Judge Breyer held that the omission-based claims would go forward as pled.
