Robinson Calcagnie, Inc. Files Lawsuits Against Volkswagen for Allegedly Defrauding Customers
Robinson Calcagnie, Inc. has filed two nationwide class action lawsuits on behalf of consumers against Volkswagen Group of America, Inc. (VW) for purposefully installing an engine management software program (known as a “defeat device”) in certain VW diesel models that was designed to evade U.S. emissions testing in violation of state and federal law. Reports have estimated the defeat device was installed in more than 11 million vehicles worldwide, including approximately 500,000 in the U.S.
On September 18, 2015, the California Air Resources Board (CARB) and the U.S. Environmental Protection Agency (EPA) issued Notices of Violation to VW that it had installed a defeat device in certain VW and Audi brand four-cylinder “Clean Diesel” vehicles that would only activate the full emissions control system when the engine management system detected that the vehicle was undergoing official emissions testing. During normal operation of the vehicles, however, the full emissions control system does not activate, and the cars pollute substantially above compliant levels.
In fact, during normal operations, the allegedly “Clean Diesel” automobiles produce nitrogen oxide at levels increased by a factor of 10 to 40 times above the CARB and EPA-compliant levels. Nitrogen oxide is a pollutant that contributes to the ground-level ozone, and according to the EPA, has been linked to serious health effects, including respiratory illnesses.
It was only through the installation of the illegal defeat device that VW achieved the fuel efficiency and compliant emissions results it uniformly advertised to consumers in California and nationwide, and which consumers relied upon when purchasing VW’s “Clean Diesel” vehicles.
Which Models are Affected?
The models identified by CARB and EPA include:
New information has come to light indicating that VW also sold other VW, Audi and Porsche “Clean Diesel” vehicles with six-cylinder diesel engines that emit nitrogen oxide up to nine times above CARB and EPA-compliant levels. After CARB and EPA issued the September 18th Notice of Violation, it was discovered that the defeat device was installed on the following additional vehicles:
CARB and EPA are investigating whether VW installed the device in other vehicles, as well. Additional vehicle models and model years may be added to this list when new facts are discovered. The new vehicles identified by CARB and EPA appear to represent the same deception and fraud as with the four-cylinder vehicles.
The class action lawsuit filed by Robinson Calcagnie, Inc. in California alleges VW violated state and federal law by deliberately installing the defeat device, in addition to violating consumers’ rights by providing misinformation about the fuel efficiency, power, safety and function capabilities of the “Clean Diesel” vehicles. The lawsuit also alleges VW breached the manufacturing and emissions warranties in purchase agreements by concealing the presence of the “defeat device” to purchasers of the “Clean Diesel” vehicles.
The class actions are seeking compensation for all customers who purchased or leased the “Clean Diesel” vehicles for loss of value, reduced efficiency if vehicles are altered to meet emission standards, difficulty selling the vehicles, and a buy back of the affected vehicles.
What is a Defeat Device?
A defeat device, as defined by the EPA, is an auxiliary software control device that engages when the car is undergoing emissions testing, but is reduced or deactivated during normal operation on the road. The software senses whether a vehicle is being tested or driven based on various inputs, including the position of the steering wheel, vehicle speed and barometric pressure. The device then tracks the parameters of the federal emissions test procedure used by the EPA for certification purposes.
How was the Defeat Device Detected?
In May 2014, West Virginia University’s Center for Alternative Fuel, Engines & Emissions (CAFEE) notified the EPA and CARB that test results on certain VW diesel models showed elevated nitrogen oxide emissions. VW asserted to CARB and the EPA that the increased emissions were due to various technical issues, and then issued a recall in December 2014 to address the issue. Further testing by the agencies on the recalled vehicles in May 2015 showed the emission levels were still elevated.
VW Acknowledges Using the Defeat Device
On Sept. 22, 2015, VW publically admitted that it violated EPA emission standards by using the defeat device on at least six diesel models from 2009 to 2015. At a press conference on Monday, September 22, 2015, the head of VW’s U.S. operations, Michael Horn, stated, “[W]orst of all, we were dishonest to our customers. We totally screwed up.” In addition, VW announced that it was suspending sales of the “Clean Diesel” vehicles in the United States until the defeat devices are removed from the vehicles and the vehicles are legal to sell within the U.S.
On September 23, 2015, one day after admitting that 11 million Volkswagen-made cars have software that dupes official emissions tests, Martin Winterkorn, Volkswagen’s CEO, resigned from his post stating, “I am shocked by the events of the past few days . . . . Above all, I am stunned that misconduct on such a scale was possible in the Volkswagen Group.”
What This Means for Owners of the Affected Vehicles
The EPA and CARB have ordered VW to modify the vehicles so they comply with U.S. emission standards. According to a November 25, 2015 New York Times article, state regulators have given VW an additional 45 days from their initial November 20, 2015, deadline to provide a plan for bringing the affected vehicles into compliance with emission regulations in the State of California. VW claims that it could take more than a year to bring most of the cars in the U.S. into compliance. If the cars are modified, auto experts report that the vehicles may no longer perform as they did when purchased, and as advertised.
As of October 30, 2015, VW has not issued a recall on the affected cars in the U.S. According to Bloomberg, VW may face a criminal investigation, as well as EPA fines up to $37,500 for each car, resulting in over $18 billion.
Multiple Lawsuits Filed
To date, there are approximately 400 class action lawsuits filed throughout the U.S. On December 3, 2015, the Judicial Panel on Multidistrict Litigation (JPML) will hear arguments about whether and where to consolidate the VW litigation. According to a November 9th Reuters article, some of the judges with the VW cases pending in their courts have taken steps to move the case forward prior to the JPML’s decision while others, including Judge David O. Carter in the Central District of California, are waiting to take any action until the JPML makes a decision. Once the JPML makes its decision, all cases will be transferred to the selected judge, and he or she will begin the process of moving the case forward.
About the Company
Volkswagen Group of America, Inc. is a New Jersey corporation with its headquarters and principal place of business in Herndon, Virginia. The company operates an emission compliance lab and test center in Oxnard, CA, which is utilized as the only VW emission testing facility in the U.S.
Consumer Reports shows VW diesels are slower and less fuel efficient in ‘cheat mode’, Consumer Reports, Oct. 10, 2015
EPA, California Notify Volkswagen of Clean Air Act Violations, California Air Resources Board (CARB) Sept. 18, 2015
In VW class actions, three trial judges are raring to go, Reuters, Nov. 9, 2015
Letter to Volkswagen, California Air Resources Board (CARB), Sept. 18, 2015
Notices of Violation, Environmental Protection Agency, (EPA)
VW Cases Spark Call for Fairness, The National Law Journal, Oct. 26, 2015
VW’s North America business chief resigns just weeks after taking job, Los Angeles Times, Oct. 14, 2015
Volkswagen Reveals Emissions Fix for Diesel Cars in Europe, Nov. 25, 2015, New York Times
Volkswagen Said Focus of U.S. Criminal Probe on Emissions, Bloomberg, Sept. 2015
Volkswagen Statement, Sept. 22, 2015