VW Litigation Consolidated in Northern California

Millions of VW owners are now putative class members in class actions filed throughout the country. The United States Judicial Panel on Multi-District Litigation recently consolidated the cases under the title “In Re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation,” MDL No. 2672. In a detailed order, the Court transferred the entire litigation to the Federal District Court for the Northern District of California, in San Francisco. The matter will be heard before Judge Charles R. Breyer, a jurist selected for his experience in complex litigation.

The Judicial Panel decides which court to have handle the combined lawsuits based on the number of cases filed in various districts, the location of witnesses, and other factors. This analysis is particularly complicated in this instance, because much of the design, marketing, and testing evidence may well be in Germany where much of the underlying conduct likely occurred. VW has admitted it used cheating devices, which may ultimately simplify some of the evidence, but the case is far from over.

Among hundreds of lawsuits, the parties had advocated for 28 transferee districts located throughout the country. The Judicial Panel found that Northern California was “where significant testing of affected vehicles occurred, and the home of the California Air Resources Board, which played an important initial role in investigating and, ultimately, revealing VW’s use of the defeat devices.” It further noted that “There are 30 actions pending in the Northern District of California, including the first-filed case in the nation, and plaintiffs have filed a total of 101 cases in the state of California – nearly a fifth of all cases filed nationwide.”

The widespread litigation concerning TDI diesel cars (TDI stands for “turbocharged direct injection”) commenced in September 2015, after the E.P.A. issued a Notice of Violation of the Clean Air Act to Volkswagen and affiliated companies such as Audi. The shocking E.P.A. announcement challenged the unauthorized use of a piece of software called a “defeat device” in a vast number of diesel automobiles manufactured since 2009. Although the initial Notice encompassed about 480,000 cars sold in the United States, there are about 11,000,000 affected vehicles worldwide.

The combined class action litigation now pending before a single judge will probably prove to be the most efficient and cost effective means of obtaining relief for most VW owners. It is unknown at the present time just what the courts will do with individual plaintiffs who try to file cases separately on various theories; sometimes such actions have simply been coordinated or consolidated under the umbrella of class litigation. The Judicial Panel evaluating the MDL proceeding made passing reference to cases brought on behalf of VW investors and individual consumers seeking relief from making their loan payments, but declined to address these side issues at the present time.