On July 26, 2016, United States District Court Judge Charles Breyer issued a Order Granting Preliminary Approval of Settlement.  The Court found “the Settlement is sufficiently fair, adequate, and reasonable to the 2.0 liter diesel vehicle consumers to move forward with class notice.”

The history of this litigation is well chronicled in many sources, with others telling the story of VW installing “defeat devices that result in rendering inoperative certain elements of the vehicles emission control system thus evading United States’ EPA and California (CARB) emissions standards.  The result was VW obtained Certificates of Conformity from EPA and Executive Orders from CARB for its 2.0 and 3.0 liter diesel engines when in fact these engines release nitrogen oxide up to up 40 times  over the allowable limit.

Over a six-year period VW sold over 500,000 of these diesels with these devices thereby evading laws designed to protect the environment resulting in greater harm to the environment.

The Order of Judge Breyer contains an excellent review of the facts.

Who Is Covered?

The proposed Settlement Class consists of a nationwide class of all persons (including individuals and entities) who, on September 18, 2015, were registered owners or lessees of, or, in the case of Non-Volkswagen Dealers, held title to or held by bill of sale dated on or before September 18, 2015, a Volkswagen or Audi 2.0-liter TDI vehicle in the United States or its territories (an “Eligible Vehicle”), or who, between September 18, 2015, and the end of the Claim Period, become a registered owner of, or, in the case of Non-Volkswagen Dealers, hold title to or hold by bill of sale dated after September 18, 2015, but before the end of the Claims Period, an Eligible Vehicle in the United States or its territories.  (Dkt. No. 1685 ¶ 2.16.)

“Eligible Vehicles” consist of Model Year 2009 through 2015 Volkswagen and Audi light-duty vehicles equipped with 2.0-liter TDI engines that are (1) covered, or purported to be covered, by the EPA Test Groups in the table immediately below this paragraph; (2) registered with a state Department of Motor Vehicles or equivalent agency or held by bill of sale by a non-Volkswagen Dealer in the United States or its territories as of June 28, 2016; (3) for an Eligible Owner, currently Operable or cease to be Operable only after the Opt-Out Deadline; and (4) have not been modified pursuant to an Approved Emissions Modification.

What are the Consumer Remedies?

The Settlement gives Class Members choices as to remedies.  Eligible Owners have two options: Volkswagen will pay cash (“Owner Restitution”) and either (1) buy the Class Member’s Eligible Vehicle at its pre-defeat device disclosure value, (“the Buyback”) or (2) fix the Class Member’s vehicle when and if EPA and CARB approve an emissions modification (a “Fix”).

What is Your Car Worth Under the Proposed Settlement?

Base Value and Vehicle Value

The amount of cash a Class Member receives depends on an Eligible Vehicle’s Base Value or Vehicle Value.  Base Value refers to, where available, the Clean Trade value of the vehicle based on the National Automobile Dealers Association (“NADA”) Vehicle Identification Code (“VIC”) for each Eligible Vehicle in the September 2015 NADA Used Car Guide published in or around August 2015.  (Dkt. No. 1685 ¶ 2.5; Dkt. No. 1685-1 ¶ 11.)  In some instances, like with Model Year 2015 Eligible Vehicles, no value was published by NADA as of September 2015. For those Eligible Vehicles, the Base Value is calculated by multiplying the Manufacturer’s Suggested Retail Price (“MSRP”) for each individual vehicle by 0.717. (Id. (both).)  The 0.717 figure is the ratio of average September 2015 Clean Trade values to average MSRPs for Model Year 2015 Passats. (Dkt. No. 1685-1 ¶ 11.)

Restitution Calculation

Eligible Owners who purchased their Eligible Vehicles before September 18, 2015 are entitled to a minimum Restitution Payment of $5,100.  (Dkt. No. 1685-1 ¶ 5(a); Dkt. No. 1685-3 at 2.)  Restitution is calculated by adding (1) 20% of the Vehicle Value plus (2) the greater of $2,986.73 or the amount necessary to ensure that Owner Restitution is not less than $5,100.  (Dkt. No. 1685-1 ¶ 5(a).)  In some cases, Eligible Owners will receive more than the minimum $5,100 to as much as $10,000.  (See id.)  Eligible Owners who purchased their Eligible Vehicles after September 18, 2015 are entitled to 50% of Owner Restitution as calculated above, plus a share of an unused portion of the funds set aside to pay Seller Restitution as discussed below.

What is Claims Process?

The Settlement sets forth a five-step Claims Program, and Class Members have from the date of entry of this Order until September 1, 2018 to submit a claim.

There is a lot more to this process than set out above. Claimants should read the Order thoroughly and go to the Claims portal or visit (www.VWCourtSettlement.com) and register at the Online Claims Portal.  There, Class Members provide their (1) name; (2) contact information, including email, mailing address, and phone number; (3) address of vehicle registration; (4) Vehicle Identification Number (“VIN”); (5) vehicle mileage, if the Class Member is a current owner or lessee; and (6) information regarding vehicle financing, i.e., whether the Class Member is a current owner or lessee.  (Dkt. No. 1685-4 ¶ 1(a).)  The Claims Portal will display individualized preliminary offers for each Class Member.  (Id.)  Alternatively, Class Members can call 1-844-98-CLAIM and provide the same information to receive their individualized preliminary offers.

Can I Opt Out?

Yes the opt out provisions are set forth on page 11, “Class Members may request exclusion from the Settlement by mailing a signed, written request stating their desire in clear and unambiguous language, such as “I wish to exclude myself from the Class in In re Volkswagen ‘Clean Diesel’ Marketing, Sales Practices and Products Liability Litigation, No. 15-md-2672,” to the Notice Administrator on or before the Opt-Out Deadline of September 16, 2016.  (Id. ¶ 6.1.)  The written request must also include (1) the Class Member’s printed name, address, and telephone number; (2) VIN of the Eligible Vehicle; (3) a statement as to whether the class member is an Eligible Owner, Eligible Lessee, or Eligible Seller; and (4) the dates of the Class Member’s ownership or lease of the Eligible Vehicle”

What if You Object to the Proposed Settlement?

You must submit your objection by September 16, 2016. See page

The final fairness hearing will be held on October 18, 2016 at 8 am in Courtroom 6, 450 Golden Gate Avenue, San Francisco, California.  The deadline for Class Members to file a Notice of Intent to Appear at final fairness hearing is October 4, 2016.

There is a lot more to this process than set out above.  Claimants should read the Order thoroughly and go to the Claims portal or visit (www.VWCourtSettlement.com).

The Brandi Law Firm

San Francisco personal injury lawyers at The Brandi Law Firm have secured more than $1.5 billion in verdicts and settlements for our clients as a result of hard work coupled with skilled negotiation and aggressive litigation.  Based in San Francisco, The Brandi Law Firm represents clients throughout California, Arizona, and Nevada, where our quality of work is second to none.

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