Elizabeth J. Cabraser

As about 150 top litigators bid to be lead counsel or steering committee members in the massive consumer multi-district litigation over Volkswagen AG's emissions-test cheating scandal, Cabraser surveyed the courtroom crowd and addressed Senior U.S. District Judge Charles R. Breyer of San Francisco, presiding. "Thank you for convening the national convention of plaintiffs' advocates," she said, to the amusement of the crowd.

"A little humor. It got a laugh," Cabraser said "Anything to ease the tension."

Breyer took only a few hours to decide to name Cabraser to head the plaintiffs' team as sole lead counsel, citing her leadership role in 17 earlier multi-district actions, including the Bextra and Celebrex MDL he oversaw in 2005. Joining her will be a high-profile team including David Boies of Boies, Schiller & Flexner LLP, Paul J. Geller of Robbins Geller Rudman & Dowd LLP and Steve W. Berman of Hagens Berman Sobol Shapiro LLP.

"The plaintiffs' committee has been working very hard," Cabraser said. "We're all grownups who know how to get these things done. It's a case where the whole is truly greater than the sum of the parts: There's a magic to it."

The judge is pushing the case hard, Cabraser noted. In February he gave the German automaker until late March to propose an engineering fix or see the case speed toward trial. "The litigation will move forward quite quickly," Breyer told the defense team. The polluting cars are "an ongoing harm that has to be addressed."

That aspect reminded Cabraser of the BP Gulf Oil Spill class action, in which she served on the plaintiffs' steering committee. "[U.S. District] Judge [Carl] Barbier took a similar approach, putting the case on a very brisk schedule due to the ongoing ecological disaster," she said.

Some were reminded by the Volkswagen case of Cabraser's role in arguing the class action against American tobacco companies before a federal appellate court in 1996. She sees significant differences. "That was an effort to apply money to a tragedy that could not be undone," she said of the cancer deaths linked to smoking. "Here, the environment is more resilient and money can help in a situation where there have been no reported deaths. What is the same is the underlying purposeful fraudulent behavior of the defendants. Volkswagen doesn't have an addictive product. People can switch."

Indeed, Cabraser herself switched, she said, from the VW squarebacks she drove decades ago to the BMW X3 she now favors. "It' a diesel, so I'm not opposed to diesels per se," she said. "This one is legal."

John Roemer