Smattering of plaintiffs continue claims against Volkswagen after major settlement

Two years after a federal judge approved a billion-dollar settlement ending much of the consumer litigation following revelations that German automaker Volkswagen AG had cheated emissions tests, several hundred plaintiffs across the country are still pursuing claims against the company, a move it hopes to fend off in several bellwether trials.

In a filing with Senior U.S. District Judge Charles R. Breyer on Wednesday, Sullivan & Cromwell LLP litigators who represent the automaker said the trials would be the best way to resolve claims brought by more than 800 plaintiffs in federal court and California, Texas and Virginia state courts.

"[B]ellwether cases would be selected for trial in each of the four jurisdictions in a coordinated fashion involving the participation of all four courts, which is particularly important given the considerable overlap of counsel and witnesses across the four jurisdictions and the scheduling issues that would arise if cases are selected for trial without some level of coordination," Sullivan & Cromwell partner Robert J. Giuffra Jr. wrote.

Plaintiffs appear generally supportive of a bellwether plan but wrote to express opposition to a proposal to coordinate the four cases, noting that litigation in California, Texas and Virginia is much further along than the federal counterpart, saying the proposal is an effort to stymie progress.

"[I]t seems clear that the process proposed by Volkswagen would not promote efficiency, but rather would delay not only the remaining consumer actions in this MDL, but potentially other actions across the country," Stephen G. Recordon, a partner at Recordon & Recordon who represents a class of plaintiffs, wrote Tuesday.

If the bellwether trials proceed, Volkswagen will have to defend claims that it intentionally misled potential customers that its automobiles were more fuel-efficient than they actually were, a situation the company hoped to avoid by settling in the first place. In re: Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, 15-MD2672 (N.D. Cal., filed Dec. 8, 2015).

According to the document filed Tuesday, the 2017 settlement approved by Breyer covered 99.9% of the claims against the company. The 9th U.S. Circuit Court of Appeals said earlier this year the terms of the agreement "delivered tangible, substantial benefits to class members, seemingly the equivalent of -- or superior to -- those obtainable after successful litigation."