In the U.S. civil suit, Volkswagen must present a solution to the court by March 24

The civil suit of affected customers against Volkswagen regarding Dieselgate is being heard in the district court in San Francisco. A day of negotiations took place on February 25th.

The atmosphere in the courtroom in San Francisco was cooler on February 25 than outside, where spring was already showing a little at 23 degrees Celsius. Lawyers from three well-known law firms presented what they had to bring against Volkswagen in a comprehensive class action lawsuit.

Elizabeth J. Cabraser and David S. Stellings from Lieff, Cabraser, Heimann & Bernstein have already successfully completed several such large-scale proceedings for their clients. Among other things, proceedings against General Motors (ignition lock affair), against DaimlerChrysler, against Microsoft and many more. Additional plaintiffs attorneys in the courtroom: David Boies of New York law firm Boies Schiller and Flexner and Lesley E. Weaver of Block & Leviton law firm, Oakland. As is customary in such public interest proceedings, the Department of Justice sent attorney Joshua H. van Eaton from Environment and Natural Resources as an observer.

Jeffrey L. Chase from Herzfeld and Rubin in New York, and Robert J. Giuffra jr. joined by Sullivan and Cromwell, New York. Porsche Cars North America sent Cari K. Dawson from Alston & Bird in Atlanta. And Matthew D. Slater from Cleary Gottlieb Stehen & Hamilton in Washington had appeared for Robert Bosch GmbH.

After the bailiff called case 15-MD-2672 (“Clean Diesel Marketing Sales Practices and Products Liability Litigation”), a few polite phrases were exchanged. The lawyers introduced themselves and wished “Your Honor” good morning, which Judge Charles R. Breyer politely replied to each of the lawyers. The judge thanked the management team of the plaintiffs 'lawyers for their preparatory work and the defendants' lawyers for their suggestions to date. He added humorously that with 751 pages, "there is not exactly a thin statement of complaint", which led to a recorded laugh in the courtroom.

The judge then summarized what is at the core of all the complexity. "For a few hundred thousand vehicles on the streets of the United States that do not comply with the law." And to the VW lawyer he would like "much more definitive suggestions on the different vehicles". VW lawyer Giuffra replied that they were very happy to agree with the plaintiffs on many questions. It clearly shows Volkswagen's goal of finding a fair and quick solution to all problems.

Then Giuffra obviously made a strategic mistake when he said: “I have to be careful what I say here, because this is a public courtroom.” Did the concealment strategy subtly accused by Volkswagen of in Germany flash through? When Giuffra said they had been in close contact with the Justice Department, the EPA and the California Air Resources Board, your Honor seemed not amused. Why? Because the reference to these discussions with higher authorities could create the impression that the civil proceedings and the court are of secondary importance. Giuffra reinforced this impression with the addition: "Any solution that we propose here requires approval from the EPA and the California Air Resources Board." The authorities have very specific requirements for any type of recall or damage repair, as is the case in numerous meetings with the authorities. The Ministry of Justice had expressly instructed that the negotiations should not be made public.

Giuffra generously admitted to giving the judge a few “basic points”. So VW was obliged to come up with solutions as quickly as possible. And VW is focused on restoring trust, above all, regaining customer trust. Selling these banal matters of course as “basic points” should have been noted with astonishment in the courtroom. Actually incomprehensible that a top American lawyer ignores the fact that a US judge in his courtroom only tolerates the law about himself, indications of an official's non-disclosure obligation are not necessarily well received.

Giuffra reported that he spoke to VW boss Müller several times a week. Therefore, Müller has a precise idea of ​​what the framework for a solution could be. He also speaks to lawyer colleague Kenneth Feinberg twice a day, "also on weekends". Feinberg is working on various options to come to an agreement with the authorities and plaintiffs. If a solution is found, this will also be used as the basis for a court settlement in the civil suit. “If we don't reach an agreement with the plaintiffs, but with EPA and CARB, then Feinberg's proposals will be followed. Referring to the numerous meetings, Giuffra tried to make it clear how committed Volkswagen was to finding a solution. At the end of his speech, he repeated that he had to keep details of the discussions secret. "Even if the court doesn't like that ..."

Judge Charles R. Breyer was quite understanding. He does not have the technical expertise to go deep into the details. What the technical solution could look like is up to the authorities. You should agree. But he has other concerns. It is not a matter of the plaintiffs not being able to sell their cars, it is a question of these vehicles polluting the environment. Therefore, the greatest hurry is required. You couldn't expect the perfect solution from VW, but a quick one.

The judge: “An old story about lawyers says that if you give them a year to get something done, it takes a year. But if you only give them 30 days, they'll do it in 30 days. ”After this humorous interlude, Charles R. Breyer became very serious:“ By March 24, I want a final answer from Volkswagen and the EPA as to whether they can have found a solution for these vehicles. ”At the latest on September 18 last year, the top management found out about the problems. "I don't know how long before. At this point I'm not interested in that either. But I think that six months should be enough to find a technical solution that is accepted by the US authorities. And that's the time frame I'm giving you. "

Judge Breyer was now a little more pressing in the direction of the VW lawyers: He wanted the arbitrator and ex-FBI director Robert S. Mueller, appointed by the court, to meet with the VW board of directors and the supervisory board. Mueller has even agreed to travel to Germany. “And if you now ask what is the point of that, I'll tell you why: Because it is important for my judgment.” Volkswagen has decisions to make with serious consequences for the company. "And I want to make sure that everyone understands what the consequences are before making this decision." To lawyer Giuffra: "I trust you that you will communicate that correctly."

Giuffra hurried to emphasize that Matthias Müller met with the board several times and discussed the technical solutions with the leading engineers. Judge Breyer: "This is great. But I want him to talk to the supervisory board too. ”Giuffra:“ That can be arranged. ”Judge Breyer:“ There are so many different interests that influence a decision. ”All decision-makers should be involved. Then to continue threateningly: "It is important for the decision-maker to know that certain things will happen if they do not come to a decision in the allotted time." The judge left open what things will be.

How serious Judge Breyer is with his time limit of March 24th, shows from this sentence: "I don't want to hear: We have given our suggestions to the authorities, but have not yet received an answer." After a few more remarks with the note when a solution was urgent, Breyer said to the VW attorney: “I am not expecting any comment from you now. I expect you to convey this to your client. ”Source: Court record and eyewitnesses

The process will continue on March 24th.



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