Volkswagen to recall 500,000 diesel-powered autos in U.S. that used software to evade pollution emissions standards

by Jim Orr

Volkswagen diesel-powered cars—marketed to consumers as “clean diesels”—emit up to 40 times more pollutants than allowed by federal pollution standards because of software designed to intentionally fake emissions testing results, officials with the company have admitted. About 11 million Volkswagen cars worldwide—including more than 500,000 vehicles in the U.S.—were sold by the company with the deceptive emissions software. Experts have predicted that Volkswagen could face billions in fines from federal regulators as well as numerous class action lawsuits from vehicle owners in what some experts are calling one of the biggest cases of automotive fraud in recent history.

Volkswagen’s deliberate effort to evade emissions test requirements for its diesel-powered vehicles came to light as a result of testing by the International Council on Clean Transportation, a non-profit environmental group that wanted to test how “clean diesel” cars performed under real world conditions. After tests of Volkswagen diesel cars revealed higher-than-expected levels of emissions, the groups enlisted the help of researchers from West Virginia University and the California Air Resources Board to conduct further tests of the Volkswagen vehicles. These tests revealed that although the vehicles emitted lower levels of pollutants during state emissions testing, the Volkswagen diesel cars released 30-40 times more pollutants than emissions standards under real world driving conditions.

Volkswagen initially attempted to explain the test results as a result of technical issues or problems with the testing protocol.  Volkswagen quietly recalled thousands of vehicles in order to purportedly fix the problem.  The problem, however, was not fixed.  Finally, officials from the Environmental Protection Agency threatened to withhold approval of the company’s 2016 Volkswagen and Audi diesel models.  At this point, Volkswagen was forced to admit that the discrepancy between the diesel models’ laboratory and real world emissions output was the result of software designed by the company to intentionally mislead federal regulators and defraud consumers.  According to the company’s admission, Volkswagen diesel vehicles with 2-liter Type EA 189 engines were equipped with software that was programmed to sense when the vehicles were undergoing emissions testing. The software turned on equipment in the vehicle that lowered emissions levels, enabling the cars to pass pollution tests.  Once the tests were complete, the secret software was turned off and the cars returned to producing emissions far in excess of federal standards.

EPA Forces Volkswagen to Recall Diesel-Powered Vehicles

The EPA has announced that it will order Volkswagen to recall 500,000 diesel-powered vehicles sold by the company in the United States.  Vehicles that will be included in the recall include 2009 to 2015 diesel-versions of Volkswagen’s Golf, Passat, Jetta, and Beetle cars, as well as the diesel version of the Audi A3.  The company has already halted the sale of 2015 and 2016 cars with the diesel engines in the United States.

Before the company issues a recall for the vehicles involved in the emissions issue, Volkswagen will be required to develop a comprehensive plan regarding how it will address the software and fuel efficiency problems with these vehicles. Experts say that whatever technological solution Volkswagen can devise for fixing issues with the 500,000 diesel vehicles, it will most likely mean reducing the performance, drivability, or fuel economy of cars—the very factors that attracted many drivers to Volkswagen’s diesel-powered cars in the first place.

Volkswagen is currently facing a criminal investigation by the Justice Department in connection with potential violations of federal environmental laws regarding the emissions issues with its diesel-powered cars. Officials with the company allegedly told EPA officials that discrepancies between the laboratory and road emissions for its diesel engines were the result of a technical error, statements that the company has now admitted were false.

Experts have stated that the EPA’s ability to force Volkswagen to acknowledge the extent of problems with the company’s diesel-powered vehicles were the result of the agency’s increased regulatory powers compared with those of auto regulators. The National Highway Traffic Safety Administration is able to impose a maximum fine of $35 million for violations of safety regulations. General Motors, for example, was hit with just such a fine for safety issues with its vehicles that have now been linked to at least 124 deaths. In contrast, under the Clean Air Act, Volkswagen could be fined by the EPA as much as $37,500 for each of the 500,000 diesel vehicles in the U.S.—a potential fine of as much as $18 billion. However, even with these increased regulatory powers, it still took the EPA a year to bring the truth about Volkswagen’s diesel-powered autos to light.

Lawsuits Against Volkswagen Over ‘Clean Diesel’ Vehicles

Volkswagen says that it has set aside about $7.3 billion—or about half a year’s profits—to cover the costs of fixing the recalled diesel vehicles, fines, and other costs related to the emissions software problem with its vehicles. Some of these funds will also likely be used to cover costs regarding the company’s legal liability to victims who purchased Volkswagen vehicles that do not pass emissions testing under real world driving conditions.

Although only a few class action lawsuits have been filed against Volkswagen so far, legal experts predict that the German automaker may face additional litigation from angry drivers who feel they were misled when they purchased the company’s “clean diesel” cars. Some experts have predicted that the recall could have a significant and lasting impact on the Volkswagen brand based on the scale of the problem and the company’s deliberate effort to mislead regulators and consumers.  Others fear that owners of the recalled cars will face a serious diminution in the value of their cars.

For many older drivers, diesel-powered vehicles evoke memories of unreliable, high pollution cars from decades past. Volkswagen’s marketing of its new “clean diesel” vehicles sought to erase these memories with a newer fleet of vehicles that the company said offered drivers both performance and environmental friendliness. Many drivers opted for Volkswagen “clean diesel” vehicles after test driving other environmentally friendly autos such as the Toyota Prius or the Nissan Leaf, which many found less fun to drive. The revelation that Volkswagen’s diesel-powered autos emitted 40 times more nitrogen oxide than EPA-permitted levels in order to attain these drivability improvements has left many car owners who purchased the vehicles feeling betrayed by  the automaker.

Heygood, Orr & Pearson and Consumer Class Action Lawsuits

Drivers who purchased a diesel-powered car manufactured by Volkswagen may be eligible to file a consumer fraud lawsuit against the company, whether it be a stand-alone lawsuit or a class action lawsuit filed on behalf of other car owners. The first step in taking legal action is to speak with an experienced attorney who can provide you with legal advice regarding your rights.

The attorneys at Heygood, Orr & Pearson have represented numerous plaintiffs in class action lawsuits involving consumer fraud. We have filed class action cases on behalf of investors who claim they were deceived about the value of life settlements investments, and have also represented consumers who were allegedly misled by Samsung regarding the memory capacity of its Galaxy S4 phones.

We believe that when consumers are the victims of corporate wrongdoing, the companies that commit these actions should be held accountable in a court of law.

At Heygood, Orr & Pearson, we have the financial resources to handle even the most complex cases from beginning to end. There are many instances when we have invested hundreds of thousands of dollars in a case in order to take it to trial. We are committed to achieving justice for our clients, whatever the cost.

If you purchased an Audi or Volkswagen diesel-powered car involved in the recent recall announcement, contact the lawyers at Heygood, Orr & Pearson to learn more about your legal rights. For a free legal consultation to learn more about whether you may qualify to file a lawsuit, please call us toll-free at 1-877-446-9001. You can also contact our office by following the link to our free case evaluation form and answering a few simple questions about your situation to get started.

by Jim Orr

Jim Orr is a licensed attorney and a partner at HO&P focusing on business and personal injury litigation. Jim was selected multiple times to the Super Lawyers List and has tried 70+ cases to verdict.