It would be so easy and clear to have made all this very simple, but they didn't... even after 9 months of wordsmithing.
They could have written:
- owner restitution for fraud is $0 unless you accept an option
- claim only proceeds with submission to and acceptance of an option
- class membership is withdrawn (you are opted out) without a claim indicating accepted option
Instead we get diffuse, indirect, and oblique language that does not want to be pinned down, and this (below) is just in the court's summary to the public, not even the real documentation...
Executive Summary of Proposed Class Settlement Program
"...Class Members have two options:..."
There is no indication whether these are true options (optional) or forced choices to allow one to remain in the class.
"Class Members who do not exclude themselves from the Class Settlement Program will receive a cash payment in addition to either the Buyback / Lease Termination or the free Approved Emissions Modification..."
This does not indicate that declining both options excludes one from the class, nor does it stipulate the options are required to have been accepted to receive a cash payment.
Benefits to Owners / Lessees
Buyback
"Owners receive their Vehicle Value, plus an additional cash payment (“Owner Restitution”). The Owner Restitution payment is calculated at 20% of the Vehicle Value plus $2,986.73. The minimum Owner Restitution payment for any Class Member—to be paid on top of the Vehicle Value—will be $5,100."
This does not stipulate that the cash is dependent on accepting the buyback.
Approved Emissions Modification
"If a modification for a particular engine type ultimately is approved, Class Members who own those cars will be notified when the modification is ready, and will be able to bring their cars into a Volkswagen or Audi dealership to have the Approved Emissions Modification performed free of charge. They will also receive the same Owner Restitution or Lessee Restitution payment as available to owners or lessees who choose a Buyback or Lease Termination."
This does not stipulate that the cash is dependent on accepting the fix.
"If no modification is approved for your car before May 1, 2018, you will be notified that no emissions modification is available. At that point, you will have until June 1, 2018, to accept a Buyback or exclude yourself from the Class."
This does not state that declining the buyback excludes one from the class.
"If you own a vehicle for which an approved modification does become available, you will be able to receive that modification free of charge, but the restitution payment will be paid only to those who choose to participate in the Class Settlement Program and who do not opt out."
This does not state that participation means accepting an option; in fact the use of the word "and" supports that choosing to participate and not opting out are not necessarily the same thing, but two things.
How to Obtain Settlement Benefits
Summary
"This Class Settlement Program gives Volkswagen or Audi 2.0-liter TDI vehicle owners and lessees a choice between
(1) a Buyback (based on pre-September 18, 2015 market value) or Lease Termination
and
(2) a free Approved Emissions Modification
plus (boldface in the original)
(3) a cash payment ranging, for most owners, from $5,100 to approximately $10,000 per vehicle."
That is three numbered choices being given, the third is cash restitution.
Maybe this will get cleared up during the comments period, or the court will take notice and present a clearer picture, especially concerning the owner restitution, class membership, the options, the claim, and what defined relationships these have among each other.