Dan, for fun, let's assume that forums like this are an exchange, a market basket of thoughts, ideas, and opinions. You invited me to express mine, which I did (copied below). Would you care to honor the forum by expressing countering views? You have offered two, so far. One is that Gen2 owners who object to the settlement have the right to opt out and pursue an independent remedy, which is true. The other is that I ought not presume that your faith that VW will deliver the promised fix, a valid correction. Do you have others? Would you care to share them? Do you have faith that VW will deliver the promised fix? If so, why? If not, why not, and does that affect how you view the proposed settlement? I'm open to arguments and positions counter to mine, and I suspect others who are dubious of this settlement will be, too. So, please, share with us.
Hi Dan, I appreciate your invitation to state my point. Read on.
I believe class counsel has an obligation to deliver a settlement that benefits all class members, as equally as possible. I also believe that a class action settlement should favor the interests of the consumers and not the admitted fraudulent wrongdoer. I believe this settlement fails on both counts.
Gen1 owners fare well under this agreement because the agreement reserves to the owners the right to choose the fates of their vehicles. They can choose to continue to drive their vehicles or they can turn the vehicles in (buyback). Whichever choice each owner makes, VW must abide by and accommodate. This is how it should be, because VW cheated and lied about it.
Gen2 owners fare less well because the agreement retains for VW the right to choose the fates of our Gen2 vehicles. Without a buyback option, Gen2 owners who wish to be done with VW are left to sell our vehicles into a market depressed by VW’s malfeasance. The alternatives are to stay with VW without submitting to the fix, at risk of decreased parts and service availability and extended warranty breach; or, submit to the fix, on faith that VW is telling the truth when it says it has a fix that will not degrade the way the vehicle performs.
The sole reason Gen2 owners are not offered a buyback is because VW insists it has a fix for Gen2s. I believe it was inherently wrong for class counsel to agree to a deal predicated on whether VW is telling the truth about having a fix. VW was fraudulent, and then VW lied about it. As such VW should not be given the benefit of the doubt about this promise. The benefit of the doubt should have gone to Gen2 consumers to decide, for ourselves, whether to accept VW’s word and wait for the fix, or reject its word as another in a series of lies, and take a buyback.
I realize that the agreement requires VW to prove its fix will work without harm, and imposes a buyback component if VW fails to do so. That is a good thing, in concept. In application, though, there are two problems. First, the timeframe to determine acceptability of the fix extends into 2018. Second, the agreement establishes EPA as the sole arbiter of acceptability. EPA’s interests in “performance” are defined differently than an owners. EPA doesn’t care if the car shifts funny, or accelerates sluggishly, or makes noises. It cares about emissions. And, of course, EPA’s mission, if not its existence, is very much in flux under President Trump. As such it is a poor arbiter to decide the outcome of a consumer class action law suit.
In my view, this settlement should have reserved the choice of fate for each Gen2 owner’s vehicle to the Gen2 owner. For those like you, Dan, who have faith that VW will deliver a great fix that will not affect performance, you would opt for the fix. For others who do not share that faith, they would opt for the buy-back. That would put the vehicle back in VW’s hands to repair and resell, assuming that its fix delivers on VW’s promises.
To the suggestion that Gen2 owners unhappy with the settlement should opt-out, I submit that is an empty option. This class was certified because it met the criteria of a class – which means that, by definition, individual suits by individual class members is inherently untenable. The way class actions should be resolved is by hearing the concerns of class members and reaching settlements that address their harms. I feel that this settlement did not accomplish that for Gen2 owers.
Again, Dan, thank you for the invitation to state my bases for objecting to this settlement.
