VW CLASS ACTION SETTLEMENT UPDATE (JULY 5, 2016)
We want to thank you for your patience as we know that you have many important questions about the settlement proposal. Our goal is to address most, if not all of them, with this update, so that you will have time to review the information. We will send another update by July 31, 2016 to address any additional questions that arise after the class action settlement is finalized on July 26, 2016.
The Volkswagen class action “settlement” is a proposed settlement, not a final settlement. On June 30, 2016, Judge Breyer held a hearing to discuss the announcement, and reminded everyone that the proposal must be approved by him. We assume that he will approve the settlement, but there could be some changes between now and the final approval date.
At the hearing on June 30, 2016, Judge Breyer stated:
“I think that I should note, probably what is obvious to lawyers but may not be obvious to everybody participating in this, that this is a proposed settlement, that it is the responsibility of the Court to determine whether this proposed settlement is fair, whether it’s reasonable, and that is a determination yet to be made by the Court. And so everyone should look at the documents, understand the documents, understand the terms of the settlement, and the Court will address those concerns, some concerns, if it has any, at a hearing set for July 26th in this court to determine whether or not preliminary approval of the settlement shall be given.”
We would like to emphasize that this settlement proposal is complicated, confusing, and extremely detailed. We will work through it together so that you understand your options and can make the best decision for you.
You may wish to review the following documents:
1. The Summary of Proposed Class Settlement Program. This document summarizes the proposed settlement. VW Summary of Proposed Class Action Settlement
2. The Proposed Class Action Settlement Notice–Long Form. This is the document that all VW owners should receive in the mail after the settlement receives final approval on July 26, 2016. PROPOSED VW Settlement Notice–Long Form
3. The Estimated Class Action Settlement Payments. This document shows settlement ranges to be expected for VW Owners who choose to accept the class action settlement offer. PROPOSED Estimated Class Action Settlement Payments
4. CLASS ACTION OPT OUT FORM. If you decide to Opt Out of the Class Action Settlement, this form should be completed and returned to our office no later than September 9, 2016. (We need the forms prior to the September 15, 2016 deadline). VW CLASS ACTION OPT-OUT FORM
IMPORTANT QUESTIONS AND ANSWERS
1. Does the proposed settlement agreement cover 3.0L VW/Audi/Porsche TDI vehicles?
No, it does not, so there is nothing for 3.0L vehicle owners to consider at this time. Judge Breyer set a status conference for August 25 to discuss the progress with respect to the 3.0L vehicles, and it appears that the progress on the 3.0L vehicles is running about 3 months behind. We will continue to update 3.0L vehicle owners as new information becomes available.
2. Does the proposed settlement agreement cover vehicles that were sold or traded prior to September 18, 2015?
No, if you sold or traded your vehicle prior to September 18, 2015, you are not an “Eligible Owner” and are unable to recover under the class action settlement. The Settlement Notice states:
The goal of the Class Action Settlement is to compensate everyone who owned or leased a Volkswagen or Audi 2.0-liter TDI vehicle (“Eligible Vehicle”) as of September 18, 2015 (the date the emissions allegations became public), or who now owns an Eligible Vehicle. Cars sometimes change hands, so the class members are broken into three different groups: “Eligible Owners,” “Eligible Sellers,” and “Eligible Lessees.”
However, I believe that VW and Audi owners who sold or traded their vehicle prior to September 18, 2015 are still entitled to compensation regardless of whether the class action settlement addresses your claims. You still drove a polluting vehicle without your knowledge, paid a premium for the diesel engine, and were misled by VW. Additionally, VW made a significant profit from the fraudulent sale of the vehicle to you.
3. If I sell my vehicle after June 28, 2016, can I participate in the class action settlement?
No. However, if you do sell your vehicle after June 28, 2016, you are still entitled to compensation regardless of whether the class action settlement addresses your claims.
4. What are my options?
You essentially have 3 options:
OPTION #1: Opt Out of the class by September 15, 2016. (Recommended)
We have had extensive discussions with attorneys who represent individual owners, and we, along with other attorneys, firmly believe that you will receive more compensation from VW if you opt out of the class action and continue with your individual case. In our opinion, the compensation offered by VW through the class action settlement does not address the fraudulent conduct of VW. The consumer protection statutes, like the CLRA in California, were enacted to protect consumers who are defrauded by corporations like VW, and we are confident that VW will pay more to the opt outs when faced with the alternative that VW cannot allow to happen—a jury trial. VW wants to avoid negative press and certainly does not want to give a video-taped deposition or face a jury.
OPTION #2: Accept Vehicle Repurchase Offer by September 15, 2016.
If you choose the Buyback option, you will receive your car’s September 2015 NADA Clean Trade Vehicle Value, plus a cash payment, ranging from a minimum of $5,100 to nearly $10,000, depending on your vehicle. I have attached a chart to provide estimated repurchase amounts, and a website will available on July 26, 2016 to enable you to determine the estimated Repurchase Amount. Volkswagen also has agreed to complete a Buyback of an Eligible Vehicle within 90 days of an Eligible Owner’s acceptance of Volkswagen’s Buyback offer. There are several examples in the documents that I encourage you to review.
If a class member who owns a car chooses a Buyback, the price Volkswagen will pay for that car is the September 2015 National Automobile Dealers Association (“NADA”) Clean Trade-In value of the car, adjusted for options and mileage. This figure is the value of the car in September 2015, before the emissions accusations became public (“Vehicle Value”). Owners receive their Vehicle Value, plus an additional cash payment (“Owner Restitution” or “Owner Restitution Payment”). The minimum Owner Restitution Payment for any class member—to be paid on top of the Vehicle Value—will be $5,100. Some class members may receive as much as $10,000 in Owner Restitution. The Owner Restitution Payment is calculated at 20% of the NADA Trade-In Value plus $2,986.73. The Vehicle Value is frozen as of September 2015, which means the car’s value will not decrease/depreciate if the class member waits before choosing a Buyback, except for an adjustment that might apply if the class member drives the car more than a standard number of miles per year. Certain owners also will be eligible for forgiveness of their car loan obligations.
If you lease your VW TDI, you may terminate your lease with no early termination fee, plus receive a Lessee Restitution payment of approximately half of what a Class Member who owns an identical car would receive as Owner Restitution. However, Volkswagen will not be responsible for fees for excess wear, use, and/or excess mileage at the point of vehicle surrender, or other amounts due under your lease agreement such as delinquent lease payments and related late payment fees, or costs associated with tickets, tolls, etc.
OPTION #3: Accept a vehicle repair at an uncertain date in the future that may not even work, plus a cash payment only after the repair is made and passes inspection.
I do not expect many VW owners to accept this offer due to the uncertainties surrounding the repair, including whether the repair will be approved, what affect it will have on the vehicle’s performance and mileage, and when the repair will be available. The VW owner who accepts this option will not be paid until after the repair has been approved and performed on the vehicle, but does retain an option to switch to a Buyback or Opt Out if the repair.
EPA/CARB and Volkswagen have negotiated a time line that allows Volkswagen to submit (according to engine type) proposed emissions modifications to EPA/CARB for approval. The submission, testing, and approval process take time, so class members may not know whether or not their cars have an Approved Emissions Modification for at least six months after final approval of the settlement, and possibly not until May 2018.
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 local dealership to have the modification performed free of charge. They will also receive the same Owner Restitution Payment as owners who choose a Buyback.
5. If I opt out and later settle my individual claim against VW for a cash payment, am I still eligible for the repair?
A free Approved Emissions Modification will be made available to all owners of 2.0-liter TDI vehicles. Owners and lessees who choose to exclude themselves (“opt out”) from the Class Action Settlement can still obtain an Approved Emissions Modification at no cost if one becomes available.
6. If I decide to accept the class action settlement, will any attorney’s fees or costs be deducted from the settlement?
If you elect to accept either compensation option under the class action settlement, then my firm would not receive a percentage of the recovery pursuant to the client agreement. We would accept whatever amount that we are allotted by the court to be paid separately by VW, and required to accept for any clients who elect to settle in accordance with the class action settlement offer. The amount of attorney’s fees to be paid by VW under the class action settlement is still being negotiated, but regardless of the final amount, your compensation under the class action settlement will not be reduced. We would like to assist you whether you accept the offer or decide to hold out for a better offer, and believe that we can offer valuable services and advice under either scenario. If you decide to accept the class action settlement offer, then we will assist you with submitting your claim, and continue to update you and answer your questions until your settlement is completed. If you decide to opt out and continue with your individual claim, then we will continue to work tirelessly on this litigation until VW adequately compensates our clients.
7. What happens to my loan if I accept the Buyback? What if I owe more than the Buyback Price?
This is actually the most favorable provision in the proposed settlement, and could be a financially beneficial option for a few of our clients, particularly those who may have added debt from a trade-in to their current VW loan. There are several examples in the documents that I encourage you to review.
If your outstanding loan balance is less than the Buyback Amount, Volkswagen will pay off your loan and pay you the difference. If your outstanding loan balance is between 100% and 130% of the Buyback Amount, Volkswagen will pay off your loan in full.
This is not necessarily fair, as some VW owners will receive significantly higher repurchase amounts simply because they owe more on their loans. However, if you owe substantially more than your vehicle is worth, then you should closely review this option as soon as the repurchase calculations are available on July 26, 2016.
8. Does the proposed settlement agreement cover vehicles that were sold or traded after September 18, 2015?
If you sold or traded your vehicle between September 18, 2015, and June 28, 2016, you are a class member, and will receive Seller Restitution, which is equal to one-half of the standard compensation, plus an additional to-be-determined amount in the future based on unclaimed compensation. There are several examples in the documents that I encourage you to review.
An Eligible Owner who did not own or lease the vehicle on September 18, 2015, but acquired it sometime later, will be offered a cash payment of 10% of the Vehicle Value plus $1,493.365, but no less than $2,550.
If you sold your vehicle between September 18, 2015, and June 28, 2016, then you can continue with your individual claim by opting out, and not be limited to this reduced amount.
9. Is there anything that I need to do now?
No. There is nothing to do between now and July 26, 2016, the date that the settlement agreement is expected to be approved. Beginning July 26, 2016, you will be able to see the exact Buyback and Approved Emissions Modification payments for your car by visiting www.VWCourtSettlement.com and entering your Vehicle Identification Number (VIN), mileage, and other required information.
10. What if I have already decided that I would like Opt Out of the Class Action?
If you would like to Opt Out of the Class Action, and continue with your individual claim, please complete and return the Opt-Out Form (VW CLASS ACTION OPT-OUT FORM) as soon as possible, but no later than September 9, 2016. It is important that we receive the opt out forms in advance of the actual deadline so that they can be timely submitted to the class action administrator prior to the Opt-Out Deadline of September 15, 2016. If the forms are mailed even 1 day late, then they will not be accepted, and the VW owner will be required to accept the class action settlement offer.
The settlement of the federal class action and the EPA’s claims against VW is a necessary step in the process of obtaining full and adequate compensation for your individual claim, and occurred faster than we anticipated. We look forward to assisting you until your claim with VW has been fully and finally resolved, whether you decide to accept the class action settlement offer, or opt out of the class action and continue with the VW litigation until VW fairly settles your claim, along with the thousands of other VW owners throughout the Unites States who opt out of the class action. Thank you again for the opportunity to be of service.