As most people have heard by now, Volkswagen (“VW”) is currently embroiled in a scandal after the EPA discovered that VW had programmed supposed “clean” diesel vehicles to cheat emissions tests. These cars, which included certain Audi, Porsche and VW models, were emitting nearly 40 times the amount of the pollutant nitrogen oxide, well above maximum federal emission levels, when driven in real world conditions than what the cars had been designed to emit under laboratory testing conditions. VW has now admitted to some of the most brazen corporate malfeasance ever uncovered and has announced plans to issue a recall beginning in 2016 that will fix the emission of some 500,000 vehicles sold in the United States. The details of VW’s elaborate deception can be found here. Since the scandal broke, VW’s CEO has resigned and the company’s stock price and reputation have collapsed.
What if you bought one of these “clean” cars? Although the proper thing for VW to do would be to buy back these vehicles, it is not anticipated that the federal government will force VW to do so, even though the company sold the cars in a defective condition and actively concealed this defect from its customers. Once the recall program begins, customers can choose to participate in the recall, but it is likely that the “fix” in the recall will result in decreased fuel economy, performance and, perhaps, dependability. There will also likely be a drastic decrease in the value of your car even if you participate in the recall program. What if anything can be done about that?
Customers who purchased vehicles subject to the recall can bring claims against VW for the diminution in value of the car, i.e., what was the loss of resale value of the car that has been caused by this recall and corporate malfeasance. Consumers in Massachusetts may have an additional protection in that their claims against VW can be brought pursuant to M.G.L. ch. 93A, the consumer protection statute. The statute makes it unlawful for a company such as VW to engage in “unfair or deceptive acts or practices in the conduct of any trade or commerce” and exposes a company found to violate the statute to double or treble damages plus attorneys’ fees. Based on what has been discovered to date, VW’s actions can generously be described as “unfair or deceptive” and Massachusetts consumers may be able to recover more under 93A than what consumers in other states can depending on how the recall unfolds and what the damage to consumers turns out to be.