VW faces the music (and just the first part)

The feds started their first lawsuit against Volkswagen recently, along with many private class action suits filed previously. The Department of Justice press release is here, with a link to the complaint.

In related news, VW has refused to turn over internal emails to American investigators, citing German privacy laws. Americans were less than pleased.

Paragraphs 92 and 93 from the complaint should be chilling to VW -

92. The United States’ efforts to learn the truth about the emission exceedances and other irregularities related to the 2.0L Subject Vehicles, including whether VW had committed the violations of federal law alleged herein, were impeded and obstructed by material omissions and misleading information provided by VW entities including at least VWoA and Volkswagen AG. 

93. VW entities including at least Volkswagen AG knowingly concealed facts that would have revealed the existence of the dual-calibration strategy utilized in the 2.0L Subject Vehicles to regulators when they had a duty to share such information, and also engaged in affirmative misrepresentations and took affirmative actions designed to conceal these facts.

I've argued that the time between May 2014, when published results indicated VW had a problem and September 2015, when they admitted they installed defeat devices will get the company in even more trouble than it originally had, and these two paragraphs are the start.

This federal lawsuit is a civil action not a criminal complaint, but the feds haven't ruled out a criminal lawsuit, and in addition to criminal violations of the Clean Air Act, those claims sound like obstruction of justice charges. Here in this civil case, they can provide the justification for punitive damage multipliers of the civil damages (complaint doesn't specifically call for punitives, however).

The lawsuit calls for over $30,000 in damages for each violation (car), plus other damages. The total is over $40 billion, although that's more likely a starting point for a negotiated settlement.

Some claim the large amount is unfair and could make VW regret ever coming to America. I think if it were possible to identify and communicate with the relatives of the estimated 59 people killed so far by the illegal NOx emissions, they'd say the best situation would've been for VW to have never come.

As I mentioned earlier, no criminal cases yet, but take a look at the video posted above where two hackers show how they hacked into VW's electronics to understand how the defeat device software worked (and thanks Eli for the video tip). Many people may like the hacking-focused second half of the video, but as a lawyer I'm particularly interested in the first half, where the apparently-former-VW-engineer speaker describes the amount of documentation and top-down control that is involved in everything the company does (UPDATE:  per the comments, he's from BMW and not VW).

So it's interesting to see the company resisting requests to turn over internal emails, while at the same time claiming it was a small group of bad-apple engineers and designers below the board management level that was responsible. In other words, our company VIPs weren't involved and we're not going to turn over the documents that would test that statement.

Given the 16 months of obstruction, I assume VW's position is that it unluckily handed control of the response to the investigation in May 2014 to the same bad apples that created the problem, and those people fought a two-front war, lying both to the outside world and upper management, presumably while trying unsuccessfully to come up with a software hack that would erase both the defeat device software and evidence of its existence. In other words, VW is throwing these people under the VW bus hard, reversing and running over them again, and saying they are intentional criminals. There absolutely has to be a criminal investigation under VW's theory of what happened. Whether that theory, even if correct, keeps VW from corporate criminal liability is a separate question.

Finally, no mention anywhere so far about environmental consequences of VW's violations. We'll see about that.