Volkswagen and Audi won an appellate ruling affirming the dismissal of a proposed class action on behalf of almost 150,000 consumers seeking up to $325 million in economic damages, plus punitive damages, RICO trebled damages and attorneys’ fees. On January 20, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the dismissal of the lawsuit in its entirety, holding in Adam Schell v. Volkswagen AG that plaintiffs had suffered no injury.
The case was brought by former owners who both bought and sold their Volkswagen or Audi cars before the automakers’ use of an emissions “defeat device” became public. The plaintiffs alleged that they had been deceived into paying a “clean diesel premium,” and that they did not fully recover the premium when they sold their cars prior to the revelation of the defeat device.
In 2020, Judge Charles Breyer (N.D. Cal.) dismissed the case, agreeing with Volkswagen and Audi that plaintiffs had failed to offer evidence that any price premium existed, or that if any premium existed, it was not fully recovered at the time of resale. He also excluded testimony of all three of plaintiffs’ expert witnesses on this key point, marking the first time that the testimony of several of these experts had been excluded under Daubert. Robert Giuffra Jr., Bill Monahan and Tom White won Litigator of the Week honors from The American Lawyer for this result.
On appeal, plaintiffs abandoned two of their three experts and elected to defend only one of their experts, Ted Stockton—and even then, only one of Mr. Stockton’s five originally proposed methodologies. The Ninth Circuit agreed that Mr. Stockton failed to calculate a clean diesel premium, leaving the plaintiffs without any evidence of an injury.
The S&C team that represented Volkswagen and Audi included Robert Giuffra Jr., Michael Tomaino, Jeff Wall (who argued the appeal), Bill Monahan, Tom White, Bill Wagener and Tyler Dato. The American Lawyer recognized the team with a Litigator of the Week “Shout Out” for this result.