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Thursday, 25 August 2016

VW Franchise Dealers Reach Proposed Settlement with Volkswagen Following Diesel Emissions Scandal | Hagens Berman | National Class Action Litigation Firm based in Seattle, WA

Hagens Berman announced on their website that a settlement has been reached between dealers and VW relating to the emissions crisis. The agreement creates a settlement fund and provides additional benefits to all US VW dealers. The funds are to be paid out within 18 months. The precise formula for the payout is still being refined, and more details will be announced over the coming weeks. Factors which will determine the amount of each dealer's payout include the size of the dealership and the size of the market it serves.

VW has agreed under the settlement to repurchase used diesel cars in dealers' stock which cannot be fixed. The terms of the repurchase will be the same as those that apply to repurchases from consumers and independent dealers - no group will receive special treatment.

The proposed settlement has to be approved by U.S. District Court judge Charles Breyer. It will go before him for preliminary approval in the middle of September, and if approved notice will then be sent to dealers.

The settlement does not resolve claims against Robert Bosch GmbH and its U.S. subsidiary.

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Monday, 22 August 2016

Texas: judge rejects GM ignition-switch claim

From Reuters comes the news that a judge in Texas has thrown out the second of 20 test cases involving the ignition-switch problem that, pre-Dieselgate, was probably the biggest product liability story in the automotive world, closely followed I suppose by the Takata airbags saga. It seems that the plaintiff in the rejected claim hadn't done much to show a chain of causation: the fault with the ignition switch was known, but there was nothing to show that it had pitched her car into the central barrier. Res ipsa loquitur? Apparently not.

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VW plaintiffs' lawyers to seek up to $332.5 million in fees, costs from emissions settlement

VW plaintiffs' lawyers are to seek up to $332.5 million in fees and costs from any forthcoming emissions settlement, according to Automotive News (11 August). That's in addition to the $10bn settlement figure. Unsurprisingly there is as yet no agreement between the plaintiffs and the manufacturer, papers only just having been filed with the court in California. VW has agreed to pay reasonable fees and costs - but that leaves a lot of room for argument.

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Sunday, 21 August 2016

Used Vauxhall Zafira B sales 'may have been illegal if repairs not carried out'

Car Dealer Magazine reports that used Vauxhall Zafiras appear to have been sold without repairs having been carried out. The model is currently undergoing its second recall, the magazine reports. The problem was revealed on the radio consumer programme, You and Yours, and Car Dealer asserts that it may be illegal to sell the car without attending to the repairs. The DVSA states in official guidance that dealers have to check for outstanding recalls and attend to repairs before selling the car, whether to a consumer or in the trade. It doesn't cite chapter and verse, but it is clear that a car that had not been fixed could be unroadworthy as well as being not of satisfactory quality. Criminal and civil laws could be engaged.

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Korea Widens Emission Test Probe to All Foreign Car Brands - Bloomberg

Having fined VW, the South Korean authorities have widened their investigations into fabricated emissions and noise-reduction test results to cover all imported marques - which account for some 15 per cent of its market.

Bloomberg has the story.

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VW Diesel Scandal Threatens to Ensnare German Supplier Bosch - Bloomberg

Lawyers in the US acting for VW owners allege that Bosch played an active part in a "decades-long conspiracy" involving defeating emissions controls. The software which accomplished this was provided by Bosch. The company is already a defendant in litigation which is in progress in San Francisco. This piece is based on a report by Bloomberg. There is also a report on the Reuters website.

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Who's responsible when an autonomous car crashes?

Tesla owner in Autopilot crash won't sue, but car insurer might, reports Automotive News. The car drove into a barrier on a stretch of road in rural Texas which the owner had often let the car navigate before. He suffered nothing more than a bloody nose, thank goodness, but has the distinction of being one of the first people to cause the question of liablity to be posed.

Tesla market their Autopilot function as an "assist feature", saying that drivers need to keep their hands on the wheel and be prepared to take over control - although one might criticise the choice of trade name, which might give a rather different impression. In fact, today (22 August) The Guardian reports that Tesla has changed the name under which it markets the stuff in China, from something that loosely translates as "self-driving" to something like "driver assist". This follows an accident in China where the non-driver said he'd relied on Tesla calling the system “zidong jiashi” (自动驾驶, I think), which can be translated as "self-driving" but which can also be translated as "autopilot", which (being the word they use in English) is presumably what they intended. It certainly demonstrates the problems that translations can create, and there are commentators on the Internet saying that the Chinese crash was the result of a bad translation. Apparently Tesla's Chinese website uses the English word Autopilot but now also has the words "zidong fuzhu jiashi" (Autopilot 自动辅助驾驶) which translates as "automatic assist driving", or "automatic auxiliary drive (according to Yandex Translate) - I guess the 辅助 ("fuzhu") makes all the difference.

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VW gains approval for more emissions fixes

According to Reuters, VW has received approval from the KBA to modify 140,000 2-litre cars to overcome the problems with the emissions control systems. That makes about 5.2 million cars in Europe (out of 11 million worldwide) for which fixes have been agreed, apparently leaving some 2.3 million in Europe to deal with.

KBA, Germany's vehicle testing authority, determines how the matter is treated throughout the EU. Should something like this happen again in a few years time, it will be fun to watch how the UK manages to go it alone.

California lawmaker to withdraw zero emissions vehicle bill

Automotive News reports that California Assemblywoman Autumn Burke is withdrawing a bill she had introduced earlier in the month, which would have required car-makers to ensure that 15 per cent of their new car sales comprised zero-emission vehicles by 2025. It sounds like an ambitious goal, and with the car industry, the oil industry, and unions all against it, there wasn't much chance of it getting very far. Ms Burke will meet stakeholders to discuss producing a more acceptable bill next session, but in any case state legislation will ensure that there are 1.5 millionZEVs on the roads of California by 2015 - or at least that's what the law requires.

Ms Burke earlier ( explained that without her bill the state would not come close to its existing target. The big problem with the California approach is said to be the fact that it is based on credits, which manufacturers of traditional cars can buy from ZEV manufacturers - which you might recall accounted for much of Tesla's profitability in the past.

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Harley-Davidson fined $12 million for defeat device

Now motorbikes too. Harley-Davidson has agreed to pay a $12 million civil fine and to stop selling illegal after-market devices that cause its motorcycles to emit too much pollution, the U.S. Justice Department said. The DoJ's statement is here.

Thursday, 18 August 2016

Consumer protection enforcement guidance: CMA58 - Publications - GOV.UK

Consumer protection enforcement guidance: CMA58 - Publications - GOV.UK:

"This guidance sets out how the Competition and Markets Authority (CMA) uses its consumer protection powers to address market-wide consumer problems. It also explains how it enforces consumer protection law and uses its investigatory enforcement powers.

"The guidance replaces ‘Consumer protection – guidance on the CMA’s approach to use of its consumer powers (CMA7)’ and the Office of Fair Trading’s enforcement of consumer protection legislation guidance (OFT512)."

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Friday, 12 August 2016

'Millions' of Volkswagen cars can be unlocked via hack - BBC News

Researchers have demonstrated that seemingly most cars made by the VW group since 1995 are vulnerable to hackers cloning keys using data that can be harvested with a simple radio device. Although it appears that it is possible to get into the affected cars, at least they cannot be driven away.

BBC News:

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Tuesday, 9 August 2016

German court short-cuts VW investor claims

The Landgericht (regional court) in Braunschweig (or Brunswick, as we know it) is using a class-action style approach to deal with the claims of numerous VW investors relating to misrepresentations of capital markets data, according to its press release (in German). It will select one case as a model for some 170 other similar claims, most of them from private investors. The largest case, filed by lawyer Andreas Tilp, includes the claims of 277 institutional investors and is worth €3.26 billion.

The selected representative plaintiff will be named in the final quarter of the year. Model proceedings of this sort - the closest the German system has to US class actions - can resolve generic or common issues, but unlike American cases cannot deal with individual claims. The priocedure was introduced in 2005 following a case involving Deutsche Telekom which was the subject of thousands of claims over prospectus fraud.

Thursday, 4 August 2016

Claimant wins credit hire argument over 'super car'

Litigation Futures reports on a case in which the claimant succeeded in his claim for the credit hire of a top-of-the-range Mercedes while his McLaren was in the bodyshop having been scratched by a passing tractor. In a rather extreme application of the rule that the defendant has to take the claimant as it finds him, the judge was not swayed by the argument that he had several other cars at his disposal including a couple of Aston Martins (and was the point made that he could only drive one car at a time?).

As well as the credit hire cost, the claimant also recovered damages for the two months that it took before the Mercedes was provided. So how long did it take to deal with the scratches?

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‘Black box’ recorder used in liability trial defence | News | Law Society Gazette

Data from a ‘black box’ recorder have successfully been used in a defence at a collision liability trial at Wandsworth County Court.
In the course of the trial, which concerned a collision involving an Insure the Box customer, deputy district judge MacKenzie heard differing accounts from both parties. Data from the black box installed in the defendant’s car provided the evidence to challenge the claimant’s evidence.

The judge found that the telematics evidence was ‘overwhelming’.

Law Society Gazette

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Drivers benefit as CMA motor insurance order goes live - Press releases - GOV.UK

Drivers benefit as CMA motor insurance order goes live - Press releases - GOV.UK:

The final requirements of the Competition and Markets Authority’s (CMA)Private Motor Insurance Order came into effect today (1 August 2016). The measures are intended to boost competition and reduce premiums for drivers.
The order, which applies to all providers of private motor insurance (brokers and insurers):
  • gives better information on the costs and benefits of no-claims bonus protection (this comes into effect today)
  • bans agreements between price comparison websites and insurers which stop insurers from making their products available more cheaply on other online platforms (this came into effect in April 2015)
Alasdair Smith, Chairman of the Private Motor Insurance Investigation Group, said:
There are more than 25 million privately registered cars in the UK and these changes will benefit them by introducing more competition into the market and reducing premiums as well as providing better information for motorists.
Measures within the order have been phased in since it was made in March 2015 and we are generally satisfied with the co-operation of the insurance industry.
All private motor insurers (including brokers) are required to submit compliance reports to the CMA on 1 August, and then annually from 1 February next year. The CMA will be monitoring compliance to ensure that consumers benefit fully from the order’s provisions.

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Tuesday, 2 August 2016

RHA to represent the haulage industry in cartel claim

The Road Haulage Association (see its Press release) will represent its members by seeking compensation from the truck manufacturers who were recently penalised for their involvement in a price-fixing cartel, as Motor Law has reported previously. Although leniency was shown to the whistle-blower in the European Commission's investigation, that does not mean that they will be immune to claims for damages from those who have suffered from the effects of the cartel.

There are also likely to be claims in other EU Member States, and we will try to keep readers informed of developments.

Competition authorities have been keen for some time to encourage claims for damages, to drive home the message that cartels and other forms of prohibited conduct have victims. Under section 47A of the Competition Act 1998, a person who has suffered loss or damage because of a relevant infringement of EU or UK competition rules may claim damages and an injunction in proceedings before the Competition Appeal Tribunal or the courts of any part of the UK.

The government has produced guidance on the matter,  Quick guide to private litigation in competition cases.

Monday, 1 August 2016

Ferrari collector "not qualified" to buy a LaFerrari Spider

Fort Lauderdale, Florida, is in my experience an oddly unsettling place. The display of ostentatious wealth and conspicuous consumption can be very uncomfortable. For the avoidance of doubt I refer neither to the Pillars Hotel nor to its owner. Perhaps when the International Boat Show is in town it is particularly pronounced. It's an odd place to find the largest flea market in the world, which doubles as a 14-screen drive in "theater" or, as we might say, cinema. A combined flea market and flea-pit? I don't suppose the latter description fits very well.

Oh, and it also houses a car collection. The founder of the Fort Lauderdale Swap Shop is Preston Henn, a sometime Ferrari racing driver and an avid collector of the marque. When Ferrari announced the launch of the LaFerrari Spider, he wanted one to go with the fixed-head example he already owned. He asked his dealer to order one, and when the dealer couldn't because the importer denied the request Mr Henn sent a cheque direct to Sergio Marchionne (which was returned to him). So he sued.

Mr Henn's claim (which can be found at is for defamation. The refusal to supply him has harmed his reputation in "the universe of Ferrari aficionados" (there, I told you Fort Lauderdale could feel unsettling - it's in a different universe!). Why Ferrari considered that he lacked some qualification to own a LaFerrari Spider does not seem to have been made public (perhaps because he already had a LaFerrari?).

A better demonstration of the Streisand Effect is hard to imagine.

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