Audi, Volkswagen move to dismiss lawsuit over 'defeat devices'

By Elizabeth Alt | Jan 15, 2018

The 2014 Audi A8   Courtesy of Audi

SAN FRANCISCO — Audi and Volkswagen recently filed a motion in the U.S. District Court for the Northern District of California to dismiss a class-action lawsuit against them, claiming the class of the plaintiffs’ complaints have nothing to do with Audi’s gasoline engines and are based just on information connected to the Volkswagen diesel emissions scandal. 

“Plaintiffs seek to bring a nationwide putative class action on the basis of conclusory, and often demonstrably irrelevant, allegations," the automakers argued it the December 11 motion.

The trial is set for March.

In November 2016, following a report from a German newspaper that said regulators in California had found automated emissions cheating in certain higher-end Audi vehicles with gasoline engines, 14 plaintiffs filed complaints against the automaker, the motion states. In October, the complaints were consolidated into one class-action suit. The plaintiffs allege that the “defeat device” allows engines to emit excessive carbon dioxide during normal driving but consumed less fuel and carbon dioxide during testing.

Audi says the plaintiffs have not alleged concrete harm or economic harm and cannot prove they would bear any future injuries. The plaintiffs allege speculative harm, stating that there are unspecified people who “suffered unspecified diminished value of their vehicles, unspecified and unquantified 'out-of-pocket and loss-of-use expenses'; 'payment for alternative transportation', and 'loss of employment due to lack of transportation.'" Audi asserts that “These naked assertions devoid of ‘further factual enhancement’ are insufficient.”

Audi claims none of the plaintiffs own the car in question, a “rare” Audi A8L with a 12-cylinder engine, nor have they provided information about what vehicle they have tested or the decreased fuel economy they purported to experience. The plaintiffs claim the device is in at least 100,000 vehicles on the road and possibly in models besides the ones they identified in the suit; the Audi A6, A7, A8 and A8L vehicles made from 2012-16 and Audi Q5 vehicles made in 2013-16.

Audi and Volkswagen claim the plaintiffs are using information from the 2015 Volkswagen emissions controversy in which the Environmental Protection Agency found Volkswagen had installed emission cheating devices in over 11 million diesel cars around the world.

“Plaintiffs appear to have copied allegations from their complaint in the diesel matter," the automakers claim. They requested the court dismiss the complaint for lack of standing, failing to plead a cognizable injury, failure to plead proximate causation, failure to provide specifics for intent to defraud, failure to state a claim for fraudulent concealment, as well as others.

Counsel from either side was not available for comment.

Audi AG, Audi of America LLC, Volkswagen AG and Volkswagen Group of America Inc. are represented by Sullivan & Cromwell LLP.

The plaintiffs are represented by counsel with Lieff Cabraser, Heimann & Bernstein LLP, Baron & Budd PC, Boies Schiller & Flexner LLP, Keller Rohrback LLP, Motley Rice LLC and Bailey Glasser LLP.

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