In re Volkswagen "Clean Diesel" Marketing, Sales Practices, & Products Liability Litigation

TRANSFER ORDER Sarah S. Vance, Chair Before the Panel:* Three motions have been filed by plaintiffs who move under 28 — 1368 — U.S.C. § 1407 to establish centralized pretrial proceedings for this litigation in, respectively, the Central District of California, the Southern District of Texas and the Eastern District of Virginia. Plaintiffs’ motions include 63 actions pending in various districts, as listed on Schedule A.1 The Panel also has been notified of 451 potentially related actions filed in over 60 federal districts.2 These cases primarily concern certain 2.0 and 3.0 liter' diesel engines sold by defendants Volkswagen Group of America, Volkswagen AG (collectively VW) and affiliated .companies, which allegedly contain software that enables the vehicles to evade emissions requirements by engaging full emissions controls only when official emissions testing occurs. No party opposes centralization, but the parties have advocated for 28 transferee districts located across the nation. VW responded in support of centralization in the Eastern District of Michigan or the Eastern District of Virginia, although at oral argument, VW announced that it no longer supported centralization in the Eastern District of Virginia. The United States and plaintiffs in several actions also support selection of the Eastern District of Michigan as the. transferee district. Scores of plaintiffs, as well as amicus,3 have responded in support of centralization in the following districts: the Central, Eastern, Northern and Southern Districts of California; the Northern and Southern Districts of Illinois; the Eastern and Southern Districts of New York; the Northern and Southern Districts of Ohio; .the Eastern, Middle and Western Districts of Tennessee; and the Northern District of Alabama, the District of Arizona, the District of the District of Columbia, the District of Kansas, the Western District of Kentucky, the Eastern District of Louisiana, the District of Massachusetts, the District of Minnesota, the District of New Jersey, the Northern District of Texas and the Western District of Washington. After considering the argument of counsel, we find that the actions in this litigation involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions involve common factual questions regarding the role of VW and related entities in equipping certain diesel engines with software allegedly designed to engage emissions controls only when the vehicles undergo official testing, while at other times the engines emit nitrous oxide well in excess of legal limits. Since ,the filing of the motion, hundreds of cases, mostly class actions, have been filed on behalf of, inter alia, dealers, owners and lessees of affected vehicles. Centralization will eliminate duplicative discovery, avoid inconsistent pretrial rulings (especially on issues relating to class certification), and conserve the — 1369 — resources of the parties, their counsel and the judiciary. This litigation began on September 18, 2015, when the U.S. Environmental Protection Agency issued a Notice of Violation of the Clean Air Act to Volkswagen AG, Audi AG and Volkswagen Group of America, Inc., that detailed the unauthorized use of a software-based defeat device' in approximately 480,0 diesel automobiles manufactured since 2009.4 The litigation is international in scope. The vehicles addressed by the Notice of Violation are only a fraction of the estimated 11 million affected vehicles worldwide. Potentially relevant witnesses and evidence from VW and other entities involved in the design, production, sale and marketing of the affected vehicles and the components at issue likely are located outside of the United States. Indeed, much of the underlying conduct at the center of plaintiffs’ claims likely occurred in Germany. The parties’ extensive briefing, as well as oral argument, has convinced us that this controversy touches multiple districts across the United States and that the various VW entities hold ties to many districts. For instance, VW Group of America .and a similar division of Audi are based in the Eastern District of Virginia, where corporate executives and certain relevant documents and witnesses may be found. New Jersey is the domestic VW affiliates’ State of Incorporation and where some of its U.S. and regional operations are based. The Eastern District of Michigan is where Environmental Protection Agency testing facilities and VW’s Engineering and Environmental Office- are located and governmental investigations reportedly are occurring. California is the State with the most affected vehicles and dealers, where significant testing of affected vehicles occurred, and the home of the California Air Resources Board, which played an important initial role in investigating and, ultimately, revealing .VW’s use of the defeat devices. Tennessee is home to a large VW manufacturing plant in Chattanooga that produced some of the affected vehicles. While all of these districts may yield some or even much discovery, no single district possesses a paramount factual connection to these, cases. And none of the cases now before us'has advanced.so far in -the few months since their filing as to give any particular district unique insight or knowledge of this controversy. While any number of transferee districts could ably handle this litigation, we are persuaded that, in these circumstances, the Northern District of California is the appropriate transferee district for this litigation. There are 30 actions pending in the Northern District of California, including the first-filed case in the nation,, and plaintiffs have filed a total of 101 cases in the state of California — nearly a fifth of all cases filed nationwide. As discussed, relevant documents and witnesses may be found in both the Northern District and throughout California, given the role played by the California Air Resources Board in uncovering VW’s use of defeat devices on its diesel engines. We select Judge Charles R. Breyer as the transferee judge because he is a jurist who is thor — 1370 — oughly familiar with the nuances of complex, multidistrict litigation by virtue of having presided- over nine MDL dockets, some of which involved numerous interna-, tional defendants. We are confident that Judge-Breyer will steer'this controversy on a prudent and expeditious course. Finally, the parties raise issues concerning whether certain types of actions should be included in the centralized proceedings. First, VW suggests that securities actions for owners of VW American Depositary Receipts should be included in a separate track in the MDL. VW stated in a recent filing that five cases involving these claims are pending in various districts. Second, plaintiff in the District of Montana Ballew action opposes inclusion of his action in the MDL proceedings, given the allegedly unique claims in that action that consumers should not have to continue to make payments to VW Credit, pursuant to the Federal Trade Commission’s Holder Rule, 16 C.F.R. § 433.2, and the Uniform Commercial Code. Because none’ of these cases is on the present motions to transfer, these actions are not before us. Therefore, we will address the question of the inclusion of these cases in the conditional transfer order process. See Panel Rule 7.1. IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of California are transferred to the Northern District of California and, with the consent of that court, assigned to the Honorable Charles R. Breyer for coordinated or consolidated pretrial'proceedings. SCHEDULE A MDL No. 2672 — IN RE: VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION Northern District of Alabama WARREN MANUFACTURING INCORPORATED, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC., C.A. No. 2:15-01655 REDMOND v. VOLKSWAGEN GROUP OF AMERICA INC., C.A. No. 5:15-01648 • LUCAS, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 5:15-01672 Central District of California NETKIN v. VOLKSWAGEN OF AMERICA INC, ET AL., C.A. No. 2:15-07367 MITSUDA v. VOLKSWAGEN GROUP OF AMERICA INC, ET AL., C.A. No. 2:15-07375 ANGELO v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 2:15-07390 STEELE v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 2:15-07391 WALKER v. VOLKSWAGEN GROUP OF AMERICA, INC, ET AL., C.A. No. 2:15-07395 YELL v. VOLKSWAGEN GROUP OF America inc., et al., c.a. No. 2:15-07429 MACAULEY, v.. VOLKSWAGEN GROUP OF AMERICA, INC., ET AL., C.A. No. 2:15-07430 STRICKLIN, .ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC., ET AL., C.A. No. 2:15-07431 TEMKIN, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 2:15-07432 GIAUQUE, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 2:15-07473 — 1371 — WEISS, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., CA. No. 2:15-07474 CROSSON, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., ET AL., C.A. No. 2:15-07475 KOUDSI, INC. v. VOLKSWAGEN GROUP OF AMERICA, INC., C.A. No. 2:15-07477 HILL v. VOLKSWAGEN GROUP OF AMERICA INC, ET AL., C.A. No. 2:15-07517 MCCABE, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., C.A. No. 5:15-01930 ' ' HENDRICKS v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 5:15-01948 DELLAQUILA, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC., ET AL., C.A. No. 8:15-01525 Northern District of California FIOL v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No; 4:15-04278 LAU, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC, ET AL., C.A. No. 4:15-04302 BENÍPAYO, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC., C.A. No. 4:15-04314 HALL v. VOLKSWAGEN GROUP OF AMERICA, INC., C.A. No. 4:15-04340 MAYERSON, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., ET AL., C.A. No. 4:15-04390 GOODRICH, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., ET AL., C.A. No. 4:15-04397 DRURY, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., C.A.- No. 4:15-04401 Southern District of California BENNETT v. VOLKSWAGEN GROUP OF AMERICA, INC., C.A. No. 3:15-02106 KARCSAY v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. ,N¿- 3:15-02110 HANDAL v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 3:15-02127 District of Colorado STANLEY, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC., C.A. No. 1:15-02113 Middle District of Florida SMITH v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 2:15-00570 Southern District of Florida LOWRANCE v. VOLKSWAGEN AG, ET AL., C.A. No. 0:15-61993 WEILAND v. VOLKSWAGEN GROUP OF AMERICA, INC., ÉT AL., C.A. No. 9:15-81316- Middle District of Georgia ■ ' WEST v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 3:15-00093 Northern District, of Georgia SILVERMAN v. VOLKSWAGEN AG, ET AL., C.A. No. 1:15-03332 ■ • . Northern District of Illinois DORN, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 1:15-08286 — 1372 — Southern District of Illinois SMITH v. VOLKSWAGEN GROUP OF AMERICA INC., C.A. No. 3:15-01053 LANCE, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 3:15-01058 Southern District of Iowa GALL v. VOLKSWAGEN GROUP OF AMERICA, INC, ET AL., C.A. No. 3:15-00106 District of Kansas BUSTAMANTE, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC., C.A. No. 2:15-09278 Eastern District of Kentucky TRIPLETT v. VOLKSWAGEN GROUP OF AMERICA, INC, ET AL., C.A. No. 0:15-00076 Western District of Kentucky WAGNER v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 3:15-00748 District of Maryland FELDMAN, ETAL. v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 1:15-02894 District of Massachusetts NAPARSTEK v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 1:15-13418 BONDA v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 1:15-13419 KERWOOD v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 1:15 -13435 Eastern District of Michigan CARROLL v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 2:15-13360 Western District of Missouri HENLEY v.- VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 4:15-00734 District of New Jersey LEVIN v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 2:15-06985 CRISTON v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 2:15-06988 DEFIESTA ETAL. v. VOLKSWAGEN GROUP OF AMERICA INC., C.A. No. 2:15-07012 Eastern District of New York CLINTON, ET AL. v. VOLKSWAGEN GROUP OF AMERICA, INC, C.A. No. 1:15-05497 ENDY, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC, ET AL., C.A. No. 1:15-05516 Western District of North Carolina VINSON v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 1:15-00213 Southern District of Ohio FARMER v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 1:15-00615 District of Oregon BRICKER v. VOLKSWAGEN GROUP OF AMERICA, C.A. No. 3:15-01785 — 1373 — Eastern District of Tennessee HENDERSON v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 1:15-00248 SONNENBURG, ET AL. v. VOLKSWAGEN GROUP OF AMERICA INC, ET AL., C.A. No. 1:15-00250 BULLARD v. VOLKSWAGEN GROUP OF AMERICA INC., ET AL., C.A. No. 1:15-00251 Southern Distñct of Texas HARRIS v. VOLKSWAGEN GROUP OF AMERICA INC, C.A. No. 2:15-00405 District of Utah CATLETT v. VOLKSWAGEN GROUP OF AMERICA, C.A. No. 2:15-00681 Eastern Distñct of Virginia BREWITT, ETAL. v. VOLKSWAGEN AG, ET AL., C.A. No. 1:15-01223 Footnotes [*] Judges Marjorie O. Rendell, Charles R. Breyer and Lewis A. Kaplan did not participate in the decision of this matter. Additionally, certain Panel members who could be members of the putative classes in this litigation have renounced their participation in these classes and have participated in this decision, [1] Since the filing of the motions, one action pending in-the Northern District of Ohio was dismissed. [2] These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h), 7,1 and 7.2. [3] The Competitive Enterprise .Institute’s Center for Class Action Fairness, [4] Affected 2.0 liter TDI diesel models include: Jetta (Model Year 2009 — 2015), Jetta Sport-wagen (2009-2014), Beetle (2012-2015), Beetle Convertible (2012-2015), Audi A3 (2010-2015), Golf (2010-2015), Golf Sportwagen (2015) and Passat (2012-2015). The EPA issued an additional, similar notice regarding further ¿missions cheating software on November 2, 2015, covering certain 3.0 liter diesel models: Volkswagen Touareg (2014), Porsche Cayenne (2015), Audi A6 Quattro (2016), Audi A7 Quattro (2016), Audi A8 (2016), Audi A8L (2016) -and Audi Q5 (2016).