Petition for Writ of Certiorari — Willard Claytor, et al., Petitioners v. Volkswagen Group of America, Inc.
Supreme Court briefFeb 20, 2018
Ask Donna
What actually matters in this document.
Text
No. _______
In The
Supreme Court of the United States
WILLARD CLAYTOR, ET AL.,
Petitioners,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.,
Respondent.
On Petition for Writ of Certiorari to the
Supreme Court of Virginia
PETITION FOR WRIT OF CERTIORARI
*Frank K. Friedman, Esq.
Erin B. Ashwell, Esq.
Woods Rogers PLC
10 S. Jefferson Street,
Suite 1400
Roanoke, VA 24011
(540) 983-7692 (Telephone)
(540) 983-7738 (Telephone)
(540) 983-7711 (Facsimile)
friedman@woodsrogers.com
eashwell@woodsrogers.com
*Counsel of Record
James B. Feinman, Esq.
1003 Church Street
P. O. Box 697
Lynchburg, VA 24505
(434) 846-7603 (Telephone)
(434) 846-0158 (Facsimile)
jb@jfeinman.com
Counsel for Petitioners
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
i
QUESTIONS PRESENTED
1. Does the preemption clause at Section 209(a)
of the Clean Air Act, 42 U.S.C. § 7543(a), which
limits state creation and enforcement of emissions
standards with regard to new motor vehicles that
have not passed into the hands of consumers, bar
individuals from bringing state law claims related to
their post-sale use of cars that violate the emissions
standards set by the Clean Air Act and violate the
Virginia “State Implementation Plan” under that
Act?
2. Do individual actions under state law that
seek damages for the upset of bargained for
expectations, nuisance, and related state law claims
“interfere” with the Clean Air Act, where such
actions do not seek to enforce any emissions
standard that differs from the Clean Air Act? In
other words, does the Clean Air Act function as a de
facto damages limitation with regard to cars that
violate emissions standards, limiting liability to
damages recoverable under federal law?
ii
LIST OF PARTIES TO THE PROCEEDING
BELOW
1. Willard Claytor, William Albert, Nathan
Ambler, Kenneth Bredemeier, Lee Ann Covington,
Lexine R. Gill, Gabriel Kajeckas, Dennis A. Keefe,
Douglas Lindamood, Robert McLaughlin, Kathyrne
McLaughlin, James Poodiack, Angel Rojas, Kayla
Danielle Sauls, Lisa Sleeper, Nick Swetz, Lowell B.
Sykes, Helen Truslow, and Tammy Woods are
parties to the Petition.
2. Barclay Spencer Bright, Michael DiCarlo,
Jason Dowd, John Fedigan, Harold Don French, Kim
Gerette, James Gilliam, Stephen Johnson, Petrit
Karafili, Dickson Lum, Steven Ogborne, Andrew
Scheiner, Raymond Viscusi, and Benjamin Wilcox
were appellants in the coordinated proceedings
below but are not parties to this Petition.
3. Volkswagen Group of America, Inc. was
defendant/appellee below and is respondent to this
Petition.
iii
RULE 29.6 DISCLOSURE STATEMENT
Petitioners are individuals who are not subject
to the corporate disclosure requirements of S. Ct.
Rule 29.6.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
LIST OF PARTIES TO THE PROCEEDING
BELOW....................................................................... ii
RULE 29.6 DISCLOSURE STATEMENT ............... iii
TABLE OF CONTENTS ........................................... iv
TABLE OF AUTHORITIES ................................... viii
OPINION BELOW ......................................................1
STATEMENT OF JURISDICTION ...........................1
STATUTORY PROVISIONS INVOLVED .................1
INTRODUCTION .......................................................2
STATEMENT OF THE CASE ....................................7
REASONS FOR GRANTING THE PETITION .......12
I.
Lower Courts Have Failed to Coalesce
Around a Consistent Reading of the Clean
Air Act’s Preemption Language and Have
Injected Uncertainty into Individuals’ and
States’ Abilities to Seek Remedies Related
to Polluting Vehicles .........................................14
v
A.
The Pre/Post-Consumer Sale
Dichotomy is a Plain Language
Reading of the Preemption Clause and
Definitions Provisions (42 U.S.C. §§
7543, 7550) of the Clean Air Act
Adopted by Courts and Agency Action .....14
B.
Other Courts Have Barred Any
Individual or State Action that
“Relates” to a Vehicle’s Failure to
Comply with Clean Air Act Emissions
Standards ..................................................18
1.
Courts Are Applying Prior
Preemption Decisions Based on
Wholly Different Statutory
Language Without Regard to the
“New Motor Vehicle” Preemption
Clause, 42 U.S.C. §7543, of the
Clean Air Act .....................................18
2.
Courts Have Additionally Drawn
a Broad Preemptive Effect Based
on the Notion that Enforcement
Can Be a De Facto Conflicting
Standard, Though the Decisions
Leave Open the Question of
When This Occurs .............................21
3.
The Lower Courts Are Reaching
Inconsistent Results..........................24
vi
II.
This Court Should Provide Guidance
Regarding How the Structure and
Legislative History of the Clean Air Act –
Each of Which Carves Out a Role for
Individuals and States – Can Be Squared
with the Mobile Emissions Preemption
Language of the Clean Air Act .........................26
A.
The Findings in the Clean Air Act
Recognize the Role of States and
Individuals in Cleaning the Air ................26
B.
The Clean Air Act Was Not Intended
to Concentrate Enforcement Power
with the Federal Government or in
Federal Law ..............................................29
III. Complementary State Enforcement of
Clean Air Act Emissions Standards Does
Not “Interfere” With the Clean Air Act............31
CONCLUSION ..........................................................33
APPENDIX:
Supreme Court of Virginia Order dated
August 7, 2017 ........................................... App. 1
Opinion of the Nineteenth Judicial Circuit of
Virginia Court dated August 20, 2016 ...... App. 2
Supreme Court of Virginia Order on Rehearing
dated October 6, 2017 .............................. App. 57
42 U.S.C. § 7543 (excerpt) ............................... App. 58
vii
42 U.S.C. § 7543 (excerpt) ................................ App.58
42 U.S.C. § 7550 (excerpt) ............................... App. 59
42 U.S.C. § 7604 (excerpt) ............................... App. 60
viii
TABLE OF AUTHORITIES
Page(s)
Cases
Allway Taxi, Inc. v. City of New York,
340 F.Supp. 1120 (S.D.N.Y. 1972) .... 12, 15, 16, 17
Ass’n of Taxicab Operators USA v. City
of Dall.,
720 F.3d 534 (5th Cir. 2013)..........................21, 24
Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984) ..............................................17
Cipollone v. Liggett Grp.,
505 U.S. 504 (1992) ...................................... passim
Counts v. GM, LLC,
237 F. Supp. 3d 572 (E.D. Mich.
2017) ................................................... 19, 23, 25, 26
Cox v. Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ................................................1
In re Detroit Diesel Corp. v. AG of New
York,
269 A.D.2d 1 (N.Y. App. Div. 2000)......... 21, 24, 25
Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgmt. Dist.,
541 U.S. 246 (2004) ...................................... passim
ix
Felix v. Volkswagen Group of Am., Inc.,
No. A-0585-16T3, 0586-16T3, 2017
N.J. Super. Unpub. LEXIS 1776
(N.J.Super.Ct.App.Div. Jul. 17,
2017) ...............................................................20, 24
Huron Portland Cement Co. v. Detroit,
362 U.S. 440 (1960) ..............................................17
Jackson v. GMC,
770 F. Supp. 2d 570 (S.D.N.Y. 2011) ...... 19, 21, 25
Jensen Family Farms v. Monterey,
644 F.3d 934 (9th Cir. 2011)................................25
Beshear ex rel. Ky. v. Volkswagen Grp.
of Am., Inc.,
No. 16-cv-27-GFVT, 2016 U.S. Dist.
LEXIS 68543 (E.D. Ky. May 25,
2016) ...............................................................24, 25
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ..............................................17
Merrick v. Diageo Am. Supp. Inc.,
805 F.3d 685 (6th Cir. 2015)................................33
Morales v. TWA,
504 U.S. 374 (1994) .................................. 19, 20, 25
Robertson v. Method Valley Citizens
Council,
490 U.S. 332 (1989) ..............................................17
Sims v. Fla. Dep’t of Highway Safety
and Motor Vehicles,
862 F.2d 1449 (11th Cir. 1989).......... 12, 14, 15, 17
x
U.S. v. Volkswagen A.G.,
2:16-cr-20394-SFC-APP (E.D. Mich.) ....................8
In re: Volkswagen “Clean Diesel”
Litigation,
94 Va. Cir. 189 (Cir. Ct. Fairfax,
Aug. 30, 2016) .............................................. passim
In Re: Volkswagen “Clean Diesel”
Marketing, Sales Practices, and
Products Liability Litigation,
Case 3:15-md-02672-CRB (N.D.
Cal.) ........................................................................7
Statutes
28 U.S.C. § 1257 ..........................................................1
28 U.S.C. § 2403 ..........................................................1
42 U.S.C. § 7401 ..........................................1, 4, 27, 32
42 U.S.C. § 7402 ..................................................27, 32
42 U.S.C. § 7406 ........................................................18
42 U.S.C. § 7410 ................................................ passim
42 U.S.C. § 7416 ............................................ 15, 18, 24
42 U.S.C. § 7543 ................................................ passim
42 U.S.C. § 7550 ................................................ passim
42 U.S.C. § 7604 ................................................ passim
xi
Va. Code § 46.2-1048 .............................................9, 30
Va. Code § 59.1-196 .....................................................9
Va. Code § 59.1-207.9. .................................................9
Va. Code § 59.1 207.13 ..............................................10
Other Authorities
40 C.F.R. § 52.2420 ........................................... passim
59 Fed. Reg. 36969 (Jul. 20, 1994) ...........................16
65 Fed. Reg. 78, 21315 (Apr. 21, 2000).................2, 10
9 Va. Admin. Code § 5-40-5670 ........................ passim
9 Va. Admin. Code § 5-91-190 ................................6, 9
19 Va. Admin. Code § 30-70-310...............................30
Ariz. Admin. Code § 18-2-1029 .................................28
Conn. Agencies Regs. § 14-164c-4a ..........................28
Ga. Comp. R. & Regs. 391-3-20-.06 ..........................28
Haw. Code R. § 11-60.1-34 ........................................28
Ill. Admin. Code tit. 35, § 240.103 ............................28
Md. Code. Regs. 11.14.08.06 .....................................28
Minn. R. 7023.0120 ...................................................28
N.D. Admin. Code 33-15-08-02 .................................28
xii
N.J. Admin. Code § 7:27-14.3 ...................................28
Nev. Admin. Code § 445B.575 ..................................28
S. Rep. 90-403 (1967) ..........................................29, 30
Wis. Admin. Code NR § 485.06 .................................28
Wyo. Admin. R. Ch. 13 § 2 ........................................28
1
OPINION BELOW
The August 30, 2016 opinion of the Circuit
Court of Fairfax County, Virginia is published at In
re: Volkswagen “Clean Diesel” Litigation, 94 Va. Cir.
189 (Cir. Ct. Fairfax, Aug. 30, 2016) and is included
in the attached appendix at App. 2-56.
STATEMENT OF JURISDICTION
Claytor and the additional Petitioners invoke
jurisdiction pursuant to 28 U.S.C. § 1257. See, Cox
v. Broadcasting Corp. v. Cohn, 420 U.S. 469, 475
(1975). The Circuit Court for the County of Fairfax,
Virginia issued its opinion on August 30, 2016.
(App. 2.) The matter was certified for interlocutory
appeal by that court and the Supreme Court of
Virginia issued its refusal of the Petitioners’ writ on
August 7, 2017 and refused a petition for re-hearing
on October 6, 2017. (App. 1, 57.) The Chief Justice
of this Court extended the time for the filing of this
brief to February 19, 2018 (which carries over to the
next business day) by Order issued December 22,
2017. Pursuant to Rule 29.4(c) of this Court, 28
U.S.C. § 2403(b) may apply and a copy of the initial
filing of this matter was served on the Attorney
General of Virginia.
STATUTORY PROVISIONS INVOLVED
This petition involves fundamental questions
regarding the relationship between provisions of the
Clean Air Act (42 U.S.C. § 7401, et. seq.), and in
particular the preemption clause related to “new
motor vehicles” (42 U.S.C. § 7543(a)), the savings
2
clause of the same section (42 U.S.C. § 7543(d)), the
definitions set out in 42 U.S.C. § 7550(3) and (5), and
the Clean Air Act’s provision for citizen suits in 42
U.S.C. § 7604(e).
The Petition further involves agency action
and Virginia state regulations and causes of action.
It involves the United States Environmental
Protection Agency’s approval of Virginia’s State
Implementation Plan, including Virginia’s
regulations on “Mobile Sources” of pollution. See, 42
U.S.C. § 7410; Approval and Promulgation of Air
Quality Implementation Standards, Virginia, 65
Fed. Reg. 78, 21315, 78, 21321 (Apr. 21, 2000)
(codified at 40 C.F.R. Part 52); 40 C.F.R. § 52.2420.
INTRODUCTION
This is a case about the scope of preemption
for auto emissions under the Clean Air Act, and
whether individuals and states retain the ability to
bring state law claims for the damages that occur
when a consumer uses a vehicle that violates vehicle
emissions standards. Though the Clean Air Act
contains a savings clause for individual actions (42
U.S.C. § 7604(e)) and affirms states’ continued
regulatory authority over consumers’ vehicles (42
U.S.C. §§ 7543(d), 7550(3) (definition “new motor
vehicle”)), courts across the country have ignored the
plain terms of the law to conclude that any state law
claim that plausibly imposes consequences for a
manufacturer’s emissions violations is
impermissible.
3
The Clean Air Act expressly defines “new
motor vehicle” and “new motor engine” in a
restrictive fashion providing a temporal limitation
on the preemptive reach of the Act. In the
definitions section of the portion of the Clean Air Act
that deals with auto emissions, the Clean Air Act
provides that the terms “new motor vehicle” and
“new motor engine” only apply to cars that have not
yet passed into the hands of a consumer. It defines
those terms, saying that:
the term “new motor vehicle” means a
motor vehicle the equitable or legal title
to which has never been transferred to
an ultimate purchaser; and the term
“new motor vehicle engine” means an
engine in a new motor vehicle or a
motor vehicle engine the equitable or
legal title to which has never been
transferred to the ultimate purchaser…
42 U.S.C. § 7550(3). For the purposes of the Clean
Air Act, an ultimate purchaser is “the first person
who in good faith purchases such new motor vehicle
or new engine for purposes other than resale” – in
other words a consumer. 42 U.S.C. § 7550(5).
The definitions of “new motor vehicle” and
“new motor engine” are significant because they
provide a temporal limitation that is incorporated
into the Clean Air Act’s express preemption clause
relating to auto emissions. The Clean Air Act
provides:
4
No State or any political subdivision
thereof shall adopt or attempt to
enforce any standard relating to the
control of emissions from new motor
vehicles or new motor vehicle engines
subject to this part. No State shall
require certification, inspection, or any
other approval relating to the control of
emissions from any new motor vehicle
or new motor vehicle engine as
condition precedent to the initial retail
sale, titling (if any), or registration of
such motor vehicle, motor vehicle
engine, or equipment.
42 U.S.C. § 7543(a) (emphasis added).
This limitation is paired with a savings clause
that emphasizes the role of states: “Nothing in this
part shall preclude or deny to any State or political
subdivision thereof the right otherwise to control,
regulate, or restrict the use, operation, or movement
of registered or licensed motor vehicles . . . .” 42
U.S.C. § 7543(d). And the Clean Air Act contains an
additional savings clause for individuals, which
expressly provides that “Nothing in this section shall
restrict any right which any person (or class of
persons) may have under any statute or common law
to seek enforcement of any emission standard . . . .”
42 U.S.C. § 7604(e).
On its face, the plain text of the Clean Air Act
preserves a significant role for states. 42 U.S.C. §
7401. While states are barred from imposing
competing standards on vehicle manufacturers (with
5
the exception of California which is not at issue in
this appeal), states, like Virginia, are then free to
regulate vehicles after their transfer to consumers.
The plain text of the Clean Air Act preserves a role
for individuals to bring those state law claims that
accrue to them.
The legislative history of the Clean Air Act
explicitly recognizes a role for citizens to bring suits.
The United States Environmental Protection Agency
(“EPA”) has approved state regulations related to
mobile source emissions via “state implementation
plans.” See, 42 U.S.C. § 7410 (requiring states to
create State Implementation Plans); 40 C.F.R. §
52.2420 (2018) (EPA approval of Virginia plan,
including regulation of mobile emissions sources). In
short, the text, structure, and legislative history of
the Clean Air Act envision a role for states and –
crucially – individuals in bringing claims that may
hinge in some way on vehicle non-compliance with
emissions standards. 42 U.S.C. §§ 7401(a)(3), 7410,
7406.
The difficulty is that courts have departed
from this straightforward language because of a
practical problem created by political subdivisions
that seek to impose pre-consumer sale emissions
standards that conflict with the Clean Air Act’s
emissions standards, while calling those
inappropriately conflicting standards something
else. This “wolf in sheep’s clothing” problem has
been articulated by a variety of courts in different
and conflicting ways (discussed later) and by this
Court in Engine Mfrs. Ass’n v. S. Coast Air Quality
Mgmt. Dist., 541 U.S. 246 (2004).
6
In Engine Mfrs., this Court held that
requiring the purchase of a fleet of vehicles that met
emissions standards in excess of those authorized by
the Clean Air Act ultimately ran afoul of the
preemption clause in 42 U.S.C. § 7543(a) because it
was functionally a manufacturing standard. 541
U.S. at 255. In a classic case of the pendulum
swinging too far, many courts across the country
have held as preempted basically any action that
allows states or consumers to seek relief from the
consequences of a consumer’s vehicle that is not
complying with emissions standards. See, infra.
Section I.B.3. Within this subset of decisions, courts
have been unable to coalesce around any stable logic
or limiting principle regarding what constitutes
impermissible state regulations and enforcement
action – much less a limiting principle that gives
meaning to the plain text of the Clean Air Act. See,
infra. Section I.B.1 and 2. The net result is that
individuals possessing the same car and similar
state law claims have radically different recourse
depending on where they live. See, infra. Section
I.B.3.
This case turns on the application of the
preemption clause (section a) and savings clause
(section d) of 42 U.S.C. § 7543 to state law claims
intended to give consumers remedies for the loss of
their bargained-for expectations and other
losses/penalties when a non-new motor vehicle has
turned out to violate Clean Air Act emissions
standards. Under the plain language of the Clean
Air Act, these claims are preserved because they fall
within the exceptions set out in the savings clause,
7
because they address non-new motor vehicles, and
further because other provisions of the Clean Air Act
expressly preserve citizen actions. See, e.g., 42
U.S.C. § 7604 (citizen suits savings clause).
The question is how are courts to tell the
difference between sale and/or post-sale restrictions
that are permissible, and those that function as
inappropriate standards by some other name.
Similarly, should the Clean Air Act be construed to
respect the role of individuals and states carved out
by the text of the Clean Air Act and indicated by its
legislative history? And, fundamentally, may
Claytor and the other Petitioners act on their rights
under Virginia’s relevant “statute or common law to
seek enforcement of any emission standard?” 42
U.S.C. § 7604(e). With Volkswagen’s admission that
over 500,000 vehicles were placed on the road, in
violation of Clean Air Act emission standards and
the State Implementation Plans of many states,
these issues are of vital national importance. (See
Partial Consent Decree filed in In Re: Volkswagen
“Clean Diesel” Marketing, Sales Practices, and
Products Liability Litigation, Case 3:15-md-02672CRB, Doc. 1605-1, p. 3 of 225 (N.D. Cal.).)
STATEMENT OF THE CASE
1. The Petitioners are nineteen residents of
the state of Virginia who purchased Volkswagen
“Clean Diesels.” The Petitioners did not purchase
their Volkswagens for the purpose of resale; rather
they are consumers who bought cars from dealers or
on re-sale, with the purpose of driving legal,
8
efficient, and environmentally responsible vehicles
in their everyday lives.
The “Clean Diesels” were anything but – they
had been engineered to evade emissions testing and
can pump out up to 40 times the allowable amount of
nitrogen oxide. On September 18, 2015, the EPA
issued a Notice of Violation determining that
Volkswagen had installed defeat devices in some of
their light-duty diesel engines that allowed them to
detect when emissions were being tested and avoid
the tests. (Notice of Violation, 9/18/15, Exh. 4 to
Claytor Verified Complaint.)
Volkswagen later entered into a plea
agreement with the United States Department of
Justice, admitting to three felony criminal violations.
It admitted in a Statement of Facts to deliberately
equipping Volkswagen, Audi, and Porsche vehicles
with defeat devices to evade United States’
emissions standards. (See, Exh. 2 of Plea Agreement
found at U.S. v. Volkswagen A.G., 2:16-cr-20394SFC-APP (E.D. Mich.).) The defeat devices detect
when a vehicle is undergoing emissions testing and
then command the emissions system to engage and
function properly, so as to pass the emissions test.
However, when the vehicle is not being tested – for
example, during the morning commute – the
emissions system is rendered inoperable.
As part of the facts admitted with its criminal
plea deal, Volkswagen admitted that supervisors
within Volkswagen were presented with the
opportunity to stop the illegal scheme, but made the
decision to continue it. Volkswagen further
9
acknowledged that it “marketed, and caused to be
marketed, the Subject Vehicles to the U.S. public as
‘clean diesel’ and environmentally-friendly, when
they knew the Subject Vehicles were intentionally
designed to detect, evade and defeat U.S. emissions
standards.” In addition to misleading consumers,
Volkswagen’s use of defeat devices is believed to
have caused certain of its vehicles to develop
hardware failures when those vehicles were used by
consumers for everyday driving.
Claytor and the Petitioners Bring Virginia
Claims in Virginia Courts.
2. Claytor and the Petitioners opted out of the
national class action against Volkswagen and filed
individual state suits that were later transferred for
coordinated pre-trial proceedings to the Circuit
Court for Fairfax County, Virginia. Each of the suits
raised claims under Virginia’s statutory warranties
known as its “Lemon Law” (Va. Code § 59.1-207.9,
et. seq.) for breach of express and implied
warranties, the Virginia Consumer Protection Act
(Va. Code § 59.1-196, et. seq.), and brought claims
for rescission, fraud, temporary injunctive relief,
public nuisance, and disgorgement for unjust
enrichment.
Virginia has multiple statutes and regulations
making it illegal to operate vehicles on its roads
when that vehicle has an inoperable emissions
system. See, Va. Code § 46.2-1048, 9 Va. Admin.
Code § 5-40-5670, 9 Va. Admin. Code § 5-91-190, and
19 Va. Admin. Code § 30-70-310. 9 Va. Admin. Code
§ 5-40-5670 provides in pertinent part, “No motor
10
vehicle or engine shall be operated with the motor
vehicle pollution control system or device removed or
otherwise rendered inoperable.” Id. at (a)(3).
Notably, the EPA approved Virginia’s State
Implementation Plan which contains limitations on
mobile emissions sources. See, Approval and
Promulgation of Air Quality Implementation
Standards, Virginia, 65 Fed. Reg. 78, 21315, 78,
21321 (Apr. 21, 2000) (codified at 40 C.F.R. Part 52);
40 C.F.R. § 52.2420 (2018). One of the regulations
that the EPA approved is 9 Va. Admin. Code § 5-405670, which bars vehicles with defeat devices from
being driven on Virginia roads.
Each of the claims brought by Claytor and the
Petitioners relate to cars owned by consumers that
were being driven on Virginia’s roads. Volkswagen
demurred arguing that the Clean Air Act’s
preemption provisions embodied at 42 U.S.C. §
7543(a) preempted all of Claytor and the Petitioners’
claims. In an order in the coordinated cases, the
Circuit Court of Fairfax County held that claims
under the Virginia Motor Vehicle Warranty
Enforcement Act (also known as the “Lemon Law”),
breach of warranty claims, public nuisance, and
claims for temporary injunctive relief were
preempted. (App. 17-18.) The Lemon Law in
particular provides for a variety of greater remedies
and relief not otherwise available, including
replacement of the vehicle and/or a full refund
without a deduction for use. Va. Code § 59.1
207.13(A).
11
3. The decision below determined that
Petitioners could not bring state law claims, where
those claims asserted Volkswagen’s violation of
federal emissions standards. (App. 15-18.) In so
holding, the Circuit Court of Fairfax County
interpreted the preemption clause in Section 209(a)
of the Clean Air Act, 42 U.S.C. § 7543(a), as
expressly “bar[ring] state statutory claims and
common law claims if the legal duty that is the
predicate of the action ‘relates to’ enforcement of new
motor vehicle emission standards.” (Id. at 15.) The
Circuit Court further found that those state law
claims were impliedly preempted because
“permitting parties to bring a warranty claim on the
basis of a violation of federal emissions law would
directly interfere with a central object of federal
emission[s] regulation: enforcing manufacturer’s [sic]
compliance with emissions standards.” (Id. at 18
(brackets supplied).) Petitioners’ fraud claims and
claims under the Virginia Consumer Protection Act
were permitted to remain in the case. (Id. at 17.)
The Circuit Court certified that the issue of
the scope of preemption under the Clean Air Act was
“a controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of this litigation.”
(Order, November 2, 2016.) The Supreme Court of
Virginia held that “there is no reversible error in the
judgment complained of” and declined to grant an
appeal. (App. 1.) The Petitioners exhausted all
avenues for state appellate review. (Id. at 1, 57.)
12
REASONS FOR GRANTING THE PETITION
Courts throughout the country have struggled
to determine the extent of the preemptive effect of
the Clean Air Act on state laws related to vehicles’
failures to comply with emissions standards imposed
by the Clean Air Act. This case presents an
opportunity to address the fractured rationales that
courts have relied on to determine the preemptive
scope of the Clean Air Act’s mobile vehicle emissions
standards, while simultaneously addressing the
consequences of that preemption on individuals’
abilities to bring state law claims. With hundreds of
thousands of vehicles involved in this scandal
throughout the United States, this case is of
significant national importance.
As explained below, much of the case law
related to the Clean Air Act’s preemptive effect has
been developed in the context of state (or political
subdivision) regulatory action. See, Engine Mfrs.
Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S.
246 (2004); Sims v. Fla. Dep’t of Highway Safety and
Motor Vehicles, 862 F.2d 1449 (11th Cir. 1989);
Allway Taxi, Inc. v. City of New York, 340 F.Supp.
1120 (S.D.N.Y. 1972). But the structure and
legislative history of the Clean Air Act reveal special
considerations for actions brought by individuals.
Rather than looking to the specific language of the
Clean Air Act that addresses individual claims,
courts have drawn conclusions from cases that deal
only with regulatory action. See, e.g., Engine Mfrs.,
541 U.S. at 246. And in evaluating the preemption
13
language at issue, lower courts have applied logic
from this Court’s decisions on other preemption
language, without considering differences in
language or context. See, e.g., Cipollone v. Liggett
Grp., 505 U.S. 504 (1992); App. 10-14, 17-18
(applying Cipollone).
Lower courts have failed to develop a coherent
framework with which to determine the reach of the
Clean Air Act’s preemptive scope with regard to
“new motor vehicles” and cars that are in use. The
language of the actual preemption clause, Section
209(a)/42 U.S.C. §7543(a), needs to be squared with
the structure of the Clean Air Act – including those
provisions preserving individuals’ causes of action.
This case further raises a fundamental question of
public importance in light of the claims brought by
Claytor and the other Petitioners. Did Congress
intend the Clean Air Act to preempt every consumer
claim related to their vehicles in actual use that can
be construed as imposing a penalty on a vehicle
manufacturer? Or does the Clean Air Act preserve a
role for individual consumers to seek state law
remedies, post-sale, for the economic-loss and loss of
bargained-for expectations that occurs when a
vehicle violates those emissions standards? Put
another way, this case raises the question of whether
the Clean Air Act, in spite of its plain language,
limits statutory and common law remedies, and acts
as a de facto damages limitation for manufacturers
by narrowing the causes and avenues of relief
against them to federal causes of action.
14
I. Lower Courts Have Failed to Coalesce Around a
Consistent Reading of the Clean Air Act’s
Preemption Language and Have Injected
Uncertainty into Individuals’ and States’ Abilities
to Seek Remedies Related to Polluting Vehicles.
Courts are split with regard to their
approaches to preemption and consumers’ state law
claims against car manufacturers and state
regulation. Their decisions fall into two basic camps:
one focused on the language of the Clean Air Act and
attempting to give meaning to the definition of “new
motor vehicle” and a second that more categorically
applies rationales from other cases, without giving
meaning to the definition of “new motor vehicle” or
accounting for the savings clause for individual
actions. Yet even within these camps, the logic of
courts across the country is inconsistent, with
individuals in one state permitted to raise certain
claims, e.g. state warranty claims, that individuals
in another jurisdiction are barred from bringing.
A.
The Pre/Post-Consumer Sale Dichotomy is
a Plain Language Reading of the
Preemption Clause and Definitions
Provisions (42 U.S.C. §§ 7543, 7550) of the
Clean Air Act Adopted by Courts and
Agency Action.
A number of courts have determined the
propriety of state actions based on whether the given
action concerns cars that have passed into the hands
of consumers. This is based on the plain language of
the preemption clause, 42 U.S.C. § 7543(a) and the
15
definitions in 42 U.S.C. § 7550. Because “new motor
vehicle” or “new motor vehicle engine” is defined to
be prior to a sale to a consumer, the preemption
provision is correctly read to mean that only the
federal government may set and enforce emissions
standards that govern cars that have not been sold.
This is then reinforced by the language in the
following section, which affirms states’ abilities to
regulate cars after sale and in use. That portion of
42 U.S.C. § 7543, at section (d), provides: “Nothing in
this part shall preclude or deny to any State or
political subdivision thereof the right otherwise to
control, regulate, or restrict the use, operation, or
movement of registered or licensed motor vehicles . .
. .” 42 U.S.C. § 7543(d).1
This approach has been recognized by both
courts and by the EPA. For example, in Sims, 862
F.2d at 1449, the Eleventh Circuit struck down
Florida’s denial of vehicle registration of a gray
market vehicle on a strictly temporal theory, i.e.,
that “enforcement of the Clean Air Act before [the]
first sale [of new motor vehicles] is the sole and
exclusive prerogative of the federal government.” Id.
at 1454 (brackets in the original).
In Allway Taxi, 340 F.Supp. at 1120, a court
addressed the post-first sale regulatory world. The
Southern District of New York allowed enforcement
of a local ordinance requiring pre-1970 taxicabs “to
1 That the Clean Air Act was not meant to bar
all state enforcement actions is further bolstered by
the language of 42 U.S.C. § 7416, which provides
that states are permitted to take enforcement action
– except as set forth in 42 U.S.C. § 7543.
16
be equipped with emission control devices which
comply with 1970 federal standards and later models
to be equipped with such emission control devices as
may be specified by the New York City Taxi and
Limousine Commission.” Id. at 1123. The court held
that this ordinance was not preempted because
“congress specifically refused to interfere with local
regulation of the use or movement of motor vehicles
after they have reached their ultimate purchasers.”
Id. at 1124.
Allway is a federal district court
interpretation, but it has outsized importance
because it has been specifically adopted as an
interpretive framework for preemption by the United
States Environmental Protection Agency. See,
Preemption of State Regulation for Nonroad Engine
and Vehicle Standards, 59 Fed. Reg. 36969 (Jul. 20,
1994) (codified at 40 C.F.R. Pt. 89, Subpt. A, App.
A.)2 In setting this rule, the EPA explained that it
“expects that the principles articulated in Allway
Taxi will be applied by the courts to any State
adoption of in-use controls.” Id. at 36973. The EPA
observed that States clearly have the longstanding
ability under § 7543(a) to regulate emissions of
mobile sources of pollution in use: “Nothing in the
legislative history [of § 7543(e)] indicates such a
dramatic departure from the current ability of states
and local authorities to regulate emissions of mobile
sources in use.” Id. at 36974 (emphasis added,
brackets supplied).
2 The Clean Air Act’s preemption language
related to nonroad engines is substantially the same
as that at issue, and is at part (e) of 42 U.S.C. §
7543.
17
The interpretive approach adopted by the
EPA, and set forth in Sims and Allway – which are
still good law – is consistent with EPA activity
relative to Claytor and Petitioners’ claims. The EPA,
for example, approved Virginia’s regulatory bar on
cars with defeat devices. 40 C.F.R. § 52.2420, 9 Va.
Admin. Code § 5-40-5670(A)(3) (“No motor vehicle or
engine shall be operated with the motor vehicle
pollution control system or device removed or
otherwise rendered inoperable.”).
Agency interpretations are entitled to
deference. Robertson v. Method Valley Citizens
Council, 490 U.S. 332, 359 (1989); Chevron, U.S.A.,
Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984). The
EPA’s interpretive approach follows well-established
preemption principles by preserving a state role in
an area that has been part of historic state powers.
“In all pre-emption cases, and particularly in those
[where] Congress has legislated…in a field which the
States have traditionally occupied, we start with the
assumption that the historic police powers of the
States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of
Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470,
485, (1996) (citations omitted); see also Huron
Portland Cement Co. v. Detroit, 362 U.S. 440, 442
(1960) (“Legislation designed to free from pollution
the very air that people breathe clearly falls within
the exercise of even the most traditional concept of
what is compendiously known as the police power”).
The EPA’s approach is consistent with the Clean Air
Act’s specific preservation of individuals’ abilities to
bring state suits and states’ enforcement power –
18
even vis-à-vis mobile emissions. 42 U.S.C. §§ 7406,
7416.
However, the decision below and other courts
have not adopted the agency interpretation – and in
some cases, like the case at bar, have not even
considered its logic when coming to their own
decisions. Instead, the majority of courts have opted
for almost categorical preemption and prohibition of
state actions related to emissions – even when that
state action is targeted to consumer vehicles in use,
as opposed to “new motor vehicles” before they are
sold.
B.
Other Courts Have Barred Any Individual
or State Action that “Relates” to a Vehicle’s
Failure to Comply with Clean Air Act
Emissions Standards.
Other courts have taken a far more restrictive
view of individuals’ state law claims and any type of
state sanction applied to emissions violations. There
are essentially two lines of cases that reach this
outcome – with some recent decisions relying on
Supreme Court cases.
1.
Courts Are Applying Prior Preemption
Decisions Based on Wholly Different
Statutory Language Without Regard to
the “New Motor Vehicle” Preemption
Clause, 42 U.S.C. §7543, of the Clean
Air Act.
One line of cases relies on this Court’s
decisions in Cipollone v. Liggett Grp., 505 U.S. 504
19
(1992) and Morales v. TWA, 504 U.S. 374 (1994) to
draw interpretive rules about preemption, and to
conclude that where a state statutory or common law
claim asserts a violation of a Clean Air Act standard
it is preempted. See, e.g., Counts v. GM, LLC, 237 F.
Supp. 3d 572, 589-90 (E.D. Mich. 2017) (relying on
both Cipollone and Engine Mfrs.); Jackson v. GMC,
770 F. Supp. 2d 570, 576-78 (S.D.N.Y. 2011) (relying
on Cipollone), aff’d, Butnick v. GMC, No. 11-1068,
472 Fed. App’x 80 *, 2012 U.S. App. LEXIS 14357
(2nd Cir. Jul. 11, 2012) (unpublished), App. 14-19
(relying on Cipollone).
Both Cipollone and Morales discuss the scope
of preemption under express preemption language
from other distinct statutory schemes. In Cipollone,
this Court addressed causes of action related to
federally mandated warnings on cigarettes. 505 U.S.
at 526. It found express warranties that were rooted
in private contract were not preempted by federal
law, but that where states imposed warranty
language, such warranties were preempted by the
federally mandated warnings. Id. Morales
addresses the preemptive effect of the Airline
Deregulation Act of 1978, on National Association of
Attorney General guidelines on fare advertising. 504
U.S. at 384.
The difficulty with broadly reasoning from
either of these cases is that – as this Court expressly
stated in Morales – analysis of a preemption clause
is text specific and must begin with the actual
language used in the statute. Id. at 383. The texts
in Cipollone and Morales differ significantly from the
language in 42 U.S.C. §7543(a). The language in
20
Cipollone contained a unilateral bar of state law
requirements and is far more sweeping than the one
at issue in this case. See, 505 U.S. at 515 (“No
requirement or prohibition based on smoking and
health shall be imposed under State law with respect
to the advertising or promotion of any cigarettes the
packages of which are labeled in conformity with the
provisions of this Act.”) Similarly, Morales is a poor
fit for this context, because it involved the
application of the term “relating to,” but it contained
no language similar to the temporal division that is
present with regard to the definition of “new motor
vehicles” in the Clean Air Act. 504 U.S. at 383-390.
But the analysis of Cipollone and Morales was
applied below to create a broad preemptive effect,
and it was applied without analysis of the meaning
of “new motor vehicle” and “new motor vehicle
engine.” (App. 10-19.) In other words, the textspecific analyses of Cipollone and Morales have been
applied out of context and without a focus on the
actual language of 42 U.S.C. §§ 7543(a) and 7550, in
a way that creates a broad bar to individual
remedies.
This effect is not limited to this case, but has
been repeated time and again. The irony is that,
even when reviewing the language of 42 U.S.C.
§ 7543 in the context of Morales and Cipollone,
courts are reaching wildly different outcomes as to
what state programs and remedies remain. This is
true for warranty claims: Felix v. Volkswagen Group
of Am., Inc., No. A-0585-16T3, 0586-16T3, 2017 N.J.
Super. Unpub. LEXIS 1776 at *15-16
(N.J.Super.Ct.App.Div. Jul. 17, 2017) (certain
21
warranty claims not preempted), App. 16-18
(warranty claims preempted; incentive programs:
compare In re Detroit Diesel Corp. v. AG of New
York, 269 A.D.2d 1, 12 (N.Y. App. Div. 2000)
(incentive programs preempted) with Ass’n of
Taxicab Operators USA v. City of Dall., 720 F.3d
534, 539 (5th Cir. 2013) (incentive programs not
preempted); and other state law claims. See,
Jackson, 770 F.Supp. 2d 576-58 (barring state tort
claims in analysis similar to Detroit Diesel); In re
Detroit Diesel Corp., 269 A.D.2d at 12 (all state
common law claims that have effect of penalizing
manufacturers for violating Clean Air Act
preempted).
2.
Courts Have Additionally Drawn a
Broad Preemptive Effect Based on the
Notion that Enforcement Can Be a De
Facto Conflicting Standard, Though the
Decisions Leave Open the Question of
When This Occurs.
The second line of cases follow this Court’s
decision in Engine Mfrs., 541 U.S. 246, which was
decided expressly on the language of the “new motor
vehicle” preemption provision, 42 U.S.C. §7543(a).
However, the cases attempt to extrapolate from the
very different facts of Engine Mfrs., which was
decided in the context of state (political subdivision)
action that actually tried to impose a heightened
emissions standard that was in excess of the
standards applied by the Clean Air Act. Id. at 24950, 254-55.
22
In Engine Mfrs. this Court concluded that
aspects of the South Coast Air Quality Management
District’s purchase requirements for vehicles that
meet standards in excess of the Clean Air Act were
preempted by the preemption clause at issue, 42
U.S.C. §7543(a). Engine Mfrs. 541 U.S. at 259. The
majority opinion emphasized that though the
heightened emissions standards were not imposed
directly on the manufacturer, that by limiting fleet
operators to purchasing certain compliant vehicles,
the Management District was still imposing a
heightened standard on manufacturers. Id. at 25455. As the Court explained:
A command, accompanied by sanctions,
that certain purchasers may buy only
vehicles with particular emission
characteristics is as much an “attempt
to enforce” a “standard” as a command
accompanied by sanctions, that a
certain percentage of a manufacturer’s
sales volume must consist of such
vehicles. We decline to read into
§209(a) [42 U.S.C. § 7543(a)] a
purchase/sale distinction that is not to
be found in the text of §209(a) or the
structure of the CAA.
Id. at 254 (brackets supplied).
As stated above, the Clean Air Act may not
contain a “purchase/sale,” but the definitions section
does contain a pre-consumer sale/post-consumer sale
distinction. 42 U.S.C. § 7550. The definitions of
“new motor vehicle” and “new motor engine” provide
23
a temporal boundary for state standards, with states
barred from attempting to enforce “any standard
relating to the control of emissions” of cars that have
not been sold to a consumer. 42 U.S.C. §§ 7543(a),
7550(5). The language of the very next section
affirms that states still retain significant regulatory
and enforcement powers, as it notes that “Nothing in
this part shall preclude or deny to any State or
political subdivision thereof the right otherwise to
control, regulate, or restrict the use, operation, or
movement of registered or licensed motor vehicles.”
42 U.S.C. § 7543(d).
Justice Souter emphasized these “untidy
details” in dissent, explaining that the text of Section
209(a)/42 U.S.C. §7543 (a) can be read to create a
temporal boundary between the federal
government’s authority and states’ authority based
on the definition of “new motor vehicle” and “new
motor vehicle engine.” Engine Mfrs., 541 U.S. at
266, 261 (Souter, J., dissenting). Justice Souter
further argued that such a boundary would still bar
political subdivisions from imposing what are – in
actuality – conflicting manufacturing mandates and
must be considered in light of the legislative history
of the Clean Air Act. Id.
The language of Engine Mfrs. is nuanced and
the logic is that some enforcement can be an
inappropriate restriction, but it does not mean that
every act of enforcement is inappropriate.
Nonetheless, lower courts have taken as a command
that essentially any action that imposes
consequences on a manufacturer for a car that
violates standards is preempted. See, e.g., Counts,
24
237 F.Supp. 3d at 590 (claims reliant on VW defeat
device preempted); Beshear ex rel. Ky. v.
Volkswagen Grp. of Am., Inc., No. 16-cv-27-GFVT,
2016 U.S. Dist. LEXIS 68543, at *13 (E.D. Ky. May
25, 2016) (unpublished) (same). But in so doing,
lower courts applying Engine Mfrs. have failed to
heed the role of other provisions of the Clean Air Act
and of its legislative history. Infra. Sec. II.
The Clean Air Act clearly states that political
subdivisions can and will take enforcement actions
related to mobile emissions from vehicles in use. 42
U.S.C. §§ 7410, 7416, 7543(d). But if every
enforcement action that can possibly relate back to
the manufacturer is a forbidden standard, that
language is meaningless.
3.
The Lower Courts Are Reaching
Inconsistent Results.
The current net result of this preemption
provision is that courts throughout the country are
reaching contradictory results. Thus, in the decision
below, warranty claims were found to be preempted,
while in New Jersey warranty claims were not
preempted. Felix, 2017 N.J. Super. Unpub. LEXIS
1776, at *15-16 (unpublished) (warranty claims not
preempted), App. 15, 18 (warranty claims
preempted). In some states emissions incentive
programs are permitted, and in others they are not.
Compare In re Detroit Diesel, 269 A.D.2d at 12
(rejecting incentive programs) with Ass'n of Taxicab
Operators USA v. City of Dall., 720 F.3d at 539
(permitting at least some incentive programs). And
courts have repeatedly stated that “any attempt” by
25
consumers to “seek damages or other remedies based
on alleged violations of the CAA is strictly
prohibited” even while treating claims for fraud and
misrepresentation inconsistently. See, e.g., Beshear,
2016 U.S. Dist. LEXIS 68543, at *12 (federal interest
and preemption in mobile emissions standards such
that fraud claims should be stayed); Counts v. GM,
LLC, 237 F.Supp. 3d 572, 600, 593 (E.D. Mich.
2017) (quoting Beshear, yet refusing to stay fraud
and consumer protection claims); Jackson, 770
F.Supp. 2d at 576-78 (barring state fraud claims in
analysis similar to Detroit Diesel).
While many courts are applying Cipollone,
Morales, and Engine Mfrs. to inappropriately cut off
state statutory and common law claims, in the
parallel context of nonroad engine emissions
regulations, the Ninth Circuit has recognized that
such broad preemptive logic can ultimately engulf all
state regulation and is thus contrary to the language
and intent of the Clean Air Act. Jensen Family
Farms v. Monterey, 644 F.3d 934, 941 (9th Cir.
2011) (in parallel context of nonroad engines). Yet
the stopping point is unclear.
This is an issue of practical importance,
because purchasers of the same vehicles possess
different options vis-à-vis Volkswagen, Audi, and
Porsche cars depending on the state or federal
judicial district in which they reside. It is
additionally of practical importance because of the
large volume of individuals who purchased
Volkswagen “Clean Diesels” across the country, as
well as Audis and Porsches, and because similar
issues are currently bubbling up with regard to other
26
makes and models of cars.3 See, e.g., Counts, 237
F.Supp. 3d at 572 (addressing General Motors). This
issue calls out for further guidance.
II. This Court Should Provide Guidance Regarding
How the Structure and Legislative History of the
Clean Air Act – Each of Which Carves Out a Role
for Individuals and States – Can Be Squared with
the Mobile Emissions Preemption Language of
the Clean Air Act.
The “untidy details” emphasized by Justice
Souter in dissent in Engine Mfrs. change from mere
details to serious challenges when the context shifts
from state enforcement to individual claims for state
remedies. The congressional findings, purpose and
legislative history of the Clean Air Act all
demonstrate Congress’s desire to leave individuals
their causes of action with regard to emissions, not
to concentrate all activity surrounding emissions in
the federal government or in federal causes of action.
Rather, the Clean Air Act contemplates that
individuals and states will continue to bring claims
as to emissions.
A.
The Findings in the Clean Air Act
Recognize the Role of States and
Individuals in Cleaning the Air.
The Clean Air Act begins with congressional
findings that declare “air pollution prevention (that
is reduction or elimination, through any measures, of
3 It is difficult for these cases to rise to
appellate courts because of the David and Goliath
nature of consumer suits against car manufacturers.
27
the amount of pollutants produced or created at the
source) and air pollution control at its source is the
primary responsibility of States and local
governments.” 42 U.S.C. § 7401(a).4 Cooperation
between state, federal and local authorities is an
express goal of the Clean Air Act, which explicitly
includes a section entitled “Cooperative activities,”
stating:
The Administrator shall encourage
cooperative activities by the States and
local governments for the prevention
and control of air pollution; encourage
the enactment of improved and, so far
as practicable in the light of varying
conditions and needs, uniform State
and local laws relating to the
prevention and control of air pollution;
and encourage the making of
agreements and compacts between
States for the prevention and control of
air pollution.
42 U.S.C.S. § 7402.
4 The congressional findings and statements of
purpose currently occur in Title I of the Clean Air
Act, but were made with regard to the entirety of the
Clean Air Act when it was enacted. Engine Mfrs.,
541 U.S. at 261 n.2 (Souter, J., dissenting). Their
current placement in Title I is simply because the
Clean Air Act was subsequently broken into separate
parts for convenience and does not reveal a desire to
limit the purpose to Title I alone. Id.
28
The Clean Air Act specifically carves out
individuals’ abilities to bring claims under state
statutes and common law: “Nothing in this section
shall restrict any right which any person (or class of
persons) may have under any statute or common law
to seek enforcement of any emission standard or
limitation or to seek any other relief (including relief
against the Administrator or a State agency).” 42
U.S.C.S. § 7604(e).
As discussed previously, the Clean Air Act
includes specific provisions requiring states to issue
State Implementation Plans that – in Virginia’s case
– include regulations directly germane to the claims
at issue, like a prohibition on defeat devices and
prohibiting the use of vehicles with inoperable
emissions systems.5
5 Other states with similar regulations
approved by the EPA include: Alabama, Ala. Admin.
Code r. 335-3-9-.04; Arizona, Ariz. Admin. Code § 182-1029; Connecticut, Conn. Agencies Regs. § 14-164c4a; Georgia, Ga. Comp. R. & Regs. 391-3-20-.06;
Hawaii, Haw. Code R. § 11-60.1-34; Illinois, Ill.
Admin. Code tit. 35, § 240.103; Maryland, Md. Code.
Regs. 11.14.08.06; Minnesota, Minn. R. 7023.0120;
Nevada, Nev. Admin. Code § 445B.575; New Jersey,
N.J. Admin. Code § 7:27-14.3; North Dakota, N.D.
Admin. Code 33-15-08-02; Virginia, 9 Va. Admin.
Code § 5-40-5670; Wisconsin, Wis. Admin. Code NR §
485.06; Wyoming, Wyo. Admin. R. Ch. 13 § 2.
29
B.
The Clean Air Act Was Not Intended to
Concentrate Enforcement Power with the
Federal Government or in Federal Law.
The structure of the Clean Air Act is
reinforced by its legislative history. The Report of
the Committee on Public Works of the United States
Senate, 90th Congress, 1st Session, Report AV 403,
dated July 15, 1967 entitled “Air Quality Act of 1967,
Amending the Clean Air Act, As Amended,”
demonstrates the intent of Congress in enacting
what is known as 42 U.S.C. § 7543. Time and time
again, this report makes it clear that Congress did
not intend to preempt states from enforcing federal
standards on emissions, or state standards on
emissions after the vehicle was put into use:
The committee has provided for Federal
preemption of the right to set standards
on new motor vehicles and new motor
vehicle engines only. Specific language
indicating the Committee’s position on
the rights of the States to control the
movement, operation, and use of
licensed or registered vehicles is
included.
S. Rep. 90-403, at 34 (1967) (emphasis added).
Senator William B. Spong, Jr., of Virginia was
a member of this Committee at that time. He
attached his “Individual Views” to the Senate
Report. Id. at 62. Senator Spong’s “Individual Views”
specifically state “States and localities are further
encouraged to initiate programs to combat this
30
growing threat.” Id. at 62. He continued that “It is
hoped that the several States will take full
advantage of the programs made available to them
under this legislation, particularly the disbursal of
Federal funds for the encouragement of the
inspection of automobiles for antipollution devices.”
Id. (emphasis added).
Senator Spong’s statement called for the
creation of Va. Code § 46.2-1048 and 19 Va. Admin.
Code § 30-70-310(c)(1) and (2), which require
inspection of motor vehicles in use and prohibits the
issuance of an inspection sticker if the pollution
control systems are “rendered inoperable.” Without
a valid inspection sticker, the vehicle cannot be
lawfully operated.
The Clean Air Act provides that citizens who
have purchased automobiles have the right to
enforce “any emission standard or limitation or to
seek any other relief”, without exception for or
exclusion of emissions standards, limitations, or
other relief related to motor vehicles. 42 U.S.C. §
7604(e) (emphasis added.)
*
*
*
*
The decision below departs from the clear
intent embodied in the plain language and the
legislative history of the Clean Air Act – and is a
part and parcel of the fractured decisions that are
endemic to this area of jurisprudence. 42 U.S.C. §§
7604(e), 7410. The decision below applies a
categorical bar on individuals’ claims that relate to
emissions standards, though the Clean Air Act
31
expressly carves out individual state law claims.
(App. 15.) It prevents Virginia citizens from
enforcing the limits on defeat devices and inoperable
emissions systems that are part of the EPA required
State Implementation Plan. (Id. at 18-19.) This is
true even though the Virginia State Implementation
Plan is enforceable, the EPA has specifically
approved Virginia’s regulations barring the use of
defeat devices, and prohibiting the use of vehicles
with inoperable emissions systems, and the Clean
Air Act contemplates and requires state
enforcement. See generally 42 U.S.C. § 7410; 40
C.F.R. § 52.2420.
III.Complementary State Enforcement of Clean Air
Act Emissions Standards Does Not “Interfere”
With the Clean Air Act.
The court below concluded that Claytor and
the Petitioners’ state law claims related to emissions
standards would “interfere” with the federal
objectives regarding mobile source emissions. (App.
18.) As a result, the decision below determined that
the Clean Air Act occupies the field and impliedly
preempts the Petitioners’ claims under Virginia’s
“Lemon Law,” state warranty claims, public
nuisance, and for injunctive relief.
As an initial matter, if a federal statute has
an express preemption clause and does not expressly
preempt claims, that federal statute will not
generally be read to then impliedly preempt the
claims. See generally Cipollone, 505 U.S. at 517
(implied preemption will not generally lie where
Congress has defined scope of preemption using
32
express language). The notion that Congress
impliedly occupied the field of mobile source
emissions, while simultaneously passing language
that preserves a role for states and individuals in 42
U.S.C. §§ 7402, 7410, 7550, and 7604(e) is out of step
with this Court’s analysis of express and implied
preemption.
But more fundamentally, this Court should
consider what it means to “interfere” with the Clean
Air Act, when the Act expressly allows citizens to
bring state statutory and common law causes of
action. The Clean Air Act declares that the state
and federal government will work together “to
prevent and control air pollution.” 42 U.S.C. §
7401(a)(4). If states are mandated to produce State
Implementation Plans by the Clean Air Act, but the
regulatory provisions in those plans are then
neutered by preemption, the regulatory environment
is thrown into chaos. Engine Mfrs. and – to a degree
– Cipollone grew out of fact patterns where states (or
political subdivisions) sought to make conflicting or
heightened standards for manufacturers of cars and
cigarettes. Engine Mfrs., 541 U.S. at 250; Cipollone,
505 U.S. at 529. In such a situation, the dilemma is
clear.
This case, however, is very different.
Individuals are attempting to recover their settled
economic expectations under Virginia law. Such
suits are complementary to federal law. They
impose no new standard and create no conflict.
State efforts to apply enforcement techniques to
objectives set out in the Clean Air Act – such as
public nuisance claims– can complement the
33
objectives of the Clean Air Act and promote
federalism. Merrick v. Diageo Am. Supp. Inc., 805
F.3d 685, 690-91 (6th Cir. 2015) (public nuisance
claim as to non-mobile emissions not preempted).
The decision below has perverse consequences
in a regulatory environment meant to encourage
emissions limitations. By dismissing state law
claims, the decision gives emissions violations a
special, protected status, insulating manufacturers
from a variety of state law claims that a consumer
would be able to bring for other car problems. But
the text and intent of the Clean Air Act do not give
the federal government the monopoly on
determining consequences for manufacturers like
Volkswagen who purposely mislead their consumers
and put heavily polluting vehicles on the roads. This
Court should issue further guidance.
CONCLUSION
Wherefore, the parties respectfully request
that this Court grant a writ of certiorari.
Respectfully Submitted,
*Frank K. Friedman, Esq.
Erin B. Ashwell, Esq.
Woods Rogers PLC
10 S. Jefferson Street, Suite 1400
Roanoke, VA 24011
(540) 983-7692 (Telephone)
(540) 983-7738 (Telephone)
(540) 983-7711 (Facsimile)
friedman@woodsrogers.com
eashwell@woodsrogers.com
34
James B. Feinman, Esq.
1003 Church Street
P. O. Box 697
Lynchburg, VA 24505
(434) 846-7603 (Telephone)
(434) 846-0158 (Facsimile)
Email: jb@jfeinman.com
Counsel for Petitioners Willard
Claytor, William Albert, Nathan
Ambler, Kenneth Bredemeier,
Lee Ann Covington, Lexine R.
Gill, Gabriel Kajeckas, Dennis A.
Keefe, Douglas Lindamood,
Robert McLaughlin, Kathyrne
McLaughlin, James Poodiack,
Angel Rojas, Kayla Danielle
Sauls, Lisa Sleeper, Nick Swetz,
Lowell B. Sykes, Helen Truslow,
and Tammy Woods
*Counsel of Record
No. _______
In The
Supreme Court of the United States
WILLARD CLAYTOR, ET AL.,
Petitioners,
v.
VOLKSWAGEN GROUP OF AMERICA, INC.,
Respondent.
On Petition for Writ of Certiorari to the
Supreme Court of Virginia
APPENDIX
*Frank K. Friedman, Esq.
Erin B. Ashwell, Esq.
Woods Rogers PLC
10 S. Jefferson Street,
Suite 1400
Roanoke, VA 24011
(540) 983-7692 (Telephone)
(540) 983-7738 (Telephone)
(540) 983-7711 (Facsimile)
friedman@woodsrogers.com
eashwell@woodsrogers.com
*Counsel of Record
James B. Feinman, Esq.
1003 Church Street
P. O. Box 697
Lynchburg, VA 24505
(434) 846-7603 (Telephone)
(434) 846-0158 (Facsimile)
jb@jfeinman.com
Counsel for Petitioners
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477
TABLE OF CONTENTS
Supreme Court of Virginia Order dated
August 7, 2017 ........................................... App. 1
Opinion of the Nineteenth Judicial Circuit of
Virginia Court dated August 20, 2016 ...... App. 2
Supreme Court of Virginia Order on Rehearing
dated October 6, 2017 .............................. App. 57
42 U.S.C. § 7543 (excerpt) ............................... App. 58
42 U.S.C. § 7543 (excerpt) ................................ App.58
42 U.S.C. § 7550 (excerpt) ............................... App. 59
42 U.S.C. § 7604 (excerpt) ............................... App. 60
App. 1
VIRGINIA:
In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Friday the 7th day of August, 2017.
Record No. 161609
Circuit Court Nos. CL2016-08642, CL2016-08545,
CL2016-08647, CL2016-9927, CL2016-9928,
CL2016-9929, CL2016-9930, CL2016-10654,
CL2016-10763, and Coordinated No. CL2016-9917
Willard Claytor, et al., Appellants,
against
Volkswagen Group of America, Inc., Appellee.
From the Circuit Court of Fairfax County
Upon review of the record in this case and
consideration of the argument submitted in support
of and in opposition to the granting of an appeal, the
Court is of the opinion there is no reversible error in
the judgment complained of. Accordingly, the Court
refuses the petition for appeal.
Upon consideration whereof, appellants’
“motion to expand record, or petition for writ of
certiorari pursuant to Va. Code § 8.01-673” is denied.
A Copy,
Teste:
Patricia L. Harrington, Clerk
By: /s/ Deputy Clerk
App. 2
NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA
Fairfax County Courthouse
4110 Chain Bridge Road
Fairfax, VA 22030-4009
August 30, 2016
James Feinman, Esq.
1003 Church Street
P.O. Box697
Lynchburg, VA 24505
Counsel for the Fleshman, Grose, Davidson, Lum,
Bredemeier, and Claytor Plaintiffs
Steven T. Webster, Esq.
Webster Book LLP
300 North Washington Street, Suite 404
Alexandria, VA 22314
Counsel for the Zelonis, Campbell, Nunes, and Van
Houten Plaintiffs
Kristi Kelly, Esq.
Kelly & Crandall
4084 University Drive, Suite 202A
Fairfax, VA 22030
Counsel for the Varky and Basile Plaintiffs
Harris D. Butler, Ill, Esq.
Butler Royals, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Counsel for the Schwalm, Amato, Royals, and Via
Plaintiffs
App. 3
Kenneth Abrams, Esq.
McGuire Woods
800 East Canal Street
Richmond, VA 23219
Counsel for the Defendant, Volkswagen Group of
America
Re: In re: Volkswagen “Clean Diesel” Litigation, CL2016-9917
Dear Counsel:
After announcement of an Environmental
Protection Agency (“EPA”) investigation into the
emissions performance of several models of
Volkswagen diesel automobiles, all Plaintiffs, owners
of affected vehicles, brought cases against Defendant
Volkswagen Group of America (“VWGA”) and some
additionally brought claims against certain
dealerships. The cases raise, to varying degrees of
similarity, claims of fraud, violations of the Virginia
Consumer Protection Act (“VCPA”), violations of
Virginia’s Motor Vehicle Warranty Enforcement Act
(“Lemon Law”), and other breaches of warranty.
After initially seeking but failing to remove the cases
to federal court, VWGA moved to have these cases
consolidated for pre-trial proceedings under Va. Code
Ann.§ 8.01-267.4. On June 15, 2016 a three-judge
panel ordered that the cases be coordinated before
this Court.
The Parties filed numerous pre-trial motions
including VWGA’s request for a stay of all cases
pending final approval of a class action settlement;
App. 4
Demurrers to all claims; Plaintiffs’ Motions for
Temporary Injunctions and Partial Summary
Judgment in three cases; and other matters not
addressed in this Letter Opinion. The Court held an
initial status and scheduling hearing on July 14,
2016, resulting in “Pre-Trial Order #1” and
established a hearing date for the Motion to Stay, all
pending Demurrers, the two Motions seeking
temporary injunctive relief, and the two Partial
Summary Judgment motions. This Letter Opinion
addresses all motions with the exception of the
motions for summary judgment, which will be
addressed under an independent Order.
The Court heard argument on August 11, 2016,
and took the matters under advisement. The Court
has since had the opportunity to consider the Parties’
arguments on brief and in open Court and rules as
set forth herein.
MOTION TO STAY
VWGA requests that these cases be stayed
pending final approval of the federal class action
settlement currently before the U.S. District Court
for the Northern District of California. VWGA
emphasizes the extent of the litigation and progress
towards settlement in California, and notes that
preliminary approval was granted on July 26.
A. VWGA’s Arguments
VWGA argues a stay until final settlement
approval would allow litigants to know their full
App. 5
options before proceeding in Court, and would
streamline the litigation process by eliminating
Plaintiffs who choose settlement, benefitting the
Parties and judicial economy. VWGA argues stays
are “regularly” imposed on state cases in matters
subject to multi-district settlement in service to
judicial economy.1
B. Plaintiffs’ Arguments
Collectively, Plaintiffs respond by first asserting
they raise state law claims in Virginia as Virginia
citizens against a Virginia citizen. Plaintiffs also
refer to a pre-trial order in the federal case, which
asserted it was not intended to prescribe how or
whether parallel state court cases should proceed. Id.
Plaintiffs assert Virginia law requires the cases move
forward, and that delay would hinder their ability to
make informed decisions, as staying the Virginia
claims will “entice” Plaintiffs to take the “only option
then on the table.” Mr. Feinman, on behalf of his
clients, further characterizes the settlement as a
“scheme to defraud Virginians” because it does not
explain the full recovery allowed under Virginia law
and because VWGA, under his analysis, has falsely
1 NJGA cites VanZant v. Apple, Inc., 229 Cal. App. 4th 965,
971-72 (Cal. Ct. App. 2014); Van Emden Mgmt. Corp. v.
Marsh & McLennan Cos., 05-0066-A, 2005 Mass. Super.
LEXIS 484, at *5-8 (Mass. Sept. 21, 2005); Toledo v. Medical
Eng’g Corp., No. 136, 2000 Pa. Dist. & Cnty. Dec. LEXIS
205, at *2 (Comm. Pleas Ct. Dec 29, 2000); Ex parte State
Mut. Ins. Co., 715 So.2d 207 (Ala. 1997).
App. 6
asserted that the affected vehicles are legal to drive
on Virginia roads.
C. Analysis
The granting of a stay pending the outcome of an
action in another court is in the sound discretion of
the Court and is based on consideration of factors
including the identity of the parties and issues in
both actions; the time of filing; promotion of judicial
efficiency; and possible prejudice to a party as a
result of the stay.
Here, the Virginia Plaintiffs are subject to the
proposed settlement and identity of the parties is not
at issue. The timing between the Virginia cases and
the federal case is not dispositive. That leaves
questions of prejudice and judicial economy.
Considering the latter first, these cases involve
numerous parties and complicated claims, suggesting
that judicial economy could be served by elimination
of settling Plaintiffs.
Turning to prejudice, under the proposed
settlement Plaintiffs could choose to have their car
repaired or bought back by VWGA at market value,
and would receive some amount of restitution. By
comparison, Plaintiffs’ Virginia claims could give rise
to full replacement or refund (Va. Code Ann. §59.1207.12 (2016)) and/or punitive damages for fraud or
treble damages for willful violations of the VCPA
(see, e.g., Va. Code Ann. § 59.1-204(A) (2016)). The
VCPA and Lemon Law also provide for attorneys’
fees. As a result and as Plaintiffs note, staying this
App. 7
litigation would offer strategic advantages favoring
VWGA while disserving Plaintiffs’ full understanding
of their possible remedies. Thus by increasing
uncertainty about potential damages recoverable
under Virginia law, a stay would work a prejudice to
the Plaintiffs. Additionally, consolidation of these
cases for pre-trial proceedings has already
dramatically increased judicial economy.
Because the prejudice to Plaintiffs outweighs any
remaining benefits to judicial economy, the Court
denies the Motion to Stay.
DEMURRERS
Plaintiffs have filed Complaints raising similar,
but not identical, claims. The complaints variously
bring claims for Actual Fraud, Fraud by
Concealment, Violations of the VCPA, Violations of
Virginia’s Lemon Law, and Breaches of Express and
Implied Warranty. For its part, VWGA has filed
Demurrers in nearly all cases raising two arguments
with universal application to all Plaintiffs and all
claims: preemption and that a stay is required under
the primary jurisdiction doctrine. VWGA asserts
additional arguments specific to the allegations of
each Complaint, most notably challenging the
sufficiency of Plaintiffs’ fraud claims. For the reasons
that follow, VWGA’s Demurrers are sustained in part
and overruled in part.
App. 8
I. PREEMPTION
VWGA first asserts all Plaintiffs’ claims are
expressly or impliedly preempted under the Clean
Air Act (“CAA”). The Court agrees, in part, with
VWGA.
A. VWGA’s Arguments
VWGA argues that federal emissions standards
and the surrounding body of legislative history, case
law, and statutes compel the conclusion that the
CAA represents a “comprehensive regulatory
scheme” preempting all claims in Virginia courts.
The gist of VWGA’s position is that the CAA entirely
preempts state suits, that the actions here “seek to
end-run the EPA’s exclusive authority,” and that the
claims are expressly or impliedly preempted or,
alternatively, subject to a stay under the primary
jurisdiction doctrine.2 By way of example, VWGA
cites from the CAA and federal regulations setting
procedures for manufacturers to meet emissions
standards; establishing specific consumer rights
including a prescribed warranty; granting EPA
exclusive authority and discretion to determine and
enforce emissions standards; and requiring claims be
brought in federal court.
2 In support, VWGA cites Jackson v. General Motors Corp.,
770 F. Supp. 2d 570, 573 (S.D.N.Y. 2011), In re Detroit
D1esel Corp. v. Office of Attorney Gen., 709 N.Y.S. 2d 1, 8
(N.Y. 1st Div. App. 2000)).
App. 9
Having set forth this statutory review, VWGA
argues all of the state law claims here are expressly
preempted under the CAA. Arguing the claims here
effectively use Virginia law to enforce the federal
standards, VWGA concludes the claims are expressly
pre-empted. VWGA further argues the claims are
impliedly preempted because federal law “occupies
the field” of new car emissions such that Plaintiffs’
claims would “stand as an obstacle” to Congressional
objectives under the CAA.
B. Plaintiffs’ Arguments
The Plaintiffs represented by Mr. Feinman
counter there is no preemption arguing “air pollution
at its source is the primary responsibility of States
and local governments.” Pls.’ Mem., 2 (quoting 42
U.S.C. § 7401(a)(3)). Plaintiffs review the general
scheme under Title I of the CAA, where states
establish air quality control regions within which to
apply federal standards and implement State
Implementation Plans (“SIPs”) to adhere to those
standards. Plaintiffs further assert their claims are
not preempted because they seek to recover damages
arising out of their ownership and operation of their
used, rather than new, vehicle, and the mere
presence of a federal emissions regulation standard
as an element of their state cause of action is not a
basis for preemption.
Plaintiffs represented by Ms. Kelly also argue
against preemption, asserting the CAA’s express
preemption language precludes states from imposing
their own emissions standards, but does not preempt
App. 10
individual consumer claims brought under state
law.3 Plaintiffs further argue that cases relied upon
by VWGA are inapposite insofar as they addressed
direct state actions brought by attorneys general.
C. Analysis
The federal preemption doctrine is rooted in the
Supremacy Clause of the United States Constitution,
but “starts with the assumption that the historic
police powers of the States are not to be superseded
by Federal Act unless that is the clear and manifest
purpose of Congress.” Cipollone v. Liggett Group,
Inc., et al., 505 U.S. 504, 516 (1992); see also U.S.
CONST., ART. VI, cl. 2. In interpreting the meaning
of an express preemption clause, courts apply plain
meaning rules of interpretation to the precise
language of the statute, and Congress’ use of
“relating to” language in a preemption clause is to be
given a broad, but not unlimited, scope. See Morales
v. TWA, 504 U.S. 374 (1992); Cipollone, 505 U.S. 52324; Engine Mfrs., 541 U.S. at 258-59. In an implied
preemption challenge, state claims survive as long as
they do not interfere with a “significant federal
3 In support, Plaintiffs cite North Carolma ex ref. Cooper v.
Tennesee Valley Auth., 615 F.3d 291 (4th Cir. 2010)
(addressing emissions controls at a power plant under Title I
of the CAA); Freeman v. Grain Processing Corp., 848 N W.2d
58 (Iowa 2014) (addressing preemption of nuisance claims
under Title I of the CAA), Engine Mfrs. Ass’n v. S. Coast Air
Quality Mgt. Dist., 541 U.S. 246 (2004) (addressing at Title
II claim, and noting that while 42 U.S.C. § 7543(a) broadly
preempts state act1on and claims, it does not do so “in toto”).
App. 11
regulatory objective.” See Williamson v. Mazda Motor
of America, Inc., 562 U.S. 323, 328 (2011).
In Cipollone, the U.S. Supreme Court found
federal cigarette labeling requirements preempted
state laws and state law claims insofar as state claims
constituted a “requirement or prohibition” on the
“advertising of promotion of cigarettes.” Cipollone, 505
U.S. at 523-24, 525-26. Simultaneously, however, the
Court recognized that any claims unrelated to
advertising, including the “general obligation not to
deceive” in a fraud claim, as well warranty claims
resulting from private contractual obligations, could
go forward. Id. at 528-29. In comparing the text of
the 1965 and 1969 Cigarette Acts, the Court noted
increased breadth in the latter, which added, “[n]o
requirement or prohibition based on smoking and
health shall be imposed under State law.” Id. at 515
(quoting 15 U.S.C. § 1334(c) (2016)). The Court held
that the reference to “state law” encompassed not
only state legislative action, but state common law
action as well because “the language of the Act
plainly reaches beyond such enactments.” Id. at 52122. In recognizing the continued vitality of state law
fraud claims, however, the Court noted, “the common
law is not of a piece,” and that
[i]nstead we must fairly but-- in light of the
strong presumption against pre- emption narrowly construe the precise language ....
The central inquiry in each case is
straightforward: we ask whether the legal
duty that is the predicate of the common-law
App. 12
damages action constitutes a ‘requirement or
prohibition ... imposed under State law.’
Id. at 523-24. In reaching its conclusion that the
warranty claims survived, the Court noted that
contractual requirements in a warranty are imposed
by the warrantor rather than the state, and the
preemption language of the 1969 Act barred only
requirements or prohibitions imposed by the state.
Id. at 515, 525-26.
Similarly, and within the context of implied
preemption, the U.S. Supreme Court’s decision in
Williamson addressed tort claims arising out of
Mazda’s decision to provide only lap belts, and not
seatbelts with shoulder restraints, in the rear center
seat during a time when federal regulation permitted
manufacturers to use either. Williamson, 562 U.S. at
326-27. In an earlier case, where giving a
manufacturer a choice between automatic seatbelts
and airbags was a “significant federal regulatory
objective,” the Court had determined a similar tort
claim was preempted. Id. at 328-30 (citing Geier v.
American Honda Motor Co., 529 U.S. 861 (2000)).
Unlike the significant objective of giving
manufacturers a choice in Geier, the Williamson
Court noted the choice between lap-only and lap-andshoulder belts in rear seats was not a significant goal
under the regulations, but was rather a matter of
practical choice, cost, and other considerations. As
such, the Court found the state claim was not
preempted even if permitting it would effectively
constrain manufacturers, because it did not interfere
App. 13
with a significant federal regulatory objective. Id. at
333-36.
Turning to the CAA, it bears emphasizing the
statute is divided into distinct titles, each of which
focuses on different sources of air pollution. Title I
addresses fixed sources of pollution such as factories
and power plants. See 42 U.S.C. §§ 7401-7431
(2016)). Title I envisions state enforcement of federal
standards, broadly empowering states with the
authority to determine for themselves how to comply
with federal fixed source emissions limits through
SIPs. See 42 U.S.C. §7410. Title II, by contrast,
addresses mobile sources of air pollution including
motor vehicles, and is the only Title whose provisions
are at issue in these suits. See 42 U.S.C. §§ 75217590. Significantly and as compared to Title I, Title
II establishes federal, EPA enforcement of nationally
set emissions standards. See generally 42 U.S.C. §§
7521, 7523. As part of that effort to centralize
emissions enforcement, Title II contains the express
preemption clause at issue:
No State or any political subdivision thereof
shall adopt or attempt to enforce any
standard relating to the control of emissions
from new motor vehicles or new motor
vehicle engines subject to this part.
42 U.S.C. § 7543(a) (2016). The preemption clause is
central to the federal regulatory framework imposed
on vehicle emissions such that the Second Circuit
has noted, “The cornerstone of Title II is Congress’
continued express preemption of state regulation of
App. 14
automobile emissions.” Motor Vehicle Mfrs. Ass’n of
the United States v. New York State Dep’t of Envt’l
Conservation, 17 F.3d 521,526 (2d Cir. 1994).
On its face, § 7543(a) bars any direct state
adoption of emissions standards, or enforcement of
the same. Further, and in terms even more direct
than the language used in Cippollone, the provision
expressly bars a state’s political subdivisions from
“attempting to enforce any standard relating to”
emissions control from new vehicles, thereby
encompassing state legislative, executive, or judicial
acts.
Congress’ use of the “relating to” language
carries particularly broad preemptive effect.
Specifically, “relating to” language appears and has
been interpreted in other federal enforcement
schemes, including aviation. In Morales, the Court
found states could not regulate airline advertising as
a pretext to regulation of airlines after deregulation
because the laws violated an express pre-emption in
the 1978 Airline Deregulation Act barring states
from “enacting or enforcing any law, rule, regulation,
provision, or other provision having force and effect
of law relating to rates, routes or services of any air
carrier ... .” Morales, 504 U.S. at 383. The Morales
Court held that state action “relates to” regulated
conduct “if it has a connection with or reference to
such [conduct].” Id. (citing Shaw v. Delta Air Lines,
Inc., 463 U.S. 85, 97 (1983) (addressing preemption
language in ERISA).
App. 15
Under Cipollone and Morales, this Court holds
that the CAA expressly bars state statutory and
common law claims if the legal duty that is the
predicate of the action “relates to” enforcement of
new motor vehicle emission standards.4 Under Geier
and Williamson, this Court further holds that claims
are preempted if permitting them to go forward
would interfere with the significant federal objective
under the CAA of controlling emissions standards
from new motor vehicles through EPA enforcement.
With the foregoing analysis in mind, the Court
addresses Plaintiffs’ claims.
4 The Jackson and Detroit Deisel Corp. holdings regarding
the preemptive scope of § 7543(a) are reflective of and
compatible with this holding The Jackson Court found
express preemption of state law tort claims by individuals
after allegedly having ingested fumes from noncompliant
engines because it is “clear that a state common law tort
action that questions whether a defendant complied with
standards promulgated under the CAA is an example of a
state attempting to enforce the CAA, and is therefore subject
to preemption. Jackson, 770 F. Supp. 2d at 575. Similarly,
the Detroit Diesel Corp. Court found state common law
claims for fraud raised by an attorney general against
manufacturers’ use of a “defeat device” similar to the ones
here were expressly preempted because “[i]n pursuing the
common-law claims, the Attorney General is not, as he
suggests, attempting to enforce an exist1ng State standard
or pursue a simple common-law claim but, rather, is seeking to
use this State’s common law to penalize the manufacturers for
producing engines which failed to comply with the Federal
standards.” Detroit Diesel, 709 N.Y.S. 2d at 9.
App. 16
On their face, Plaintiffs’ fraud and VCPA claims
do not rely on emissions violations or enforcement to
make out their claims. Instead Plaintiffs’ claims rely
upon allegedly false promises of compliance,
efficiency, and new technology; or concealment of the
fact that compliance testing was being circumvented.
Although Plaintiffs reference the EPA violation
notice in support of their allegations of falsehood and
concealment, their claims ultimately rest on and seek
remediation of injuries arising from
misrepresentations and concealment of material
facts made to (or hidden from) the Plaintiffs about
the compliance, efficiency, and technology of their
vehicles. This is distinguished from the claims in
Jackson and Detroit Diesel, which sought to recover
for injuries from the alleged noncompliance itself, or
alleged fraud based on statements or representations
made to federal regulators by manufacturers in
procuring emissions compliance certificates.
Plaintiffs’ lack of reliance on emissions standards
is further revealed when one considers whether
Plaintiffs even need to assert lack of compliance in
raising their fraud and VCPA claims. Plaintiffs point
to advertising materials and news releases promising
not only compliance with regulations, but also
describing new technologies developed by VWGA and
offering improved fuel economy. Plaintiffs also point
to VWGA’s public statement that it had been
“dishonest” to consumers in such advertising. As
such, and although emissions compliance or lack
thereof may be further proof of deceit, it is the deceit
about compliance, rather than the need to enforce
App. 17
compliance, that is the gravamen of Plaintiffs’
claims.
Similarly, under Williamson, there has been no
argument, nor can the Court find any basis to
conclude, that a significant federal regulatory goal of
the CAA is consumer protection from false
advertising claims regarding emissions compliance,
vehicle efficiency, or implementation of new
emissions technology. As such, Plaintiffs’ fraud and
VCPA claims are not impliedly preempted because
their claims do not interfere with any significant
federal regulatory goal within the CAA.
Because Plaintiffs’ fraud and VCPA claims are
based on alleged misrepresentations that do not rely
on or seek to enforce any emissions standards, and
because they will not interfere with any significant
CAA regulatory objective, VWGA’s Demurrers to
those claims on the basis of preemption are
overruled.
Analysis of Plaintiffs’ claims for Temporary
Injunctive Relief, Virginia Lemon Law violations,
breaches of warranty, and Public Nuisance yields a
different outcome. As noted above, the broad
“relating to” language of the CAA’s preemption
clause bars any state act that would “relate to”
enforcement of any emissions standards. Here, the
relief sought in each of the injunctive counts, Lemon
law claims, warranty claims, and public nuisance
claims directly relates to enforcement of emissions
standards because the basis for the breach or
App. 18
nuisance is violation of the federal emissions
standards.
In the injunctive claims, Plaintiffs seek a
mandatory injunction requiring VWGA to provide
either Plaintiffs or, in the public nuisance claim,
every Virginia driver, with a no cost lease or rental of
an emissions-compliant vehicle.
The “legal duty” that is the predicate of these
claims is compliance with CAA emissions standards
such that the “relation to” enforcement of emissions
standards is direct. It is hard to imagine a stronger
example of invoking a state claim to enforce a federal
regulation. VWGA’s Demurrers to the claims for
injunctive relief are sustained with prejudice.
Similarly, the Virginia Lemon Law and breach of
warranty claims cite Plaintiffs having to drive an
“illegal” vehicle or one that fails to comply with
emissions regulations as the source of their injury.
Their relief sought is similar to the relief sought in
Jackson and Geier, where such claims were deemed
preempted. As a result, Plaintiffs’ Lemon Law and
warranty claims impermissibly relate to the express
preemption against enforcing vehicle emission
standards, and are further impliedly preempted
because permitting parties to bring a warranty claim
on the basis of a violation of federal emissions law
would directly interfere with a central object of
federal emission regulation: enforcing
manufacturer’s compliance with emissions
standards.
App. 19
This conclusion is further reinforced by the
exclusive federal jurisdiction provided within the
CAA for the bringing of claims against
manufacturers for noncompliance, and the existence
of a separate warranty within Title II of the CAA
itself. See 42 U.S.C. §§ 7523, 7541(a). The former
blunts Plaintiffs’ arguments that they are entitled to
pursue relief in state court under the “citizens suit”
provision, which provides only for federal
adjudication following adherence to particular notice
and filing provisions, and the latter undermines
Plaintiffs’ contention that the CAA applies only to
new, unsold vehicles. VWGA’s Demurrers to all
Plaintiffs’ warranty and Virginia Lemon Law claims
are sustained with prejudice.
II. VWGA REQUESTED STAY UNDER
PRIMARY JURISDICTION DOCTRINE
Related to its preemption argument is VWGA’s
assertion that Plaintiffs’ claims should be stayed
because they rely upon a matter of EPA enforcement
and therefore fall within the EPA’s primary
jurisdiction. Mr. Feinman’s Plaintiffs respond that
the request should be denied to “prevent an ongoing
fraud” resulting from unnecessary delays and false
promises of the vehicles’ continued legal status on
Virginia roads. Ms. Kelly’s Plaintiffs additionally
argue the Virginia fraud, VCPA, and warranty
claims cannot be adjudicated by the EPA, are not
subject to any EPA determinations.
As a preliminary matter, this is not a fit question
to be raised on Demurrer, which tests only the legal
App. 20
sufficiency of the claims stated in the pleading
challenged. Thompson v. Skate Am., Inc., 261 Va.
121, 128 (2001). However, and as discussed above,
Plaintiffs claims that survive preemption do not rely
on any EPA determination because they make out
claims based on misrepresentations to Plaintiffs by
VWGA. Additionally, for the reasons discussed above
on the Motion to Stay, a stay of this litigation works
an unwarranted prejudice to Plaintiffs’ claims. As a
result, VWGA’s additional requests for a stay within
its Demurrers are denied.
III. ACTUAL FRAUD AND FRAUD BY
CONCEALMENT
Regarding the fraud claims, Plaintiffs plead two
different variations of a cause of action for actual
fraud. Some Plaintiffs have alleged a claim for actual
fraud by misrepresentation while others have alleged
claims of fraud by concealment. In Virginia, “[t]he
elements of actual fraud are: (1) a false
representation, (2) of a material fact, (3) made
intentionally and knowingly, (4) with intent to
mislead, (5) reliance by the party misled, and (6)
resulting damage to the party misled.” Winn v. Aleda
Constr. Co., 227 Va. 304, 308 (1984). Notwithstanding
the clear pleading requirements for actual fraud, the
Supreme Court of Virginia has continuously held
that “[c]oncealment of a fact that is material to the
transaction, knowing that the other party is acting
on the assumption that no such fact exists, is as
much fraud as if existence of the fact were expressly
denied.” Metrocell of Delaware v. Continental
Cellular Corp., 246 Va. 365, 374 (1993) (citing Clay v.
App. 21
Butler, 132 Va. 464,474 (1922)). As such, those
claims that assert fraud by means of intentional
concealment of a material fact of the transaction may
be maintained even without asserting an affirmative
false representation. Id. The misled party claiming
fraud must, however, still demonstrate the
reasonable reliance on the misrepresentation. See id.,
citing American Sur. Co. v. Hannah, 143 Va. 291,
301 (1925).
Here, VWGA has filed a Demurrer to each of the
fraud claims arguing that Plaintiffs failed to plead a
misrepresentation of fact with the specificity and
particularity required to survive Demurrer.
Specifically, VWGA demurs to each complaint as
having failed to identify any VWGA employee as
having made the fraudulent claim. Put differently,
VWGA’s Demurrer seeks a single false statement by
a single person within the company giving rise to
fraud.
The first group of substantively similar
complaints the Court will address includes Claytor,
et al. v. Volkswagen Group of America, CL-201610654 and CL-2016-10763; Fleshman, et al. v.
Volkswagen Group of America, CL-2016-9927 and
CL-2016-9928; Grose, et al. v. Volkswagen Group of
America, CL-2015-9929 and CL-2016-9930;
Davidson, et al. v. Volkswagen Group of America, CL2016-8642; Lum, et al. v. Volkswagen Group of
America, CL-2016-8645; and Bredemeier, et al. v.
Volkswagen Group of America, CL-2016-8647
[hereinafter “the Claytor complaints”]. These
complaints claim actual fraud as well as fraud by
App. 22
concealment. The misrepresentations relied upon are
general advertising statements and media interview
statements made by VWGA. The complaints allege
Volkswagen’s continuous advertisement and
marketing of its vehicles as “Clean Diesel.” The
complaints also allege an interview statement made
by then Volkswagen CEO, Mark Barnes, published
on October 9, 2009 regarding the low vehicle
emissions and environmental benefits of
Volkswagen’s TDI engine and “Clean Diesel”
technology. The complaints further cite statements
made on VWGA’s website regarding the benefits of
the “Clean Diesel” technology. The complaints allege
the statements were intended to make Plaintiffs
believe the vehicles were environmentally superior
and complied with emissions standards. Plaintiffs
assert they relied on the advertising and statements,
and were induced to purchase their vehicles as a
result. As for damages, the Plaintiffs claim the
contract prices of their vehicles, collateral costs, and
finance charges they would not have paid but for
being induced to purchase their vehicles.
The Claytor complaints also include an allegation
of fraud arising from VWGA having concealed facts it
was required to disclose. The complaints contain
statements by Volkswagen CEO Michael Horn made
on September 21, 2015, September 29, 2015, and
October 8, 2015 acknowledging concealment of the
existence of the “defeat device” software. In
conjunction with Plaintiffs’ reliance on the
environmental claims made by VWGA, the Claytor
Plaintiffs have sufficiently plead actual fraud by both
misrepresentation and concealment. VWGA’s
App. 23
Demurrers to the claims for fraud in Count V of the
Claytor complaints are therefore overruled.
The next group of substantively identical
complaints alleging fraud includes Campbell v.
Volkswagen Group of America, CL-2015-13950 and
CL-2015-14287; Mayer v. Volkswagen Group of
America, CL-2016-0023; Zelonis v. Volkswagen
Group of America, CL-2015-13746; Nunes v.
Volkswagen Group of America, CL-2015-15612; and
VanHouten v. Volkswagen Group of America, CL2015-16396 [hereinafter “the Campbell complaints”].
These complaints assert causes of action for fraud by
concealment. The Campbell Plaintiffs plead VWGA
purposefully and intentionally concealed the
existence of a “defeat device” and that the existence
of the defeat device was a material fact in each
transaction. The Campbell Plaintiffs also plead the
existence and concealment of the “defeat device” was
intended to mislead so that they were unable to
discover the device using due diligence, and that they
relied on the non-existence of such a device in
making their purchase decisions. The Campbell
complaints allege damages from purchase costs,
taxes, maintenance, insurance, and financing. The
Campbell complaints sufficiently plead fraud by
concealment and VWGA’s Demurrers to those claims
are overruled.
Next, VWGA demurred to the fraud claim in
Varky, et al. v. Volkswagen Group of America, CL2016-5460, again arguing the Plaintiffs failed to
plead fraud with the required specificity. The Varky
complaint contains a single count for fraud that
App. 24
encompasses both fraud by concealment and fraud by
misrepresentation. The complaint alleges statements
made in a 2008 Volkswagen press release, the same
statements alleged in the Claytor complaints. In
addition, the Varky complaint alleges 2014
statements regarding fuel efficiency from
Volkswagen technical manager, Douglas Skorupski.
The complaint then alleges that Plaintiffs relied on
the intentional misrepresentations of VWGA in
deciding to purchase their vehicles and that they
would not have purchased their vehicles if they knew
about the defeat device.
In reference to the fraud by concealment claims,
the Varky Complaint alleges statements made by
Volkswagen AG CEO Dr. Martin Winterkorn and
VWGA CEO Michael Horn acknowledging the
intentional concealment of the “defeat device.”
Lastly, the Varky complaint alleges damages of
diminished value of the vehicles, increased insurance
premiums, and loss of enjoyment and use of their
vehicles. Because the Varky complaint sets forth
sufficient facts and allegations to plead fraud by both
misrepresentation and concealment, VWGA’s
Demurrer to fraud in Count II in the Varky
Complaint is overruled.
Amato v. Volkswagen Group of America, et al.,
Royals v. Volkswagen Group of America, et al., and
Schwalm v. Volkswagen Group of America, et al.
[hereinafter “the Amato complaints”) are another
group of substantively identical complaints that each
include a claim for fraud in Count III. The Amato
complaints allege fraud by misrepresentation rather
App. 25
than concealment. VWGA argues the Amato
Plaintiffs fail to plead a specific statement made by
VWGA, its employees, or its representatives with
sufficient particularity or specificity. While
containing several statements and facts indicating
that the existence of a “defeat device” was concealed
from Plaintiffs, the complaints fail to actually allege
a false statement of fact attributable to VWGA, its
employees, or representatives with the requisite level
of particularity.
The complaint vaguely references statements on
a Volkswagen supported website including some
statements of opinion, but does not identify when the
statements were made or observed. Additionally,
because the allegations lack specificity for when the
website statements were made and observed, it is
unclear whether Plaintiffs reasonably relied on these
particular statements at the time of purchase.
“[W]here fraud is relied on, the [pleading] must show
specifically in what the fraud consists, so that the
defendant may have the opportunity of shaping his
defense accordingly, and since [fraud) must be clearly
proved it must be distinctly stated.” Mortarino v.
Consultant Eng’g Servs., 251 Va. 289, 295 (1996)
(citations omitted). The Amato Plaintiffs do not give
VWGA adequate notice to shape its defense and
rebut any specific fraudulent misrepresentation. As a
result, VWGA’s Demurrers to the claims for fraud in
Count Ill of the Amato complaints are sustained with
leave to amend.
Lastly, the complaint in Via v. Volkswagen Group
of America claims fraud in Count I based on a theory
App. 26
of fraud by misrepresentation. VWGA demurs,
arguing again that Mr. Via fails to claim fraud with
the requisite level of particularity. It is well settled
in Virginia that for torts involving a conflict of laws,
Virginia applies the lex loci delicti, or place of the
wrong, standard. Jones v. R. S. Jones & Assocs., 246
Va. 3, 5 (1993). As a result, in this case, the
substantive law of Tennessee law applies as the
vehicle was purchased in Tennessee. Any possible
reasonable reliance took place in Tennessee when the
purchase was made. In Tennessee, “[a) claim of fraud
requires proof that (1) the defendant made a
representation of an existing or past fact; (2) the
representation was false when it was made; (3) the
representation involved a material fact; (4) the
defendant made the representation with knowledge
that it was false or did so recklessly; (5) the plaintiff
reasonably relied on the representation; and (6) the
plaintiff was damaged by relying on the
representation.” Henderson v. SALA, Inc., 318
S.W.3d 328, 338 (Tenn. 2010). Here, Mr. Via failed to
plead a claim of fraud with the specificity required.
Mr. Via does not plead that VWGA made a false
representation of a past or existing fact. The only fact
alleged is that the brochure advertised excellent gas
mileage and “good clean diesel fun.” Neither of these
statements represents an existing or past fact. As a
result VWGA’s Demurrer to Count I for fraud in the
Via complaint is sustained with leave to amend.
IV. VIRGINIA CONSUMER PROTECTION ACT
The VCPA prohibits a number of practices that
are alleged by Plaintiffs in these cases. As with the
App. 27
fraud claims, each Plaintiffs VCPA claim will be
addressed based on the allegations made in that
particular complaint.
Both the Claytor complaints and the Campbell
complaints allege the same violations of the VCPA.
The complaints allege violations under Va. Code
Ann. § 59.1-200(A)(2), (5), (6), (8), and (14). VWGA
demurs asserting, as with fraud, failure to allege the
misrepresentations in question with sufficient
specificity.
Va. Code Ann. § 59.1-200(A)(2) prohibits
“[m]isrepresenting the source, sponsorship, approval,
or certification of goods or services,” Va. Code Ann. §
59.1-200(A)(5) prohibits “[m]isrepresenting that
goods or services have certain quantities,
characteristics, ingredients, uses, or benefits.” Va.
Code Ann. § 59.1-200(A)(6) prohibits
“[m]isrepresenting that goods or services are of a
particular standard, quality, grade, style, or model.”
Va. Code Ann.§ 59.1-200(A)(8) prohibits, “Advertising
goods or services with intent not to sell them as
advertised, or with intent not to sell at the price or
upon the terms advertised.” Finally, § Va. Code Ann.
59.1-200(A)(14) prohibits, “[u]sing any other
deception, fraud, false pretense, false promise, or
misrepresentation in connection with a consumer
transaction.”
The Claytor Plaintiffs plead Volkswagen CEO,
Mark Barnes’ October 2009 statement that the
vehicles were “clean enough to be certified in all 50
states.” The Plaintiffs also plead that “on its website
App. 28
to promote ‘clean diesel’ technology,5 [VWGA] falsely
claimed that its Clean Diesel engine reduced smog
and met standards in all 50 states, claiming success
on the basis of modern fuel chemistry and innovative
engine technology. Plaintiffs also plead VWGA had
affirmative knowledge that the “defeat device” was
used to defeat the regular emissions testing regime.
The Claytor Plaintiffs therefore adequately alleged a
factual misrepresentation regarding the certification,
characteristics, and standard of the vehicles that are
the subject of this suit. Plaintiffs also adequately
alleged that VWGA advertised the vehicles with the
intent not to sell them as advertised. Because the
Claytor complaints have adequately pled all of their
VCPA claims, VWGA’s Demurrers to the VCPA
claims in Count IV of the complaints are overruled.
The Campbell complaints also contain allegations
of VWGA’s false advertising of the vehicles and
allegations of fraud by concealment in connection
with each of the Plaintiffs’ transactions. The
complaints do not contain discrete misrepresentations
made prior to the transactions to be proved at trial as
would be the normal course, but instead allege
VWGA’s express acknowledgement of
misrepresentations intentionally made regarding the
“defeat device” and its purpose. While a claim of
actual fraud by misrepresentation requires an
express allegation of reliance upon the
misrepresentation, the VCPA allows for an
individual action by “[a]ny person who suffers loss as
5 See www.clearlybetterdiesel.org
App. 29
the result of a violation.” See Va. Code Ann. § 59.1204 (emphasis added). The Campbell complaints
allege that the Plaintiffs would have never bought
the vehicle if they knew about the “defeat device” and
that they suffered the loss of the purchase price,
taxes, maintenance, insurance, loan payments, and
other expenses. The Campbell complaints contain
sufficient allegations to withstand a Demurrer to
each of the VCPA claims. VWGA’s Demurrers to the
VCPA claims in Count I of the Campbell complaints
are therefore overruled.
The Varky complaint alleges VWGA violated the
VCPA by its intentional and fraudulent installation
of the defeat device, misrepresentations and false
certifications that the vehicles complied with EPA
requirements, and falsely advertising and marketing
the vehicles as “green” or “clean.” VWGA’s Demurrer
to the VCPA claims in the Varlky complaint argues
both preemption, which has been previously
addressed, and that Plaintiffs failed to plead their
claims with the requisite particularity.
“Although Virginia is a notice pleading
jurisdiction, a complaint must still “contain sufficient
allegations of material facts to inform a defendant of
the nature and character of the claim” being asserted
by the plaintiff.” Preferred Sys. Solutions, Inc. v. GP
Consulting, LLC, 284 Va. 382, 407 (2012) (internal
citations omitted). Here, the complaints make
several factual allegations but fail to specifically
identify which of the prohibited acts they are alleging
under Va. Code Ann.§ 59.1-200. The complaints
neither allege the specific statutory violation nor do
App. 30
they adopt the precise corresponding language.
Consequently, they do not inform VWGA of the
nature of the statutory claims being asserted. VWGA
is left to guess at which facts constitute a violation
and which specific violations are being asserted.
VWGA’s Demurrer to Count I for VCPA claims in the
Varky complaint is therefore sustained with leave to
amend.
The Amato complaints each contain a claim for
violations under the VCPA in Count II. The
violations asserted are for “[m]isrepresenting that
goods or services have certain quantities,
characteristics, ingredients, uses, or benefits,” Va.
Code Ann. § 59.1-200(A)(5), “[m]isrepresenting that
goods or services are of a particular standard,
quality, grade, style, or model,” Va. Code Ann. § 59.1200(A)(6), and “[a]dvertising goods or services with
intent not to sell them as advertised, or with intent
not to sell at the price or upon the terms advertised.”
Va. Code Ann. § 59.1-200(A)(8). Schwalm v.
Volkswagen Group of America, et al. likewise
includes the aforementioned claims under the VCPA,
but also includes, “[u]sing any other deception, fraud,
false pretense, false promise, or misrepresentation in
connection with a consumer transaction.” Va. Code
Ann. § 59.1-200(A)(14).
VWGA demurs to the VCPA claims in the Amato
complaints again on the grounds that Plaintiffs failed
to plead their VCPA claims with specificity. The
Plaintiffs in these cases plead allegations regarding
specific advertisements that held the vehicles out as
having low enough emissions to meet the standards
App. 31
of all 50 states. The Plaintiffs also plead VWGA’s
knowledge that these advertisements were not true
given the “defeat device.” The Plaintiffs sufficiently
plead enough factual allegations to support their
claims under the VCPA, so VWGA’s Demurrers to
the VCPA claims in Count II of the Amato
complaints are overruled.
The Via complaint alleges VCPA violations in
Count IV. The violations alleged are
“[m]isrepresenting that goods or services have
certain quantities, characteristics, ingredients, uses,
or benefits,” Va. Code Ann. § 59.1-200(A)(5),
“[a]dvertising goods or services with intent not to sell
them as advertised, or with intent not to sell at the
price or upon the terms advertised,” Va. Code Ann. §
59.1-200(A)(8), and “[u]sing any other deception,
fraud, false pretense, false promise, or
misrepresentation in connection with a consumer
transaction.” Va. Code Ann.§ 59.1-200(A)(14).
Here VWGA demurs on two grounds. First,
VWGA argues Mr. Via failed to plead how the VCPA
applies to a Tennessee transaction. Second, VWGA
demurs to the VCPA claims on the grounds that Mr.
Via failed to plead what misrepresentation he relied
on with the required amount of particularity.
Unlike a tort claim such as fraud, nothing in the
VCPA requires that violation by a Virginia company
involve a transaction taking place in the
Commonwealth. Instead, there are clearly delineated
prohibited practices applicable to all non-excluded
consumer transactions and “[a]ny person who suffers
App. 32
loss as the result” may bring a claim. See Va. Code
Ann. §§ 59.1-200, 204. Mr. Via’s transaction was not
one excluded by the provisions of the VCPA. See Va.
Code Ann. § 59.1-199. Both “consumer transaction,”
and “person” are defined terms within the VCPA and
neither term imparts any geographic limitation for
the transaction. See Va. Code Ann.§ 59.1-198. As
such, VWGA’s Demurrer on this ground is overruled.
As for the Demurrer for lack of particularity,
even though there is no specific factual statement
alleged, Mr. Via pleads facts that if taken as true
establish that VWGA made a misrepresentation of
the quality and characteristics of their vehicles in
connection with his purchase. The Via Complaint
alleges that VWGA marketed its vehicles as clean
diesel and meeting all EPA standards, that VWGA
installed a defeat device to mislead regulators, and
that VWGA lied about emissions from the vehicle as
it marketed it to the public. Mr. Via has alleged facts
sufficient to withstand Demurrer in his claim for
VCPA violations. VWGA’s Demurrer to Count IV of
the Via complaint is overruled.
MOTIONS FOR TEMPORARY INJUNCTION
On behalf of his clients and “all Virginia citizens
similarly situated,” Mr. Feinman has brought two
Motions for Temporary Injunction. The first seeks to
mandate loaner vehicles for his clients and all
Virginia owners of allegedly affected VWGA vehicles.
The second asks this Court to find that it has in rem
jurisdiction over the vehicles such that it may limit
VWGA to proceeding only in this Court as to
App. 33
Virginia’s citizens. Each claim will be addressed in
turn.
I. Emergency Motion to Have Previously Filed
“Count II- Motion for Temporary Injunction” to
be Deemed Filed and to be Heard at the Hearing
on August 11, 2016
In their Second Amended Complaint, the
Claytor Plaintiffs present the following:
Count II - Motion for Temporarv
Injunction
The plaintiffs move the Court for a
temporary injunction compelling the
defendant to immediately provide the
plaintiffs with substitute or alternative
transportation consisting of a loaner or rental
vehicle at no expense . . . . This temporary
remedy is [ ] necessary to prevent the
plaintiffs’ unwilling participation in the
public nuisance of approximately
10,000 to 11,000 similar vehicles [with the
defeat devices installed]. The
temporary injunction ... should continue ...
until the parties consummate the relief of
rescission ... .
2nd Am. Compl., ¶46. Elsewhere in their
Complaints, under their public nuisance claim,
Plaintiffs ask for injunctive relief for all Virginia
citizens in the form of barring VWGA from
proceeding in any other courts. Id. at ¶58-63. At
some point both requests seem to have merged, as
App. 34
the Parties’ briefs and arguments addressed loaner
cars to named Plaintiffs and all Virginia citizens.
See, e.g., Def.’s Mem. Opposing Temporary
Injunction, 1.
In any event and as discussed previously herein,
the requested relief is expressly preempted under the
CAA, so the Motion must be denied with prejudice.
The Motion must be denied also because Plaintiffs
have failed to show they are entitled to injunctive
relief and because, to the degree the request is made
on behalf of all Virginians owning potentially
affected VWGA vehicles, the request cannot be
entertained as Virginia does not permit class action
suits. Because both the availability of temporary
injunctive relief and the pursuit of claims on behalf
of nonparties could be raised again on relief that is
not preempted, the Court is compelled to address
both the sufficiency of Plaintiffs’ assertion of
entitlement to injunctive relief, and their assertion of
the right to sue on behalf of all affected Virginia
VWGA vehicle owners.
A. Entitlement to a Temporary Injunction
Plaintiffs assert two statutory grounds for the
relief requested. First, Plaintiffs point to Va. Code
Ann.§ 46.2-1048 and its corresponding state
regulation, which prohibit the operation and use of a
motor vehicle in the Commonwealth that has had its
emissions system “rendered inoperable.” Second,
Plaintiffs point to the Virginia Lemon Law, which
states, “If the manufacturer, its agents or authorized
dealers do not conform the motor vehicle to any
App. 35
applicable warranty by repairing or correcting any
defect or condition ... The consumer shall have the
unconditional right ... to drive the motor vehicle until
he receives either the replacement vehicle or the
refund.” Va. Code Ann. § 59.1-207.13(A){2) {2016). On
this basis, Plaintiffs assert they cannot legally
operate their cars and are being denied their
unconditional right to drive the vehicle. Plaintiffs
further assert they have suffered irreparable harm
and are entitled to relief because Virginia law enjoins
“any owner” found to be violating Virginia Air
Pollution Board regulations. Pointing to their Lemon
Law and fraud claims, their “unwilling participation”
in committing a public nuisance, and threats to their
right to travel, Plaintiffs conclude the balance of the
equities favors an injunction.
VWGA responds that the provision of rental cars
to all Virginia Volkswagen owners and lessees is not
cognizable in Virginia as it is a class action claim.
VWGA also argues Plaintiffs are not entitled to
temporary injunctive relief because they cannot
demonstrate likelihood of success on the merits
because the claims are preempted and neither the
EPA nor the Commonwealth have declared the
vehicles unfit to drive. VWGA further argues
Plaintiffs cannot show irreparable harm because
they are not presently at risk of civil or criminal
penalties for driving the vehicles, so any harms are
merely speculative. Finally, VWGA complains
Plaintiffs fail to show the insufficiency of legal
remedies such that equitable relief is justified.
App. 36
To obtain a preliminary injunction Plaintiffs
must establish they are likely to succeed on the
merits, likely to suffer irreparable harm in the
absence of preliminary relief, the balance of equities
tips in their favor, and an injunction is in the public
interest. The Real Truth About Obama, Inc. v.
Federal Election Commission, 575 F.3d 342, 346-47
(4th Cir. 2009). The party seeking relief must show
that the alleged harm is imminent, and not merely
speculative or potential. Ridgwell v. Brasco Bay
Corp., 254 Va. 458, 462-63 (1997).
First, and as discussed above, the CAA bars
Virginia from attempting to enforce any standard
relating to the control of emissions. 42 U.S.C. §
7543(a) (2016). Injunctive relief requiring VWGA to
replace a vehicle on the basis of its failure to comply
with federal emissions regulations “relates to”
enforcement of vehicle emissions standards and so is
preempted. As such, Plaintiffs cannot show
likelihood of success on the merits and the Motion
must be denied.
Second, and even if the claim was not preempted,
Plaintiffs fail to allege any imminent, irreparable
harm that is more than merely speculative. Neither
the EPA nor Virginia has declared the vehicles to not
be road worthy or otherwise illegal. Plaintiffs make no
allegation or showing, other than pure speculation,
that revocation is imminent. Additionally, even if the
vehicles were removed from the road, there is no
argument that legal remedies are insufficient. Since
the burden to show irreparable harm rests solely on
App. 37
the party seeking an injunction, the Motion must be
denied.
B. Plaintiffs may not bring this action on behalf
of all like-situated Virginia owners of VWGA
vehicles because the claim does not fall within
the narrow class of cases contemplated under
19th Century precedent, and the claim is
disallowed under Casey v. Merck.
The Feinman Plaintiffs additionally argue they
are entitled to bring suit on behalf of parties
unaware of this litigation, unnamed by this action,
and without any due process recourse to defend their
own interests in this action. As the Virginia Supreme
Court has recently explained, “A putative class
action is a representative action in which a
representative plaintiff attempts to represent the
interests of not only named Plaintiffs, but also those
of unnamed class members.” Casey v. Merck & Co.,
283 Va. 411, 418 (2012). However, “Virginia
jurisprudence does not recognize class actions” such
that “[u]nder Virginia law, a class representative
who files a putative class action is not recognized as
having standing to sue in a representative capacity
on behalf of the unnamed members of the putative
class.” Id.
Plaintiffs rely on a brief and all but abandoned
span of jurisprudence from 1883 to 1892 for their
conclusion that despite this clear bar to standing,
Plaintiffs in equity may still pursue actions in a
representative capacity. See, e.g., Bull v. Read, 54
Va. 78 (1855) (addressing the constitutionality of tax
App. 38
assessments); Blanton v. Southern Fertilizing Co., 77
Va. 335 (1883) (addressing taxation by “tagging” of
fertilizer); Bosher v. Richmond EI.L.Co., 89 Va. 455
(1892) (addressing a shareholder suit for fraud).
However, no procedures for such a process exist in
Virginia, no rules have been adopted that would
permit this Court to determine who the purported
“like situated” Virginians are or how to manage any
awards they might be entitled to after judgment.
Further, the limited circumstances in which such
actions have been embraced are actions against
government officials for allegedly improper taxation
and, in Bosher, a shareholder action. However, even
in Bosher, the Court held:
Where the fraudulent acts complained of are
different and unconnected, the joinder is not
allowed, because they are distinct and
separate, although similar, as where agents
procure subscriptions by fraudulent
representations at different times and under
varying circumstances, although similar in
their general scope, because the defense is
different and the acts are different and
distinct, and the proofs are necessarily
different, each dependent upon its own
circumstances.
Bosher, 89 Va. at 464. Thus, and even if the plain
language of the Virginia Supreme Court’s ruling in
Casey did not foreclose the kinds of actions
contemplated long ago in Bull, Blanton, and Bosher,
Plaintiffs here rely on the kind of “fraudulent
representations at different times and under varying
App. 39
circumstances” that do not support a representative
claim under Virginia law. As such, Plaintiffs lack
standing to bring claims in a representative capacity
and on behalf of like-situated Virginians, and all
such claims are struck.
Because the requested relief is preempted under
the CAA, because Plaintiffs have failed to carry their
burden of showing they are entitled to a Temporary
Injunction, and because they are not permitted to
pursue claims on behalf of like-situated Virginians,
the Motion for Temporary Injunction is denied with
prejudice.
II. Motion for Temporary Injunction limiting
VWGA from proceeding in any Court other than
Fairfax Circuit Court as to Virginia’s Citizens
This Motion, also brought by the Feinman
Plaintiffs, contains no argument, but simply states
the relief requested. The Second Amended Complaint
briefly claims this Court may enjoin VWGA under
Kline v. Burke Constr. Co., 260 Va. 226 (1922). In
argument, Plaintiffs relied on Kline and argued this
Court has exclusive jurisdiction over these cases
because they are in rem proceedings, with the res
being the vehicles at issue. Plaintiffs asserted
variously that the cars and the alleged “defeat
devices” should be seen as VWGA property over
which only Virginia Courts have jurisdiction.
In response, VWGA asserted Kline is inapposite
as this is not an in rem claim. VWGA further argued
Plaintiffs lack standing to bring any claim for relief
App. 40
as to all Virginia citizens because class actions are
not permitted in Virginia. Finally, VWGA asserts
Plaintiffs have failed to show entitlement to
injunctive relief because they make no claim of
irreparable harm.
Plaintiffs’ Motion must be denied because Kline
does not permit this Court to take exclusive
jurisdiction for an in personam action, and no other
basis for exclusive jurisdiction exists under Virginia
law. The Kline decision holds that one court’s ability
to preclude another court from taking on a parallel
action is predicated on an in rem suit. Kline, 260 U.S.
at 229. The Court further held the injunctive
authority of one court over another specifically does
not apply to in personam actions. Id. at 227-28, 229.
The Court finds this to be an in personam action and
cannot invoke exclusive jurisdiction.
Plaintiffs raise common law and statutory in
personam claims directly against VWGA. Plaintiffs
bring claims for fraud by VWGA, violation of the
VCPA and Lemon Law by VWGA, and, although
subject to Demurrer, breaches of warranty by
VWGA. Such claims are in personam claims and do
not serve as a basis for exclusive jurisdiction. See
Kline, 260 U.S. at 229; Haney v. Wilcheck, 38 F.
Supp. 345, 356 (W.D. Va. 1941) (“It is well settled
that actions in personam, as for damages arising out
of a tort ... may be brought in both a state and a
federal court, without either ousting the jurisdiction
of the other”); 5A M.J. Courts § 54; see also Morris E.
Cohn, Jurisdiction in Actions in Rem and in
Personam, 14 St. Louis L. Rev. 170, 170-71 (1929)
App. 41
(“An action in personam is one the judgment of which
... affects the interests of the parties. It is, as one
court phrases it, against a person, founded on the
defendant’s liability .... An action in rem is one whose
judgment is an official decree of the status of a thing
as it concerns (all] persons.”).
Even assuming for argument purposes that
Plaintiffs claim that the vehicles they bought and the
components in them are still somehow property of
VWGA, Plaintiffs do not bring this action against
that property. As such the holding in Kline compels
the conclusion this Court cannot take exclusive
jurisdiction. The Motion is denied with prejudice.
PLEAS IN BAR & MOTIONS CRAVING OYER
IN SCHWALM, AMATO, AND ROYALS CASES
In their Amended Complaints, Plaintiffs Jane
Schwalm, Wendy Amato, and Rebecca Royals assert
breach of contract claims against the dealers who
sold them their VWGA vehicles. These Plaintiffs all
allege breaches of the sales contracts occurring at the
time of sale and delivery, and in each case that date
occurred more than four years from the date their
cases were filed.
The Defendant dealerships argue jointly the
contract claims are time barred under the Virginia
Commercial Code (“VCC”), which imposes a four-year
statute of limitations on breach of contract claims,
with accrual of the cause of action at the time of
breach, “regardless of the aggrieved party’s lack of
App. 42
knowledge of the breach.” Va. Code Ann. § 8.2-725
(1), (2) (2016).
Plaintiffs take issue with the dealerships’
reliance on the “lack of knowledge” language in the
VCC, asserting it is not Plaintiffs’ lack of knowledge,
but Defendants’ concealment that should toll the
limitations period. Asserting they have raised
allegations constituting “at least innocent or
constructive fraudulent concealment” by the
dealerships, Plaintiffs conclude their breach of
contract claim was timely filed. Plaintiffs further
argue that, to the degree the dealerships were not
aware of the “defeat device” installed in the vehicles,
they remain liable for breaches of contract under the
law of agency and in light of the allegations of
fraudulent concealment against their principal,
VWGA.
In addition to the VCC’s four-year limitations
period, the VCC also provides that it “does not alter
the law on tolling of the statute of limitations ....” Va.
Code Ann. § 8.2-725 (4). Generally, equitable tolling
“should be applied sparingly,” but is “allowed ...
where the complainant has been induced or tricked
by his adversary’s misconduct into allowing the filing
deadline to pass.” Schmidt v. Household Fin. Corp.,
II, 276 Va. 108, 119-20 (internal quotations omitted).
Fraud is sufficient misconduct to trigger equitable
tolling, but “[a] mere innocent mistake will not
amount to fraud.” Virginia Fire & Marine Ins. Co. v.
Hogue, 105 Va. 355, 366 (1906). Finally, while a
principal can be bound by and liable for an agent’s
misconduct if that agent is acting within the scope of
App. 43
his agency, in the converse situation, where an agent
is unaware of a principle’s misconduct, the agent is
not bound by or liable for the principal’s misconduct.
See Jefferson Std. Life Ins. Co. v. Hedrick, 181 Va.
824, 833-34 (1943); RST 2d of Agency,§§ 256-264.
Plaintiffs allege the dealerships breached their
sales contracts, and at no time allege the dealership
was, for purposes of the contract of sale, an agent of
VWGA. Even if they had so alleged, Plaintiffs cite no
cases to support their contention the dealerships are
liable for VWGA’s alleged fraud merely because they
were its agents. The cases provided by Plaintiffs on
brief either apply the well-established rule that
principals may be bound by the wrongful conduct of
their agents, or recite the general basis for pleading
fraud. None support their conclusion. Similarly,
there is no claim that the dealerships were negligent
in failing to challenge VWGA’s representations
regarding the emissions compliance, fuel
performance, or technological capabilities of their
automobile. As such, and under the guidance that
equitable tolling is to be “applied sparingly,” the
Court finds the statute of limitations was not
equitably tolled.
As a result, and under the VCC, the Plaintiffs’
breach of contract claims accrued at the time the
vehicles were delivered, and the statute of
limitations tolled four years later such that all
Plaintiffs’ breach of contract claims against the
dealerships are time-barred. The dealerships’ Pleas
in Bar are therefore sustained. In light of this ruling,
the Motions Craving Oyer are dismissed as moot.
App. 44
DEMURRER TO WARRANTY CLAIMS IN VIA
CASE
Mr. Via raises a breach of warranty claim under
Tennessee law against VWGA, alleging breaches an
implied warranty of merchantability, a warranty of
fitness for a particular purpose, and an express
warranty. As damages, Mr. Via claims damages
“related to the knowledge [he] has been
unintentionally violating the law and polluting the
environment,” as well as reduced value and “any
fixes” resulting in reduced performance and gas
mileage. VWGA demurs to this count, arguing Mr.
Via fails to allege contractual privity between himself
and VWGA, a requirement under Tennessee law.
VWGA also asserts the express warranty claim is
subject to Demurrer because Mr. Via fails to plead
the terms of an express warranty between himself an
VWGA. Mr. Via has not raised an opposition to this
argument within VWGA’s Demurrer.
Whether interpreted under Virginia’s Demurrer
standard or Tennessee’s Motion to Dismiss, the
analysis is the same and is bound by the four corners
of the Complaint. Compare Cox Cable Hampton Rds.,
Inc. v. City of Norfolk, 242 Va. 394,397 (1991) with
Ellithorpe v. Weismark, 479 S.W.3d 818, 823-24
(Tenn. 2015). Under Tennessee law, privity of
contract is an essential element of warranty claims
where the only losses are economic losses, but by
statute there is no requirement of privity for breach
of warranty claims for claims of personal or property
damage. Tenn. Code § 29-34-104 (2016); Messer
Greisheim Indus. v. Cryotech of Kingsport, Inc., 131
App. 45
S.W.3d 457,463 (Tenn. App. Ct. 2003). In raising a
claim for an express warranty, a party must allege
the existence of an express warranty and privity
between the parties. Collier v. Greenbrier Developers,
LLC, 358 S.W.3d 195, 204 (Tenn. App. Ct. 2009).
In Messer Greisheim, the Tennessee Supreme
Court examined whether a distributor of carbon
dioxide (“CO2”) for beverages could sue a supplier of
contaminated CO2 for economic losses and damage to
its storage tanks when the contract at issue was
between the supplier and a third party, a secondary
supplier of CO2. Messer Greisheim, 131 S.W.3d at
460. The Court explained that Tennessee has
adopted the economic loss rule’s requirement of
contractual privity between parties in order to
recover economic losses, but noted statutory
exceptions to privity in claims for personal or
property injury under Tennessee law. Id. at 463. The
Court then dismissed the distributor’s claims of
economic loss but permitted its property claims to go
forward. Id. at 464-65.
Mr. Via has raised both express and implied
warranty claims. Even drawing all inferences in Mr.
Via’s favor, the only contract pleaded is one between
himself and a dealership, and he does not otherwise
allege privity of contract between himself and
VWGA. As a result, his claim based on diminution of
resale value is barred by the economic loss rule.
Similarly, his claim for reduced performance and gas
mileage is a claim for lost value or economic losses
arising out of the car’s alleged failure to comply with
its warranted performance and is barred. By
App. 46
contrast, Mr. Via’s claims of damages arising out of
his “unintentionally violating the law and polluting
the environment” would be, to the extent proven,
personal injuries subject to the privity exception of
Tenn. Code § 29-34-104. Finally, and as to the
express warranty claim, Mr. Via cannot bring that
claim under Tennessee law in the absence of privity.
As such, the Demurrer is sustained with leave to
amend as to economic losses claimed within Mr. Via’s
implied and fitness warranty claims and to his
express warranty claim in full. The Demurrer is,
however, overruled as to any personal injuries
claimed under Mr. Via’s implied and fitness
warranty claims.6
DEMURRER TO TRESPASS CLAIM IN VIA
CASE
Mr. Via additionally raises a claim of trespass,
alleging VWGA trespassed on his property by
installing the defeat device. VWGA argues the claim
is subject to Demurrer because Mr. Via fails to allege
an interference with his ownership of the vehicle
because the defeat device was installed prior to his
ownership, rather than subsequent to his purchase.
Again, Mr. Via has not lodged an opposition to this
aspect of VWGA’s Demurrer.
This claim is brought in a Virginia court, but Mr.
Via alleges purchasing the car in Tennessee. Under
Virginia’s conflict of law rules, and under the rule of
6 VWGA did not raise a preemption claim in its Demurrer to
Mr. Via’s Complaint.
App. 47
lex loci delecti, trespass to chattels are addressed by
the law of the state where the trespass occurred. 4A
M.J. Conflict of Laws § 35. Here, Mr. Via alleges a
trespass that could only have occurred, if anywhere,
in Tennessee, given that he is claiming an injury
arising out of the installation of the “defeat device”
that predates his ownership of the vehicle, and his
property rights did not arise until his purchase in
Tennessee. As such the Court will consider the claim
under Tennessee law. Under Tennessee law, “A
trespass to chattels occurs when one party
intentionally uses or intermeddles with personal
property in rightful possession of another without
authorization.” Gamer v. Coffee Cnty. Bank, 2015
Tenn App. LEXIS 873, *17-18 (Tenn. App. Ct. Oct.
23, 2015).
Here, Mr. Via alleges acts that occurred prior to
his possession of the vehicle. There is no allegation
that VWGA interfered with his ownership rights
once he took possession, and nothing that could be
inferred as an allegation of intermeddling or
intentional use by VWGA of his vehicle during his
ownership. As such, the Demurrer to Mr. Via’s
trespass claim is sustained with prejudice.
DEMURRER IN VIA CASE AS TO ATTORNEY’S
FEES
Finally, and briefly, VWGA argues Mr. Via
cannot seek attorney’s fees because he originally filed
his action pro se. This argument is dismissed as moot
since Mr. Via has since obtained counsel.
App. 48
CONCLUSION
These cases have been filed in Virginia courts
under state law. The Plaintiffs have a right to pursue
their state law claims irrespective of what claims are
being litigated in federal courts. This Court finds
that the claims relating to the enforcement of the
Clean Air Act are preempted as Congress has
deemed the EPA the sole authority for enforcing
federal laws governing motor vehicle emissions. In
the same vein, the EPA has no jurisdiction over and
provides no recourse for Virginia Plaintiffs who have
claims for common law fraud and violations of a
Virginia statute by a Virginia defendant. As such,
these causes of action shall continue. The chart below
represents the Court’s rulings on the matters
addressed in oral argument at the August 11, 2016
hearing.
Case; Moving Party; Motion; Ruling
In Re. Volkswagen ‘Clean Diesel’ Litigation
CL-2016-9917 (All Cases); VWGA; Motion to Stay;
Denied generally and under the primary jurisdiction
doctrine
Claytor, et al. v. Volkswagen Group of America
CL-2016-10654; VWGA; Demurrer; Sustained With
Prejudice as to Temporary Injunctive Releof, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
App. 49
Claytor, et al. v Volkswagen Group of America
CL-2016-10763; VWGA; Demurrer; Sustained With
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims
Fleshman, et al. v. Volkswagen Group of America
CL-2016-9927; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
Fleshman, et al. v. Volkswagen Group of America
CL-2016-9928; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
Grose, et al. v. Volkswagen Group of America
CL-2015-9929; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
Grose, et al. v. Volkswagen Group of America
CL-2015-9930; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
App. 50
Davidson, et al. v. Volkswagen Group of America
CL-2016-8642; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
Lum, et al. v Volkswagen Group of America
CL-2016-8645; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
Bredemeter, et al. v Volkswagen Group of America
CL-2016-8647; VWGA; Demurrer; Sustained with
Prejudice as to Temporary Injunctive Relief, Virginia
Lemon Law, Breach of Warranty, and Public
Nuisance claims. Overruled for Fraud and VCPA
claims.
Campbell v. Volkswagen Group of America
CL-2015-13950; VWGA; Demurrer; Overruled as to
all claims.
Campbell v. Volkswagen Group of America
CL-2015-14287; VWGA; Demurrer; Overruled as to
all claims.
Mayer v. Volkswagen Group of America
CL-2016-0023; VWGA; Demurrer; Overruled as to all
claims.
App. 51
Zelonis v. Volkswagen Group of America
CL-2015-13746; VWGA; Demurrer; Overruled as to
all claims.
Nunes v. Volkswagen Group of America
CL-2015-15612; VWGA; Demurrer; Overruled as to
all claims.
VanHouten v. Volkswagen Group of America
CL-2015-16396; VWGA; Demurrer; Overruled as to
all claims.
Varky, et al. v. Volkswagen Group of America
CL-2016-5460; VWGA; Demurrer; Overruled as to
fraud claims. Sustained with prejudice as to
warranty claims. Sustained with leave to amend as
to VCPA claims.
Amato v. Volkswagen Group of America, et al.
VWGA; Demurrer; Overruled as to VCPA claim.
Sustained with leave to amend as to fraud claim.
Schwalm v. Volkswagen Group of America, et al.
VWGA; Demurrer; Overruled as to VCPA claim.
Sustained with leave to amend as to fraud claims.
Royals v. Volkswagen Group of America, et al.
VWGA; Demurrer; Overruled as to VCPA claim.
Sustained with leave to amend as to fraud claim.
Via v. Volkswagen Group of America
VWGA; Demurrer; Overruled as to VCPA claim.
Overruled as to any implied and fitness warranty
claims for personal injuries. Sustained with leave to
App. 52
amend as to fraud claim. Sustained with leave to
amend as to warranty claims for economic loss.
Sustained with prejudice as to trespass claim.
Dismissed as Moot regarding attorney's fees.
Claytor, et al. v Volkswagen Group of America
CL-2016-10654; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Claytor, et al. v Volkswagen Group of America
CL-2016-10763; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Fleshman, et al. v. Volkswagen Group of America
CL-2016-9927; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Fleshman, et al. v. Volkswagen Group of America
CL-2016-9928; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Grose, et al. v Volkswagen Group of America
CL-2015-9929; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
App. 53
Grose, et al. v Volkswagen Group of America
CL-2015-9930; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Davidson, et al. v. Volkswagen Group of America
CL-2016-6542; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Lum, et al. v. Volkswagen Group of America
CL-2016-6645; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Bredemeier, et al. v. Volkswagen Group of America
CL-2016-8647; Plaintiffs; Motions for Temporary
Injunctions (loaner cars and limiting VWGA from
proceeding in any other court besides Fairfax Circuit
Court); Denied with prejudice.
Amato v. Volkswagen Group of America, et al.
VWGA; Plea in Bar; Sustained with Prejudice
Schwalm v. Volkswagen Group of America, et al.
VWGA; Plea in Bar; Sustained with Prejudice
Royals v. Volkswagen Group of America, et al.
VWGA; Plea in Bar; Sustained with Prejudice
App. 54
Amato v. Volkswagen Group of America, et al.
VWGA; Motion Craving Oyer; Dismissed as Moot
Schwalm v. Volkswagen Group of America, et al.
VWGA; Motion Craving Oyer; Dismissed as Moot
Royals v. Volkswagen Group of America, et al.
VWGA; Motion Craving Oyer; Dismissed as Moot
Claytor, et al. v. Volkswagen Group of America
CL-2016-10654; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Claytor, et al. v. Volkswagen Group of America
CL-2016-10763; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Fleshman, et al. v. Volkswagen Group of America
CL-2016-9927; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Fleshman, et al. v. Volkswagen Group of America
CL-2016-9928; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
App. 55
Grose, et al. v Volkswagen Group of America
CL-2015-9929; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Grose, et al. v Volkswagen Group of America
CL-2015-9930; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Davidson, et al. v. Volkswagen Group of America
CL-2016-6542; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Lum, et al. v. Volkswagen Group of America
CL-2016-6645; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
Bredemeier, et al. v. Volkswagen Group of America
CL-2016-8647; Plaintiffs; Motion for Summary
Judgment; Stricken by the Court pursuant to Rule 3
20 as the parties are not yet at issue and no answers
have been filed.
App. 56
Counsel for VWGA is directed to prepare orders for
circulation and presentation to the Court consistent
with the Court's rulings.
Sincerely yours,
/s/ Bruce D. White
App. 57
VIRGINIA:
In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Friday the 6th day of October, 2017.
Record No. 161609
Circuit Court Nos. CL2016-08642, CL2016-08545,
CL2016-08647, CL2016-9927, CL2016-9928,
CL2016-9929, CL2016-9930, CL2016-10654,
CL2016-10763, and Coordinated No. CL2016-9917
Willard Claytor, et al., Appellants,
against
Volkswagen Group of America, Inc., Appellee.
Upon a Petition for Rehearing
On consideration of the petition of the
appellants to set aside the judgment rendered herein
on the 7th day of August, 2017 and grant a
rehearing thereof, the prayer of the said petition is
denied.
A Copy,
Teste:
Patricia L. Harrington, Clerk
By: /s/ Deputy Clerk
App. 58
42 U.S.C. § 7543. State Standards.
(a) Prohibition. No State or any political
subdivision thereof shall adopt or attempt to enforce
any standard relating to the control of emissions
from new motor vehicles or new motor vehicle
engines subject to this part [42 USCS §§ 7521 et
seq.]. No State shall require certification, inspection,
or any other approval relating to the control of
emissions from any new motor vehicle or new motor
vehicle engine as condition precedent to the initial
retail sale, titling (if any), or registration of such
motor vehicle, motor vehicle engine, or equipment.
....
(d) Control, regulation, or restrictions on registered
or licensed motor vehicles. Nothing in this part [42
USCS §§ 7521 et seq.] shall preclude or deny to any
State or political subdivision thereof the right
otherwise to control, regulate, or restrict the use,
operation, or movement of registered or licensed
motor vehicles.
....
App. 59
42 U.S.C. § 7550. Definitions. As used in this
part [42 USCS §§ 7521 et seq.]—
....
(3) Except with respect to vehicles or engines
imported or offered for importation, the term "new
motor vehicle" means a motor vehicle the equitable
or legal title to which has never been transferred to
an ultimate purchaser; and the term "new motor
vehicle engine" means an engine in a new motor
vehicle or a motor vehicle engine the equitable or
legal title to which has never been transferred to the
ultimate purchaser; and with respect to imported
vehicles or engines, such terms mean a motor vehicle
and engine, respectively, manufactured after the
effective date of a regulation issued under section
202 [42 USCS § 7521] which is applicable to such
vehicle or engine (or which would be applicable to
such vehicle or engine had it been manufactured for
importation into the United States).
....
(5) The term "ultimate purchaser" means, with
respect to any new motor vehicle or new motor
vehicle engine, the first person who in good faith
purchases such new motor vehicle or new engine for
purposes other than resale.
.....
App. 60
42 U.S.C. § 7604. Citizen suits.
....
(e) Nonrestriction of other rights. Nothing in this
section shall restrict any right which any person (or
class of persons) may have under any statute or
common law to seek enforcement of any emission
standard or limitation or to seek any other relief
(including relief against the Administrator or a State
agency). Nothing in this section or in any other law
of the United States shall be construed to prohibit,
exclude, or restrict any State, local, or interstate
authority from—
(1) bringing any enforcement action or
obtaining any judicial remedy or sanction in any
State or local court, or
(2) bringing any administrative enforcement
action or obtaining any administrative remedy or
sanction in any State or local administrative agency,
department or instrumentality, against the United
States, any department, agency, or instrumentality
thereof, or any officer, agent, or employee thereof
under State or local law respecting control and
abatement of air pollution. For provisions requiring
compliance by the United States, departments,
agencies, instrumentalities, officers, agents, and
employees in the same manner as nongovernmental
entities, see section 118 [42 USCS § 7418].
....
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.