Lawyers suing VW suspicious of gift card offer
Volkswagen is offering gift cards as a goodwill gesture. Are there strings attached?
Volkswagen of America has offered customers affected by the company's diesel emissions debacle two $500 gift cards as a gesture of goodwill. Vermont attorneys leading class-action lawsuits against the German automaker are handling the offer with a level of caution usually reserved for a stick of dynamite.
That's because in order to receive the gift cards — one for $500 redeemable at any VW dealership and the other for $500 to be spent on anything — customers have to sign an agreement that includes a waiver to the right to a trial by jury.
The fine print on the gift card agreement reads, "In the event of any dispute or claim relating in any way to to this agreement, customer agrees that such dispute shall be resolved by binding arbitration with the American Arbitration Association, utilizing the rules and procedure of such arbitration service, further, any such arbitration shall take place in Sioux Falls, South Dakota and the laws of the State of South Dakota shall apply."
The question, said attorney Patrick Bernal of Witten, Woolmington, Campbell & Bernal, P.C. in Manchester Center, is whether his clients in a class-action lawsuit against VW would be signing away their rights to a jury trial in the lawsuit by accepting the gift cards.
"The gift cards could be one of the issues in the class-action lawsuit, and they could leverage it to put the class action lawsuit in South Dakota," Bernal said Wednesday. "I'm not the only person who has that concern. A lot of other plaintiff's attorneys across the country have the same concern."
Calls to Volkswagen of America and to an attorney representing Volkswagen were not returned Wednesday.
An estimated 350 lawsuits have been filed against Volkswagen in the United States, including two in Vermont. In September, Volkswagen admitted to the U.S. Environmental Protection Agency and the California Air Resources Board that the automaker had employed a sophisticated device to cheat U.S. emissions standards in diesel cars with 2.0 liter engines, including the Audi A3, Beetle, Golf, Jetta and Passat.
Then, on Nov. 2, the EPA issued a second notice of violation of the Clean Air Act to Volkswagen AG, Audi AG and Volkswagen Group of America, in addition to Porsche AG and Porsche Cars North America. This notice alleges Volkswagen developed and installed a defeat device in VW, Audi and Porsche diesel vehicles equipped with 3.0 liter engines for model years 2014 through 2016.
The latest notice covered the diesel versions of the 2014 VW Touareg, the 2015 Porsche Cayenne, and the 2016 Audi A6 Quattro, A7 Quattro, A8, A8L and Q5, and alleges nitrogen oxide emissions up to nine times EPA's standard.
Vermont-based lawyer Tris Coffin, of Downs Rachlin Martin PLLC in Burlington, wrote a letter to a Boston attorney for the automaker regarding the "self-described good-will gesture" Volkswagen had made with the gift cards and the offer of three years of roadside assistance. Coffin said he filed the first class-action lawsuit against Volkswagen in Vermont.
In the letter, Coffin asks VW attorney David Barry to clarify, on behalf of Volkswagen, that accepting the gift cards "will not be interpreted to have any effect whatsoever on any claims that Volkswagen diesel owners, purchasers or lessees" make in connection to the class-action lawsuit Coffin has filed. Coffin also asks Barry to confirm that Volkswagen will not consider the gift cards to be any sort of credit against damages suffered by Volkswagen owners.
"If we get them to clarify, people should take it at face value and proceed to use the money as they see fit," Coffin said.
Bernal believes Volkswagen should have thought of clarifying their offer on its own.
"Volkswagen could have used this opportunity to level with its customers," he said. "It would have been very easy to write that contract and put in language that this will not be a waiver of your right to pursue a jury trial in connection with your status as a potential class member in one of the many lawsuits against Volkswagen."
This story was first published on Nov. 11, 2015. Contact Dan D’Ambrosio at 660-1841 or ddambrosio@freepressmedia.com. Follow him on Twitter at www.twitter.com/DanDambrosioVT.
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