Seven sets of plaintiffs who opted out of two classwide settlements and tried their individual cases together filed their opening brief arguing fundamental errors in their cases that resulted in small-damage awards in most of the cases, and no liability in two cases. CCL was part of the legal team that drafted the brief.

     Riley v. Volkswagen of America grows out of a multi-year fraud in which Volkswagen used a "defeat device" to prevent government officials from realizing that the cars the company sold as "green" vehicles, with especially lowered emissions, actually spewed pollutants at 40 times the maximum level set by law. A program in the cars would adjust pollution levels to meet government requirements when a measuring rod was placed inside the tailpipe, giving a false reading of compliance. After the fraud was discovered, Volkswagen was subjected to a variety of criminal and civil penalties, and purchasers of the vehicles sued. Cases filed in federal courts across the country were consolidated for treatment in the U.S. District Court for the Northern District of California. Two class settlements came out of that courts, but a number of disaffected plaintiffs opted out of the settlements, seeking their own day in court on their complaints.

     The Riley plaintiffs were Californians who sought redress under the state's strong consumer protection laws. Under one, the Song-Beverly Act, the state's lemon law, the inability to fix a vehicle to meet the seller's promises results in damages that can be three times the sales price, plus attorney's fees. Judge Charles Breyer, presiding over the case, dismissed claims under the Act on the grounds that the vehicles were still operable, even if they did not meet the environmental standards that were promised and were the motivation for buying these particular cars. 

     In addition, the judge ruled against claims under the Consumer Legal Remedies Act, holding that the settlement offer was a "reasonable accommodation," which forgives potential liability for good-faith mistakes that are immediately corrected. He further held that claims for common-law fraud, which succeeded before the jury, only permitted meager damages for the difference in the vehicles' value with and without proper environmental controls, despite being illegal to sell as a new vehicle at the time of sale. Judge Breyer also reduced punitive damages of $25,000 per case assessed by the jury to a range of $2,328 to $12,532, a 4:1 ratio, even though larger ratio is constitutionally permissible when compensatory damages were small, as here.

    The brief details the errors made by the judge on these issues, as well as other evidentiary and procedural matters. Volkswagen's responsive brief is not expected until July.