Diesel scandal: Most plaintiffs would go back to court

Lawsuits in connection with the diesel scandal are pushing the courts further to their limits. One SWRsurvey shows that this can also be repeated in the future.

Ludwig Briehl has a lot in common with Volkswagen. In the 1960s, he trained as a car mechanic at a large VW dealership. He drives a VW Beetle for years. He later bought an Audi from the VW subsidiary. But then, in autumn 2015, the emissions scandal broke out. Briehl finds that his vehicle is also affected – and sues Volkswagen. And he would do it again: “Definitely. Even if I know it will take three years. I wouldn’t care.”

Like Briehl, 86 percent of the Diesel plaintiffs surveyed would go back to court. That has a non-representative survey of the SWR among thousands of plaintiffs. 93 percent even stated that they saw no other way than civil lawsuits for damages to achieve their goal.

The survey was carried out with the help of several law firms and a legal service provider, but they had no influence on the questions asked and the evaluation.

Motivation of the diesel plaintiffs

What motivated those affected to file a lawsuit? For most (68.9 percent), in addition to the loss in value of their car, the manufacturer’s unfulfilled environmental promise (65 percent). The illegal defeat device reduces the exhaust gas cleaning, so that more pollutants are emitted.

Reasons such as monetary compensation (49.8 percent), anger (49 percent), protest against the group (43 percent) and disappointment with the brand (33 percent) are mentioned less frequently.

skepticism about chances of success

In May 2020, the Federal Court of Justice issued a landmark judgment on the original VW emissions scandal. Diesel lawsuits have not been settled for the judiciary. 36 percent of those surveyed stated that they had filed their lawsuits against different manufacturers after 2019 – i.e. after the statute of limitations (end of 2018) in the original VW scandal had expired. It is about other shutdown devices – such as so-called thermal windows, in which the exhaust gas cleaning is reduced at certain outside temperatures.

But the chances of success for lawsuits that are not related to the original VW emissions scandal were initially poor. In the meantime, they have improved as a result of a judgment by the European Court of Justice; However, the plaintiffs have become somewhat more skeptical about the chances of success of their lawsuits: 23 percent of the plaintiffs surveyed after 2019 rate them as bad (before 2019 it was only eight percent). 55 percent complained anyway because they have legal expenses insurance. 50 percent on legal advice.

Accusation of the “lawsuit industry”

In connection with this second wave of lawsuits in particular, lawyers have been accused of persuading people to file a lawsuit in order to make money from it. However, most of those surveyed stated that they were convinced of a lawsuit from the start (83 percent). Most of them also read about the subject themselves before filing the lawsuit (85 percent). However, talking to a lawyer is becoming more important for plaintiffs from 2019: 44 percent compared to 25 percent.

Overall, when asked how they came up with the lawsuit, Diesel plaintiffs named “advertising from law firm” in third place (19.5 percent) after “own research” (54.1 percent) and “media” (51, 4 percent).

“The plaintiffs are convinced that they are the initiators of their diesel lawsuit and not the lawyers,” says Florian Stahl, Professor of Marketing at the University of Mannheim. He has the SWR-Survey scientifically accompanied.

Partial overload of the judiciary bulk procedure

The diesel lawsuits brought and continue to bring the courts to their limits – a situation that could arise again with the next scandal.

The model declaratory action that was introduced by the legislature shortly before the statute of limitations for the claims in the original VW emissions scandal was intended to relieve the judiciary. Many similar individual lawsuits should thus be avoided. In the VW emissions scandal, however, only around 245,000 cases could be closed – with 2.4 million vehicles recalled by the Federal Motor Transport Authority.

The decision in favor of an individual action instead of the model declaratory action was also easy for many of those affected because they had legal protection insurance: 98 percent of VW individual plaintiffs before 2019 had legal protection insurance. For 52.8 percent of them, the insurance was also the reason why they did not join the model declaratory action. 20.5 percent said their lawyer had advised them to do so.

Some of the respondents added that they initially joined the model declaratory action, but later switched to an individual lawsuit because they were not satisfied with the settlement offer in the model lawsuit. They either wanted more compensation or actually a rescission of the purchase contract, i.e. return the car for a refund of the purchase price. The latter was not possible with the pattern comparison.

Peculiarity in the VW emissions scandal

However, one special feature should be noted: In the VW emissions scandal, the model declaratory action was only filed very late, at the end of 2018 – shortly before the statute of limitations – because the law had to be changed first.

The only way for those affected to sue beforehand without legal protection insurance and without risk of costs was a “class action”, such as that offered by the legal service provider MyRight. In this model, those affected assign possible claims to a debt collection agency, which then collects them in court. If successful, the legal service provider receives a certain percentage of the damages claimed. In the event of a defeat in court, there are no costs for those affected. From the point of view of the courts, however, such “class action lawsuits” are numerous individual proceedings that they have to process individually. The bundling into a “class action” makes no difference to the workload of the courts.

relief at bulk procedure

There is also a model declaratory action as part of the second wave of lawsuits: this time against Mercedes. It is limited to certain defeat devices, because of which there were recalls for almost 50,000 vehicles. However, only around 3,000 people have joined the lawsuit.

Can an instrument of collective legal protection – such as the model declaratory action – lead to a relief of the judiciary from mass proceedings at all? And if so, how?

“The problem is that you still have to actively register in order to participate,” says law professor Michael Heese from the University of Regensburg. He has scientifically accompanied the judicial processing of the diesel scandal over the years.

consumer associations must file model lawsuits

In the USA, on the other hand, there is an “opt-out” model in which those affected who do not want to participate must actively opt out. That is the better model, because it only leads to individual lawsuits with additional costs for the judiciary if the person concerned opts out and commissions a lawyer with an individual procedure.

Another problem is that in Germany model lawsuits have to be raised by consumer associations. “That doesn’t work well either,” says Heese. “In the diesel scandal there were just two model lawsuits, although there should have been at least 20.” As in the USA, class action lawsuits should also be used here.

“Those affected should be able to file a class action lawsuit themselves. You don’t have to wait for associations that cannot cope with the task on their own, even given limited resources,” says Heese. “If you want to know how it works, you only have to look at the USA. That is the motherland of collective legal protection and that’s where the fundamental groundwork was laid.”