Hundreds of millions of dollars in settlements and fines over unintended acceleration in Toyotas and faulty ignition switches in General Motors' vehicles provide a glimpse of what consumers and the government might get from Volkswagen for cheating on diesel emissions, legal scholars say.
But the Volkswagen case comes with a wild card that could significantly drive up damages: The company's admission in September that it intentionally defeated emissions tests and put dirty vehicles on the road.
"It was fraudulent deception, and that makes the case susceptible to a very substantial punitive damage award," said Robert Rabin, a professor at Stanford Law School and expert in product defect cases.
A more immediate concern for Volkswagen may be how to bring nearly 600,000 diesel cars polluting US roads into compliance with emissions standards.
A federal judge last month gave the company until Thursday to report back on whether it has come up with an engineering fix.
"It seems to me six months is long enough to determine whether or not there is an engineering process that can be utilized by Volkswagen and would be acceptable to the United States government," Senior US District Court Judge Charles Breyer said.
But even with a fix, the company still faces lawsuits by angry Volkswagen owners and the Department of Justice.
The owners were duped into buying the vehicles with promises that they were high-performing and fuel efficient yet still environmentally friendly, attorneys for hundreds of owners said in a consolidated complaint filed in February.
The suit seeks class action status on behalf of all owners of affected vehicles across the country and demands that Volkswagen buy the vehicles back.
The DOJ is asking for civil penalties that could exceed USD 18 billion. Both cases are before Breyer after a judicial panel decided to consolidate suits against the car company in San Francisco in part because there are so many Volkswagen dealers and owners in California. Volkswagen and its executives could also face separate criminal charges.
"VW in my mind is a numbers game. The only question is how much they pay, not whether they'll pay," said Morris Ratner, a former plaintiffs' attorney who teaches at the University of California, Hastings College of the Law.
Ratner once was a partner at the law firm handling the consolidated Volkswagen complaint, but is no longer associated with it.
Ratner cautioned that Volkswagen owners may not get the full vehicle refund they are looking for, pointing to the Toyota unintended acceleration case as an example.
Toyota reached a USD 1 billion-plus settlement with owners who complained their vehicles lost value. The settlement included a provision to outfit vehicles with brake override systems to ensure they stop when brakes are applied, even if the accelerator pedal is pressed.
