In response to the Ninth Circuit Court rejecting its petition for rehearing, Volkswagen entered a motion to stay the court’s decision allowing two counties to restart litigation over the company’s emissions-cheating devices. The carmaker is hoping to stall the counties’ litigation while it appeals the Ninth Circuit’s decision, which was originally rendered in June, to the U.S. Supreme Court.

Last month, the Ninth Circuit denied Volkswagen Group’s bid to shut down lawsuits accusing the auto manufacturer of violating two counties’ anti-tampering rules. Earlier this summer, the court ruled that the Clean Air Act does not prevent The Environmental Protection Commission of Hillsborough County, Florida, and Salt Lake County from enforcing their rules prohibiting tampering with emission control standards of “post-sale vehicles,” effectively reviving the counties’ claims against the car maker and other defendants.

“Our client opposes this motion and we firmly believe the Ninth Circuit correctly ruled that the county has the right to proceed with its claims against VW for tampering with emissions-control standards of post-sale vehicles,” said Dee Miles, lead counsel for the Hillsborough County (Tampa Bay area), Florida action, and head of Beasley Allen’s Consumer Fraud Section. “We are confident the U.S. Supreme Court will agree with the Ninth Circuit’s ruling and the Ninth Circuit court should deny VW’s request, as should the Supreme Court on VW’s certiorari petition.”

A district court ruling previously held the actions brought by The Environmental Protection Commission of Hillsboro County, Florida, and Salt Lake County were preempted by the Clean Air Act. However, while Volkswagen settled the EPA’s criminal and civil actions for more than $20 billion it failed to obtain a release of liability from state and local governments.

The Ninth Circuit Court determined that Congress did not intend for the Clean Air Act to ignore the actions of a manufacturer to intentionally tamper with vehicles after they were sold. It noted that Congress “apparently did not contemplate that a manufacturer would intentionally tamper with the emission control systems of its vehicles after sale in order to… deceive regulators,” calling Volkswagen’s conduct “unexpected and aberrant.”

In their Ninth Circuit briefs, the counties have said, “Volkswagen now asks the court to hold, in effect, that it is too big to be held fully accountable, that it can only be regulated by the federal government, at the national level, and can be held to account no more.” Additionally, they argue that automakers like the defendants should not be allowed “perverse incentive to systematically violate the law.”

Beasley Allen lawyers Dee Miles, Leslie Pescia and Tyner Helms represent Hillsborough County.

The case is In re: EPC of Hillsborough Cty. et al. v. Volkswagen Grp. of America et al., case number 18-15937, before the U.S. Court of Appeals for the Ninth Circuit.

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