On Aug. 24 the Ninth Circuit denied Volkswagen Group’s bid to shut down lawsuits accusing the auto manufacturer of violating two counties’ anti-tampering rules. In June, the court ruled 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.” The ruling revived the counties’ claims against Volkswagen.

Volkswagen appealed to the court to revisit its decision on this litigation and filed for a reconsideration hearing, a move the three-judge panel denied on Monday. The decision was unanimous.

dee miles pic VW turned away in bid to shut down county anti tampering lawsuits
Dee Miles, Beasley Allen Attorney

“We expected that the entire court would agree with the panel’s initial decision on this important issue and we are very pleased with the full Court’s ruling that the panel’s ruling was correct,” said Dee Miles, lead counsel for the Hillsborough County (Tampa Bay area), Florida action, and head of Beasley Allen’s Consumer Fraud Section. “We look forward to moving forward with our claims.”

Judges on the panel were U.S. Circuit Judges Richard C. Tallman, Sandra Segal Ikuta and N. Randy Smith.

Volkswagen admitted to installing a “cheat” device on certain types of its vehicles, while promoting them as “clean diesel” alternatives to hybrid and electric vehicles. The defeat device enables the vehicles to detect the special parameters of an emissions drive cycle, which prompts the vehicle’s computer to turn on emissions controls, thereby making the vehicle fully compliant with Environmental Protection Agency (EPA) rules during testing.

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. In its original ruling, the Ninth Circuit Court determined that Congress did not intend for the Clean Air Act to ignore 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.”

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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