Automotive News reports that consumers from the UK and Netherlands are combining in what it suggests could become a Europe-wide action to claim compensation from VW over the emissions scandal. The report says that 220,000 owners are involved. The day before, the same source had reported that 160,000 Dutch claimants were about to sue.
Showing posts with label Volkswagen AG. Show all posts
Showing posts with label Volkswagen AG. Show all posts
Wednesday, 14 June 2017
Saturday, 20 May 2017
US: approval for fix for older VW diesels
Automotive News tells us that 84,000 older VW diesels can now be modified to deal with emissions problems, after the EPA and the California Air Resources Board approved a fix.
Thursday, 8 September 2016
Commissioner prompts Member States to pursue VW
The EU's Justice Commissioner, Vera Jourova, is pressing national authorities to investigate whether VW breached consumer protection laws - specifically, those based on the Directive on Unfair Commercial Practices which prohibits misleading advertising, and the Directive on certain aspects of the sale of consumer goods and associated guarantees - by stressing the green credentials of cars involved in the Dieselgate scandal.
As well as gathering information on action that Member States are taking themselves, the Commissioner wishes to make individual consumers and consumer groups aware of their rights over the claims. A 2013 Report by the Commission (see the Commission's web page on the Directive here) revealed that the Directive was not being enforced as rigorously as it might be by Member States, and the Commission announced its intention of pushing enforcement - the VW affair provides a superb opportunity to advance that agenda.
Italy has already fined VW €5 million over false advertising claims. Action under the Directive could result in more litigation in all 28 Member States of the EU. So far, VW has not compensated European consumers while it has compensated consumers in the USA. It argues (see this report from Automotive News) that by fixing the problem it will have done all it needs to do and there would be nothing left for which to compensate owners. The company also argues that it has not breached the directives (or, more accurately, national laws based on them). The sales directive requires that goods conform to contract - that they are fit for their purpose, which doesn't look like an easy claim to make in this case, that they comply with description (probably a better bet for a claimant) and perform as they should (again, a better bet than unfitness). VW's statement that they are not in breach sounds, well, bullish. As for the unfair commercial practices directive, it prohibits such practices and goes on:
See the EU Observer website, this from Automotive News and this article in the Financial Times for more details.
As well as gathering information on action that Member States are taking themselves, the Commissioner wishes to make individual consumers and consumer groups aware of their rights over the claims. A 2013 Report by the Commission (see the Commission's web page on the Directive here) revealed that the Directive was not being enforced as rigorously as it might be by Member States, and the Commission announced its intention of pushing enforcement - the VW affair provides a superb opportunity to advance that agenda.
Italy has already fined VW €5 million over false advertising claims. Action under the Directive could result in more litigation in all 28 Member States of the EU. So far, VW has not compensated European consumers while it has compensated consumers in the USA. It argues (see this report from Automotive News) that by fixing the problem it will have done all it needs to do and there would be nothing left for which to compensate owners. The company also argues that it has not breached the directives (or, more accurately, national laws based on them). The sales directive requires that goods conform to contract - that they are fit for their purpose, which doesn't look like an easy claim to make in this case, that they comply with description (probably a better bet for a claimant) and perform as they should (again, a better bet than unfitness). VW's statement that they are not in breach sounds, well, bullish. As for the unfair commercial practices directive, it prohibits such practices and goes on:
2. A commercial practice shall be unfair if:
(a) it is contrary to the requirements of professional diligence, and
(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.I wouldn't like to have to argue that claims about VW diesel emissions were not unfair within that definition. But stranger things have happened, and it is unrealistic to think that any manufacturer would admit breaches at this stage. It will only be when cases in Member States' courts start to come up that we will find out whether a breach has really taken place.
See the EU Observer website, this from Automotive News and this article in the Financial Times for more details.
Sunday, 21 August 2016
VW gains approval for more emissions fixes
According to Reuters, VW has received approval from the KBA to modify 140,000 2-litre cars to overcome the problems with the emissions control systems. That makes about 5.2 million cars in Europe (out of 11 million worldwide) for which fixes have been agreed, apparently leaving some 2.3 million in Europe to deal with.
KBA, Germany's vehicle testing authority, determines how the matter is treated throughout the EU. Should something like this happen again in a few years time, it will be fun to watch how the UK manages to go it alone.
KBA, Germany's vehicle testing authority, determines how the matter is treated throughout the EU. Should something like this happen again in a few years time, it will be fun to watch how the UK manages to go it alone.
Tuesday, 9 August 2016
German court short-cuts VW investor claims
The Landgericht (regional court) in Braunschweig (or Brunswick, as we know it) is using a class-action style approach to deal with the claims of numerous VW investors relating to misrepresentations of capital markets data, according to its press release (in German). It will select one case as a model for some 170 other similar claims, most of them from private investors. The largest case, filed by lawyer Andreas Tilp, includes the claims of 277 institutional investors and is worth €3.26 billion.
The selected representative plaintiff will be named in the final quarter of the year. Model proceedings of this sort - the closest the German system has to US class actions - can resolve generic or common issues, but unlike American cases cannot deal with individual claims. The priocedure was introduced in 2005 following a case involving Deutsche Telekom which was the subject of thousands of claims over prospectus fraud.
The selected representative plaintiff will be named in the final quarter of the year. Model proceedings of this sort - the closest the German system has to US class actions - can resolve generic or common issues, but unlike American cases cannot deal with individual claims. The priocedure was introduced in 2005 following a case involving Deutsche Telekom which was the subject of thousands of claims over prospectus fraud.
Thursday, 21 April 2016
VW said to pay at least $10 billion in U.S. diesel-cheating deal
According to Bloomberg, VW will pay over $10 billion to settle claims from regulators and consumers arising out of the Dieselgate scandal.This includes the cost of buying back a substantial number of cars - 600,000 being affected in total in the U.S. The agreement was reached days ahead of a deadline imposed by Judge Charles Breyer. It is not entirely clear what owners can expect to receive, but it looks pretty generous.
In Europe, where regulation is less rigorous, the manufacturer has got away with a software fix and in some cases the addition of a tube to modify airflow. No compensation has been offered to customers - or, more importantly, to dealers, although they have received some support.
In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, MDL 2672, U.S. District Court, Northern District of California (San Francisco).
'via Blog this'
In Europe, where regulation is less rigorous, the manufacturer has got away with a software fix and in some cases the addition of a tube to modify airflow. No compensation has been offered to customers - or, more importantly, to dealers, although they have received some support.
In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, MDL 2672, U.S. District Court, Northern District of California (San Francisco).
'via Blog this'
Thursday, 1 August 2013
Volkswagen Aktiengesellschaft v Garcia & Ors [2013] EWHC 1832 (Ch) (25 June 2013)
Car security isn't what it was when I was young. Leaving aside the fact that my old Frogeye didn't even have door locks (although there was a lock on the bonnet, so that might have foiled a thief, who'd have had to be pretty mad to go for a bright orange car in the first place) let alone an immobiliser, even the locks on cars of that era left a lot to be desired. On a camping holiday with a schoolfriend and his family, he locked the keys to his Cortina GT in the boot, but his father (who ran a Ford dealership, although he himself drove a very exotic BMW 3.0CSi) opened it with the key to his caravan.
Nowadays, although there are still mechanical aspects to vehicle security, it's an area which has a great deal more to do with electronics. It was to protect the algorithm that lies at the heart of the security system it uses (along with several other manufacturers), the Magamos Crytpo chip, that Volkswagen found itself in court last week (Volkswagen Aktiengesellschaft v Garcia & Ors [2013] EWHC 1832 (Ch) (25 June 2013)).
The facts were quite simple. A handful of academics had "attacked" (as they say in the field) that security system, and discovered some flaws. The vehicle manufacturers who stood to be embarrassed by those flaws might, you'd think, be grateful, but the academics proposed to deliver a paper at a conference, and in doing so would reveal the key algorithm to the world. In the name of "responsible disclosure" they had not simply gone ahead and done this: they had talked to the proprietor of the confidential information concerned. But they hadn't talked to VW, not until much nearer the date of the conference (which was last week, hence VW's need to seek an interim injunction).
There was an issue about VW's right to sue. The algorithm was devised by Thales, who were not initially a party to the action, but the judge added them as a "proper and necessary" party, saying that it was likely within the meaning of Cream Holdings Ltd & Ors v. Banerjee & Ors [2004] UKHL 44 (14 October 2004) that "the confidentiality in the Megamos Crypto algorithm belongs to them", which is an interesting way to express it. This point did not stand in the way of an injunction being granted: Thales had standing to sue, but the judge held that VW did too, as they had a legitimate interest in being a co-claimant.
There is an old Jacob J case, Mars UK Ltd v Teknowledge Ltd [1999] EWHC 226 (Pat) (11 June 1999), [1999] 2 Costs LR 44, [1999] EWHC 226 (Pat), [2000] FSR 138, on reverse engineering, in which he held that it was not a misuse of confidential information to reverse engineer a product you had bought even to obtain information encrypted for security. The present case was argued on the basis that that case had been correctly decided, though that is in dispute, and (of course) it was the claimants' submission that it did not apply because the Scorpio Programmer software was not legitimate. The judge ended up relying on the "murky" origins of the program and the lack of effort on the part of the defendants to ascertain whether it had been produced by legitimate reverse-engineering or otherwise, and on that basis he held that there would be a breach of confidence. Should an injunction be granted to prevent publication? Not merely to save VW's blushes, said Mr Justice Birss, considering Article 10 of the European Convention, section 12(3) of the Human Rights Act, and the Cream Holdings judgment (but not American Cyanamid, which he said was clearly not the right test in the circumstances), which gave the guidance that the standard for not allowing publication is a flexible one, and that the court should be "exceedingly slow" to make interim orders if it is not satisfied that the claimant will probably succeed at trial.
Thales or VW would, he thought, probably succeed at trial, so that hurdle was cleared. Then the balance of public interest and the public interest defence fell to be considered. Freedom of expression and academic freedom were very important, but the epidemic of car crime that would be unleashed if the algorithm were published was more important. The software is sold by someone who understands that it can facilitate crime: there's a disclaimer that says (sic)
The judge granted the injunction sought by VW, requiring "redaction" (the trendy alternative to "editing") of the paper they had written. They could still impress their peers by showing that they had derived the algorithm, and the claimants could remedy the problem identified with it: win win. The judge clearly came to the view that the defendants' protestations about "reasonable disclosure" were nothing more than self-justification, and not the actions of responsible academics - a harsh view, but consistent with their reluctance to take even a few simple steps to ascertain where Scorpio-Lk Ltd had found the algorithm.
The judgment has been criticised by Prof Ross Anderson at Cambridge University, who is quoted in Automotive News Europe. He makes the valid point that the bad guys will not be prevented from doing what they have been doing all along - and the good guys won't know what the problem is. I'm not sure I understand his point: the important thing is that VW and Thales know, and can fix the weakness.
Nowadays, although there are still mechanical aspects to vehicle security, it's an area which has a great deal more to do with electronics. It was to protect the algorithm that lies at the heart of the security system it uses (along with several other manufacturers), the Magamos Crytpo chip, that Volkswagen found itself in court last week (Volkswagen Aktiengesellschaft v Garcia & Ors [2013] EWHC 1832 (Ch) (25 June 2013)).
The facts were quite simple. A handful of academics had "attacked" (as they say in the field) that security system, and discovered some flaws. The vehicle manufacturers who stood to be embarrassed by those flaws might, you'd think, be grateful, but the academics proposed to deliver a paper at a conference, and in doing so would reveal the key algorithm to the world. In the name of "responsible disclosure" they had not simply gone ahead and done this: they had talked to the proprietor of the confidential information concerned. But they hadn't talked to VW, not until much nearer the date of the conference (which was last week, hence VW's need to seek an interim injunction).
To do this, the academics used a program called Tango Programmer, produced by an organisation called Scorpio, which is based in Bulgaria, and purchased by the academics for €1,000. There is some discussion in the judgment of how the program was devised, and where its authors found the Megamos Algorithm, which they might have arrived at by "chip-slicing" - cutting open the chip and examining the gates under a microscope. The important question was whether the software was legitimate or not. As the judge observed, "Just because it comes from Bulgaria
does not mean it is illegitimate." And the fact that the website (not available when I went looking for it the other day, but back on line now) was written in "broken English" did not persuade him. In fact the website looks plausible, and the products shown on suggest that this is a business of some substance; it appears to be a limited company, and the strangest thing about it is its location bang in the middle of Bulgaria.
There was an issue about VW's right to sue. The algorithm was devised by Thales, who were not initially a party to the action, but the judge added them as a "proper and necessary" party, saying that it was likely within the meaning of Cream Holdings Ltd & Ors v. Banerjee & Ors [2004] UKHL 44 (14 October 2004) that "the confidentiality in the Megamos Crypto algorithm belongs to them", which is an interesting way to express it. This point did not stand in the way of an injunction being granted: Thales had standing to sue, but the judge held that VW did too, as they had a legitimate interest in being a co-claimant.
There is an old Jacob J case, Mars UK Ltd v Teknowledge Ltd [1999] EWHC 226 (Pat) (11 June 1999), [1999] 2 Costs LR 44, [1999] EWHC 226 (Pat), [2000] FSR 138, on reverse engineering, in which he held that it was not a misuse of confidential information to reverse engineer a product you had bought even to obtain information encrypted for security. The present case was argued on the basis that that case had been correctly decided, though that is in dispute, and (of course) it was the claimants' submission that it did not apply because the Scorpio Programmer software was not legitimate. The judge ended up relying on the "murky" origins of the program and the lack of effort on the part of the defendants to ascertain whether it had been produced by legitimate reverse-engineering or otherwise, and on that basis he held that there would be a breach of confidence. Should an injunction be granted to prevent publication? Not merely to save VW's blushes, said Mr Justice Birss, considering Article 10 of the European Convention, section 12(3) of the Human Rights Act, and the Cream Holdings judgment (but not American Cyanamid, which he said was clearly not the right test in the circumstances), which gave the guidance that the standard for not allowing publication is a flexible one, and that the court should be "exceedingly slow" to make interim orders if it is not satisfied that the claimant will probably succeed at trial.
Thales or VW would, he thought, probably succeed at trial, so that hurdle was cleared. Then the balance of public interest and the public interest defence fell to be considered. Freedom of expression and academic freedom were very important, but the epidemic of car crime that would be unleashed if the algorithm were published was more important. The software is sold by someone who understands that it can facilitate crime: there's a disclaimer that says (sic)
All devices and software developed by Scorpio-LK Ltd. are designed and sold with legal purpose to enchance and help people working in the sphere of car repairs and maintenance. The company doesn't take responsibility for any misuse of our products for illegal purpuses. Hence persons misusing our products for illegal purpuses bear their own responsebility for such acts.And elsewhere:
Scorpio-lk Ltd accepts no responsibility for misuse of software for illegal purposes. The purchased softawre can only be used to repair vehicle immobilisers. On purchase of software client accepts responsibility for software use rendering Scorpio-lk Ltd unaccountable for illegal use.The English, incidentally, seems no more broken than that of many native speakers. But the judge concluded that the claimants would probably be able to show that the software was not legitimate, and the defendants should have appreciated that.
The judge granted the injunction sought by VW, requiring "redaction" (the trendy alternative to "editing") of the paper they had written. They could still impress their peers by showing that they had derived the algorithm, and the claimants could remedy the problem identified with it: win win. The judge clearly came to the view that the defendants' protestations about "reasonable disclosure" were nothing more than self-justification, and not the actions of responsible academics - a harsh view, but consistent with their reluctance to take even a few simple steps to ascertain where Scorpio-Lk Ltd had found the algorithm.
The judgment has been criticised by Prof Ross Anderson at Cambridge University, who is quoted in Automotive News Europe. He makes the valid point that the bad guys will not be prevented from doing what they have been doing all along - and the good guys won't know what the problem is. I'm not sure I understand his point: the important thing is that VW and Thales know, and can fix the weakness.
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