Lawyer takes issue with VW reporting

Dear Editor:

I am disappointed in your paper’s coverage of the Volkswagen “Dirty Diesel” litigation (online “News in Brief ” item, posted May 19). This is the largest automotive fraud in history committed by a com­pany with its headquarters in Virginia, illegally taking hundreds of millions of dollars from the people of Virginia, and billions from others around the country. The legal community should have con­cise and accurate reporting on the matter. Print­ing absurd, mocking statements of Volkswagen’s counsel—“We would have Feinman road blocks, or maybe we could call them Judge Conrad road blocks?”—does not begin to get the job done.

The Federal Clean Air Act specifically states that air pollution prevention and control “is the primary responsibility of States and local government.” 42 U.S.C. §7401(a)(3). The states are specifically given the right and duty “to control, regulate, or restrict the use, operation, or movement of motor vehicles.” 42 U.S.C. §7543(d). Pursuant to this right and duty the Virginia General Assembly and the Air Pol­lution Control Board have enacted statutes and regulations regarding emissions controls on motor vehicles. VA. Code §46.2-1048 states in pertinent part:

“It shall be unlawful for any person to operate a motor vehicle…on the highways in the Common­wealth with its pollution control system or device removed or otherwise rendered inoperable.”

Volkswagen admits the emissions systems on thousands of vehicles in Virginia are inoperable. Virginia’s regulations prohibit passing a motor ve­hicle for state inspection with inoperable emissions systems but Volkswagen dealerships throughout Virginia are routinely passing Dirty Diesels they know have inoperable emissions systems. Volkswa­gen is doing this just so it does not have to buy the vehicles back now. This is a corruption of the state motor vehicle inspection program. The bar and the judiciary should know this, but your reporting does not provide these basic facts.

Finally, your story inadequately explained Volk­swagen’s improper use of the federal removal statute so Volkswagen does not have to face the accountability of a Virginia court, but can ship these claims by Virginia citizens against a Virginia corporation arising under Virginia law off to San Francisco to be lost in the massive machinery of the MDL. I would hope that the misuse of federal subject matter jurisdiction to avoid the authority of Virginia courts would be of interest to the bar and judiciary.

In spite of your inaccurate reporting, no one ever proposed or sought a road block of any kind. Vol­taire observed, “Those who can make you believe absurdities, can make you commit atrocities.” Volk­swagen’s fraud was committed based on the calcu­lation that it was unlikely they would be caught, and if they were, they could manipulate the press to make them appear responsible. Finally, even if they were caught they were confident they could play the legal system so they could still retain some profits. If your reporters are going to believe and report the absurdities spun by Volkswagen’s lawyers and not report the real issues, you are well on your way to contributing to an atrocity in this case. Please give the bar and the judiciary the re­porting we all need. Thank you.

James B. Feinman

Lynchburg

Editor’s Note: Virginia Lawyers Weekly stands by its reporting of the May 19 hearing in the Volkswa­gen case, reported in “News in Brief” online.