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At the end of the month, the big sample-claim action of the Federation of German Consumer Organizations (VZBV) will be heard by the Oberlandesgericht Braunschweig from 30 September. Who as VW diesel owners with the right series (engine type EA189) risk-free to slander the Volkswagen Group, must have decided until then to be present in this lawsuit.
For this it suffices to join the suit as (former) owner of a corresponding diesel model at the Federal Office of Justice. After all, two million VW customers could theoretically join in, one in five has already done so: over 438,000 claimants were on record in the middle of the week.
However, disguised VW drivers can also choose a different route: there are two other low-risk options when dealing with corporations.
Solo Option 1: You have a legal expenses insurance, then you complain without financial risk with a good lawyer against a large group like Volkswagen. So in 2016, you would have been able to file a lawsuit. You can still go to court under certain circumstances. And as a single prosecutor, you decide when you want to stop or maybe lucratively agree with the Group. If you win, all the profit is yours and the corporation bears the costs. You may even come to an advantageous comparison very quickly.
This is reported by many law firms. Even Ronny Jahn, with the VZBV as a lawyer responsible for the model suit, considers the individual claim with legal expenses insurance for the royal road. The class action lawsuit he is holding is being fought for another group of people: "We have taken the pattern-finding suit for VW drivers who can not or do not want to sue." Also because of the cost risk - after all, not everyone has an appropriate insurance.
Possibility 1 - ie legal protection insurance - is also available to all those customers who feel fooled by Volkswagen but drive a car with a different type of engine. Or customers of Mercedes-Benz and Porsche, in whose cars also inadmissible defeat devices for exhaust gas cleaning were installed. A list is here.
Solo Opportunity 2: You sue with certain law firms and let a litigation financier take on the financial risk. This is offered for example by the law firms Gansel and Baum Reiter & Kollegen (formerly vw-verhandlung.de), but also Myright is now financing individual lawsuits. Win the process, you have to share the revenue with the financier, you lose, the financier carries the complete financial risk.
VW has a special interest in a long procedure
The strategic and tactical decisions are taken in the constellation, however, only the process financiers. He weighs whether he still hopes for a financial success that justifies his cost risk.
Both alternatives have even another advantage over the model declaration suit. In both cases, you are more likely to get a faster, final result. And if you win, your money will flow much faster.
Worth to consider are both possibilities, if only because the designation claim has a big disadvantage: It is not even negotiated at the end of your specific claims, but clarified only the central legal issue, whether the Volkswagen Group has cheated or not, even after the letters of Law - and if there are basically damages.
Here it is already clear that the Group will exhaust all possibilities, because the procedure is the prerequisite for so many individual cases. The decision will probably only be final at the Federal Court. A comparison seems unlikely.
Volkswagen also has a special interest in a long procedure. If the company currently loses time in court or agrees to a settlement, the compensation for the number of kilometers driven will often be deducted from the damages for the customer. So practically the share of the value of the car that the customer has already lost. The longer the argument, the longer the distance traveled, the cheaper for Volkswagen. Although there is the possibility that the court pronounces against a replacement of the car owners. But the opportunity alone is motivation enough for Volkswagen to delay.
But there is another delay for sample claimants: If the court finally finishes and comes to the conclusion that the group has cheated, each affected person must sue for these compensation sums in a separate case against Volkswagen. That makes it no longer fun with smaller amounts.
Important: Already in the next few weeks, as a potential plaintiff, you have to make a final decision about which strategy to pursue.
However, if you want to engage a litigation financier, there is something else to consider.
The model declaration action does not yet bring effective consumer protection
At the beginning of the legal action in 2016, there were two providers who offered process financing with different models - vw-verhandlung.de with individual lawsuits and Myright with a class action lawsuit. Myright lost in the first instance and waits for the hearing before the BGH. In the meantime, Myright recommends that its clients, who have joined their class action lawsuit, additionally register themselves in the pattern-finding suit. Sounds strange, but it is not necessarily. Volkswagen doubts that the mass assignment of claims was effective. Without effective assignment, however, the claim would not be inhibited by Myright and the statute of limitations. Anyone who wants to be on the safe side in terms of statute of limitations and client of Myright is, therefore, should register his claim until September 29, 2019 purely as a precaution also to the pattern determination suit.
In addition, Myright and the law firms Gansel and Baum Reiter & Kollegen, in cooperation with a litigation financier, now offer the risk-free, faster route to money - with a financed individual claim. For example, customers without legal expenses insurance still do not have to wait for the success of the model suit. In any case, if they trust the law firm and the financier on the way and are ready to give a part of the success.
Only those who now consider using a single lawsuit and their own legal expenses insurance to try his luck, would have to previously deregister from the pattern determination suit.
My recommendation is therefore:
- Those who have a legal protection insurance should complain and try to earn the whole success.
- If you have the time, the money is not needed urgently, and who it goes a bit to the principle, that is in good hands with the pattern recognition suit.
- If, on the other hand, you are able to make good use of a quick success against Volkswagen, then process financiers are currently the best offer with their offers.
- There is another option, but only for customers who have financed their car through the Autobank. Then you may be able to revoke the loan and reverse the purchase. Some contracts have formal errors. In such cases, in the case of success, all the money is often returned, without compensation for use and even with interest.
In any case, the courts will be overburdened with diesel lawsuits in the coming years. And one thing you can also hold for non-plaintiffs in any case: The model declaration action brings no effective consumer protection. There is still no quick and efficient way to swiftly implement its rights as a customer in our market economy. Only then are customer rights really worth something.
