VW hit with TRO application, Mayer Brown revealed as defense counsel

October 5, 2015

(Reuters) – Volkswagen AG and its corporate offspring have been close-mouthed about revealing the law firms that will defend the automaker in U.S. class actions by owners of clean diesel vehicles. Kirkland & Ellis environmental partner Stuart Drake was copied on the Environmental Protection Agency’s Sept. 18 notice of violation to the company and the company confirmed Kirkland’s involvement to Bloomberg. But as the Am Law Daily has reported, Kirkland and VW haven’t said any more about the scope of Kirkland’s engagement. No lawyers have yet entered an appearance for the VW defendants at the Judicial Panel for Multidistrict Litigation, which will decide in December where the more than 200 class actions against the company will be consolidated.

A filing over the weekend by the class action firm Keller Rohrback has revealed that Mayer Brown will also have a role in VW’s U.S. defense. In a declaration accompanying an application for a temporary restraining order, Keller partner Gretchen Cappio said that after she and another Keller partner contacted Kirkland’s Drake on Sept. 29, they ended up in an Oct. 2 conference call with two Mayer Brown partners. Mayer Brown told Keller Rohrback that it is counsel to Volkswagen Group of America in Keller’s California class action.

Mayer Brown claimed not to know who is representing the parent company, Volkswagen AG, or Audi defendants in the case. Mayer Brown lawyers John Nadolenco, Neil Soltman and Matthew Marmolejo did not respond to an email request for comment and a VW representative declined to comment.

Mayer Brown previously represented bank underwriters in several Volkswagen note offerings, according to the firm’s website. It represented the company in a successful 2012 appeal at the 1st U.S. Circuit Court of Appeals of a $30 million fee award to class action lawyers in a suit claiming sludge buildup in VW cars.

The TRO application seeks to bar the VW defendants from communicating with class members. Keller Rohrback said it was compelled to file the application after one of its clients received a Sept. 30 email from Audi pledging that the company “will do the right thing by you” and inviting the client “to start a dialogue” when an Audi rep calls. The email did not mention the class action litigation. Nor do postings at Audi and Volkswagen websites offering advice to clean diesel car owners.

According to Keller Rohrback, the failure to mention that owners may be compromising their legal rights if they accept VW’s offers to fix their cars makes the company’s communications misleading. “Plaintiffs further believe that the purpose of Audi’s outreach and follow-up phone calls, as well as Volkswagen’s web postings, will be to solicit putative class members to compromise their claims by settling with defendants and encouraging them to opt out of the pending action without first providing complete and accurate information to consumers,” the TRO motion said.

VW has not yet responded to the Keller application. No law firms have appeared for the VW defendants on the docket in that class action.

A state court judge in Corpus Christi, Texas, previously issued a restraining order requiring Volkswagen defendants to preserve evidence in the emissions testing scandal. The request for that TRO was brought by Robert Hilliard of the class action firm Hilliard Munoz Gonzales late last month.

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