International Commerce

October 2015

VOLKSWAGEN – ERRORS AND EMISSIONS

2016 will mark 80 years of car From a regulatory perspective this bears the manufacturing – the “people’s car” was hallmark of a Volkswagen forex/libor scandal. launched in 1936 at the motor show. Questions will be asked in respect of regulators generally – what did they know and when? There would have been little expectation that in 2015 Volkswagen’s proud history would be marred Volkswagen also owns SEAT, Audi, Skoda and by the biggest scandal ever to hit the automotive premium brands such as Lamborghini, Bugatti, manufacturing industry. The implications are global Bentley and Porsche. The emissions issue appears and far reaching: whether you insure or regulate only to relate to diesel models in the Audi, VW, the Volkswagen group, work at a Volkswagen Skoda and SEAT brands. affiliate, own or distribute Volkswagen brand cars you are affected. Even if you do not fall into any of Volkswagen has set aside approximately £4.7 billion those categories – Volkswagen is one of the largest to cover recall costs and efforts to restore trust in automotive suppliers globally and the admission its products. This does not take into account fines, that it caused emissions data to be falsified, rather liability to affected parties, or the cost of defending than manufacture environmentally compliant cars, litigation. has misled consumers and governments and is Fines in the US alone could exceed US$18 billion environmentally a matter of public health, particularly based on a maximum environmental fine of in relation to respiratory diseases. US$37,500 per non-compliant car manufactured This scandal dwarfs previous automotive since 2008. settlements. Last year Toyota paid US$1.2 million At its low point, shares had fallen by 35% – some in fines concerning a sudden acceleration problem, US$15 billion off the total share value, before rallying and General Motors some US$900 million, due to some 20% down on the second day of the to an ignition switch defect. Volkswagen itself is scandal. no stranger to scandal having been embroiled in bribery and corruption issues in the mid-nineties when some executives were jailed and significantly, in 1973, Volkswagen of America paid US$120,000 in fines owing to the use of defeat devices designed to disable pollution control systems in four models. It is not possible to quantify in monetary leads to thousands of deaths each year. directors and officers of the company, terms the damage to Volkswagen’s In the UK alone half of the 500,000 cars including the management board, and reputation. sold last year contained a diesel engine. the results, in particular, of any criminal investigations. To involve 11 million cars it Volkswagen has vowed to file criminal Implications is likely that the software was installed on complaints against those responsible. the production line. The wider and higher The main exposures are set out below, Prosecutors in Wolfsburg, Volkswagen’s up the company that the knowledge of but will differ from country to country. home town, are also considering this deception goes, the more significant bringing complaints. The New York Shareholders/Investors the liability that will attach to the Attorney General has promised an Volkswagen Group. investigation. Surely it is only a matter of Permanent impairment of the share price time before the Department of Justice in In the US such an action would be the US is involved. Volkswagen AG has the following shares founded on the racketeering (RICO) in issue: legislation. This is the most appropriate The German Vice Chancellor has offered mechanism for claiming a permanent nn Preference shares: 180,642,042 the American authorities the German diminution in a company’s share price. It nn Ordinary shares: 295,089,818 Government’s complete support. also allows for the trebling of damages Investigations have been launched as Volkswagen shares are listed on various in both civil and criminal cases. A recent far away as Korea, and Switzerland has German exchanges (Berlin, Dusseldorf, case saw a publicly reported settlement already prohibited the sale of certain , Hamburg, Hanover, Munich of US$100 million in New Jersey. Such a Volkswagen models. Volkswagen’s and Stuttgart) and outside in case may be appropriate for alternative financial services arm – as big as Basle, Geneva, Zurich, Luxembourg and litigation funding. General Motors’ equivalent – is said to in New York where there are two ADR be under review by the European Central Derivative action programmes. Bank. Hundreds of thousands of cars Alternatively, there is scope for a claim globally are now subject to recall. Truly a Volkswagen has admitted that deception brought by a shareholder in the name scandal of global proportions. occurred. Share and bond holders of, and for the benefit of, the company in Volkswagen and investors in, for The facts for a wrong against the company which example, funds who have invested in the company is unable, or unwilling, Volkswagen may be entitled to bring On 23 September 2015 Martin through its directors to pursue itself. a claim based on the permanent Winterkorn resigned as CEO of That said, such a claim is for the benefit impairment/diminution of the share price, Volkswagen. of the company and will only benefit a which has a knock-on impact on the shareholder indirectly to the extent the Earlier that week, apparently as a convertible bond price. Volkswagen is claim is successful and the share price result of the American authorities (the traditionally a conservative stock and no increases as a result. Washington based Environmental doubt a major constituent of investment Protection Agency and California portfolios worldwide. BAFin, the German Insurance Air Resources Board) threatening to financial regulator, is already reviewing withhold approval for certain Volkswagen whether Volkswagen released market It is likely that a substantial part of 2016 models, Volkswagen admitted sensitive information in a timely manner. Volkswagen’s directors’ and officers’ that some 11 million cars – originally (D&O) and other liability insurance is said to be exclusively in the US but now Whilst there are complex jurisdictional underwritten or reinsured in the London admitted to be in Europe too – had been and legal arguments, such a claim is insurance market. Zurich Insurance fitted with so called “defeat” devices. theoretically possible. The claim would be Group has confirmed that it leads a Crudely, this software, installed in the based on the valuation of the company consortium providing €450 million of car’s engine management system, immediately preceding the revelation APO cover. Individual directors and identifies when the car is subject to of the deception. Market conditions officers will be the subject of regulatory an emissions test and responds by would need to be considered and other and criminal investigations and will incur temporarily lowering emissions. The key car manufacturers would be used as substantial defence costs. They will emission is nitrogen oxide (NOx) – the comparators. Given such a sharp drop seek to recover these costs under D&O defeat device disguises the fact that the and the reason for it, it is unlikely that policies. Civil actions against directors cars are emitting up to 40 times the level the company’s value will return to pre- will also trigger notification of claims allowed in the US where standards are scandal levels in the near term, or at all. under D&O and other liability policies. most stringent. It has been suggested In any jurisdiction, consideration should Insurers, reinsurers, and brokers need that nitrogen oxide is a pollutant that be given to the statements made by to be prepared. In the UK it is also

02 International Commerce likely that disputes will arise in respect The allegations suggest a multi-layered for a client, which can include managing of warranty claims on diesel cars deception. The misrepresentation of eco- financial and regulatory exposures; and insurers may seek to avoid the credentials and other misrepresentations brand protection; press and investor relevant policies for non-disclosure and has a significant impact in that relations (including social media); issuing misrepresentation. Where Volkswagen consumers were not sold the product or defending proceedings and liaising has insured against non-performance of as described. When marketing and with insurers and others. finance agreements insurers may seek selling, the car salesmen have no doubt to avoid those policies. The risk that promoted the cars as environmentally We are particularly familiar with “bet the Volkswagen may ultimately be compelled friendly and have referenced fuel savings company” issues – members of our to self insure may be very substantial. linked to engine efficiency. It is possible team have been instructed in cases that some of those claims are not true. where litigation was used to avert the Distributors Individual consumers now own a product sudden decline in a company’s share which is almost certainly worth less price as a result of a defamatory act, or Distributors globally may also have than anticipated, which has a corollary to prevent mass staff walk outs intended substantial claims against Volkswagen effect on residual values where cars are to kill or cripple a company. In a case in relation to loss of profit on cancelled subject to lease or similar arrangements where allegations of data theft in excess contracts and liability incurred to – especially where a determinant of of US$2 billion were made to undermine customers for misrepresentation and future value is a “balloon” payment. a company, the resultant settlement was loss in value. There is also scope for Car fleets have similar issues and, in less than US$1 million. We understand disputes between distributors and the addition to the reduction in fleet values, that for any company share price Volkswagen Group if Volkswagen seeks there may be increased tax charges as maintenance is key. to share liabilities imposed in fines a result of increased emissions. Expect against dealers or avoid paying warranty Material events frequently involve or are in England and elsewhere claims against claims in full. Volkswagen cars may triggered by dawn raids by regulators or dealers and class actions on behalf of struggle to pass emissions tests. The law enforcement authorities. We have individual consumers. Such claims are Department of Transport in the UK will helped numerous clients deal with raids more straightforward in the UK as the no doubt issue guidance in this regard or plan for them, including training and Consumer Rights Act became law on given the potential for loss of revenue undertaking mock raids. 1 October 2015. Various class actions if cars are incorrectly banded for car have already been launched in the US tax purposes as a result of incorrect Reputation management and threatened by consumer lawyers emissions data. elsewhere. In Australia, the Trade We can advise on the impact of social Car manufacturers Practices Act claims regime is a unique media and reputation protection for both federal jurisdiction for foreigners who companies and individuals. This includes Although causation and valuation may make misleading statements in Australia analysis of governance and appropriate be difficult, competitor car manufacturers about their goods and services. Class regulatory standards. may argue they suffered loss as actions in particular may be appropriate Directors and officers – defence consumers bought Volkswagen cars for alternative litigation funding. rather than their brands. A starting We can act for directors and officers to point could be the EU Misleading and How HFW can help defend them in relation to regulatory and Comparative Advertising Directive. Material event management similar investigations and any litigation Although in the UK there is currently that follows. no right of civil action by competitors Our team of specialists has many years against advertisers who have breached of experience in handling the legal Insurers the implementing regulations, in other issues arising from major incidents, We regularly act for insurers and Member States, such as Germany, both in relation to physical and non reinsurers of D&O and other liability national legislation protecting consumers physical damage events. Our material policies. The insurance sector against unfair commercial practices event management practice focuses on recognises that specialist corporate and may apply at least in part to marketing scenario identification and planning for regulatory advice is a necessity in today’s practices affecting businesses and that material events and then implementing competitive and diverse global markets. actions for damages are possible. the plan. The foundation of this practice is corporate governance and the need Consumers Litigation funding for executives to identify and decide There is no doubt that consumers how to deal with risk. We can provide We can access alternative litigation along with investors will suffer most. a one-stop crisis management service funding sources in appropriate cases.

International Commerce 03 Information and communications events may cause share price volatility, management with prices moving in response to each development in the public domain. We work closely with boards, company Careful judgement must be made secretaries and senior management about the handling of information and and their media advisers to ensure its disclosure for regulatory or other that information flows are managed purposes, to ensure insider dealing and effectively to mitigate legal risk and market abuse issues do not compound comply with regulatory requirements. existing difficulties. For publicly traded companies, material

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