If Judge Charles Breyer signs the final settlement among Volkswagen, the EPA, and a California agency tomorrow, buyback offers will start to go out sometime next month to owners of almost half a million VW and Audi diesel cars.

However, not every owner plans to participate in the settlement.

The opinion piece below, from our reader Paul Hayes, explains why he has opted out of the class-action settlement.

Hayes writes ...

I’m one of what I’ve read is less than 1 percent of the Volkswagen and Audi TDI owners who has opted out. This settlement is not fair, just, or equitable.

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Most likely a significant number of other owners who made the same decision are also pursuing individual legal action against VW.

Here are my reasons for choosing the “path less traveled”.

This matter is first and foremost about intentional fraud, not pollution.

2009 Volkswagen Jetta TDI

2009 Volkswagen Jetta TDI

Volkswagen engineer James Liang has already pled guilty in federal court to “conspiracy to defraud U.S. regulators and Volkswagen customers, wire fraud, and violations of the U.S. Clean Air Act”.

The emission-testing "defeat device" software went through six consecutive generations. The question of intentional fraud having been committed is settled fact.

Three different parties were defrauded—and the remedy for one of the three does not constitute a remedy for the other two.

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1) Governments were defrauded over regulatory compliance.

2) The public was defrauded about the level of pollutants actually being released by the cars.

3) Those who purchased an affected TDI were defrauded financially. VW, via its dealerships (which were made into unknowing, unwitting accomplices) received higher compensation via its fraudulent enterprise. It offered lower levels of rebates, incentives, and subsidized interest rates for the TDIs than for non-TDI vehicles.

Governments and the public received appropriate remedy via the class action settlement, but TDI owners did not.

Volkswagen will have to pay the fines for regulatory non-compliance.

Volkswagen TDI 'clean diesel' television ad screencap

Volkswagen TDI 'clean diesel' television ad screencap

And environmental groups have accepted the idea that VW's commitment to developing a given number of electric vehicles within a certain time frame is appropriate remedy.

But the appropriate remedy for someone who has been defrauded is for them to return what they were sold, and to receive back the price paid for the fraudulent goods.

It is irrelevant if those goods depreciated after they were intentionally sold fraudulently. That depreciation in value is a risk of engaging in an intentionally fraudulent criminal enterprise.

That means that every owner of an affected Audi or Volkswagen TDI should receive from VW the original MSRP window-sticker amount, plus all tax, title, license, and fees that they paid.

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If you were sold a house in which the sheet-rock was actually compressed asbestos and all of the paint was lead-based, would you be happy with receiving half of what you paid?

The argument would be that you had lived there a certain number of years, and it would cost you something to live somewhere regardless?

I doubt it.

Apparently the 9th Circuit Federal District Court thinks that such a remedy is fair, just, and equitable.

I do not.

Volkswagen TDI diesel vehicles owned by Phil Grate and family, Seattle, Washington

Volkswagen TDI diesel vehicles owned by Phil Grate and family, Seattle, Washington

My attorney in Dallas has more than 1,100 of us suing in state court under Texas Statute.

I am confident that the Courts of The State of Texas will not either, which is where my appropriate legal remedy will be decided.

Paul Hayes is a TDI owner who has extensive experience in national sales and operating a manufacturing company he founded and ran for over a decade before divesting the company and retiring. In the last year, he has undertaken a new career in automotive sales at a Hyundai dealership in Texas. He welcomes contacts (forwarded through this site) from those needing the sort of analytical perspective this article provides.


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