Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation

United States District Court, N.D. California, San Francisco Division

April 13, 2017

IN RE VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION

          JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice

          J HUA H. V EAT 1 BETHANY EN L GABRIEL ALLEN LESLIE ALLEN PATRICK BRYAN NIGEL GOONEY KAREN DWORKIN DANICA GLASER RUBEN GOMEZ ANNA GRACE SHEILA McANANEY ROBERT MULLANEY RICHIE KHANH NGUYEN ERIKA WELLS Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice Counsel for the United States

          THIRD PARTIAL CONSENT DECREE

          CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

         Hon. Charles R. Breyer

         TABLE OF CONTENTS

         I. JURISDICTION AND VENUE ......................................................................................... 3

         II. APPLICABILITY ............................................................................................................... 4

         III. DEFINITIONS .................................................................................................................... 5

         IV. CIVIL PENALTY ............................................................................................................... 8

         V. INJUNCTIVE RELIEF FOR THE VW DEFENDANTS ................................................ 10

         VI. INJUNCTIVE RELIEF FOR THE PORSCHE DEFENDANTS ..................................... 27

         VII. APPROVAL OF SUBMISSIONS .................................................................................... 38

         VIII. REPORTING AND CERTIFICATION REQUIREMENTS ........................................... 40

         IX. STIPULATED PENALTIES ............................................................................................ 43

         X. FORCE MAJEURE .......................................................................................................... 53

         XI. DISPUTE RESOLUTION ................................................................................................ 55

         XII. INFORMATION COLLECTION AND RETENTION ................................................... 58

         XIII. EFFECT OF SETTLEMENT/RESERVATION OF RIGHTS ......................................... 60

         XIV. COSTS .............................................................................................................................. 63

         XV. NOTICES .......................................................................................................................... 63

         XVI. EFFECTIVE DATE .......................................................................................................... 67

         XVII. RETENTION OF JURISDICTION .................................................................................. 68

         XVIII. MODIFICATION ............................................................................................................. 68

         XIX. TERMINATION ............................................................................................................... 68

         XX. PUBLIC PARTICIPATION ............................................................................................. 69

         XXI. SIGNATORIES/SERVICE ............................................................................................... 70

         XXII. INTEGRATION ............................................................................................................... 70

         XXIII. FINAL JUDGMENT ........................................................................................................ 71

         WHEREAS, Plaintiff United States of America, on behalf of the United States Environmental Protection Agency (“EPA”), filed a complaint in this action on January 4, 2016 (as amended on October 7, 2016), against Volkswagen AG, Volkswagen Group of America, Inc., Volkswagen Group of America Chattanooga Operations, LLC, Audi AG, Dr. Ing. h.c. F. Porsche AG, and Porsche Cars North America, Inc. (together, “Defendants”) alleging that Defendants violated Sections 203(a)(1), (2), (3)(A), and (3)(B) of the Clean Air Act (the “Act”), 42 U.S.C. §§ 7522(a)(1), (2), (3)(A), and (3)(B), with regard to approximately 500, 000 model year 2009 to 2015 motor vehicles containing 2.0 liter diesel engines (more specifically defined elsewhere as “2.0 Liter Subject Vehicles”) and approximately 90, 000 model year 2009 to 2016 motor vehicles containing 3.0 liter diesel engines (more specifically defined elsewhere as “3.0 Liter Subject Vehicles”), for a total of approximately 590, 000 motor vehicles (collectively, “Subject Vehicles”);

         WHEREAS, the Complaint alleges that each Subject Vehicle contains, as part of the engine control module, certain computer algorithms that cause the emissions control system of those vehicles to perform differently during normal vehicle operation and use than during emissions testing. The Complaint alleges that these computer algorithms are prohibited defeat devices under the Act, and that during normal vehicle operation and use, the Subject Vehicles emit levels of oxides of nitrogen (“NOx”) significantly in excess of the EPA-compliant levels. The Complaint alleges and asserts four claims for relief related to the presence of the defeat devices in the Subject Vehicles;

         WHEREAS, on June 28, 2016, the United States lodged a Partial Consent Decree, Dkt. No. 1605-1 (“First Partial Consent Decree”), concerning the 2.0 Liter Subject Vehicles, which was entered into by the United States, California, and certain Defendants (Volkswagen AG, Audi AG, Volkswagen Group of America, Inc., and Volkswagen Group of America Chattanooga Operations, LLC). The First Partial Consent Decree was entered by this Court on October 25, 2016. Dkt. No. 2103;

         WHEREAS, on December 20, 2016, the United States lodged a Second Partial Consent Decree, Dkt. No. 2520-1 (“Second Partial Consent Decree”), concerning the 3.0 Liter Subject Vehicles, which was entered into by the United States, California, and all Defendants;

         WHEREAS, the First and Second Partial Consent Decrees address the cars on the road and the associated environmental consequences resulting from the past and future excess emissions. The United States enters into this Third Partial Consent Decree with Defendants (collectively, the “Parties”) to address Defendants' liability under the Clean Air Act for civil penalties and injunctive relief to prevent similar violations in the future, which relief was reserved by the First and Second Partial Consent Decrees;

         WHEREAS, Defendants admit that software in the 2.0 and 3.0 Liter Subject Vehicles enables the vehicles' engine control modules to detect when the vehicles are being driven on the road, rather than undergoing Federal Test Procedures, and that this software renders certain emission control systems in the vehicles inoperative when the engine control module detects the vehicles are not undergoing Federal Test Procedures, resulting in emissions that exceed EPA-compliant levels when the vehicles are driven on the road;

         WHEREAS, Defendants admit that this software was not disclosed in the Certificate of Conformity applications for the 2.0 and 3.0 Liter Subject Vehicles, and, as a result, the design specifications of the 2.0 and 3.0 Liter Subject Vehicles, as manufactured, differ materially from the design specifications described in the Certificate of Conformity applications;

         WHEREAS, this Third Partial Consent Decree is one of several coordinated resolutions of various federal civil and criminal claims related to the conduct alleged in the Complaint, to be set forth in other agreements;

         WHEREAS, except as expressly provided in this Consent Decree, nothing in this Consent Decree shall constitute an admission of any fact or law by any Party except for the purpose of enforcing the terms or conditions set forth herein;

         WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that the United States is not enforcing the laws of other countries, including the emissions laws or regulations of any jurisdiction outside the United States. Nothing in this Consent Decree is intended to apply to, or affect, Defendants' obligations under the laws or regulations of any jurisdiction outside the United States. At the same time, the laws and regulations of other countries shall not affect the Defendants' obligations under this Consent Decree; and

         WHEREAS, the Parties recognize, and the Court by entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in good faith and will avoid litigation among the Parties regarding civil penalties and certain injunctive relief with respect to the claims alleged in the Complaint, and that this Consent Decree is fair, reasonable, and in the public interest.

         NOW, THEREFORE, without the adjudication of any issue of fact or law, and with the consent of the Parties, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:

         I. JURISDICTION AND VENUE

         1. The Court has jurisdiction over the subject matter of this action, pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Sections 203, 204, and 205 of the Act, 42 U.S.C. §§ 7522, 7523, and 7524, and over the Parties. Venue lies in this District pursuant to 28 U.S.C. § 1407 and the MDL Panel's Transfer Order, dated December 8, 2015, and filed in this MDL action as Dkt. No. 1. For purposes of this Decree, Defendants consent to the Court's jurisdiction over this Consent Decree, over any action to enforce this Consent Decree, and over Defendants, and consent to venue in this judicial district. Defendants reserve the right to challenge and oppose any claims to jurisdiction that do not arise from the Court's jurisdiction over this Consent Decree or an action to enforce this Consent Decree.

         2. For purposes of this Consent Decree, Defendants agree that the Complaint states claims upon which relief may be granted pursuant to Sections 203, 204, and 205 of the Act, 42 U.S.C. §§ 7522, 7523, and 7524.

         II. APPLICABILITY

         3. The obligations of this Consent Decree apply to and are binding upon the United States, and upon the VW Defendants and any of the VW Defendants' successors, assigns, or other entities or persons otherwise bound by law, and upon the Porsche Defendants and any of the Porsche Defendants' successors, assigns, or other entities or persons otherwise bound by law.

         4. Defendants' obligations under Section IV (Civil Penalty) are joint and several. The VW Defendants' obligations to comply with all other requirements of this Consent Decree are joint and several. The Porsche Defendants' obligations to comply with the Porsche Defendants' other requirements of this Consent Decree are joint and several. Further, the VW Defendants shall be jointly liable with the Porsche Defendants to implement the Porsche Defendants' requirements of this Consent Decree. In the event of the insolvency of any VW Defendant or the failure by any VW Defendant to implement any requirement of this Consent Decree, the remaining VW Defendants shall complete all such requirements except as set forth in this Paragraph. In the event of the insolvency of any Porsche Defendant or the failure by any Porsche Defendant to implement any applicable requirement of this Consent Decree, the remaining Porsche Defendant and the VW Defendants shall complete all such requirements.

         5. Any legal successor or assign of any VW Defendant or Porsche Defendant shall remain jointly and severally liable for the payment and other performance obligations hereunder, except as described in Paragraph 4, above. Defendants shall include an agreement to so remain liable in the terms of any sale, acquisition, merger, or other transaction changing the ownership or control of any of the Defendants, and no change in the ownership or control of any Defendant shall affect the obligations hereunder of any Defendant without modification of the Decree in accordance with Section XVIII (Modification).

         6. Defendants shall provide a copy of this Consent Decree to the members of their respective Board of Management and/or Board of Directors and their executives whose duties might reasonably include compliance with any provision of this Decree. Defendants shall condition any contract providing for work required under this Consent Decree to be performed in conformity with the terms thereof. Defendants shall also ensure that any contractors, agents, and employees whose duties might reasonably include compliance with any provision of the Decree are made aware of those requirements of the Decree relevant to their performance.

         7. In any action to enforce this Consent Decree, Defendants shall not raise as a defense the failure by any of their officers, directors, employees, agents, contractors, or auditors to take any actions necessary to comply with the provisions of this Consent Decree.

         III. DEFINITIONS

         8. Terms used in this Consent Decree that are defined in the Act or in regulations promulgated pursuant to the Act shall have the meanings assigned to them in the Act or such regulations, unless otherwise provided in this Decree. Whenever the terms set forth below are used in this Consent Decree, the following definitions apply:

“2.0 Liter Subject Vehicles” has the meaning set forth in the Second Partial Consent Decree;
“3.0 Liter Subject Vehicles” has the meaning set forth in the Second Partial Consent Decree;
“Clean Air Act” or “Act” means 42 U.S.C. §§ 7401-7671q;
“Complaint” means the complaint filed by the United States in this action on January 4, 2016 (as amended on October 7, 2016);
“Consent Decree” or “Decree” or “Third Partial Consent Decree” means this partial consent decree;
“Day” means a calendar day unless expressly stated to be a business day. In computing any period of time under this Consent Decree, where the last day would fall on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next business day;
“Defendants” means the persons or entities named in the Complaint, specifically, Volkswagen AG, Volkswagen Group of America, Inc., Volkswagen Group of America Chattanooga Operations, LLC, Audi AG, Dr. Ing. h.c. F. Porsche AG, and Porsche Cars North America, Inc.;
“Effective Date” has the meaning set forth in Section XVI;
“Electronic Emissions Control Module (“ECM”) Software” means the electronic control unit(s), including the software and calibrations integrated in the ECM hardware, which control the engine, transmission, powertrain, emissions control system, and on-board diagnostic system functions in the vehicle;
“Environmental Management System” or “EMS” means the management system established by the VW Defendants to provide a structure to carry out specific activities related to environmental protection and compliance with U.S. environmental laws for vehicles marketed and sold by the VW Defendants in the United States;
“EPA” means the United States Environmental Protection Agency and any of its successor departments or agencies;
“First Partial Consent Decree” means the Partial Consent Decree entered in this action by the Court on October 25, 2016;
The “Golden Rules” Handbook means the specific internal procedures developed by the VW Defendants on January 25, 2016 (Version 1.0), or subsequent versions if any, to optimize the VW Defendants' operational internal control system, which focuses on control unit software development, testing and monitoring procedures for vehicle certification, and escalation management in the Product Safety Committee (also referred to as “APS”);
“Materials” means Submissions and other documents, certifications, plans, reports, notifications, data, or other information that is required to be submitted pursuant to this Decree;
“Paragraph” means a portion of this Decree identified by an Arabic numeral;
“Parties” means the United States and Defendants;
“Porsche Defendants” means Dr. Ing. h.c. F. Porsche AG, and Porsche Cars North America, Inc.;
“Product Development Process” means Defendants' process to manage the development of motor vehicles, including research and development, quality assurance, and compliance with U.S. environmental laws for vehicles marketed and sold by Defendants in the United States;
“Porsche Remediation Plan” means the plan approved by the Executive Board of Dr. Ing. h.c. F. Porsche AG in December 2016, or subsequent versions, if any, to develop and implement internal procedures for the development of vehicles that include emissions control systems designed to comply with U.S. environmental laws and regulations, and to ensure the segregation of duties relating to emission testing and certification of such vehicles;
“Second Partial Consent Decree” means the Partial Consent Decree lodged in this action by the United States on December 20, 2016;
“Section” means a portion of this Decree identified by a Roman numeral;
“Submission” means any plan, report, guidance, or other item that is required to be submitted for approval pursuant to this Consent Decree;
“United States” means the United States of America, acting on behalf of EPA, except when used in Paragraph 91.d, when it shall mean the United States of America; and
“VW Defendants” means Volkswagen AG, Volkswagen Group of America, Inc., Volkswagen Group of America Chattanooga Operations, LLC, and Audi AG.

         IV. CIVIL PENALTY

         9. Within 30 Days after the Effective Date of this Consent Decree, Defendants shall pay the sum of $1, 450, 000, 000 as a civil penalty, together with interest accruing from the date on which the Consent Decree is lodged with the Court, at the rate specified in 28 U.S.C. § 1961 as of the date of lodging. This civil penalty resolves the civil claims of EPA as set forth in Paragraph 90 herein, and of U.S. Customs and Border Protection (“CBP”), as set forth in the separate Settlement Agreement between CBP and Defendants, executed as part of the coordinated federal settlements.

         10. Defendants shall pay the civil penalty due at https://www.pay.gov to the U.S.

         Department of Justice (“DOJ”) account, in accordance with instructions provided to Defendants by the Financial Litigation Unit (“FLU”) of the United States Attorney's Office for the Northern District of California, San Francisco Division, after the Effective Date. The payment instructions provided by the FLU will include a Consolidated Debt Collection System (“CDCS”) number, which Defendants shall use to identify all payments required to be made in accordance with this Consent Decree. The FLU will provide the payment instructions to:

Head of Treasury of Volkswagen AG Joerg Boche Joerg.boche@volkswagen.de 011-49-5361-92-4184

         on behalf of Defendants. Defendants may change the individual to receive payment instructions on its behalf by providing written notice of such change to the United States, EPA, and CBP in accordance with Section XV (Notices).

         11. At the time of payment, Defendants shall send notice that payment has been made: (a) to EPA via email at cinwdacctsreceivable@epa.gov or via regular mail at EPA Cincinnati Finance Office, 26 W. Martin Luther King Drive, Cincinnati, Ohio 45268; (b) to the United States via email or regular mail in accordance with Section XV; and (c) to EPA and CBP in accordance with Section XV. Such notice shall state that the payment is for (a) the civil penalty owed pursuant to the Consent Decree in In re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation and shall reference the civil action number, CDCS Number, and DOJ case number 90-5-2-1-11386, and (b) the CBP Settlement Agreement.

         12. Defendants shall not deduct any penalties paid under this Decree pursuant to this Section or Section IX (Stipulated Penalties) in calculating their federal income taxes.

         V. INJUNCTIVE RELIEF FOR THE VW DEFENDANTS

         Product Development Process

         13. Segregation of Duties between Product Development and Certification Testing/Monitoring for the VW Defendants.

         Within 180 Days after the Effective Date, the VW Defendants shall implement measures to ensure that employees involved in certification testing and monitoring for purposes of vehicle certification under the Clean Air Act are organizationally separate from product development. The VW Defendants shall form and maintain an organizationally separate certification group (“Certification Group”) to manage, supervise, and conduct certification testing and monitoring. The Certification Group shall:

a. Ensure that the VW Defendants have policies, procedures, practices, or processes for vehicle development that include emission control systems designed to comply with U.S. laws and regulations related to vehicle certification and emission standards;
b. Conduct, or retain a qualified contractor to conduct, emissions certification testing of both production and in-use vehicles;
c. Plan the testing program, obtain the vehicles, confirm that the configuration of the test vehicles is representative of the production vehicles, and test or retain a qualified contractor to test the certification vehicles consistent with EPA's regulations for certification and in-use performance testing. The Certification Group may utilize testing facilities and technicians assigned to other units within the VW Defendants' organization provided that the Certification Group controls the certification testing; and
d. Supervise all certification personnel, provide appropriate training, and control access to certification vehicles.

         14. Establishment of VW Defendants' Group Steering Committee(s).

         Within 90 Days after the Effective Date, the VW Defendants shall establish and maintain one or more Group Steering Committees, for monitoring and complying with current and future U.S. laws regarding vehicle certification and vehicle emissions. The VW Defendants shall establish rules of procedure for the Group Steering Committee(s) and shall define its tasks, authorities, and responsibilities, which shall include: (1) to document significant current U.S. laws, regulations, and legislation related to vehicle certification and automotive emissions, and track future developments in U.S. law related to vehicle certification and automotive emissions; (2) to monitor and assist the VW Defendants' compliance with U.S. requirements regarding exhaust emission standards and technology; and (3) to establish internal procedures and controls for the VW Defendants in order to achieve compliance with U.S. requirements regarding exhaust emission standards and technology.

         15. PEMS Testing by the VW Defendants.

a. The VW Defendants (under the supervision of the Certification Group) shall test certain model year 2017, 2018, and 2019 light-duty motor vehicles using portable emissions measurement system (“PEMS”) testing. For each model year, the VW Defendants shall perform PEMS testing on 33% of VW Defendants' EPA-certified test groups within that model year (“VW Test Groups”). For purposes of determining the number of VW Test Groups composing 33%, the VW Defendants shall round up or down to the nearest whole VW Test Group number closest to 33%. EPA may select the VW Test Groups for testing under this Paragraph 15.a pursuant to the following schedule: for model year 2017, by no later than February 1, 2017; for model year 2018, by no later than December 31, 2017, or at the annual certification meeting with EPA, whichever is earlier; and for model year 2019, by no later than December 31, 2018, or at the annual certification meeting with EPA, whichever is earlier. If EPA does not select the VW Test Groups pursuant to the schedule set forth in this Paragraph 15.a, then the VW Defendants shall select the VW Test Groups for PEMS testing. The VW Defendants shall select the VW Test Groups for model year 2017, model year 2018, and model year 2019 that will cover, in the aggregate, the full range of configurations of emission control systems on their light-duty vehicles for those model years, and shall not select a VW Test Group that was certified using carryover emissions data from another VW Test Group that has already been tested pursuant to this Paragraph (unless necessary to meet the 33% requirement). All testing under Paragraph 15.a for model year 2017 shall be completed by December 31, 2017. All testing under Paragraph 15.a for model years 2018 and 2019 shall be completed by September 30 of the calendar year for which the applicable model year is named, except that the VW Defendants and the United States may agree to a later date (but in no case later than December 31 of the applicable model year) sufficient to enable the VW Defendants to complete PEMS testing of the selected model year. The VW Defendants may, but are not required to, use the Third-Party Emissions Tester required by Paragraph 15.b to conduct the testing required by this Paragraph 15.a.
b. In addition to the requirements of Paragraph 15.a, the VW Defendants shall retain an independent third-party emissions tester (“Third-Party Emissions Tester”). (The VW Defendants and Porsche Defendants may hire the same Third-Party Emissions Tester.) No attorney-client relationship shall exist or be formed between any VW Defendant and the Third-Party Emissions Tester. For each of model year 2017, 2018, and 2019, the VW Defendants shall ensure that the Third-Party Emissions Tester conducts PEMS testing on a vehicle from each of two VW Test Groups. Testing under this Paragraph 15.b does not count toward the testing required under Paragraph 15.a. These VW Test Groups selected for testing under this Paragraph 15.b shall be the VW Test Groups with the highest projected sales for the model year at the time of certification, or if applicable those VW Test Groups selected by EPA by letter to the VW Defendants, pursuant to Section XV (Notices). Any such letters shall be provided no later than June 30 of the year for which the model year is named. All testing under this Paragraph 15.b shall be completed by December 31 of the calendar year for which the applicable model year is named.
c. The VW Defendants shall satisfy the testing required by Paragraph 15.a as follows, and shall ensure that the Third-Party Emissions Tester satisfies the testing required by Paragraph 15.a and b as follows:
i. Test a VW Test Group by testing one sample vehicle procured at random from the series production vehicles from that selected VW Test Group;
ii. Perform the required third-party PEMS testing on public roads in the United States, and perform all PEMS testing under real-world driving conditions over a range of ambient temperatures and pressures (including conditions not represented on the Federal Test Procedure) to measure emissions that are detectable on a serial vehicle via PEMS of the vehicle's regulated criteria air pollutants and CO2; and
iii. Conduct the required PEMS testing according to test methods recorded before the testing commences. The Third-Party Emissions Tester shall use test methods independently from the VW Defendants.
d. Within 120 Days after the Effective Date, the VW Defendants shall submit to EPA for review and approval in accordance with Section VII (Approval of Submissions) a plan for PEMS testing under this Paragraph. Such plan shall include:
i. A list of those test groups the VW Defendants will test for model year 2017;
ii. A written statement of qualifications for the proposed Third-Party Emissions Tester including its name, affiliation, and address, its experience in conducting PEMS testing, and a description of previous contracts or financial relationships of the proposed Third-Party Emissions Tester with the VW Defendants;
iii. A list of all emissions and vehicle and engine parameters the VW Defendants will measure and record during each PEMS test they perform under this Paragraph;
iv. A description of the test methods the VW Defendants propose to use including the routes and ambient conditions over which the vehicles shall be tested;
v. A template for the VW Defendants' summary report as described below; and
vi. A description of how the VW Defendants intend to satisfy all requirements of this Paragraph.
e. For each model year, for the PEMS testing required by Paragraph 15.a, the VW Defendants shall provide the test data, a detailed statement of all test methods used, and an executive summary of the data and methods (that includes the measured emissions of the vehicle's regulated criteria air pollutants and CO2) for all tests the VW Defendants performed under this Paragraph for that model year (“VW Defendants' Summary Report”) to EPA as specified in Section XV (Notices). The VW Defendants' Summary Report for model year 2017 shall be due no later than March 1, 2018. The VW Defendants' Summary Report for model years 2018 and 2019 shall be due no later than November 30 of the calendar year for which the model year is named, unless the VW Defendants and the United States agree to a later date. Within 21 Days following submission of the VW Defendants' Summary Report to EPA, the VW Defendants shall post their Summary Report (redacted of any Confidential Business Information (“CBI”) or personal information the disclosure of which is restricted by applicable law; however no emissions test methods and results may be claimed as CBI) in English and German at the public website required by Paragraph 51.
f. For each model year, for the PEMS testing required by Paragraph 15.b, the VW Defendants shall ensure that the Third-Party Emissions Tester prepares one or more “Third-Party Emissions Tester Summary Report” including the test data, a detailed statement of all test methods used, and an executive summary of the data and methods (that includes the measured emissions of the vehicle's regulated criteria air pollutants and CO2) for all testing the Third-Party Emissions Tester performed under this Paragraph for that model year. The VW Defendants shall provide the Third-Party Emissions Tester Summary Report to EPA as specified in Section XV (Notices) by no later than March 1 of the calendar year immediately after the calendar year for which the model year is named. Within 30 Days following submission of the Third-Party Emissions Tester Summary Report to EPA, the VW Defendants shall post the Third-Party Emissions Tester Summary Report (redacted of any CBI or personal information the disclosure of which is restricted by applicable law; however no emissions test methods and results may be claimed as CBI) in English and German at the public website required by Paragraph 51.
g. The Parties agree and acknowledge that U.S. law does not set forth a standard by which PEMS testing can be used to determine compliance for purposes of certification under Title II of the Clean Air Act.

         16. Business Units within the Product Development Process.

         Within 180 Days after the Effective Date, the VW Defendants shall implement the internal procedures set out in the “Golden Rules” Handbook by establishing internal controls and rules of procedure, and by defining the tasks, authorities, and responsibilities for the business units, committees, and boards involved in the Product Development Process, including, but not limited to, the Product Safety Committee (also known as “APS”), the Change Control Board, and the Type Approval, Recyclability and Functional Safety Department (also known as “EGDT”); provided however, that implementation of software and information technology may extend beyond 180 Days after the Effective Date, and that these additional Days shall not count in determining the three-year period set forth in Paragraph 26. The “Golden Rules” Handbook and the internal controls and internal rules of procedure developed by the VW Defendants may be subject to reasonable modification, in consultation with the Department of Justice. The VW Defendants shall conduct regular employee training regarding the internal procedures, and shall monitor implementation of these procedures through the VW Defendants' Governance, Risk, and Compliance (“GRC”) process.

         17. Definition of Managers' Responsibilities.

         Within 120 Days after the Effective Date, the VW Defendants shall define the tasks, authorities, and responsibilities of the managers involved in the Product Development Process with respect to compliance with U.S. environmental laws and regulations.

         18. Internal Audit.

         Within one year after the Effective Date, the VW Defendants shall conduct and complete an internal audit to track the implementation of the internal procedures in the “Golden Rules” Handbook relating to vehicle approval procedures with respect to U.S. environmental laws and regulations, ECM Software development in the Product Development Process, and escalation management in the Product Safety Committee (“APS”). The audit shall assess the effectiveness of those internal procedures and propose any corrective actions to improve their effectiveness.

         19. Reporting on Injunctive Relief Measures.

         The first annual report provided to the Department of Justice pursuant to Paragraph 47 shall include the information required by Paragraphs 18, 21, 22, and 23. In the second and third annual reports provided to the Department of Justice pursuant to Paragraph 47, the VW Defendants shall describe the measures that they have implemented to promote compliance with the requirements of Paragraphs 13, 14, 15, 16, 17, 21, 22, and 23 of this Section V (Injunctive Relief for the VW Defendants), together with an assessment of the effectiveness of those measures in promoting compliance with U.S. environmental law and any corrective actions the VW Defendants have undertaken to improve their effectiveness in promoting compliance with U.S. environmental law. In the second and third annual reports provided to the Department of Justice pursuant to this Paragraph 19, Defendants shall also address: (1) all risks assessed and recorded as part of the annual GRC process relating to either compliance with U.S. environmental laws and regulations or risks of rule violations in the Product Development Process; (2) countermeasures taken by the VW Defendants' business units in response to those risks; and (3) management controls implemented by the VW Defendants' business units relating to those risks. The information required to be provided in the annual reports pursuant to this Paragraph 19 shall be certified in accordance with Paragraph 52.

         Whistleblower System

         20. Implementation of Whistleblower System.

         Within 180 Days of the Effective Date, the VW Defendants shall implement and maintain the Volkswagen Group whistleblower system that was approved by the Board in September 2016. The VW Defendants shall retain professionally educated and trained employees to administer the system. Any whistleblower policy that applies to individuals whose work the VW Defendants reasonably anticipate may involve or relate to vehicles to be certified for sale in the United States shall ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.