The judge ruled in favor of our client, denying class certification in this consumer fraud class action.
Retained by Sullivan & Cromwell
Counsel for Volkswagen retained Cornerstone Research to support two testifying experts in this consumer fraud class action. Professor Eric Bradlow of the Wharton School of the University of Pennsylvania is a marketing expert in survey methods. Professor Ashley Langer of the University of Arizona is an environmental and industrial organization economist whose research has focused on the automotive industry. Ruling in favor of Volkswagen, a judge for the U.S. District Court for the Eastern District of Virginia denied class certification.
The plaintiffs had purchased Certified Pre-Owned (CPO) Volkswagen vehicles. CPO vehicles are part of a Volkswagen program where used vehicles meeting certain quality criteria for mileage and vehicle history are sold with an extended warranty. The plaintiffs alleged that a small number of vehicles in this program had been used internally by Volkswagen—rather than by a third-party owner—and that this was not disclosed at the time of purchase. The plaintiffs argued they would not have bought their CPO vehicles, or would have paid less, had they known.
The judge denied class certification, noting a “multitude of predominant individual questions that would need to be addressed for each proposed class member.”
Professor Bradlow critiqued the conjoint survey put forward by one of the plaintiffs’ experts, identifying a number of critical flaws. Notably, he showed that plaintiffs’ expert conjoint survey could not be used to calculate the market prices that consumers would have paid if they had been informed about their vehicles’ prior use at the time of purchase. Moreover, Professor Bradlow presented the results of an affirmative survey demonstrating that consumers were no less likely to buy internally-used CPO vehicles versus otherwise comparable CPO vehicles.
Professor Langer rebutted the plaintiffs’ experts’ opinions on the nature of the automobile industry and damages in this matter. She opined that even in a context as specific as a single manufacturer’s CPO vehicles, product differentiation and heterogeneity in purchase circumstances are pervasive. Such circumstances make it difficult to design damages frameworks that do not entail individualized inquiry. Professor Langer opined that plaintiffs’ experts had fallen well short of this threshold in their reports due to flawed and deficient analyses.
In January 2022, the judge denied class certification, noting a “multitude of predominant individual questions that would need to be addressed for each proposed class member.”
