1

A BATES BUTLER III

177 North Church Ave., Suite 1013

Tucson, AZ 85701

Telephone: (520) 624-6200

Facsimile: (520) 624-6204

bates@abbutlerlaw.com

William B. Federman (pro hac vice to be filed)

FEDERMAN & SHERWOOD

2926 Maple Ave., Ste. 200

Dallas, TX 75201

Telephone: (214) 696-1100

Facsimile: (214) 696-740-0112

wbf@federmanlaw.com

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

(1) WILLIAM MOYER, )

individually and on behalf of all )

others similarly situated, ) Case No. ___________________

)

Plaintiff, )

)

v. ) JURY TRIAL DEMANDED

)

(2) VOLKSWAGEN GROUP OF )

AMERICA, INC.; and )

(3) VOLKSWAGEN AG, )

)

Defendants. )

CLASS ACTION COMPLAINT

COMES NOW Plaintiff William Moyer, individually and on behalf of all other similarly 

situated (i.e. the members of the Class described and defined within this Class Action 

Complaint), (hereafter, collectively, “Plaintiffs”), and for their causes of action against 

Defendant Volkswagen Group of America, Inc. and Volkswagen AG, (hereafter, collectively, 

“Defendants”), allege and state as follows:

OVERVIEW

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1. This case addresses one of the most deliberate and blatant frauds to be perpetrated

on the U.S. consumers by an international automotive conglomerate in history. It arises from

Defendants’ stunning September 3, 2015, admission that, for more than seven (7) years,

Defendants have been intentionally, deliberately, and maliciously designing, manufacturing, and

distributing hundreds of thousands of its purportedly “clean diesel” vehicles with a software

algorithm embedded in the engine control module, the sole purpose of which was to detect when a 

federally mandated emissions test was being conducted and to cause the vehicles’ emissions

system to switch to an operating mode that would enable the vehicle to falsely appear to pass the 

federal and state clean air emissions standards. To be clear, the engine control module would

command the emissions system to run in this mode ONLY when the engine control module

determined that the vehicle was being operated under the testing conditions for the federally

mandated emissions testing. At all other times, the engine control module would command the

emissions system to operate in such a way that the clean diesel vehicles would, in fact, emit up to

forty-times (40x) the quantity of nitrogen oxides allowed by federal and state emissions standards.

In so doing, Defendants introduced at least half a million automobiles into the United States

market that flagrantly violate this country’s Clean Air Act.

2. The aim of the Clean Air Act and the corresponding regulations and state laws was

to protect human health and the environment by reducing emissions of nitrogen oxides and other

pollutants. Nitrogen oxides are known to be a family of highly reactive gases that are

significantly involved in atmospheric reactions with volatile organic compounds that produce

ozone. Breathing ozone has been linked to a variety of health problems including chest pain, 

coughing, throat irritation, and congestion, and can worsen health conditions such as bronchitis, 

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emphysema, and asthma. What is worse, children are at the greatest risk of experiencing negative

health conditions from exposure to ozone.

3. The impunity, avarice, and disregard for the law by Defendants Volkswagen

Group of America, Inc. and Volkswagen AG, makes this story all the more remarkable. Since its 

introduction in 2008, Defendants touted the 2.0L TDI Clean Diesel engine as a “fantastic power

train” that “gives very good fuel economy” that “is also good for the environment because it puts

25% less greenhouse gas emissions than what a gasoline engine would, . . . cuts out the particulate

emissions by 90% and the emissions of nitrous oxide are cut by 95%, . . . [and is] clean enough to

be certified in all 50 states.” (Statement of Volkswagen Group of America, Inc.’s Chief

Operating Officer Mark Barnes, to The Business Insider, October 9, 2009.) What Mr. Barnes

neglected to say was that the VW clean diesel vehicles were engineered to be able to detect when

they were being tested and to switch the manner in which the emissions system operated to be 

able to achieve those reductions in nitrogen oxides. What Mr. Barnes also neglected to disclose

was that, after circumventing the emissions laws of the United States, every one of VW’s clean 

diesel vehicles’ emissions systems were programmed to run in a mode that would result in up to

40 times the allowable quantities of nitrogen oxides being released into the atmosphere under

normal every day operating conditions.

4. Defendants used this fraud to allow them to position Volkswagen as the market 

leader in automotive diesel sales in the United States, capturing an astounding 78% of the market

by 2013 according to its own documents. And while it was perpetrating this fraud, it was taking

shots at other automakers who were caught inflating the real-world mileage performance, as

reflected in the statements of Volkswagen Group of America Inc.’s technical strategy manager, 

Doug Skorupski, who, in a September 14, 2013 press release, stated that “Volkswagen’s sales of 

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TDI clean-diesel models may be benefitting from the increasing problems that other auto brands

have encountered in elevating the real-world mileage performance of some of their cars with the

fuel economy they advertise.”

5. But perhaps the most brazen display of its fraud had to be Volkswagen Group of 

America Inc.’s press release of August 23, 2013, titled “Volkswagen Group Presses for ‘Green’

Recognition for Clean Diesel,” in which its vice president for industry and government relations

complained that “We’re not feeling the love,” referring to the fact that diesel buyers had not been

afforded favorable government treatment, and touting clean diesel as “one of the greatest choices”

for car buyers with environmental concerns as well as fuel economy demands.

6. Further evidencing Defendants’ knowing commitment to their fraud, even when

the first indication surfaced that Defendants’ clean diesel cars were violating clean air emissions

standards under real-world operating conditions in May 2014, and the EPA and CARB launched

their investigations, Defendants vehemently denied any wrongdoing, manufactured “technical

issues” to throw investigators off the trail, and even purported to develop a fix and announced a

voluntary recall in December 2014 that they claimed would remedy the irregularities identified by

the regulators.

7. When federal and state regulators identified the purported voluntary recall as what

it was, a sham fix, and threatened to withhold Certificates of Conformity for all future VW diesel

automobiles, only then did Volkswagen Group of America, Inc. finally admit that, since the 2009

model year, it had been engineering its vehicles to be able to identify and circumvent federally

mandated emissions testing. This from the same Company that on January 12, 2008 –

immediately prior to the introduction of its 2.0L TDI clean diesel engine – issued the 

“Volkswagen Group Environmental Principles Products” in which the Chairman of the Board

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defined the corporate objective of “climate protection” and “reduc[tion of] greenhouse gas

emissions.” Defendants have knowingly misled the U.S. consumer market for years. The Audi

brand’s slogan, one of the brands sold under Defendants umbrella organization, since 2007 has

been:

8. As the following will set forth, Defendants perpetrated this fraud on U.S. 

consumers, on federal and state regulators, and on the marketplace, but most to the point of this

litigation, on Plaintiff Moyer and on the Class Members he seeks to represent, each of whom has

purchased or leased a VW or Audi vehicle equipped with a 2.0L TDI Clean Diesel engine.

Through this action, Plaintiff seeks to hold Defendants accountable.

JURISDICTION AND VENUE

9. This Court has diversity jurisdiction over this action under 28 U.S.C. § 1332(a)

and (d) because the amount in controversy for the Class exceeds $5,000,000 and Plaintiff and

other putative class members are citizens of a different state than Defendants.

10. This Court has personal jurisdiction over Plaintiff Moyer because he is an Arizona 

citizen, resides in Tucson, Arizona, and submits to the Court’s jurisdiction. This Court has

personal jurisdiction over Defendants because Defendants have conducted and continue to

conduct substantial business in the District; and because Defendants have committed the acts and

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omissions complained of herein in the District, including the marketing and sale of a 2014 

Volkswagen Jetta TDI vehicle to Plaintiff Moyer in the District.

11. Venue as to Defendants is proper in this judicial district under 28 U.S.C § 1391

because Defendants sell a substantial amount of automobiles in this District, have dealerships in

this District, advertise in this District, knowingly and purposely introduced their fraudulent 

statements to consumers who are citizens in this District and many of Defendants’ acts

complained of herein occurred within this District, including the marketing of a the Volkswagen 

Jetta TDI.

PARTIES

Plaintiff

12. Plaintiff Moyer is a citizen of the State of Arizona who resides in Tucson, 

Arizona. 

13. Plaintiff Moyer purchased a 2014 Volkswagen Jetta TDI vehicle in July, 2014,

from Larry Miller Volkswagen in Tucson, Arizona. 

Defendants

14. Defendants are automobile design, manufacturing, distribution, and/or service

corporations doing business within the United States. Furthermore, Defendants design, develop, 

manufacture, distribute, market, sell, lease, warrant, service, advertise and repair passenger

vehicles, including the Class Vehicles.

15. Defendant Volkswagen Aktiengesellschaft, doing business as Volkswagen Group

and/or Volkswagen AG (hereinafter, “VW AG”), is a corporation organized and existing under

the laws of Germany, with its principal place of business located in Wolfsburg, Germany. VW

AG is the parent corporation of Volkswagen Group of America, Inc.

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16. Based on information and belief, Defendant Volkswagen Group of America, Inc.,

is a corporation which is incorporated in the state of New Jersey, with its principal place of

business located at 2200 Ferdinand Porsche Drive, Herndon, Virginia. 

17. Defendant Volkswagen Group of America, Inc., owns and operates the Test Center 

California (“TCC”), located in Oxnard, California. According to Defendant Volkswagen Group

of America, Inc.’s 2013 Corporate Social Responsibility Report: “As the largest technical center

of its kind for the Volkswagen Group outside of Germany, the TCC plays a pivotal role in the

product development food chain, acting as the final stop for many products before they are

approved for production. Work at the TCC is focused on power train product development, 

governmental compliance and field quality testing. The TCC has more than 50 engineers and

technology experts working in a 65,500-square-foot LEED-certified facility.” Based on this, 

Plaintiffs believe that many of Defendants’ acts complained of herein occurred within this

District.

18. Based on information and belief, Defendant Volkswagen of America, Inc., is a 

corporation which is incorporated in the state of New Jersey, with its principal place of business

located at 2200 Ferdinand Porsche Drive, Herndon, Virginia, and is an operating unit of 

Volkswagen Group of America, Inc.

FACTUAL ALLEGATIONS 

The EPA and CARB Implementation of Higher Emissions Standards in 2009

19. In the United States, emissions standard are managed on a national level by the 

Environmental Protection Agency (“EPA”), while state and local governments may apply for 

waivers to enact stricter regulation.

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20. Two tiers of emissions standards were defined by the Clean Air Act Amendments

of 1990. The Tier I standard was adopted in 1991 and phased in from 1994 to 1997. The Tier II

standards were phased in from 2004 to 2009. Within the Tier II standard, there are subgroups

designated Bins 1-11, with Bin 1 being the cleanest (i.e. zero emission vehicles) and Bin 11 being

the dirtiest. Bin 5 sets forth the standards that apply to automobiles and light trucks.

21. The Tier II, Bin 5 standards specifically restrict emissions of carbon monoxide

(“CO”), nitrogen oxides (NOx), particulate matter (PM), formaldehyde (HCHO), and nonmethane organic gases (NMOG) or non-methane hydrocarbons (NMHC). The emissions limits

are defined in the unit grams per mile (g/mi).

22. Moreover the EPA has developed consumer ratings in the form of an “air pollution

score” reflecting the amount of health-damaging and smog-forming airborne pollutants the vehicle

emits from zero (most/worst) to 10 (least/best), and a “greenhouse gas score” reflecting the

amount of greenhouse gases a vehicle will produce over its lifetime, based on typical consumer

usage, from zero (most/worst) to ten (least/best).

23. One of the factors considered in determining the air pollution score is the amount

of nitrogen oxides emitted from the vehicle.

24. One of the factors considered in determining the greenhouse gas score is the 

amount of nitrous oxide (N2O) emissions from the vehicle.

25. California has been granted a waiver from the EPA emissions standards and the 

California Air Resources Board (“CARB”) has adopted stricter emissions standards through

California’s Low Emissions Vehicle (“LEV”) program, defining six automotive emission

standards which are stricter than the EPA’s Tier regulations. A number of states have adopted

California’s stricter emissions standards, including: Arizona, Connecticut, Maine, Maryland, 

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Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, 

Vermont, and Washington, as well as the District of Columbia (collectively, the “CARB states”).

26. Under the Clean Air Act, the EPA administers a certification program to ensure

that every vehicle introduced into United States commerce satisfies the applicable emission

standards. Under this program, the EPA issues certificates of conformity (“COC”) approving the

introduction of vehicles into United States commerce.

27. To obtain a COC, vehicle manufacturers must submit a COC application to the 

EPA for each test group of vehicles that it intends to enter into United States commerce. The

COC application must include, among other things, a list of all auxiliary emission control devices

(“AECDs”) installed on the vehicle. 40 C.F.R. § 86.1844-01(d)(11). An AECD is “any element

of design which senses temperature, vehicle speed, engine RPM, transmission gear, manifold

vacuum, or any other parameter for the purpose of activating, modulating, delaying, or 

deactivating the operation of any part of the emission control system.” 40 C.F.R. § 86.1803-01.

If an AECD is included in any vehicle, the COC application must also include “a justification for

each AECD, the parameters they sense and control, a detailed justification of each AECD that

results in a reduction in effectiveness of the emission control system, and [a] rationale for why it

is 21 not a defeat device.” 40 C.F.R. § 86.1844-01(d)(11).

28. A defeat device is an AECD “that reduces the effectiveness of the emission control

system under conditions which may reasonably be expected to be encountered in normal vehicle

operation and use, unless: 1) Such conditions are substantially included in the Federal emission

test procedure; 2) The need for the AECD is justified in terms of protecting the vehicle against

damage or accident; and 3) The AECD does not go beyond the requirements of engine starting; or 

4) The AECD applies only for emergency 28 vehicles . . . .” 40 C.F.R. § 86.1803-01.

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29. Motor vehicles equipped with defeat devices cannot be certified to be in 

compliance with EPA regulations. EPA, Advisory Circular Number 24: Prohibition on use of

Emission Control Defeat Device (Dec. 11, 1972); see also 40 C.F.R. §§ 86.1809-01, 86-1809-10, 

86-1809-12.

30. Finally, “[v]ehicles are covered by a certificate of conformity only if they are in all

material respects as described in the manufacturer’s application for certification.” 40 C.F.R. § 

86-1848-10(c)(6).

Defendants’ Development of the TDI Clean Diesel Technology

31. It was against the backdrop of the phase-in of the EPA’s Tier II, Bin 5 standards

and CARB’s LEV program that in or about 2008, Defendants introduced the 2.0L TDI CR

Engine, which they described as “the first of a new generation of dynamic and efficient diesel

engines from Volkswagen.” “TDI” stands for “Turbocharged Direct Injected,” referring to the 

fact that these engines are turbocharged and use fuel injectors to directly inject fuel into each

cylinder. Fuel injectors atomize fuel through a small nozzle under high pressure. “CR” stands for

the term “Common Rail,” referring to the shared fuel high-pressure accumulator for all injectors

in a cylinder bank.

32. According to Defendants, “[t]he superior qualities of the 2.0 Liter TDI engine 

with common rail injection systems are oriented towards future challenges in acoustics, comfort, 

and exhaust gas after-treatment . . . confirming Volkswagen’s role as a pioneer in diesel 

technology.”

33. Defendants further touted that “[t]he engine offers the potential for future 

improvements in exhaust gas standards and the associated technologies” and that “equipped with 

a special after-treatment system, this engine meets current emissions standards.” This special 

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after-treatment system consisted of components including a diesel particulate filter with 

upstream oxidation catalyst and low and high pressure Exhaust Gas Recirculation (“EGR”) 

system to reduce nitrous oxide emissions.

34. According to Defendants, “[t]he most effective measure to reduce nitrous oxides 

(NOx) with an internal combustion engine is by introducing very high exhaust gas recirculation 

rates into the combustion chamber.”

35. Defendants claimed that in order to meet Bin 5 emission standards, “the entire 

operating characteristics of the engine up to full-load required EGR operation.”

36. Defendants claimed that the “short path of the High-Pressure EGR is used in 

order to reach the desired EGR rate while driving at lower engine speeds and loads,” but that 

“[w]ith rising engine load and engine RPM, the recirculation of exhaust gases is shifted to the 

Low Pressure EGR system to increase the recirculation rate . . . in order to obtain optimal NOx 

reduction at middle and high engine loads.”

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37. The exhaust system of the 2.0L TDI CR engine consists of the following main 

components: 1) oxidation catalytic converter; 2) particulate filter; 3) nitrogen oxide filter; and 4) 

H2S catalytic converter.

38. The oxidation catalyst is designed to convert a large portion of the hydrocarbons 

and carbon monoxide produced in the combustion process into water vapor and carbon dioxide.

39. The diesel particulate filter consists of a honeycomb-shaped ceramic body made 

of aluminum titanide. As the soot-containing exhaust gas flows through the porous filter walls of 

the inlet channels, the soot particles are captured in the inlet channels and then later burned off 

(oxidized) during regeneration cycles.

40. According to Defendants, a NOx storage catalyst is used to supplement the 

particulate filter system in order to meet the Tier II, Bin 5 emissions requirements. 

41. At the time of its introduction, the 2.0L TDI Clean Diesel utilized a Lean-NOx 

Trap technology (hereinafter referred to as “Gen 1”). Defendants later replaced the Gen 1 system 

with a Selective Catalytic Reduction (“SCR”) technology (hereinafter referred to as “Gen 2”).

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42. In August 2013, Defendants announced the introduction of the EA288 engine that 

would eventually replace the 2.0L TDI Clean Diesel. Defendants claimed that a “number of 

changes have been made to help reduce emissions, such as: use of a complex exhaust gas 

recirculation system (with high pressure EGR and a cooled low-pressure EGR); integration of 

the water-cooled intercooler and the EGR valve with the intake manifold, which also improves 

throttle response; and packaging the exhaust after-treatment components close to the engine by 

combining the DPF with the SCR Catalyst” (hereinafter referred to as “Gen 3”).

Defendants’ Marketing of the TDI Clean Diesel Technology

43. Beginning with the 2009 model year, Defendants began an aggressive marketing 

strategy to increase its market share of diesel powered vehicles in the United States by touting its 

“clean diesel” line of vehicles.

44. In an October 2009 interview with Business Insider, when asked “[w]hat is the 

advantage of a diesel over a hybrid,” VW of America’s chief operating officer, Mark Barnes, 

stated:

It’s also good for the environment because it puts out 25% less greenhouse gas 

emissions than what a gasoline engine would. And thanks to the uniqueness of 

the TDI motor, it cuts out the particulate emissions by 90% and the 

emissions of nitrous oxide are cut by 95%. So, a very very clean running 

engine. Clean enough to be certified in all 50 states.

Gayathri Vaidyanathan, “Volkswagen Preps for a Diesel Revolution,” The Business Insider, Oct. 

2009 (emphasis added).

45. In that same interview, when asked “how do you re-brand something that’s dirty 

like diesel as something that’s green,” Barnes stated:

The way we’ve gone about it is through a number of communication pieces. One 

of them we’ve used is TDI Truth & Dare. It is a very good website that compares 

some older diesels versus the current TDI clean diesel. And one of the things we 

do is we put coffee filters over the exhaust pipes of both cars. We let them run for 

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five minutes and after they are done, we take them off and the older diesel product 

(not a VW diesel) has a round sooty spot on that coffee filter. Ours is very clean. 

In fact they actually make coffee out of the filter that was attached to the 

Volkswagen clean diesel tail pipe and they drink it.

Id.

46. In an extremely effective effort to boost sales of its line of diesel vehicles, 

Defendants implemented aggressive national marketing campaigns to raise consumer awareness 

of what it purported to be its “TDI Clean Diesel Technology.” One example of such marketing 

efforts was the following print advertisement:

47. In another widely seen video advertisement aired by Defendants, three elderly 

ladies argue about whether diesel is dirty.

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48. After some bickering, one of the women puts her white scarf up against the 

exhaust pipe and then holds it up to face, proving that diesel is clean.

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49. Defendants’ also emphasized the fuel efficiency of the TDI Clean Diesel along 

with its cleanliness. For example, in a marketing brochure for the 2013 VW Jetta TDI Clean 

Diesel, Defendants not only claimed that the car had a greater range on a single tank of gas than 

did the Toyota Prius, Mazda 3, Honda Civic HF, Ford Focus SE, and Toyota Corolla S, but they 

also claimed that it was “90% cleaner than previous diesel engines.”

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50. Defendants’ also marketed the TDI Clean Diesel as “typically hav[ing] a higher 

resale value versus comparable gasoline vehicles,” as it did in this 2015 Audi sales brochure:

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51. Defendants’ Clean Diesel marketing campaign was, by all accounts spectacularly 

successful. Defendants’ sales of TDI Clean Diesel vehicles rose from just 12,000 units in North 

America in 2008, to more than 100,000 units in 2013, constituting a 78% share of the North 

American diesel automobile market, selling more diesel cars in the United States than every 

other brand combined.

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52. The only problem is that it was all based upon a string of lies that started to 

unravel in 2014.

The International Council for Clean Transportation/

University of West Virginia Study

53. In early 2014, the Center for Alternative Fuels, Engines and Emissions 

(“CAFEE”) at West Virginia University (“WVU”) was contracted by the International Council 

on Clean Transportation to conduct in-use testing of three light-duty diesel vehicles, using a 

portable emissions measurement systems (“PEMS”) over test routes in the state of California. 

These vehicles had all been certified as compliant with EPA Tier 2-Bin 5 and CARB LEV-II 

ULEV emission standards. In addition, two of the three vehicles were also selected for chassis 

dynamometer testing at CARB’s El Monte, Facility. Gaseous emissions of nitrogen oxides, 

carbon monoxide, THC, and carbon dioxide were measured using the PEMS.

54. Two of the test vehicles were a 2012 Volkswagen Jetta and a 2013 Volkswagen 

Passat equipped with a 2.0L TDI Clean Diesel engine, one with a Lean-NOx trap system and the 

other with a urea-based Selective Catalytic Reduction (“SCR”) system.

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55. Based on their testing, the real world NOx emissions of the two Volkswagen 

vehicles were found to exceed the EPA Tier 2-Bin 5 standard by factors of 15 to 35 and 5 to 20, 

respectively. However, the NOx emissions for these same two vehicles were below the EPA Tier 

2-Bin 5 standard during the chassis dynamometer testing.

The EPA and CARB Investigations

56. The EPA and CARB were alerted to the emissions problems with the Volkswagen 

test vehicle when WVU CAFEE published the results of its study on May 15, 2014. Both the 

EPA and CARB then opened investigations and begin discussions with Defendant Volkswagen 

Group of America, Inc. to determine the reason for the high NOx emissions measured under real 

world driving conditions in the WVU study.

57. Over the course of the year following the publication of the WVU study, 

Defendant Volkswagen Group of America, Inc. initiated testing to replicate the WVU testing and 

identify the technical reasons for the high on-road emissions. During this time, Defendants

continued to assert to CARB and the EPA that the increased emissions from these vehicles could 

be attributed to various technical issues and unexpected in-use conditions.

58. In December 2014, Defendant Volkswagen Group of America, Inc. shared the 

results of its investigation with EPA and CARB and announced that it would conduct a voluntary 

software recall to recalibrate both the Lean-NOx Trap and the SCR systems. Volkswagen Group 

of America, Inc. asserted that the recall would include approximately 500,000 vehicles 

(approximately 50,000 of which were in California) and would fix, among other things, the real 

world driving emissions.

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59. Both the EPA and CARB agreed that Volkswagen Group of America, Inc. could 

implement this recall, but cautioned that they would perform confirmatory testing to ensure that 

the recall adequately addressed the issue.

60. CARB, in coordination with the EPA, began confirmatory testing to determine the 

efficacy of the recall, including both in the laboratory on required certification cycles and overthe-road using PEMS. The over-the-road testing revealed the recall calibration did reduce 

emissions to some degree, but that NOx emissions were still significantly higher than expected.

61. CARB then broadened its testing to pinpoint the exact technical nature of the test 

vehicles’ poor performances, and to investigate why the onboard diagnostic system was not 

detecting the increased emissions. To do this, CARB developed a special dynamometer cycle 

consisting of driving the phase 2 portion of the FTP repeatedly. This special cycle revealed that 

NOx emissions would rise throughout the cycle, resulting in uncontrolled NOx emissions.

62. CARB shared its findings with the EPA and Volkswagen Group of America, Inc.

on July 8, 2015, and conducted several technical meetings with Volkswagen Group of America, 

Inc. The EPA and CARB concluded that none of the potential technical issues suggested by 

Volkswagen Group of America, Inc. explained the higher test results consistently confirmed 

during CARB’s testing.

VW Group of America’s Stunning Admission

63. Given the results of CARB’s post-recall confirmatory testing and Defendant 

Volkswagen Group of America, Inc.’s inability to explain why it’s TDI Clean Diesel engines 

were emitting nitrogen oxides in excess of the EPA’s Tier 2-Bin 5 and CARB’s LEV-II 

standards, the EPA and CARB made it clear that they would not approve certificates of 

conformity for Defendants’ 2016 model year diesel vehicles until Volkswagen Group of 

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America, Inc. could adequately explain the anomalous emissions and ensure the agencies that the 

2016 model year vehicle would not have similar issues.

64. Only when confronted with the threat that Defendants’ 2016 model year diesel 

vehicles would not be issued certificates of conformity, did Volkswagen Group of America, Inc.

admit to EPA and CARB officials that from 2009 through 2015 it had designed, manufactured, 

and installed a defeat device for the purpose of bypassing, defeating, or rendering inoperative 

elements of its diesel vehicles’ emission control system.

65. Specifically, this defeat device was a software algorithm installed in the engine 

control module (ECM) that was designed to sense when the vehicle was being tested for 

compliance with EPA emissions standards, based on various inputs, including the position of the 

steering wheel, vehicle speed, the duration of the engine’s operation, and barometric pressure. 

These inputs directly tracked the federal test procedure used for emission testing for EPA 

certification purposes.

66. When the software algorithm detected that EPA emission testing was being 

conducted, the ECM ran software which produced compliant emission results under an ECM 

calibration that Defendants refer to as the “dyno calibration.” The term “dyno” refers to the 

equipment used in EPA emissions testing called a dynamometer. At all other times during 

normal vehicle operation, the software algorithm an ECM calibration that Defendants referred to 

as “road calibration” which reduced the effectiveness of the emission control system, specifically 

the Gen 1, Gen 2, and Gen 3 NOx converter technologies. As a result, emissions of NOx 

increased by a factor of 10 to 40 times above the EPA and CARB compliant levels, under realworld operating conditions.

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67. The Clean Air act makes it illegal “for any person to manufacture or sell, or offer 

to sell, or install, any part or component intended for use with, or as part of, any motor vehicle or 

motor vehicle engine, where a principal effect of the part or component is to bypass, defeat, or 

render inoperative any device or element of design installed on or in a motor vehicle or motor 

vehicle engine in compliance with regulations under this subchapter.” 42 U.S.C. § 

7522(A)(3)(B); 40 C.F.R. § 86.1854-12(a)(3)(ii).

68. Based on information and belief, Plaintiff alleges that Defendants knowingly and 

willfully installed a defeat device in the Class Vehicles in order to be able to market and sell such 

vehicles as having greater fuel efficiency and/or performance than would be possible if the Class 

Vehicles complied with EPA and CARB standards.

69. Based on information and belief, Plaintiff alleges that Defendants knowingly and 

willfully sold the Class Vehicles knowing such vehicles did not comply with EPA and CARB 

emissions regulations and that if such vehicles were designed and manufactured to comply with 

such emissions regulations, they would not have the fuel efficiency and performance 

characteristics that Defendants marketed and represented them to have.

70. As a result of their investigations and Volkswagen Group of America, Inc.’s

admissions, both the EPA and CARB issued Notices of Violation to Volkswagen Group of 

America, Inc. finding that it violated “42 U.S.C. § 7522(a)(1), each time it sold, offered for sale, 

introduced into commerce, delivered for introduction into commerce, or imported (or caused any 

of the foregoing with respect to) one of the hundreds of thousands of new motor vehicles within 

[the designated] test groups.” Additionally, they found Volkswagen Group of America, Inc. to 

have violated 42 U.S.C. § 7522(a)(3)(B) each time it manufactured and installed into these 

vehicles an ECM equipped with a defeat device.

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71. The Notices of Violation applied to the following vehicles equipped with the 2.0L 

TDI clean diesel engine (hereinafter referred to as the “Class Vehicles”):

Model Year Make and Model(s)

2009 VW Jetta, VW Jetta Sportwagen

2010 VW Jetta, VW Jetta Sportwagen

2011 VW Golf, VW Jetta, VW Jetta Sportwagen, Audi A3

2012 VW Beetle, VW Beetle Convertible, VW Golf, VW Jetta, 

VW Jetta Sportwagen, Audi A3, VW Passat

2013 VW Beetle, VW Beetle Convertible, VW Golf, VW Jetta, 

VW Jetta Sportwagen, Audi A3, VW Passat

2014 VW Beetle, VW Beetle Convertible, VW Golf, VW Jetta, 

VW Jetta Sportwagen, Audi A3, VW Passat

2015 VW Beetle, VW Beetle Convertible, VW Golf, VW Jetta, 

VW Jetta Sportwagen, Audi A3, VW Passat

Plaintiff’s Purchase of a 2014 Volkswagen Jetta TDI 

72. Plaintiff Moyer purchased a 2014 Volkswagen Jetta TDI in July, 2014, from 

Larry Miller Volkswagen in Tucson, Arizona. 

73. Plaintiff conducted research prior to making her decision to purchase the Jetta 

TDI. Plaintiff observed numerous advertisements, marketing brochures and website pages, car 

magazine articles, and dealer statements touting the TDI clean diesel as having great 

performance and fuel efficiency with the impressive vehicle specifications represented, while 

also being one of the most environmentally clean vehicles available in the market. These were 

significant factors in Plaintiff making his decision to purchase the Jetta TDI.

74. At no time prior to or after Plaintiff’s purchase of the 2014 Volkswagen Jetta TDI 

did Defendants inform Plaintiff that his vehicle had been designed and manufactured with a 

defeat device that caused the vehicle to emit up to 40 times the quantity of nitrogen oxides 

allowed by federal clean air standards when operated under normal driving conditions.

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75. At no time prior to or after Plaintiff’s purchase of the 2014 Volkswagen Jetta TDI 

did Defendants inform Plaintiff that his vehicle would not possess performance and/or fuel 

efficiency characteristics it was represented to have if it were to comply with federal clean air 

standards.

76. If he had been informed that the 2014 Volkswagen Jetta TDI clean diesel was 

equipped with a defeat device that caused it to emit up to 40 times the amount of nitrogen oxides 

permitted by the federal clean air standards, he would not have purchased this vehicle or would 

not have paid the amount he did for it.

Defendants’ Express Warranties

77. In connection with the sale (by purchase or lease) of each one of its new vehicles, 

Defendants provide an express New Vehicle Limited Warranty, (“NVLW”), on each vehicle for 

a period of 3 years or 36,000 miles, whichever occurs first. The NVLW “covers any repair to 

correct a manufacturing defect in materials or workmanship.” 

78. In addition, Defendants expressly warranted its vehicles through a Federal 

Emissions Control System Defect Warranty, (“FECSDW”), in which Defendants warranted for a 

period of 2 years or 24,000 miles to “every purchaser or lessee”: 

that every model year 2014 Volkswagen vehicle imported by Volkswagen:

• was designed, built and equipped so as to conform at the time of sale with 

all applicable regulations of the United States Environmental Protection 

Agency (EPA), and

• is free from defects in material and workmanship which causes the vehicle 

to fail to conform with EPA regulations . . .

79. Defendants also expressly warranted for a period of 8 years or 80,000, whichever 

occurs first, that a Volkswagen dealer will repair or replace free of charge the following major 

emission control components only:

• Catalytic Converter and Particulate Filter

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• Engine Electronic Control Module

• On Board Diagnostic Device

80. Defendants also provided a Federal Emissions Performance Warranty that 

provides that:

if the following conditions are met, any authorized Volkswagen dealer in the 

United States, including its territories, will remedy any nonconformity, as 

determined below, free of charge, under the following circumstances:

• The vehicle fails to conform to at any time during 24 months or 24,000 

miles, whichever occurs first, to applicable emission inspection standards 

as determined by an EPA Approved State Inspection and Maintenance test 

or inspection, or

• if the vehicle has been in use for more than 24 months or 24,000 miles, 

whichever occurs first, the vehicle fails an Inspection and Maintenance 

test or inspection resulting from a malfunction of a catalytic converter, 

particulate filter, engine electronic control module or on board diagnostic 

device (OBD), and

• the failure of the Inspection and Maintenance test of inspection requires 

the vehicle owner to bear any penalty or other sanction, including the 

denial of the right to use the vehicle under local, state, or federal law . . . .

81. Based on information and belief, Plaintiff further alleges that the relevant terms of 

the warranties in this case are identical, regardless of the model year of the Class Vehicles and 

that the relevant warranties are transferrable to subsequent owners of the vehicle.

82. Plaintiff and the Class Members experienced defects within the warranty period. 

However, despite the existence of the express warranties provided to Plaintiff and Class 

Members, Defendants failed to inform Plaintiff and the Class Members that the Class Vehicles 

had been intentionally and knowingly designed and manufactured to be out of compliance with 

all applicable federal and state clean air standards and by failing to fix the defective emissions 

components free of charge.

TOLLING OF THE STATUTE OF LIMITATIONS

83. Any applicable statute of limitation has been tolled by Defendants’ knowledge, 

active concealment, and denial of the facts alleged herein. Plaintiff and proposed class members 

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could not have reasonably discovered the true, defective nature of the proposed Class Vehicles 

until shortly before this litigation commenced. Defendants are further estopped from relying on 

any statute of limitation because of their concealment of the defective nature of the Class 

Vehicles and their engines.

CLASS ACTION ALLEGATIONS

84. Plaintiff brings this action as a class action pursuant to Federal Rule of Civil 

Procedure 23(a), (b)(2), and (b)(3) on behalf of the following class: 

All persons or entities in the United States who own or lease a Volkswagen or 

Audi vehicle equipped with a 2.0L TDI Clean Diesel engine (the “Nationwide 

Class”).

85. Alternatively, Plaintiff proposes the following state-specific sub-class: 

All persons or entities who reside in the state of Arizona that own or lease a 

Volkswagen or Audi vehicle equipped with a 2.0L TDI Clean Diesel engine (the 

“Arizona Class”).

86. Excluded from the above class are Defendants, its employees, coconspirators, 

officers, directors, legal representatives, heirs, successors and wholly or partly own subsidiaries 

or affiliated companies; class counsel and their employees; and the judicial officers and their 

immediate family members and associated court staff assigned to this case, and all persons 

within the third degree of relationship to any such persons.

87. Certification of Plaintiff’s claims for class-wide treatment is appropriate because 

Plaintiff can prove the elements of his claims on a class-wide basis using the same evidence as 

would be used to prove those elements in individual actions alleging the same claim.

88. This action has been brought and may be properly maintained on behalf of each of 

the Classes proposed herein under Federal Rule of Civil Procedure 23.

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89. Numerosity of the Class (Federal Rule of Civil Procedure 23(a)(1)) – The 

members of the Class are so numerous that their individual joinder is impracticable. Plaintiff is 

informed and believes that there are hundreds of thousands purchasers in the class. Inasmuch as 

the class members may be identified through business records regularly maintained by 

Defendants and their employees and agents, and through the media, the number and identities of 

class members can be ascertained. Members of the Class can be notified of the pending action by 

e-mail, mail, and supplemented by published notice, if necessary.

90. Commonality and Predominance (Federal Rule of Civil Procedure 23(a)(2)) –

There are questions of law and fact common to the Class. These questions predominate over any 

questions affecting only individual class members. These common legal and factual issues 

include, but are not limited to: 

a. Whether Defendants engaged in the conduct alleged herein; 

b. Whether Defendants designed, advertised, marketed, distributed, leased, sold, or 

otherwise placed Class Vehicles into the stream of commerce in the United States; 

c. Whether Defendants designed, manufactured, marketed, distributed, leased, sold 

or otherwise placed Class Vehicles into the stream of commerce in the United 

States knowing that the Class Vehicles did not comply with applicable federal and 

state emissions standards; 

d. Whether Defendants designed and manufactured the Class Vehicles with a defeat 

device; 

e. Whether Defendants designed and manufactured the Class Vehicles with a defeat 

device for the purpose of circumventing federal and state emissions requirements 

in order to represent that the Class Vehicles had greater performance and fuel 

economy characteristics than could otherwise have been achieved if in 

compliance with such emissions standards; 

f. Whether Defendants knew or should have known that the defeat device violated 

the Clean Air Act; 

g. Whether Defendants intentionally concealed from consumers that the Class 

Vehicles did not comply with federal and state emissions standards; 

h. Whether Defendants misrepresented to purchasers and lessees of the Class 

Vehicles that such vehicles were in compliance with federal and state emissions 

standards; 

i. Whether Defendants breached the express terms of its contracts with purchasers 

and lessees when it included a defeat device in the ECM of the Class Vehicles; 

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j. Whether Defendants breached the covenant of good faith and fair dealing by 

including a defeat device in the ECM of the Class Vehicles; 

k. Whether Defendants willfully concealed from purchasers and lessees of the Class 

Vehicles that it designed and manufactured an illegal defeat device in the Class 

Vehicles; 

l. Whether Plaintiff and the other Class members overpaid for their Class Vehicles 

as a result of the defects alleged herein; 

m. Whether Plaintiff and the other Class members have been harmed by a diminution 

in value as a result of the defects alleged herein; 

n. Whether Defendants were unjustly enriched by their deceptive practices; 

o. Whether Plaintiff and members of the class are entitled to equitable or injunctive 

relief and, if so, in what amount.

91. Typicality (Federal Rule of Civil Procedure 23(a)(3)) – The claims of the 

representative Plaintiff are typical of the claims of each member of the Class. Plaintiff, like all 

other members of the Class, has sustained damages arising from Defendants’ violations of the 

laws, as alleged herein. The representative Plaintiff and the members of the Class were and are 

similarly or identically harmed by the same unlawful, deceptive, unfair, systematic, and 

pervasive pattern of misconduct engaged in by Defendants.

92. Adequacy (Federal Rule of Civil Procedure 23(a)(4)) – The representative 

Plaintiff will fairly and adequately represent and protect the interests of the Class members and 

has retained counsel who are experienced and competent trial lawyers in complex litigation and 

class action litigation. There are no material conflicts between the claims of the representative 

Plaintiff and the members of the Class that would make class certification inappropriate. Counsel 

for the Class will vigorously assert the claims of all Class members.

93. Superiority (Federal Rule of Civil Procedure 23(b)(3)) – This suit may be 

maintained as a class action under Federal Rule of Civil Procedure 23(b)(3), because questions 

of law and fact common to the Class predominate over the questions affecting only individual 

members of the Class and a class action is superior to other available means for the fair and 

efficient adjudication of this dispute. The damages suffered by individual class members are 

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small compared to the burden and expense of individual prosecution of the complex and 

extensive litigation needed to address Defendants’ conduct. Further, it would be virtually 

impossible for the members of the Class to individually redress effectively the wrongs done to 

them. Even if Class members themselves could afford such individual litigation, the court system 

could not. In addition, individualized litigation increases the delay and expense to all parties and 

to the court system resulting from complex legal and factual issues of the case. Individualized 

litigation also presents a potential for inconsistent or contradictory judgments. By contrast, the 

class action device presents far fewer management difficulties; allows the hearing of claims 

which might otherwise go unaddressed because of the relative expense of bringing individual 

lawsuits; and provides the benefits of single adjudication, economies of scale, and 

comprehensive supervision by a single court.

94. The Class Plaintiff contemplates the eventual issuance of notice to the proposed 

Class members setting forth the subject and nature of the instant action. Upon information and 

belief, Defendants’ own business records and electronic media can be utilized for the 

contemplated notices. To the extent that any further notices may be required, the Class Plaintiff 

would contemplate the use of additional media and/or mailings.

95. This action is properly maintained as a Class Action pursuant to Rule 23(b) of the 

Federal Rules of Civil Procedure, in that: 

a. Without class certification and determination of declaratory, injunctive, statutory 

and other legal questions within the class format, prosecution of separate actions 

by individual members of the Class will create the risk of: 

i. Inconsistent or varying adjudications with respect to individual members 

of the Class which would establish incompatible standards of conduct for 

the parties opposing the Class; or 

ii. Adjudication with respect to individual members of the Class which would 

as a practical matter be dispositive of the interests of the other members 

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not parties to the adjudication or substantially impair or impede their 

ability to protect their interests; 

b. The parties opposing the Class have acted or refused to act on grounds generally 

applicable to each member of the Class, thereby making appropriate final 

injunctive or corresponding declaratory relief with respect to the Class as a whole; 

or 

c. Common questions of law and fact exist as to the members of the Class and 

predominate over any questions affecting only individual members, and a Class 

Action is superior to other available methods of the fair and efficient adjudication 

of the controversy, including consideration of: 

i. The interests of the members of the Class in individually controlling the 

prosecution or defense of separate actions; 

ii. The extent and nature of any litigation concerning controversy already 

commenced by or against members of the Class; 

iii. The desirability or undesirability of concentrating the litigation of the 

claims in the particular forum; 

iv. The difficulties likely to be encountered in the management of a Class 

Action.

CAUSES OF ACTION

96. Plaintiff alleges the following causes of action on behalf of the Nationwide Class 

and all state-specific Classes, except where otherwise specifically noted

COUNT I

VIOLATIONS OF THE ARIZONA CONSUMER FRAUD ACT

(Ariz. R.S. § 44-1521 et seq.)

(On behalf of the Arizona Sub-Class)

97. Plaintiff incorporates by reference all allegations of the preceding paragraphs as 

though fully set forth herein 

98. Plaintiff brings this claim on behalf of himself and on behalf of the members of 

the California Sub-Class.

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99. The Arizona Consumer Fraud Act provides: “The act, use or employment by any 

person of any deception, deceptive or unfair act or practice, fraud, false pretense, false promise, 

misrepresentation, or concealment, suppression or omission of any material fact with intent that 

others rely on such concealment, suppression or omission, in connection with the sale or 

advertisement of any merchandise whether or not any person has in fact been misled, deceived or 

damaged thereby, is declared to be an unlawful practice.” Ariz. R.S. § 44-1522.

100. Defendants caused to be made or disseminated through California and the United 

States, through advertising, marketing and other publications, statements that were untrue or 

misleading, including statements on the vehicle Monroney sticker and in nationally distributed 

print and video advertisements that the Class Vehicles were “clean diesel.” Defendants also 

caused to be made or disseminated through Arizona and the United States, through its USA 

Warranty and Maintenance booklet, the misrepresentation that the Class Vehicles were 

“designed, built and equipped so as to conform at the time of sale with all applicable regulations 

of the United States Environmental Protection Agency (EPA), and [are] free from defects in 

material and workmanship which causes the vehicle(s) to fail to conform with EPA regulations.” 

These statements were known, or which by the exercise of reasonable care should have been 

known, to Defendants to be untrue and misleading to consumers, including Plaintiff and the other 

Class Members. 

101. Defendants have violated § 44-1522 because the misrepresentations and 

omissions regarding the safety, reliability, and functionality of their Class Vehicles as set forth in 

this Complaint were material and likely to deceive a reasonable consumer.

102. Plaintiff and the other Class Members have suffered an injury in fact, including 

the loss of money or property, as a result of Defendants’ unfair, unlawful, and/or deceptive 

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practices. In purchasing or leasing their Class Vehicles, Plaintiff and the other Class Members 

relied on the misrepresentations and/or omissions of Defendants with respect to the safety, 

reliability, and performance and fuel economy characteristics of the Class Vehicles. Defendants’ 

representations were not to be true because the Class Vehicles were designed, manufactured, and 

distributed with a defeat device, the sole purpose of which was to circumvent federal and state 

emissions standards. Had Plaintiff and the other Class Members known this, they would not have 

purchased or leased their Class Vehicles and/or paid as much for them. Accordingly, Plaintiff 

and the other Class members overpaid for their Class Vehicles and did not receive the benefit of 

their bargain.

103. All of the wrongful conduct alleged herein occurred, and continues to occur, in 

the conduct of Defendants’ business. Defendant’s wrongful conduct is part of a pattern or 

generalized course of conduct that is still perpetuated and repeated, both in the state of California 

and nationwide.

104. Plaintiff, individually and on behalf of the other Class Members, requests that this 

Court enter such orders or judgments as may be necessary to enjoin Defendants from continuing 

their unfair, unlawful, and/or deceptive practices and to restore to Plaintiff and the other Class 

Members any money Defendants acquired by unfair competition, including restitution and/or 

restitutionary disgorgement, and for such other relief set forth below.

COUNT II

VIOLATION OF MAGNUSON-MOSS WARRANTY ACT

(15 U.S.C. § 2301, et seq.)

(On behalf of the Nationwide Class or, Alternatively,

the Arizona Sub-Class)

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105. Plaintiff incorporates by reference all allegations of the preceding paragraphs as 

though fully set forth herein.

106. Plaintiff brings this claim on behalf of himself and on behalf of the members of 

the Nationwide Class or, alternatively, the Arizona Sub-Class.

107. Plaintiff and the Class Members are “consumers” within the meaning of the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3).

108. Defendants are “suppliers” and “warrantors” within the meaning of the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(4)-(5).

109. The Class Vehicles are “consumer products” within the meaning of the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(1).

110. Title 15, United States Code, section 2301(d)(1) provides a cause of action for 

any consumer who is damaged by the failure of a warrantor to comply with a written or implied 

warranty.

111. Defendants’ express warranties are written warranties within the meaning of the 

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(6). The Class Vehicles’ implied warranties are 

covered under 15 U.S.C. § 2301(7).

112. Defendants breached these warranties as described in more detail above. The 

Class Vehicles are equipped with the 2.0L TDI clean diesel engine. The Class Vehicles share a 

common defect in that they were designed and manufactured with a defeat device such that they 

are not in compliance with the Clean Air Act and cannot meet state and federal emissions 

standards under normal driving conditions.

113. Plaintiff and the other Class Members have had sufficient direct dealings with 

either Defendants or their agents (dealerships and technical support) to establish privity of 

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contract between Defendants, on one hand, and Plaintiff and each of the other Class Members on 

the other hand. Nonetheless, privity is not required here because Plaintiff and each of the other 

Class Members are intended third-party beneficiaries of contracts between Defendants’ and its 

dealers, and specifically, of Defendants’ express and implied warranties. The dealers were not 

intended to be the ultimate consumers of the Class Vehicles and have no rights under the 

warranty agreements provided with the Class Vehicles; the warranty agreements were designed 

for and intended to benefit the consumers only.

114. Affording Defendants a reasonable opportunity to cure its breach of written 

warranties would be unnecessary and futile here. Defendants have engaged in a more than 7-year 

endeavor to knowingly conceal the fact that is designed and manufactured into the Class 

Vehicles a defeat device for the sole purpose of circumventing state and federal emissions 

standards. At the time of sale or lease of each Class Vehicle, Defendants knew, should have 

known, or were reckless in not knowing of its misrepresentations and omissions concerning the 

Class Vehicles’ inability to perform as warranted, but nonetheless failed to rectify the situation 

and/or disclose the defect. Under the circumstances, the remedies available under any informal 

settlement procedure would be inadequate and any requirement that Plaintiff resort to an 

informal dispute resolution procedure and/or afford Defendants a reasonable opportunity to cure 

their breach of warranties is excused and thereby deemed satisfied.

115. Plaintiff and the other Class Members would suffer economic hardship if they 

returned their Class Vehicles but did not receive the return of all payments made by them. 

Because Defendants are refusing to acknowledge any revocation of acceptance and return 

immediately any payments made, Plaintiff and the other Class members have not re-accepted 

their Class Vehicles by retaining them.

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116. The amount in controversy of Plaintiff’s individual claims meets or exceeds the 

sum of $25. The amount in controversy of this action exceeds the sum of $50,000, exclusive of 

interest and costs, computed on the basis of all claims to be determined in this lawsuit.

117. Plaintiff, individually and on behalf of the other Class members, seeks all 

damages permitted by law, including diminution in value of the Class Vehicles, in an amount to 

be proven at trial.

COUNT III

BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

(Arizona Commercial Code, Ariz. R.S. §§ 47-2314, 47-2318)

(On Behalf of the Arizona Sub-Class)

118. Plaintiff incorporates by reference all allegations of the preceding paragraphs as 

though fully set forth herein.

119. Plaintiff brings this claim on behalf of himself and on behalf of the members of 

the Arizona Sub-Class.

120. Defendants are and were at all relevant times ‘merchants’ under the Arizona

Commercial Code.

121. A warranty that the Class Vehicles were in merchantable condition was implied 

by law in the instant transaction, pursuant to the Arizona Commercial Code, Ariz. R.S. § 47-

2314.

122. These Class Vehicles, when sold and at all times thereafter, were not in 

merchantable condition and are not fit for the ordinary purpose for which cars are used. 

Specifically, the Class Vehicles were defective in that they were equipped with a defeat device, 

the sole purpose of which was to circumvent federal and state emissions standards.

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123. Defendants were fully aware of this issue, as evidenced by the fact that on 

September 3, 2015, it admitted to EPA and CARB officials the existence of the defeat device 

when threatened with the withholding of Certificates of Conformity for its 2016 model year 

diesel vehicles.

124. Plaintiff and the other Class members have had sufficient direct dealings with 

either Defendants or its agents (dealerships) to establish privity of contract between Plaintiff and 

the other Class Members. Notwithstanding this, privity is not required in this case because 

Plaintiff and the other Class Members are intended third-party beneficiaries of contracts between 

Defendants and its dealers; specifically, they are the intended beneficiaries of Defendants’ 

implied warranties. The dealers were not intended to be the ultimate consumers of the Class 

Vehicles and have no rights under the warranty agreements provided with the Class Vehicles; the 

warranty agreements were designed for and intended to benefit the ultimate consumers only. 

Finally, privity is also not required because Plaintiff’s and the other Class Members’ Class 

Vehicles are dangerous instrumentalities due to the aforementioned defects.

125. As a direct and proximate result of Defendants’ breach of the warranties of 

merchantability, Plaintiff and the other Class Members have been damaged in an amount to be 

proven at trial.

COUNT IV

BREACH OF CONTRACT/COMMON LAW WARRANTY

(On Behalf of the Arizona Sub-Class)

126. Plaintiff incorporates by reference all allegations of the preceding paragraphs as 

though fully set forth herein.

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127. Plaintiff brings this claim on behalf of himself and on behalf of the members of 

the Arizona Sub-Class.

128. To the extent Defendants’ limited remedies are deemed not to be warranties under 

Arizona’s Commercial Code, Plaintiff, individually and on behalf of the other Class Members, 

pleads in the alternative under common law warranty and contract law. Defendants limited the 

remedies available to Plaintiff and the other Class Members to repairs and adjustments needed to 

correct defects in materials or workmanship of any part supplied by Defendants and/or warranted 

the quality or nature of those services to Plaintiff and the other Class Members.

129. Defendants breached this warranty or contract obligation by failing to repair or 

replace the Class Vehicles’ defective emissions systems.

130. The material terms of the contract also included the implied covenant of good 

faith and fair dealing, whereby Defendants covenanted that they would, in good faith and in the 

exercise of fair dealing, deal with Plaintiff and each Class Member fairly and honestly and do 

nothing to impair, interfere with, hinder, or potentially injure Plaintiff’s and the Class Members’ 

rights and benefits under the contract.

131. Plaintiff and the Class Members have performed all conditions, covenants, and 

promises required by each of them on their part to be performed in accordance with the terms 

and conditions of the contract

132. Defendants breached the contract and the implied covenant of good faith and fair 

dealing by, inter alia, equipping the Class Vehicles with defective emissions standards that were 

not in compliance with federal and state emissions standards.

133. As a direct and proximate result of Defendants’ breach of contract or common 

law warranty, Plaintiff and the other Class Members have been damaged in an amount to be 

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proven at trial, which shall include, but is not limited to, all compensatory damages, incidental 

and consequential damages, and other damages allowed by law.

COUNT IV

FRAUDULENT CONCEALMENT

(On behalf of the Nationwide Class or, Alternatively, 

the Arizona Sub-Class)

134. Plaintiff incorporates by reference all allegations of the preceding paragraphs as 

though fully set forth herein.

135. Plaintiff brings this claim on behalf of himself and on behalf of the members of 

the Nationwide Class or, alternatively, the Arizona Sub-Class.

136. The misrepresentations, nondisclosure, and/or concealment of material facts made 

by Defendants to Plaintiff and the members of the Class, as set forth above, were known, or 

through reasonable care should have been known, by Defendants to be false and material and 

were intended by Defendants to mislead Plaintiff and the members of the Class.

137. Defendants had a duty to disclose these safety, quality, functionality, and 

reliability issues because they consistently marketed their Class Vehicles as possessing certain 

performance and fuel economy characteristics and as being in compliance with all applicable 

federal and state emissions standards. Defendants marketed the Class Vehicles as being “clean 

diesel.” Once Defendants made representations to the public about safety, quality, functionality, 

and reliability, as well as about the performance and fuel economy characteristics of the “clean 

diesel” vehicles in particular, Defendants were under a duty to disclose these omitted facts, 

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because where one does speak one must speak the whole truth and not conceal any facts which 

materially qualify those facts stated. One who volunteers information must be truthful, and the 

telling of a half-truth calculated to deceive is fraud.

138. In addition, Defendants had a duty to disclose these omitted material facts 

because they were known and/or accessible only to Defendants which had superior knowledge 

and access to the facts, and Defendants knew they were not known to or reasonably discoverable 

by Plaintiff and the other Class Members. These concealed and omitted facts were material 

because they directly impact the safety, quality, functionality, reliability, and value of the Class 

Vehicles.

139. Defendants actively concealed and/or suppressed these material facts, in whole or 

in part, with the intent to induce Plaintiff and the other Class Members to purchase or lease Class 

Vehicles at a higher price for the Class Vehicles, which did not match the Class Vehicles’ true 

value.

140. Plaintiff and the Class Members were unaware of these omitted material facts that 

were actively concealed and/or suppressed, in whole or in part, by Defendants with the intent to 

induce Plaintiff and the other Class Members to purchase or lease the Class Vehicles at a higher 

price for the Class Vehicles, which did not match the Class Vehicles’ true value.

141. If Plaintiff and other Class Members had known these material facts, they would 

not have acted as they did. Plaintiff’s and the other Class Members’ actions were justified. 

Defendants were in exclusive control of the material facts and such facts were not known to the 

public, Plaintiff, or the Class Members.

142. As a result of the conduct of Defendants, Plaintiff and the Class Members have 

been damaged because the value of Plaintiff’s and the Class Members’ Class Vehicles have 

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diminished as a result of Defendants’ fraudulent concealment of its scheme to circumvent federal 

and state emissions standards, which has harmed the Volkswagen and Audi brand names 

associated with the Class Vehicles.

143. Furthermore, based on information and belief, Plaintiff anticipates that if and 

when Defendants are compelled to bring the Class Vehicles into compliance with state and 

federal emissions standards, as indicated by the Notices of Violations issued by the EPA and 

CARB, the Class Vehicles will no longer possess the performance and/or fuel economy 

characteristics they were represented to possess at the time of sale or lease.

144. Accordingly, Defendants are liable to Plaintiff and the Class Members for 

damages in an amount to be proven at trial. In addition to such damages, Plaintiff seeks punitive 

or exemplary damages so as to punish Defendants and deter others.

145. Defendants wantonly, maliciously, oppressively deliberately, with intent to 

defraud, and in reckless disregard of Plaintiff’s and the Class Members’ rights engaged in a 

systematic and intentional scheme to defraud consumers and state and federal regulators by 

circumventing the laws of the United States, the State of Arizona, and other states, by designing 

a defeat device in the form of a software algorithm whose sole purpose was to make it appear 

that the Class Vehicles complied with federal and state emissions standards when, in fact, they 

exceeded such standards by as much as 40 times. In perpetrating this scheme, Defendants were

able to secure a 78% share of the automotive diesel market in the United States by representing 

their “clean diesel” vehicles to have performance and fuel economy characteristics that would 

not be possible if the Class Vehicles complied with federal and state emissions standards, not to 

mention taking market share away from cleaner burning hybrid and gasoline combustion cars by 

this fraud.

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146. Based on information and belief, Plaintiff alleges that Defendants engaged in a 

course of conduct to ensure that employees, dealers, and agents did not reveal this scheme to 

regulators or consumers in order to facilitate its fraudulent scheme and enhance Defendants’ 

reputation and that of the Class Vehicles in order to sell more vehicles and to sell those vehicles 

at an inflated price.

147. Defendants’ conduct warrants an assessment of punitive damages in an amount 

sufficient to deter such conduct in the future, which amount is to be determined according to 

proof. 

PRAYER FOR RELIEF

148. WHEREFORE, Plaintiff and the Class pray for judgment as follows: 

a. For an order certifying this action as a class action; 

b. for an order appointing Plaintiff as representative of the Class and his counsel of 

record as Class counsel;

c. for an award of actual, general, special, incidental, statutory, compensatory and 

consequential damages on claims for constructive fraud, breach of express and 

implied warranties under all relevant statutes or common law, and/or deceit in an 

amount to be proven at trial;

d. for an award of exemplary and punitive damages in an amount to be proven at 

trial;

e. for an order requiring Defendants to disgorge, restore, and return all monies 

wrongfully obtained together with interest calculated at the maximum legal rate;

f. for an order enjoining the wrongful conduct alleged herein;

g. for costs;

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h. for interest;

i. for attorneys’ fees under applicable law; and

j. for such other relief as the Court deems just and proper.

Case 4:15-cv-00462-RCC Document 1 Filed 09/30/15 Page 43 of 44
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DATED: September 30, 2015 Respectfully submitted,

/s/A. Bates Butler III

A. Bates Butler III

177 North Church Ave., Suite 1013

Tucson, AZ 85701

Telephone: (520) 624-6200

Facsimile: (520) 624-6204

bates@abbutlerlaw.com

/s/William B. Federman

William B. Federman (pro hac vice to be filed)

FEDERMAN & SHERWOOD

2926 Maple Ave., Ste. 200

Dallas, TX 75201

Telephone: (214) 696-1100

Facsimile: (214) 696-740-0112

wbf@federmanlaw.com

Attorneys for Plaintiff Moyer and the 

Proposed Class

ATTORNEY LIEN CLAIM

JURY TRIAL DEMANDED

Case 4:15-cv-00462-RCC Document 1 Filed 09/30/15 Page 44 of 44