Case Name: State of New Mexico, ex rel. Hector Balderas, Attorney General v. Volkswagen Group of America, Inc.
Case Number: D-101-cv-2016-00131
Court: First Judicial District Court, Santa Fe County, New Mexico
Role: Plaintiffs' Outside Counsel
Outcome: $13.5M Settlement

State of New Mexico, ex rel. Hector Balderas, Attorney General v. Volkswagen Group of America, Inc.

New Mexico Volkswagen Clean Diesel Litigation

DiCello Levitt represented the State of New Mexico in litigation that secured a $13.5 million settlement against Volkswagen, Audi, and Porsche over diesel vehicles equipped with software designed to evade emissions standards.

DiCello Levitt helped New Mexico secure a $13.5 million settlement resolving litigation against Volkswagen, Audi, and Porsche over the companies’ use and marketing of diesel vehicles equipped with emissions-testing “defeat devices.” New Mexico alleged that the automakers violated state environmental and consumer protection laws by selling vehicles that were marketed as clean and environmentally friendly while using software designed to reduce harmful emissions during regulatory testing. The resulting settlement provided approximately $4,700 for each affected vehicle —the highest per-vehicle recovery in any public entity action anywhere in the United States relating to this issue.

Key Court Decisions

January 19, 2016 — The State of New Mexico filed suit in the First Judicial District Court in Santa Fe County against Volkswagen, Audi, Porsche, and related U.S. entities.

March 24, 2016 — The U.S. District Court for the District of New Mexico granted defendants’ motion to stay the proceedings pending a decision on whether to transfer the case to the Volkswagen “Clean Diesel” multidistrict litigation in the Northern District of California. The State had moved to remand the case to state court earlier in the month after defendants removed the action to federal court.
April 27, 2016 — The U.S. District Court for the District of New Mexico overruled the State’s objections to the stay and ordered that the case remain stayed pending transfer proceedings before the Judicial Panel on Multidistrict Litigation.

June 2, 2016 — The Judicial Panel on Multidistrict Litigation transferred New Mexico’s action to the U.S. District Court for the Northern District of California for coordinated or consolidated pretrial proceedings in In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672.

May 23, 2017 — U.S. District Judge Charles R. Breyer granted New Mexico’s motion to remand. The court concluded that the State’s claims did not support federal question jurisdiction and ordered the action returned to state court.

August 2019 — New Mexico secured a $13.5 million settlement against Volkswagen, Audi, and Porsche.

Case Overview

State of New Mexico ex rel. Hector Balderas v. Volkswagen Group of America, Inc., et al. arose from Volkswagen’s use of software in diesel-powered vehicles designed to detect when a vehicle was undergoing emissions testing and alter the operation of its emissions-control system. New Mexico alleged that diesel versions of 16 Volkswagen, Audi, and Porsche models marketed and sold in the state contained the software.

According to the State, the automakers marketed the affected vehicles as clean-running, fuel-efficient, and environmentally responsible even though the vehicles emitted illegal levels of nitrogen oxides during normal operation. New Mexico alleged that this conduct violated the State’s Air Quality Control Act and Unfair Practices Act and constituted a public nuisance. The State sought damages and other relief for conduct dating back to at least 2008.

New Mexico pursued its claims separately from the multistate Attorney General resolution. Then-Attorney General Hector Balderas selected DiCello Levitt’s Adam J. Levitt and Daniel R. Ferri, along with Albuquerque-based Robles Rael & Anaya to represent the State. The firm’s representation extended through the litigation and settlement.

In August 2019, the litigation concluded with a $13.5 million settlement. The settlement amounted to approximately $4,700 per affected vehicle—400% more than the multistate Attorney General settlement, and 33% higher than the per-vehicle settlement obtained by any other state.

This case is State of New Mexico ex rel. Hector Balderas v. Volkswagen Group of America, Inc., et al., Case No. D-101-CV-2016-00131, filed in the First Judicial District Court, County of Santa Fe, New Mexico. The DiCello Levitt team was led by Adam J. Levitt and Daniel R. Ferri.