In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig.

In approximately 585,000 new vehicles that it sold in the United States, Volkswagen *1032 installed software that caused the vehicles' emission controls to perform one way during emissions testing, and another (less effective) way during normal driving conditions. The software constituted a "defeat device," and Volkswagen violated the Clean Air Act and EPA regulations by installing it. See 42 U.S.C. § 7522 (a)(3) ; 40 C.F.R. §§ 86.1803-01 , 86.1809-01, 86.1809-10,- 12.

Certain states and counties have asserted that Volkswagen's defeat device also violated state and local laws that prohibit tampering with vehicle emission controls. Last year, the Court considered Volkswagen's motion to dismiss one of these actions, which was a case filed by the State of Wyoming. The Court held that, because the only alleged conduct by Volkswagen that could have violated the State's tampering law took place during vehicle manufacturing, the State's tampering claim was preempted by the Clean Air Act. See In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prod. Liab. Litig. (" Wyoming "), 264 F.Supp.3d 1040 (N.D. Cal. 2017).

Two counties-Hillsborough County, Florida and Salt Lake County,…