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Filing # 34506115 E-Filed 11/16/2015 04:10:54 PM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT


IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA
CIVIL DIVISION
ANNETTE DETTLOFF, on behalf of herself and
all others similarly situated,
Plaintiff,
CASE NO: 15-007187-CI

vs.
LOKEY OLDSMOBILE, INC d/b/a LOKEY
VOLKSWAGEN; BERT SMITH OLDSMOBILE,
INC. d/b/a BERT SMITH VOLKSWAGEN;
VOLKSWAGEN GROUP OF AMERICA INC.;
and VOLKSWAGEN AG,

CLASS
REPRESENTATION

Defendants.
/
AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, ANNETTE DETTLOFF, on behalf of herself and all others similarly situated,
hereby sues Defendants, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN; BERT
SMITH OLDSMOBILE, INC. d/b/a BERT SMITH VOLKSWAGEN; VOLKSWAGEN
GROUP OF AMERICA, INC.; and VOLKSWAGEN AG, and alleges:
NATURE OF THE CLASS ACTION
Plaintiff brings this Class Action Complaint on behalf of herself and a class of Florida
consumers who purchased any of the diesel Volkswagen, Audi, and Porsche vehicles sold in
Florida since 2009 containing illegal defeat devices or switches intended to cheat federal and
state emissions testing (hereinafter Defective Vehicles). According to a September 18, 2015
Notice of Violation (NOV) from the Environmental Protection Agency (EPA), Volkswagen
admitted that it had designed and installed a defeat device in certain diesel vehicles in the
form of a sophisticated software algorithm that detected when a vehicle was undergoing

emissions testing. When the vehicle was undergoing emissions testing, the software was
designed to cause the engine to run below normal power and performance, thereby emitting
lower levels of nitrogen oxide. At other times during normal vehicle operation, the switch was
activated and the vehicle ran at normal power and performance, emitting higher levels of
nitrogen oxide, in a factor of up to 40 times above the EPA compliant levels.
On November 2, 2015, the EPA issued a second NOV to Volkswagen that added several
light-duty vehicles equipped with 3.0 liter engines, including certain Volkswagen Touareg,
Porsche Cayenne, and Audi models, to the list of vehicles installed with Volkswagens illegal
defeat devices. The EPAs investigation into Volkswagens manufacturing and installation of
defeat devices continues and may reveal additional Defective Vehicles.
In short, Volkswagen implemented and carried out a scheme to defraud and deceive
Florida consumers, including the Plaintiff, the public, and regulators by deliberately designing,
engineering, and implementing the illegal defeat devices to conceal the vehicles true emission
pollution levels when being tested and evade the regulations on emission testing. This is a fraud
Volkswagen admits. The defeat devices allowed Volkswagen to claim that its vehicles were
clean and environmentally friendly, while maintaining superior performance and fuel
efficiency. Volkswagens misconduct violated federal and state emission standards.
Volkswagen then concealed the defeat devices and advertised, promoted, and marketed
the vehicles through various forms of media, commercials, brochures, and point-of-sale
advertising as Clean Diesel vehicles, when in fact, the Defective Vehicles were anything but
Clean.
Volkswagen enlisted the assistance of its local dealers to further the scheme by
promoting, marketing, selling, and leasing the Defective Vehicles as Clean Diesel vehicles for

the benefit of Volkswagen and its dealers. Volkswagen sold the Defective Vehicles, through its
local dealers, to dozens of Florida consumers, including the Plaintiff, for a premium price, and
Volkswagen and its dealers obtained significant profits based on the premium prices paid for the
Clean Diesel vehicles.
The Plaintiff and dozens of Florida consumers were deceived into believing that they
purchased vehicles that complied with all national, state and local laws and regulations regarding
vehicle emission standards, while maintaining superior performance and fuel efficiency.
Volkswagens scheme to defraud injured the Plaintiff and dozens of Florida consumers.
The Plaintiff brings this Class Action on behalf of herself and those similarly situated for
claims against Volkswagen and the local dealers for Violations of the Florida Racketeer
Influenced and Corrupt Organization Act (FLORIDA RICO), Violations of the Floridas
Unfair & Deceptive Trade Practices Act (FDUPTA), Fraud, and Unjust Enrichment.
JURISDICTION, PARTIES AND VENUE ALLEGATIONS
1.

This is a Class Action for damages in excess of Fifteen Thousand Dollars

($15,000.00).
2.

Plaintiff ANNETTE DETTLOFF, f/k/a ANNETTE LOTT, is a citizen and

resident of Pinellas County, Florida.


3.

Venue is proper in Pinellas County, Florida. In November 2012, Plaintiff visited

LOKEY VOLKSWAGEN, doing business at 27850 US Hwy 19 N, Clearwater, FL 33761, to


obtain information about purchasing a 2013 Volkswagen Passat. Plaintiff test drove the 2013
Volkswagen Passat in the standard gasoline engine and the clean diesel engine at LOKEY
VOLKSWAGEN. The salespersons employed by LOKEY VOLKSWAGEN promoted the 2013
Passat 2.0 TDI Clean Diesel Engine, and made material misrepresentations and omissions

regarding the performance, fuel efficiency, and emissions of the 2013 Passat 2.0 TDI to the
Plaintiff.
4.

In reliance on these material misrepresentations and omissions, on December 1,

2012, Plaintiff purchased a 2013 Volkswagen Passat 2.0 TDI Clean Diesel Engine (Vehicle
Identification Number 1VWBN7A37DC053095), from BERT SMITH VOLKSWAGEN in St.
Petersburg, Florida. Salespersons employed by BERT SMITH VOLKSWAGEN also made
material misrepresentations and omissions regarding the performance, fuel efficiency, and
emissions of the 2013 Passat 2.0 TDI to the Plaintiff. The Plaintiff relied upon the
misrepresentations by BERT SMITH VOLKSWAGEN in the purchase of her 2013 Passat 2.0
TDI.
5.

Plaintiff purchased the 2013 Passat 2.0 TDI for its alleged environmental-friendly,

clean diesel design, as well as its fuel efficiency. On information and belief, Plaintiffs 2013
Passat 2.0 TDI is equipped with the 2.0 TDI Clean Diesel engine in which the Defendants placed
a defeat device.
6.

At the time of purchase, Plaintiff was not aware that the vehicle contained an

illegal defeat device that concealed the true level of pollutants emitted when the vehicle was
being tested for emission levels. If Plaintiff had known of the defeat device, she would not have
purchased the Defective Vehicle and would not have paid a premium for the Clean Diesel
engine.
7.

The 2013 Volkswagen Passat with 2.0 TDI Clean Diesel Engine purchased by the

Plaintiff was transferred from LOKEY VOLKSWAGEN to BERT SMITH VOLKSWAGEN.


8.

LOKEY VOLKSWAGEN is a fictitious name owned by Defendant LOKEY

OLDSMOBILE, INC., a domestic for-profit Florida corporation, with its principal place of

business at 27850 US Hwy 19 N, Clearwater, Florida 33761.

Defendant LOKEY

OLDSMOBILE, INC. promotes, markets, advertises, and sells the Defective Vehicles at its
principal place of business in Clearwater, Florida. Accordingly, Defendant LOKEY is subject to
the jurisdiction of the courts in of the State of Florida.
9.

LOKEY

VOLKSWAGEN

committed

tortious

acts

against

ANNETTE

DETTLOFF and Class Members in the State of Florida. Each tortious act is specifically alleged
in the subsequent counts. Accordingly, pursuant to Florida Statute 48.193(1)(a)(2), LOKEY
VOLKSWAGEN is subject to the jurisdiction of the courts of the State of Florida.
10. BERT SMITH VOLKSWAGEN is a fictitious name owned by Defendant BERT
SMITH OLDSMOBILE, INC., a for-profit Delaware corporation, with is principal place of
business at 3800 34th Street North, St. Petersburg, Florida 33714.

BERT SMITH

VOLKSWAGEN promotes, markets, advertises, and sells the Defective Vehicles at its principal
place of business in St. Petersburg, Florida.
11.

Defendant BERT SMITH OLDSMOBILE, INC., is authorized to, and has

conducted and engaged in business activities within the State of Florida; engaged in substantial
and not isolated activities within the State of Florida; purposely and intentionally availed itself of
the privileges of the State of Florida, through its promotion, marketing, advertising, and selling
of Defective Vehicles at its principal place of business in St. Petersburg, Florida, and has
sufficient minimum contacts with the State of Florida. Accordingly, pursuant to Florida Statute
48.193(1)(a)(1), Defendant BERT SMITH OLDSMOBILE, INC. is subject to the jurisdiction
of the courts of the State of Florida.
12.

BERT SMITH OLDSMOBILE, INC. committed tortious acts against ANNETTE

DETTLOFF and Class Members in the State of Florida. Each tortious act is specifically alleged

in the subsequent counts. Accordingly, pursuant to Florida Statute 48.193(1)(a)(2), BERT


SMITH OLDSMOBILE, INC. is subject to the jurisdiction of the courts of the State of Florida.

13.

Defendant VOLKSWAGEN GROUP OF AMERICA INC. is a New Jersey for-

profit corporation with its headquarters and principal place of business in Herndon, Virginia.
14.

Defendant VOLKSWAGEN GROUP OF AMERICA INC. maintains and does

business at two locations in Florida, including a Parts Distribution Center in Jacksonville,


Florida, that services 115 Volkswagen and Audi dealers in Florida and other states, and the
Group Latin America Division in Miami, Florida, that focuses on engineering, testing, and
marketing of the Volkswagen, Audi, and Porsche brand. The Parts Distribution Center serves as
the receiving point for parts manufactured at VOLKSWAGEN GROUP OF AMERICA INC.s
factories.
15.

Defendant

VOLKSWAGEN

GROUP

OF

AMERICA

INC.

designs,

manufactures, tests, markets, advertises, distributes and sells the Defective Vehicles, including
Plaintiffs Defective Vehicle, and systemically and continuously delivers their products into the
stream of commerce with the expectation that they will be purchased or leased by consumers in
the State of Florida.
16.

Defendant VOLKSWAGEN GROUP OF AMERICA INC. developed and

distributed the owners manuals and warranty booklets, advertisements, and other promotional
materials relating to the Defective Vehicles to Florida consumers.
17.

Defendant VOLKSWAGEN GROUP OF AMERICA INC. is authorized to, and

has regularly and systematically conducted and engaged in business activities within the State of
Florida; engaged in substantial and not isolated activities within the State of Florida; purposely

and intentionally availed itself of the privileges of the State of Florida, through its promotion,
marketing, advertising, and selling of Defective Vehicles in the state of Florida, and has
sufficient minimum contacts with the State of Florida. Accordingly, pursuant to Florida Statute
48.193(1)(a)(2), Defendant VOLKSWAGEN GROUP OF AMERICA, INC. is subject to the
jurisdiction of the courts of the State of Florida.
18.

VOLKSWAGEN GROUP OF AMERICA INC. committed tortious acts against

ANNETTE DETTLOFF and Class Members in the State of Florida.

Each tortious act is

specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute


48.193(1)(a)(2), VOLKSWAGEN GROUP OF AMERICA INC. is subject to the jurisdiction of
the courts of the State of Florida.
19.

VOLKSWAGEN GROUP OF AMERICA INC. caused injury to persons within

the State of Florida, including the Plaintiff and Class Members, arising out of an act or omission
outside of the State of Florida including its design, manufacture, distribution, and marketing of
the Defective Vehicles, by engaging in solicitation of the Defective Vehicles within the State of
Florida.

Accordingly, pursuant to Florida Statute 48.193(1)(a)(6)(a), VOLKSWAGEN

GROUP OF AMERICA INC. is subject to the jurisdiction of the courts of the State of Florida.
20.

VOLKSWAGEN GROUP OF AMERICA INC. caused injury to persons within

the State of Florida, including the Plaintiff and Class Members, arising out of an act or omission
outside of the State of Florida including its design, manufacture, distribution, and marketing of
the Defective Vehicles that were used and consumed within the State of Florida in the ordinary
course of commerce, trade, or use. Accordingly, pursuant to Florida Statute 48.193(1)(a)(6)(b),
VOLKSWAGEN GROUP OF AMERICA INC. is subject to the jurisdiction of the courts of the
State of Florida.

21.

Defendant VOLKSWAGEN AG is a German corporation and the parent company

of Defendant VOLKSWAGEN GROUP OF AMERICA, INC., its wholly-owned domestic


subsidiary and domestic agent. VOLKSWAGEN AGS headquarters and principal place of
business is in Wolfsburg, Germany. Defendant VOLKSWAGEN AG owns and controls the
brand names Volkswagen, Audi, and Porsche, designs, manufactures, tests, markets, distributes,
and sells the Defective Vehicles, and systematically and continuously delivers its products into
the stream of commerce with the expectation that they will be purchased and leased by
consumers in the State of Florida.
22.

Defendant VOLKSWAGEN AG developed and distributed the owners manuals

and warranty booklets, advertisements, and other promotional materials relating to the Defective
Vehicles to Florida consumers.
23.

Defendant VOLKSWAGEN AG has regularly and systematically conducted and

engaged in business activities within the State of Florida; engaged in substantial and not isolated
activities within the State of Florida; purposely and intentionally availed itself of the privileges
of the State of Florida, through its promotion, marketing, advertising, and selling of Defective
Vehicles in the state of Florida, and has sufficient minimum contacts with the State of Florida.
Accordingly, pursuant to Florida Statute 48.193(1)(a)(1), Defendant VOLKSWAGEN AG is
subject to the jurisdiction of the courts of the State of Florida.
24.

VOLKSWAGEN AG committed tortious acts against ANNETTE DETTLOFF

and Class Members in the State of Florida. Each tortious act is specifically alleged in the
subsequent counts. Accordingly, pursuant to Florida Statute 48.193(1)(a)(2), VOLKSWAGEN
AG is subject to the jurisdiction of the courts of the State of Florida.

25.

VOLKSWAGEN AG caused injury to persons within the State of Florida,

including the Plaintiff and Class Members, arising out of an act or omission outside of the State
of Florida including its design, manufacture, distribution, and marketing of the Defective
Vehicles, by engaging in solicitation of the Defective Vehicles within the State of Florida.
Accordingly, pursuant to Florida Statute 48.193(1)(a)(6)(a), VOLKSWAGEN AG is subject to
the jurisdiction of the courts of the State of Florida.
26.

VOLKSWAGEN AG caused injury to persons within the State of Florida,

including the Plaintiff and Class Members, arising out of an act or omission outside of the State
of Florida including its design, manufacture, distribution, and marketing of the Defective
Vehicles that were used and consumed within the State of Florida in the ordinary course of
commerce, trade, or use. Accordingly, pursuant to Florida Statute 48.193(1)(a)(6)(b),
VOLKSWAGEN AG is subject to the jurisdiction of the courts of the State of Florida.
FACTUAL ALLEGATIONS
A. The Defective Vehicles Violate the Clean Air Act.
27.

The Clean Air Act (CAA), 42 U.S.C. 7401-7671q, and its implementing

regulations are designed to reduce emissions of carbon dioxide, nitrogen oxide, and other
pollutants from motor vehicles, including the Defective Vehicles. The CAA requires that car
manufacturers apply for and receive a Certificate of Conformity (COC) for the passenger
vehicles it intends to sell in the United States.
28.

Vehicles with defeat devices cannot be granted a COC. 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. A defeat device is an auxiliary emission control

device that reduces the effectiveness of the emission control system which may reasonably be
expected to be encountered in normal vehicle operation and use. 40 C.F.R. 86.1803.01.
29.

Defendants

VOLKSWAGEN

GROUP

OF

AMERICA

INC.

and

VOLKSWAGEN AG (collectively referred to as Volkswagen) admitted to designing and


installing defeat devices intended to cheat federal and state emissions testing in certain diesel
Volkswagen and Audi vehicles, the Defective Vehicles, since at least 2009.
30.

The Defective Vehicles include the following 2.0 and 3.0 liter Clean Diesel

models:
-2009 to 2015 Volkswagen Jetta TDI;
-2009 to 2014 Volkswagen Jetta Sportwagen TDI;
-2012 to 2015 Volkswagen Beetle TDI;
-2012 to 2015 Volkswagen Beetle Convertible TDI;
-2010 to 2015 Volkswagen Golf TDI;
-2015 Volkswagen Golf Sportwagen TDI;
-2012 to 2015 Volkswagen Passat TDI;
-2010 to 2015 Audi A3 TDI;
-2014 Volkswagen Touareg;
-2105 Porsche Cayenne;
-2016 Audi A6 Quattro;
-2016 Audi A7 Quattro,
-2016 Audi A8;
-2016 Audi A8L; and,
-2016 Audi Q5

31.

Defendants LOKEY VOLKSWAGEN and BERT SMITH VOLKSWAGEN

(collectively referred to as Volkswagen Dealers) have marketed, advertised, and promoted the
Defective Vehicles to Florida consumers as environmentally friendly vehicles with superior
performance and fuel efficiency, since at least 2009.

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B. Volkswagen Designs, Manufactures, and Installs Defeat Devices to Cheat


Federal and State Emission and Clean Air Standards and Defraud Consumers,
including the Plaintiff and Class Members.
32.

According to the EPAs September 18, 2015 NOV, in order to obtain the desired

fuel economy and performance levels while remaining compliant with federal and state emission
and CAA standards, Volkswagen manufactured and installed software in the electronic control
module (ECM) of the [Defective Vehicles] that sensed when the vehicle was being tested for
compliance with EPA emission standards. When the Defective Vehicle was being tested, the
vehicles ECM ran software which produced compliant emissions results. Id.
33.

During normal vehicle operation, the Defective Vehicles ran a separate road

calibration which reduced the effectiveness of the emission control system. . . As a result,
emissions of NOx increased by a factor of 10 to 40 times above EPA compliant levels,
depending on the type of drive cycle.
34.

The EPAs September 18, 2015 NOV further states that, due to the existence of

these defeat devices, the Defective Vehicles do not conform in all material respects to the
vehicle specifications described in the applications for the certificates of conformity that
purportedly cover them. Thus, Volkswagen violated the CAA by selling, offering for sale,
introducing into commerce, delivering for introduction into commerce, or importing these
vehicles, or for causing any of the foregoing acts.
35.

In May 2014, the EPA and California Air Resources Board (CARB) began an

investigation into the increased emissions of the Defective Vehicles when the West Virginia
Universitys Center for Alternative Fuels, Engines & Emissions published results of a study
commissioned by the International Council on Clean Transportation that found significantly
higher in-use emissions from a 2012 Jetta and a 2013 Passat.

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36.

Nevertheless, Volkswagen continued to deny installing the defeat devices in the

Defective Vehicles, falsely claiming that the higher emissions could be attributed to various
technical issues and unexpected in-use conditions.
37.

In January 2015, Volkswagen sent notice to the owners of the Defective Vehicles,

including the Plaintiff, indicating that [a]s part of Volkswagens ongoing commitment to our
environment, and in cooperation with the United States Environmental Protection Agency, we
are informing you of our decision to conduct an emissions service action on some 2012-2014
model year Volkswagen Passat 2.0L TDI Clean Diesel engine vehicles. Volkswagen claimed
that the Defective Vehicles needed repairs by the Volkswagen Dealers because the Defective
Vehicles:
may experience exhaust turbocharger failure (under extreme cold weather
conditions) in a brief time period after initial vehicle start up. This condition could
cause a MIL ON and possible vehicle performance problems. To diminish this
condition Volkswagen will momentarily decrease vehicle turbocharger boost
pressure only during extreme cold start parameters to assure necessary
turbocharger performance.
In addition, the vehicles engine management software has been improved to
assure your vehicles tailpipe emissions are optimized and operating efficiently.
Under certain operating conditions, the earlier strategy may have increased the
chance of the vehicles MIL light illuminating. If the MIL illuminates for any
reason, your vehicle will not pass an IM emissions inspection in some regions.
38.

Volkswagen continued to deny installing the illegal defeat devices. In August

2015, Volkswagen sent another notice to the owners of the Defective Vehicles, including
Plaintiff, continuing to claim that the Defective Vehicles were Clean Diesel Engine Vehicles.
In that letter, Volkswagen stated that the Volkswagen Dealers will diagnose and replace the
engine exhaust flap and explained the needed repair as follows:
As part of Volkswagens ongoing commitment to our environment, and in
cooperation with the United States Environmental Protection Agency and the
California Air Resources Board, we are informing you of our decision to extend

12

your Emissions Control Systems Warranty for engine exhaust flap replacement
under specific conditions to 10 years or 120,000 miles, whichever occurs first,
from the vehicles original in-service date.
Volkswagen has determined that under specific conditions, certain deficiencies
affecting the engine exhaust flap on your TDI Clean Diesel Engine vehicle
could make the engine exhaust flap susceptible to degraded performance. If this
happens, the Malfunction Indicator Lamp (MIL) on the instrument cluster may
illuminate due to the presence of specific fault codes caused by a faulty engine
exhaust flap. (The MIL is part of your on-board diagnostic system. Please refer to
your owners manual for additional information about the MIL). In some locales,
an illuminated Malfunction Indicator Lamp could cause your vehicle to fail a
smog check program, and your vehicle registration application could be denied.
Volkswagen has not identified any vehicle drivability concerns related to this
issue.
Please be aware that other conditions (unrelated to the issue described in this
letter) may cause the MIL in your vehicle to illuminate. Customers should be
prepared to cover all diagnosis and repair costs for these other, unrelated
conditions.

39.

It was not until the EPA and CARB refused to approve COCs for Volkswagens

2016 models without a valid explanation for the Defective Vehicles that Volkswagen admitted to
designing and installing defeat devices.
40.

According to the EPA, Volkswagen knew or should have known that its [defeat

devices] bypass, defeat, or render inoperative elements of the vehicle design relative to
compliance with the CAA emissions standards.
41.

Volkswagens Chief Executive Officer, Martin Winterkorn, who resigned on

September 24, 2015 once news of the scandal broke, released a statement that he was personally
and deeply sorry that we have broken the trust of our customers and the public.1
42.

Michael Horn, President and Chief Executive Officer of Volkswagen Group of

America, Inc. stated, Lets be clear about this. Our company was dishonest. With the EPA, and

http://www.volkswagenag.com/content/vwcorp/info_center/en/news/2015/09/statement_ceo_of_volkswagen_ag.ht
ml (Last Visited November 5, 2015).

13

the California Air Resources Board, and with all of you. And in my German words, we have
totally screwed up.2 Horn further stated, Above all, I am stunned that misconduct on such a
scale was possible in the Volkswagen Group.3
43.

On November 2, 2015, the EPA released a Second NOV determining that the

Volkswagen manufactured and installed defeat devices in certain model year 2014-2016 diesel
light duty vehicles equipped with 3.0 liter engines including: 2014 Volkswagen Touareg, 2015
Porsche Cayenne, and 2016 Audi A6 Quattro, A7 Quattro, A8, A8L, and Q5.
44.

Once again, the defeat devices bypass, defeat, or render inoperative elements of

the vehicles emission control system that exist to comply with CAA emission standards, and as
a result, Volkswagen violated the CAA.

These Defective Vehicles include software that

determines when the vehicle is undergoing emissions testing and directs the vehicle to employ a
low NOx temperature conditioning mode, resulting in low levels of NOx from the engine
during emission testing. At exactly one second after the completion of the emissions testings
initial phase, the engine switches to a normal mode that releases tailpipe emissions of NOx up
to nine times the applicable NOx standard levels.
45.

Volkswagen knew or should have known that the software described above

bypasses, defeats, or renders inoperative elements of the vehicle designed related to compliance
with CAA emission standards. This is apparent given the design of these defeat devices.
C. Defendants Market, Advertise, and Promote Clean Diesel Vehicles to Florida
Consumers.
46.

Since 2009, Volkswagen and the Volkswagen Dealers have marketed, advertised,

and promoted the Defective Vehicles to Florida consumers as environmentally friendly vehicles
with superior performance and fuel efficiency.
2
3

http://www/cnbc.com/2015/09/21/ (Last Visited November 5, 2015).


http://www.cnbc.com/2015/09/23/ (Last Visited November 5, 2015).

14

47.

Volkswagen and the Volkswagen Dealers marketed and represented that the

Defective Vehicles as Clean Diesel vehicles.


48.

The advertisements boasted:

This aint your daddys diesel. Stinky, smoky, and sluggish. Those old diesel realities no
longer apply. Enter TDI Clean Diesel. Ultra-low sulfur fuel, direct injection technology,
and extreme efficiency. Weve ushered in a new era of diesel.
Volkswagen offers the most clean diesel vehicles of any manufacturer. With seven
models, theres a TDI option for every driver. Passat, Golf, Jetta SportWagen, Jetta,
Beetle, Beetle Convertible, Touareg.
Volkswagen TDI Clean Diesel. Like really clean diesel.
So efficient, it even sips fuel. Our turbocharged engines get high hwy mpg without
forfeiting performance.
39 hwy mpg for new standard 1.4 TSIengine
2.0L TDI Clean Diesel engine
6-speed DSG automatic transmission
Up to 667 hwy miles per tank with TDI
TDI Clean Diesel. Going the distance has never been easier. TDI Clean Diesel
technology has lower CO2 emissions compared to 93% of other vehicles, and it boasts
30% better fuel economy than comparable gas engines. And with significantly more
torque than comparable gasoline-engine cars, you can have more fun as you pass by all
those fueling stations.
Efficiency. Now available without compromise. Hybrids arent the only game in town.
TDI Clean Diesel engines offer up impressive efficiency numbers too. Take the Passat
TDI for starters. It can go up to 814 miles uninterrupted. Now thats a game changer.
TDI Clean Diesel. A whole family of front-runners. Long range without sacrifice is
the promise of TDI Clean Diesel. And Volkswagen has sold more diesel cars in the U.S.
than every other brand combined. Promise kept.
Protect the environment and look good doing it. The Audi TDI Clean Diesel is the
Intelligent Choice.
Efficiency and performance both get a boost. With a standard turbocharged engine and
an available torque-filled TDI Clean Diesel, the Golf provides better performance and
efficiency than ever before. Drive one and it may boost your spirits too.
The all-new 2015 Golf TDI combines class-leading fuel economy, more power,
advanced technology, reduced emissions, all while offering a tremendous value starting

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$3,000 less than the outgoing model, said Mark McNabb, Chief Operations Officer,
Volkswagen of America. This Northwest Green Vehicle of the Year honor validates the
benefits of the Golf TDI and highlights the leadership position the Pacific Northwest has
taken in embracing alternative fuel technologies like TDI Clean Diesel.4
Volkswagen of America is pleased to announce today that Green Car Reports, a leading
online consumer resource for eco-friendly and fuel efficient vehicles, has named the 2015
Volkswagen Golf range as its Best Car to Buy 2015. . . . Volkswagens Golf TDI
Clean Diesel models achieve an estimated EPA fuel economy rating of 30 mpg city and
45 mpg highway when equipped with the six speed manual transmission and 31/43 mpg
with the six-speed DSG dual-clutch automatic.5
Audi pioneered TDI (Turbo Direct Injection) engines to deliver morvine torque, lower
fuel consumption and reductions in carbon dioxide emissions. Earning its reputation for
reliability and power in grueling motorsports endurance competition TDI has become a
major attraction across the Audi vehicle lineup and remains the best-selling clean-diesel
option for premium car buyers.6

49.

Volkswagen and the Volkswagen Dealers charged consumers, including the

Plaintiff, a substantial premium for the Clean Diesel vehicle based upon the representations
that the Defective Vehicle was fuel efficient, environmentally friendly, and maintained a high
performance. The Plaintiff paid a premium for a Clean Diesel vehicle.
50.

The price premiums for the Defective Vehicles ranged from $2,805 to $6,855.

51.

The Defective Vehicles made up a significant portion, approximately 21%, of

Volkswagens sales in 20147, making Volkswagen the largest seller of diesel passenger vehicles
in the United States. A May 1, 2014, press releases boasts Passat TDI sales were 3,923,

http://media.vw.com/release/802 (Last Visited September 22, 2015).


http://media.vw.com/release/876 (Last Visited September 22, 2015).
6
http://www.audiusa.com/newsroom/topics/2014/tdi-clean-diesel (Last Visited September 22, 2015). See also
http//www.lokeyvw.com/used/Volkswagen/2014-Volkswagen-Golf-bfb04d030a0e0832f3cc77058c7ab1.htm (Last
Visited November 5, 2015)(Clean Diesel - 30mpg City and 42mpg Hwy); http://www.bertsmithvw.com/2015volkswagen-beetle-st-petersburg-fl.htm; http://www.bertsmithvw.com/2015-volkswagen-golf-st-petersburg-fl.htm
(Last Visited November 5, 2015).
7
http://media.vw.com/release/907 (Last Visited November 5, 2015).
5

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representing 42.1 percent of sales of the vehicle marking the best April and best year-to-date
ever. 8
D. Plaintiffs Purchase of a Defective Vehicle in Reliance on the Defendants
Misrepresentations.
52. In reliance on Volkswagens promises and representations regarding fuel efficiency,
performance, and effect on environment, Plaintiff purchased a 2013 Passat 2.0 TDI, a Defective
Vehicle, on December 1, 2012.
53.

The Volkswagen Dealers made further promises and representations regarding

fuel efficiency, performance, and effect on environment to the Plaintiff during her visits at the
Volkswagen Dealers to obtain information about the 2013 Passat and test drive the 2013 Passat.
The Plaintiff relied on the Volkswagen Dealers promises and representations and purchased a
2013 Passat 2.0 TDI, a Defective Vehicle, on December 1, 2012.
54.

Plaintiff purchased the Defective Vehicle for its alleged environmentally friendly,

clean diesel design, and superior fuel efficiency and performance.


55.

At the time of purchase, Plaintiff was not aware that the Defective Vehicle had an

illegal defeat device intended to evade federal and state emission and clean air standards.
56.

If Volkswagen or Volkswagen Dealers had disclosed the existence of the illegal

defeat device, she would not have purchased the Defective Vehicle.
57.

Because Volkswagen and the Volkswagen Dealers representations were false and

deceptive, the value of the Defective Vehicle has been greatly reduced, if not completely
eliminated.
58.

Plaintiff has suffered additional injury and damage as the Defective Vehicle

cannot perform with the fuel efficiency, torque, and performance represented by Volkswagen
8

http://media.vw.com/release/740/ (Last Visited November 5, 2015).

17

and the Volkswagen Dealers without violating the federal and state emission and clean air
standards.
59.

As a result of Volkswagen and the Volkswagen Dealers deception, the Plaintiff is

left with a Defective Vehicle that is at best, worth significantly less than previously made to
believe, and at worst unsellable.
TOLLING; ESTOPPEL; DISCOVERY RULE
60.

Volkswagen and the Volkswagen Dealers knew of the illegal defeat device

described in this Complaint since at least 2009.


61.

Volkswagen and the Volkswagen Dealers knew of the illegal defeat device before

Plaintiff and Class Members purchased the Defective Vehicles, and have concealed from or
failed to notify Plaintiff, Class Members, and the public of the illegal defeat device.
62.

Volkswagen and the Volkswagen Dealers intentionally concealed the defeat

device from the Plaintiff, Class Members and the public and failed to investigate the nature and
seriousness of the defeat device and its effect on public health, the environment, the performance
and efficiency of the Defective Vehicles, and the effect on the value of the Defective Vehicles
until September 2015.
63.

Volkswagen and the Volkswagen Dealers falsely represented that the Defective

Vehicles complied with federal and state emissions standards and were environmentally friendly
and intentionally concealed their false representations until September 2015.
64.

Any applicable statutes of limitation have been tolled by the Defendants

knowledge and active concealment from Plaintiff and the Class Members of these facts.
65.

Plaintiff and the Class Members did not, nor could have with reasonable

diligence, discover their vehicles were defective, the nature and extent of Volkswagen and the

18

Volkswagen Dealers scheme to evade the federal and state emissions and clean air standards,
until at the earliest September, 2015.
66.

Plaintiff and the Class Members had no way of knowing, and could not have

discovered through the exercise of reasonable diligence, about Volkswagen and the Volkswagen
Dealers deception with respect to the Defective Vehicles and their defeat device.
67.

Volkswagen and the Volkswagen Dealers deception involved sophisticated

manipulation of the Defective Vehicles software that rendered the actual emissions undetectable
under normal emissions testing, and discovery of the defeat device required special knowledge
and tools.
68.

Volkswagen and the Volkswagen Dealers had a continuing duty to Plaintiff and

Class Members to disclose the true character, quality, and performance of the vehicles.
69.

Volkswagen and the Volkswagen Dealers had a continuing duty to Plaintiff and

Class Members to disclose that the Defective Vehicles violated federal and state emissions and
clean air standards, and that Volkswagen and the Volkswagen Dealers deliberately violated the
federal and state emissions and clean air standards.
70.

Volkswagen and the Volkswagen Dealers intentionally concealed the true

character, quality, and performance of the Defective Vehicles and that the Defective Vehicles
violated the federal and state emissions and clean air standards.
71.

Volkswagen and the Volkswagen Dealers knowingly made misrepresentations

about the quality, reliability, and performance of the Defective Vehicles and about compliance
with the federal and state emissions and clean air standards.
72.

Volkswagen and the Volkswagen Dealers are estopped from relying on any

statute of limitations in defense of this action.

19

CLASS REPRESENTATION ALLEGATIONS


73.

Plaintiff brings this Class Action Complaint on her own behalf and on behalf of

all other persons similarly situated as members of the proposed Class, pursuant to Florida Rule of
Civil Procedure 1.220 (a) and (b).
74.

This action has been brought and may properly be maintained as a class action as

it satisfies the numerosity, commonality, typicality and adequacy prerequisites of those


provisions.
75.

Plaintiff seeks to represent the following class defined as follows:


All persons or entities who purchased or leased one or more Defective Vehicles in
the State of Florida (hereinafter the Class) including:
-2009 to 2015 Volkswagen Jetta TDI;
-2009 to 2014 Volkswagen Jetta Sportwagen TDI;
-2012 to 2015 Volkswagen Beetle TDI;
-2012 to 2015 Volkswagen Beetle Convertible TDI;
-2010 to 2015 Volkswagen Golf TDI;
-2015 Volkswagen Golf Sportwagen TDI;
-2012 to 2015 Volkswagen Passat TDI;
-2010 to 2015 Audi A3 TDI;
-2014 Volkswagen Touareg;
-2105 Porsche Cayenne;
-2016 Audi A6 Quattro;
-2016 Audi A7 Quattro,
-2016 Audi A8;
-2016 Audi A8L; and,
-2016 Audi Q5.

76.

Excluded from the Class are:


a. all persons who make a timely election to be excluded from the Class;
b. Volkswagen and the Volkswagen Dealers, their subsidiaries, and affiliates;
c. governmental entities; and

20

d. the judge to whom the case is assigned and the Judges staff and immediate
family.
77.

Plaintiff reserves the right to modify or amend the definition of the proposed

Class before the Court determines whether certification is appropriate.


78.

Numerosity: Plaintiff is informed and believes that there are nearly 500,000

Defective Vehicles nationwide and dozens of Defective Vehicles in Florida. Although the exact
number of Class Members is uncertain and can only be ascertained through appropriate
discovery, the number is great enough that individual joinder of all Class Members is
impracticable. The disposition of the Class Members claims in a single action will provide
substantial benefits to the Court and the parties.
79.

The Class is ascertainable because its Members can be readily identified using

registration records, sales records, production records, and other information kept by the
Volkswagen and the Volkswagen Dealers and within their control. There is no reliance or other
individualized showing for a particular consumer to meet the Class Definition. The Class is
therefore precise, objective, and presently ascertainable.
80.

The Class Members may be notified of this Class Action by Court-approved

methods which may include U.S. mail, electronic mail, Internet Postings, and/or published
notice.
81.

Commonality: Plaintiffs claims arise from a systemic scheme by the

Volkswagen and the Volkswagen Dealers that caused the same harm to the Plaintiff and each
Class member through the same conduct.
82.

Common questions of law and fact exist as to Plaintiff and the Class Members.

These questions predominate over questions that may affect only individual Class Members

21

because Volkswagen and the Volkswagen Dealers misconduct is applicable to all Class
Members. Such common legal or factual questions include:
a. Whether Volkswagen designed, manufactured, advertised, marketed,
distributed, leased, sold, or otherwise placed the Defective Vehicles into the
stream of commerce in the State of Florida;
b. Whether Volkswagen designed, manufactured, and distributed the Defective
Vehicles with a defeat device in the State of Florida;
c. Whether the Volkswagen Dealers advertised, marketed, leased, sold or
otherwise placed the Defective Vehicles into the stream of commerce in the
State of Florida;
d. Whether Volkswagen and the Volkswagen Dealers knew about the defeat
device and, if so, how long they have known;
e. Whether Volkswagen and the Volkswagen Dealers conduct violates Florida
RICO, Florida consumer protection statutes, and other Florida laws as asserted
herein;
f. Whether Volkswagen and the Volkswagen Dealers engaged in unfair,
unconscionable, or deceptive trade practices in connection with the sale, lease,
and/or marketing of the Defective Vehicles in the State of Florida;
g. Whether Volkswagen and the Volkswagen Dealers were unjustly enriched by
receiving moneys, including a premium for the clean diesel engine, in
exchange for the Defective Vehicles;
h. Whether Volkswagen and the Volkswagen Dealers should be ordered to
disgorge the ill-gotten profits they received from the sale and lease of the
Defective Vehicles in Florida;
i. Whether the value of the Defective Vehicles has diminished as a result of the
illegal defeat device; and
j. Whether the Plaintiff and the Class Members are entitled to damages,
including compensatory, exemplary, statutory, and punitive damages and, if
so, in what amounts.
83.

The legal issues, the defenses, and the answers to the common questions of fact

and law will be common across the Class. The factual bases of Volkswagen and the Volkswagen

22

Dealers misconduct are common to all Class Members and represent a common thread of
misconduct resulting in a common injury to all Class Members.
84.

Typicality: Plaintiffs claims are typical of the claims of the Class Members, and

arise from the same course of conduct by Volkswagen and the Volkswagen Dealers. The
representative Plaintiff, like all Class Members, has been damaged by Volkswagen and the
Volkswagen Dealers fraudulent and deceptive misconduct in that they have incurred losses
relating to the defeat devices and Volkswagen and the Volkswagen Dealers misrepresentations
and concealments.
85.

Further, the factual bases of Volkswagen and the Volkswagen Dealers fraudulent

and deceptive misconduct are common to all Class Members and represent a common thread of
misconduct resulting in injury to all Class Members. The relief Plaintiff seeks is typical of the
relief sought for the Class Members.
86.

Adequacy of Representation: Plaintiff will fairly and adequately represent and

protect the interests of each member of the Class. Plaintiff has obtained counsel with substantial
experience in prosecuting tort actions including actions on behalf of injured consumers,
commercial litigation, and other claims alleged herein.
87.

Plaintiff and her counsel are committed to vigorously, adequately, and diligently

prosecuting this Class Action on behalf of the Class, and have the financial resources to do so.
Neither Plaintiff nor her counsel has an interest adverse to those of the Class.
88.

The questions of fact and law common to the claims of the representative party

and each member of the Class predominate over any question of law or fact affecting only
individual members of the Class, and class representation is superior to other available methods

23

for the fair and efficient adjudication of the controversy, rendering the claims here maintainable
as a class action pursuant to Fla. R. Civ. P. 1.220(b)(3).
a. There will be no manageability problems with prosecuting the case as a class
action.
b. There is neither compelling need nor apparent desire by other persons and parties
who are Class Members to individually control their separate potential lawsuits.
c. It is desirable to concentrate the litigation in this forum for purposes of judicial
economy, i.e., economics of time, effort, expense and uniformity of decision as to
persons and parties similarly situated.
d. The case is amenable to liability being determined on a class-wide basis, and to
recovered damages being fairly and equitably deployed to the benefit of
individual Class Members.
e. The claims raised and defenses asserted will be the same or substantially similar
with respect to the representative Plaintiff and the individual Class Members. In
addition, the facts supporting any claims and defenses asserted are common
among the Class and predominate over any individual factual issues.
89.

Plaintiff requests that the Court determine that this case may be maintained as a

class action pursuant to Fla. R. Civ. P. 1.220, certify the proposed Class designating Plaintiff as
the named representative of the Class, and designating the undersigned as Class Counsel, and
direct that reasonable notice of this action, as provided by Rule 1.220(d), be given to each
member of the Class represented by the Plaintiff herein.

24

COUNT I
VIOLATION OF THE FLORIDA RACKETEER INFLUENCED AND CORRUPT
ORGANIZATION ACT, FLORIDA STATUTE 772.01 ET SEQ. (FLORIDA RICO)
90.

Plaintiff incorporates all other paragraphs of this Complaint as if rewritten here.

91.

Plaintiff brings this Count on behalf of herself and on behalf of the Class.

92.

Volkswagen is a person under Florida Statute 772.103.

93.

The Volkswagen Dealers are persons under Florida Statute 772.103.

94.

Volkswagen and the Volkswagen Dealers, with criminal intent, violated Florida

Statute 772.103(1) and 772.103(2) by directly participating in, conducting the affairs of, and
operating the Volkswagen RICO Enterprise through a pattern of racketeering and criminal
activity, and received proceeds derived from the Volkswagen RICO Enterprise.
95.

Volkswagen and the Volkswagen Dealers, with criminal intent, violated Florida

Statute 772.103(3) by conspiring to participate, conduct the affairs of, and operate the
Volkswagen RICO Enterprise, through a pattern of racketeering and criminal activity, and
receive proceeds derived from the Volkswagen RICO Enterprise.
96.

The Volkswagen RICO Enterprise consisted of the following persons who are

members that associate together for a common purpose and members of an association-in-fact
enterprise within the meaning of Florida RICO:
a. Volkswagen designed, manufactured, leased, and sold thousands of Defective
Vehicles in the United States, and dozens in the State of Florida, knowing that they
contained illegal defeat devices for the purpose of evading federal and state emissions
and clean air standards, and for at least six years, concealed the defeat devices from
consumers, the government, and the public by actively promoting, marketing, and

25

advertising the Defective Vehicles as clean engine vehicles that were environmentally
friendly and maintained superior car performance and fuel efficiency;
b. The officers, executives, and engineers of Volkswagen collaborated and colluded
with each other and with others within the Volkswagen RICO Enterprise to carry out
the scheme to defraud Plaintiff and the Class Members into purchasing the Defective
Vehicles, concealing the illegal defeat devices, and making the Plaintiff and the Class
Members believe that they were purchasing an environmentally friendly car with
superior car performance and fuel efficiency;
c.

The Volkswagen Dealers sold and leased dozens of Defective Vehicles in the State
of Florida, knowing that they contained illegal defeat devices for the purpose of
evading federal and state emissions and clean air standards, and concealed the defeat
devices from consumers, the government, and the public by actively promoting,
marketing, and advertising the Defective Vehicles as clean engine vehicles that were
environmentally friendly and maintained superior car performance and fuel
efficiency; and,

d. The officers, executives, and engineers of the Volkswagen Dealers collaborated and
colluded with each other and with others within the Volkswagen RICO Enterprise to
carry out the scheme to defraud Plaintiff and the Class Members into purchasing the
Defective Vehicles, concealing the illegal defeat devices, and making the Plaintiff
and the Class Members believe that they were purchasing an environmentally friendly
car with superior car performance and fuel efficiency.
97.

The Volkswagen RICO Enterprise had an ongoing organization with an

ascertainable structure and hierarchy that set it apart from the mere commission of the predicate

26

acts as set forth herein, and functioned as a continuing unit with separate roles and
responsibilities.
98.

Each of the Defendants association and pattern of criminal and racketeering

activity in the Volkswagen RICO Enterprise was separate and distinct from the Volkswagen
RICO Enterprise.
99.

At all relevant times, Volkswagen and the Volkswagen Dealers operated,

controlled, or managed the Volkswagen RICO Enterprise.


100.

The Volkswagen RICO Enterprise was structured in a manner that each person

supported one another in accomplishing the Volkswagen RICO Enterprises goals of selling as
many Defective Vehicles as possible to maximize the profitability of the Volkswagen RICO
Enterprises members and concealing the defeat devices in the Defective Vehicles from the
consumers, the government, and the public.
101.

Volkswagens participation in the Volkswagen RICO Enterprise was necessary

for the successful operation of its scheme to defraud because Volkswagen, designed and
manufactured the defeat devices, distributed the Defective Vehicles to dealerships in Florida,
concealed the nature and scope of the defeat devices for at least six years, and profited from such
scheme to defraud and concealment.
102.

The Volkswagen Dealers participation in the Volkswagen RICO Enterprise was

necessary for the successful operation of its scheme to defraud because the Volkswagen Dealers
sold and leased the Defective Vehicles in the State of Florida, concealed the nature and scope of
the defeat devices for years, and profited from such scheme to defraud and concealment.
103.

The members of the Volkswagen RICO Enterprise shared the illegal profits

generated by the Enterprise, including increased sales of the Defective Vehicles to consumers

27

who were made to believe that the Defective Vehicles were environmentally friendly cars with
superior car performance and fuel efficiency and who paid a premium for the Defective
Vehicles.
104.

Each member benefitted from the Volkswagen RICO Enterprises common goal

and purpose: Volkswagen sold and leased more Defective Vehicles, at a higher price, by
designing, manufacturing, concealing the existence of the defeat devices, and furthering the
scheme to defraud Plaintiff and the Class Members; the Volkswagen Dealers sold, leased and
serviced more Defective Vehicles, at a higher price, by concealing the existence of the defeat
devices and furthering the scheme to defraud Plaintiff and the Class Members.
105.

Volkswagen and the Volkswagen Dealers knowingly and purposefully agreed and

conspired to violate Florida RICO by knowingly participating in, conducting the affairs of, and
operating the Volkswagen RICO Enterprise. Volkswagen and the Volkswagen Dealers knowing
participation in the scheme was an integral part of the Volkswagen RICO Enterprise.
106.

Volkswagen and the Volkswagen Dealers conducted and participated in the

affairs of the Volkswagen RICO Enterprise through a pattern of criminal and racketeering
activity, since at least 2009 and continuing to this day, and used the mails and wires to conduct
and further a scheme to defraud the Plaintiff and the Class Members of money or property by
misrepresenting and concealing the existence, nature, and effect of the illegal defeat devices in
the Defective Vehicles.
107.

Volkswagen and the Volkswagen Dealers maintained, advertised, promoted, and

marketed, through the use of mails and wires, the Defective Vehicles as environmentally friendly
cars with superior performance and fuel efficiency, in order to sell more vehicles at a higher
price and for a higher profit including: Volkswagen and the Volkswagen Dealers websites,

28

communications with the EPA and/or CARB including COC applications, communications with
the Plaintiff and the Class Members, statements to the press, advertisements, brochures, and
marketing campaigns such as the clean diesel campaign.
108.

The predicate acts were related and not isolated events, furthered the Volkswagen

RICO Enterprises scheme to defraud, and had the purpose of generating significant revenue and
profits for Volkswagen and the Volkswagen Dealers at the expense of the Plaintiff, the Class
Members, and the environment.
109.

The Plaintiff and the Class Members relied on the misrepresentations of

Volkswagen and the Volkswagen Dealers, as any reasonable consumer would have, in
purchasing the Defective Vehicles, and would not have purchased the Defective Vehicles had
they known about the illegal defeat devices.
110.

As a direct and proximate result of the predicate acts committed by the

Volkswagen RICO Enterprise, the Plaintiffs and Class Members have been injured by
Volkswagen and the Volkswagen Dealers pattern of criminal and racketeering activity in
violation of Florida Statute 772.103 in an amount to be proven at trial, including but not
limited to:
a. purchasing or leasing Defective Vehicles that the Plaintiff and the Class Members
would not have otherwise purchased or leased;
b. overpaying for leased or purchased Defective Vehicles that the Plaintiff and the
Class Members were made to believe were environmentally friendly, but in fact,
were not; and,
c. purchasing or leasing Defective Vehicles of diminished values and reduced resale
value.

29

WHEREFORE, Plaintiff and the Class Members respectfully request that the Court enter
a Judgment against each Defendant awarding the Plaintiff and the Class Members treble
damages pursuant to Florida Statute 772.104(1) in an amount to be proven at trial, prejudgment interest, post-judgment interest, attorneys fees and costs, and all such other relief as
the Court may deem just and proper.

COUNT II
VIOLATION OF FLORIDAS UNFAIR & DECEPTIVE TRADE PRACTICES ACT,
FLORIDA STATUTE 501.201, ET SEQ.
111.

Plaintiff incorporates all other paragraphs of this Complaint as if rewritten here.

112.

Plaintiff brings this Count on behalf of herself and on behalf of the Class.

113.

The purpose of Florida Deceptive and Unfair Trade Practices Act, Florida Statute

501.201, et seq. is to protect the consuming public . . . from those who engage in unfair
methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct
of any trade or commerce. Florida Statute, 501.202 (2).
114.

Under FDUPTA, [u]nfair methods of competition, unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are
unlawful. Florida Statute, 501.204 (1).
115.

Volkswagen and the Volkswagen Dealers participated in both unfair and

deceptive trade practices that violated the FDUPTA as described herein.


116.

Designing, manufacturing, advertising, soliciting, selling, and distributing the

Defective Vehicles into the stream of commerce in the State of Florida constitute trade or
commerce transactions within the scope of FDUPTA.

30

117.

Plaintiff and each Class Member is a consumer as defined by FDUPTA. Florida

Statute, 501.203.
118.

Volkswagen and the Volkswagen Dealers are engaged in trade or commerce

within the meaning of FDUPTA.


119.

The Defective Vehicles are goods within the meaning of FDUPTA.

120.

Volkswagen and the Volkswagen Dealers, with the intent to mislead the Plaintiff

and the Class Members, have engaged in unfair and deceptive practices to misled reasonable
consumers such as the Plaintiff and members of the Class, and have therefore violated FDUPTA.
121.

In the course of Defendants business, Volkswagen and the Volkswagen Dealers

affirmatively misrepresented and concealed material facts from the Plaintiff and the Class
Members regarding the existence and effect of illegal defeat devices that violated federal and
state emission and clean air standards, and led the Plaintiff and Class Members to believe that the
Defective Vehicles were environmentally friendly, when in fact they polluted 40 times more than
what is permitted by law.
122.

Volkswagen and the Volkswagen Dealers concealment and misrepresentations

became a part of the basis for the bargain when the Plaintiff and the Class Members purchased
the Defective Vehicles.
123.

Volkswagen and the Volkswagen Dealers have actively deceived reasonable

consumers, like the Plaintiff and the Class Members, into believing the Defective Vehicles were
environmentally friendly, when they were anything but.
124.

The Plaintiff and the Class Members, or any reasonable consumer, could not have

detected the existence and effect of the illegal defeat device. The specialized knowledge and
training required to detect the illegal defeat device is beyond that of a reasonable consumer.

31

125.

Plaintiff and the Class Members purchased or leased the Defective Vehicles and

have therefore been aggrieved by Volkswagen and the Volkswagen Dealers unfair and
deceptive practices in violation of FDUPTA.
126.

Plaintiff and the Class Members have sustained damages as a direct and

proximate result of the Volkswagen Defendants tortious conduct. The Plaintiff or the Class
Members would not have purchased or leased the Defective Vehicles, particularly for a
premium, had Volkswagen and the Volkswagen Dealers disclosed the existence and effect of the
illegal defeat devices in the Defective Vehicles.
127.

Plaintiff and the Class Members did not receive the benefit of the bargain,

overpaid for the Defective Vehicles, and have suffered a diminution in value of the Defective
Vehicles.
128.

The damages suffered by the Plaintiff and the Class Members were directly and

proximately caused by the deceptive, misleading, and unfair practices of Volkswagen and the
Volkswagen Dealers.
WHEREFORE, Plaintiff and the Class Members respectfully request that the Court enter
a Judgment against each Defendant awarding the Plaintiff and the Class Members actual
damages pursuant to Florida Statute 501.211(2) in an amount to be proven at trial, prejudgment interest, post-judgment interest, attorneys fees and costs pursuant to Florida Statute
501.2105, and all such other relief as the Court may deem just and proper.
COUNT III
FRAUD
129.

Plaintiff incorporates all other paragraphs of this Complaint as if rewritten here.

130.

Plaintiff brings this Count on behalf of herself and on behalf of the Class.

32

131.

Volkswagen and the Volkswagen Dealers have knowingly made false

representations or material omissions regarding the existence and effect of the illegal defeat
devices in the Defective Vehicles.
132.

Volkswagen and the Volkswagen Dealers have fraudulently and falsely

represented, advertised, promoted, and marketed the Defective Vehicles as clean diesel
engines that are environmentally friendly, when in fact Volkswagen and the Volkswagen Dealers
knew that the Defective Vehicles polluted up to 40 times more than allowed by law, and violated
federal and state emissions and clean air standards.
133.

Volkswagen and the Volkswagen Dealers have fraudulently and falsely

represented, advertised, promoted, and marketed the Defective Vehicles as clean diesel
engines that are environmentally friendly, when in fact they were not, in order to induce the
Plaintiff and Class Members to purchase the Defective Vehicles.
134.

Volkswagen and the Volkswagen Dealers deliberately engaged in a scheme to

defraud the Plaintiff and the Class Members by installing defeat devices intended to cheat the
federal and state emission standards by showing far lower emissions during emission
certification testing than when operating on the road, and intentionally concealing these material
facts from the Plaintiff and the Class Members.
135.

Volkswagen and the Volkswagen Dealers recklessly manufactured and distributed

the Defective Vehicles to consumers in the State of Florida, even though Defendants knew, or
should have known, at the time of distribution, that the Defective Vehicles contained the illegal
defeat devices.

33

136.

The Plaintiff and the Class Members had no knowledge of the illegal defeat

devices in the Defective Vehicles, and had no way of reasonably discovering them at the time
they purchased or leased the Defective Vehicles.
137.

The Defective Vehicles were in fact defective at the time or purchase or lease.

138.

Volkswagen and the Volkswagen Dealers had a duty to disclose the material

defects to the Plaintiff, the Class Members, the public, and the government, but failed to do so.
139.

Volkswagen and the Volkswagen Dealers had superior knowledge and access to

those facts, and knew that the Plaintiff and the Class Members had no knowledge of, and no
access to the facts that would disclose the existence of the illegal defeat devices.
140.

The Plaintiff and the Class Members reasonably relied on, and trusted,

Volkswagen and the Volkswagen Dealers representations that the vehicles they purchased or
leased were free from defects, complied with representations and warranties, were
environmentally friendly as clean engine vehicles, and complied with federal and state
emission and clean air standards.
141.

The Plaintiff and the Class Members would not have purchased or leased the

Defective Vehicles had Volkswagen or the Volkswagen Dealers revealed the true facts of the
illegal defeat devices. Volkswagen and the Volkswagen Dealers concealment was material
because it concerned the quality of the Defective Vehicles, including their compliance with
applicable federal and state emission and clean air standards, and related to the value of the
Defective Vehicles.
142.

As a result of the Plaintiff and Class Members justifiable reliance on the

Volkswagen and the Volkswagen Dealers misrepresentations, the Plaintiff and Class Members
have sustained damages in an amount to be proven at trial, including but not limited to

34

purchasing or leasing cars they otherwise would not have purchased or leased, paying a premium
price for the Defective Vehicles, and owning or leasing cars that are diminished in value.
143.

Each Defendant knew or recklessly disregarded that their representations,

advertisements, and statements regarding the Defective Vehicles were false.


144.

Each Defendant knew that the Plaintiff, the Class Members, and reasonable

consumers would rely on Volkswagen and the Volkswagen Dealers representations as to the
Defective Vehicles.
145.

Volkswagen and the Volkswagen Dealers acts were done intentionally,

deliberately, with the intent to defraud, and in reckless disregard of the Plaintiffs and Class
Members rights and well-being to enrich the Defendants. Volkswagen and the Volkswagen
Dealers intentionally and deliberately placed profits over people and the environment in
designing, manufacturing, distributing, and advertising the Defective Vehicles, and concealing
the existence and effect of the illegal defeat device in the Defective Vehicles.
146.

Volkswagen and the Volkswagen Dealers misconduct warrants an assessment of

damages in an amount sufficient to deter such conduct in the future, which amount is to be
determined at trial.
WHEREFORE, Plaintiff and the Class Members respectfully request that the Court enter
a Judgment against each Defendant awarding the Plaintiff and the Class Members damages in an
amount to be proven at trial, pre-judgment interest, post-judgment interest, attorneys fees and
costs, the opportunity to amend this Complaint to add a claim for punitive damages, and all such
other relief as the Court may deem just and proper.
COUNT IV
UNJUST ENRICHMENT
147.

Plaintiff incorporates all other paragraphs of this Complaint as if rewritten here.

35

148.

Plaintiff brings this Count on behalf of herself and on behalf of the Class.

149.

As a direct and proximate cause of the Defendants unlawful and deceptive

actions described above, Volkswagen and the Volkswagen Dealers have been enriched at the
expense of the Plaintiff and the Class Members, who paid a premium price that did not reflect the
true value of the Defective Vehicles.
150.

Under the circumstances, it would be inequitable, unjust, and unconscionable for

Volkswagen and the Volkswagen Dealers to retain the wrongfully obtained funds without
restitution to the Plaintiff and the Class members for the monies paid for the Defective Vehicles,
including the premium price paid for the Defective Vehicles.
151.

Plaintiff and the Class Members have no adequate remedy at law.

152.

Plaintiff and the Class Members therefore seek disgorgement of all profits, plus

interest.
WHEREFORE, Plaintiff and the Class Members respectfully request that the Court enter
a Judgment against each Defendant awarding the Plaintiff and the Class Members disgorgement
of all profits in an amount to be proven at trial, pre-judgment interest, post-judgment interest,
attorneys fees and costs, and all such other relief as the Court may deem just and proper.

DEMAND FOR JURY TRIAL


Plaintiff hereby demands a jury trial on all issues so triable.

Dated: November 16, 2015


/s/Joanna M. Greber, Esq.
Joanna M. Greber, Esquire
Florida Bar No. 0027830
jgreber@wilkesmchugh.com
James L. Wilkes, II, Esquire

36

Florida Bar No. 040533


jimw@wilkesmchugh.com
Stephanie@wilkesmchugh.com
Blair N. Mendes, Esquire
Florida Bar No. 0311900
bmendes@wilkesmchugh.com
Isaac Ruiz-Carus, Esquire
Fla. Bar No. 0017004
iruiz-carus@wilkesmchugh.com
tpaIRCstaff@wilkesmchugh.com
WILKES & McHUGH, P.A.
P.O. Box 1169
St. Petersburg, FL 33713
813/873-0026 // 813/286-8820 Fax
Attorneys for Plaintiff and the Class

37