Intent despite confession?

How FIFA, Microsoft, WPs, BP and the Mafia are sued under the same law and pilloried through American glasses, Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm explain in a multi-part article.

The first part was about the “Racketeer Influenced and Corrupt Organizations Act”, a US federal law that makes this kind of jurisdiction possible. In the second part the Directors and Officers insurance is examined. The third part now focuses on the topic of premeditation – despite confession:

Objective No intention to defraud

It is not very credible that VW was surprised by these events. It is unlikely that one wanted to cheat or even did so in an objective sense. That a US authority could see this differently, however, was within the realm of possibility, if the legal technical specifications were interpreted to the supposedly still safe limits. It is questionable whether somewhere at VW there was an elaborated scenario that could be found today for this case. However, eliminating a few “culprits” is an efficient means of further limiting the damage to reputation.

The board of directors and lawyers can probably convince any technician to carry out an appropriate reassessment of his supposedly identified “legal” risks, or someone else is commissioned to carry out the assessment and the person concerned learns nothing of it. In a company based on the division of labour this is possible. If someone does not disagree, many companies have methods to convince, if only to admit that their own opinion may be wrong. For example, because the technician assumes his own idiosyncratic interpretation of undefined legal terms.

Intent despite confession?

Intention must not be assumed at VW because VW admits that an “illegal” shutdown device was present. This is a legal assessment which is not immediately apparent from the underlying facts. This is not simply because the device switches off occasionally or in many situations. On the contrary, it must almost always switch off during operation, so to speak, without this being objectively necessary. However, it may have been necessary in order to comply with the maintenance intervals.

VW could have registered its vehicles in the USA with higher limit values, which would then have had to be complied with more often in normal operation. There are no such low targets, nor is there a commitment that they will be met on average during normal operation. So the point is that VW itself operated and advertised with the low values.

It could be argued that the pollutants have caused illnesses and deaths which would not have occurred if the advertising had not been misleading, because VW’s products would not have been sold. In concrete terms: not diesel, but petrol or electric vehicles. It was advertised – and this was a decisive factor in the sale of diesel – that the vehicles were particularly clean.

Under the RICO Act, a plaintiff would have to prove that companies had not only committed large-scale fraud in the past, but that the fraud continued and that there was a “likelihood that the criminal conduct would continue”. And this is likely to be all the more difficult, the more responsible persons from the upper management levels have to leave the company in the meantime, also to limit the damage.

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

by courtesy of

www.experten.de (published on 29.06.2017)

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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