Harvey Strosberg is one of Canada’s leading class-action lawyers. He’s co-lead counsel in the country’s bundled class-action lawsuit against Volkswagen over its diesel emissions-rigging. Mr. Strosberg’s firm, Sutts, Strosberg of Windsor, Canada, is representing 135,000 affected VW diesel car owners. In early June in Toronto, the Superior Court of Ontario will decide whether to certify the owners in their class-action suit against VW, permitting the case to move forward. Mr. Strosberg spoke this week with Kevin O’Brien, editor in chief of Handelsblatt Global Edition, while attending a legal conference in Berlin. The Canadian suit against VW, which his firm filed days after the automaker admitted to emissions-rigging last September, is asking the court to award owners at least 3 billion Canadian dollars (USD 2.3 billion). Mr. Strosberg said the court will ultimately set the damages, which could be record-breaking in Canada.
Handelsblatt Global Edition: Mr. Strosberg, why are you involved in the Canadian class-action case against VW?
Harvey Strosberg: I am the lead counsel in the Canadian class-action suit against Takata, a Japanese maker of airbags. Naturally I gravitated toward the diesel problem. There is a consortium of eight law firms across Canada involved in the VW case. I am one of two co-lead counsels on the case.
How high are the damages from the VW affair in Canada?
No one has an idea of the real damages. We are suing for CAD 3 billion (USD 2.3 billion). We don’t know what the real value of the damages are. A judge will determine liability and then will have a system, will have a plan, to ask the court to set the damages.
The problem with the damages is: Is there a technical fix for the affected cars? Everyone wants to know whether or not Volkswagen has a fix. Truth is, I don’t think Volkswagen knows whether or not they have a fix. My expert told me: You can’t fix those small engines. On the larger engines, they may be able to install something, a catalytic converter or whatever, that will be attached to the engine. But I’m told with the smaller engine, they can’t be fixed. So what will be done? Does Volkswagen have to buy back every one of those cars?
A lot of people say they wouldn’t have dreamed of buying a diesel from VW if they knew it was poisonous. A lot of people who buy diesel cars, they’re very environmentally conscious. Because they paid a premium for diesel, and then they were deceived by Volkswagen.
Volkswagen maintains that the emissions-rigging was the work of a few rogue engineers and was not ordered by top management. What are your thoughts?
First of all, the engineers are employees of Volkswagen. It doesn’t matter if the engineer or the board of directors or the CEO knew about it, they are responsible. They are collectively responsible for the damages. So it doesn’t matter whether or not a few engineers knew. Maybe it will be interesting from a criminal context. From a civil context, it doesn’t matter. The company says: We did it. It was wrong. Therefore, they’re liable for damages. The quantum, the amount of damages, is up in the air now. We don’t know what that number will be. Whether or not in addition to damages, there will be punitive damages or aggravated damages. But the liability to me is not in dispute. The damages are in dispute.
At what stage is this proceeding in Superior Court?
On June 3 and 4 in Toronto, we’re having our certification motion. The judge will decide whether or not the class will be certified as a class action. I think at the end of the day Volkswagen knows there will be a certification order. In my opinion, it’s not a slam dunk, but it is a terrific case for certification.
So in your case you won’t have to establish who knew what, when. That is basically a given, right?
I think so. We have to prove that the company – not who – but the company – programmed these vehicles to have a defeat mechanism that didn’t properly record the nitrous oxide.