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4:18 PM Thu, Nov. 15th

VW attorneys tell judge they can’t be guilty of consumer fraud

PHOENIX – Attorneys for Volkswagen are telling a judge the firm can't be found guilty of consumer fraud and fined potentially hundreds of millions of dollars because its now-disproved claims of the cleanliness of the diesel vehicles it was selling were just promotional "puffery.''

In new court filings here, the legal team is acknowledging that Volkswagen had designed and sold vehicles under the VW, Audi and Porsche labels with "defeat devices,'' essentially allowing its cars to emit more pollutants of oxides of nitrogen during actual on-road driving than show up when they are actually being tested. And the emissions were many times higher than federal standards.

VW eventually pleaded guilty to three felonies, including defrauding the U.S. Environmental Protection Agency, and agreed to $4.3 billion in penalties and another $4.9 billion to address pollution from the supposedly low-emission diesel vehicles. And Arizona is getting $57 million for projects to reduce emissions of oxides of nitrogen.

But the legal team, represented in Arizona by attorney Keith Beauchamp, told Maricopa County Superior Court Judge Randall Warner he should reject a bid by Attorney General Mark Brnovich to have VW also found guilty of consumer fraud because it advertised and marketed the vehicles to Arizona consumers as "clean.''

In essence, VW contends that when the firm said it was promoting "clean diesel'' that phrase really has no legal meaning. More to the point, VW's legal team says the consumers were not led to believe that the statements actually meant VW was making specific environmental claims concerning its nitrogen oxide emissions.

"Simply put, 'clean diesel' is legal puffery under Arizona law,'' the legal briefs argue. And that, the lawyers said, means there was no violation of the state's Consumer Fraud Act.