September 22, 2015

Dirty Diesel

Volkswagen and Audi have been caught cheating the American public. Big time. The scandal has shattered Volkswagen's populist image. Millions of cars are affected. Billions of dollars in fines are at stake. Car owners are furious. The German magazine Der Tagesspeigel reports that CEO Martin Winterkorn is out. Class action lawsuits, government penalties, and possibly criminal charges will follow. What, exactly, is going on?VW.jpg

Last Friday, the Environmental Protection Agency sent Volkswagen AG, along with its affiliates Audi AG and the Volkswagen Group, an official Notice of Violation concerning its use of an illegal "defeat device", used to evade emissions testing. You can read that letter here.

The EPA explains, "These cars contain software that turns off emissions controls when driving normally, and turns them on when the car is undergoing an emission test. Known as a “defeat device,” this design feature results in the cars emitting up to 40 times the amount of NOx emissions that the standards allow. NOx standards are in place to ensure public health is protected." The use of such a "defeat device" is highly illegal.

No sooner did this announcement hit the press than VW admitted its misconduct. That it is only now admitting its intentional and deliberate cheating practices is shocking. Although the scandal only just became public, VW knew it was caught as early as May 2014. And yet, it continued to install the devices on new cars being sold.

VW never thought it would get caught, and the fact that it did at all is a bit of a fluke.

Daniel Carder, a professor at West Virginia University's Statler College of Engineering, and team of five including two grad students, performed a study that found much higher on-road diesel emission levels for VW vehicles than what official U.S. testers were seeing. At first they couldn't believe the results, but confirmatory testing produced early evidence Volkswagen was cheating on U.S. vehicle emissions tests. That study was funded by the nonprofit International Council on Clean Transportation. They were actually looking for proof that diesel could be a clean fuel. The results caught even the testers by surprise. You can read more about the ICCT here.

"The testing we did kind of opened the can of worms," Daniel Carder, the mild-mannered West Virginia researcher who lead the investigative team, says. That is an understatement.

The study, completed in May 2014, was later corroborated by the United States Environmental Protection Agency and California Air Resources Board.

VW has been heavily marketing its small diesel cars as the Clean Green alternative for years. But even as it was launching a media campaign to lure environmentally responsible buyers, VW was brazenly equipping more than 11 million vehicles with the deceptive device over a period of more than 6 years. The affected diesel models include:

Jetta (MY 2009 – 2015)
Jetta Sportwagen (MY 2009-2014)
Beetle (MY 2012 – 2015)
Beetle Convertible (MY 2012-2015)
Audi A3 (MY 2010 – 2015)
Golf (MY 2010 – 2015)
Golf Sportwagen (MY 2015)
Passat (MY 2012-2015)

Consumers can get further information from the EPA here.

Consumers can get information about legal cases filed in California by contacting the law firm at

October 23, 2013

Backing Up Into Tragedy

Every car and truck has a blind spot - the area that is just out of sight when the driver puts a vehicle into reverse. Neither the rear view mirrors, nor any amount of craning one's neck, can reach that zone of invisibility that lies just a few feet behind the back bumper. The critical blind spot is worse in SUVs, trucks or other vehicles that ride on a high chassis.

It is estimated that an astonishing 200 people are killed and 18,000 injured each year in what the industry refers to as “backover” crashes.

The particularly tragic thing is that many of the victims are children. They are short in stature and unpredictable in behavior. Thus, 44% of those killed in backover incidents are children under the age of 5 years old. As if that weren’t horrible enough, the statistics show that 50 children are injured every week in this way. With Halloween right around the corner, the risk of these accidents is acute.child_behind_car.bmp

In 2008 Congress passed the Cameron Gulbransen Kids Transportation Safety Act, at the urging of grief-stricken parents and consumer advocates to address the problem. This law received broad bipartisan support. It required the Department of Transportation to set federal safety standards on rear visibility, a move that would prompt car manufacturers to come up with a practical solution. Such a solution is is entirely feasible, as ample technology already exists and some auto makers are voluntarily offering applicable options. The law gave the DOT three years to issue the regulation.

It took two years for the DOT to come up with a proposed rule. Still, this was some progress. The DOT claimed that its proposed 2010 rule would prevent about half the deaths and nearly half the injures reported from backover accidents. Despite the documented likelihood of saving 100 lives each year, the Department of Transportation has repeatedly delayed finalizing the rule. The federal agency has now pushed the deadline for implementing this life-saving measure back to January 2015.

Consumer advocates are exasperated. Joan Clayboork, former head of Public Citizen, says, “Further delays in issuing the safety standard are unacceptable and unnecessary. As a former administrator of the National Highway Traffic Safety Administration, I know that there is enough data to take action today.” Claybrook places blame on the industry. “With each passing week," she urges, "Children throughout America will die or be horribly injured because a proven and effective safety solution is being withheld by DOT under pressure from the auto manufacturers.”

Now, two of the parents who accidently hit their children in backover crashes, along with consumer protection groups, have sued the government to implement this bipartisan legislation. Ami Gadhia, an attorney with Consumers Union, explains, “This rule has been delayed for years… Rear visibility technology can save lives, and the time for action is long overdue.”

November 28, 2012

Toyota Recalls Millions of Cars, Including Corolla and Prius Models

Toyota's problems continue to cascade through a series of announcements and news reports. In October 2012, media drew its attention to Toyota's world-wide recall of about 7.43 million vehicles, for defects in the power window switches causing a risk of fire. That was the manufacturer's largest single recall ever.

Now the popular Japanese brand has announced the recall of another 2.8 million cars, involving multiple model years. The latest announcement concerns problems in the steering system and electric water pumps.

The good news is that Toyota is owning up to defects and giving its broad fleet of consumers fair notice and an opportunity to have the problems fixed. The bad news is that Toyota might soon surpass its competition for the dubious distinction of being most-recalled auto maker ever. At the same time, it is important to note that the absolute number of vehicles recalled reflects Toyota's high global market share, and the recalls are not for the entire vehicle, but particular components. Toyota Prius owners, in particular, are notably loyal to the brand and Toyota's dominance among hybrids is likely to continue.

April 20, 2012

Hyundai objects to Seat Belt Safety Recall

You would think that if the National Highway Traffic Safety Administration issues a safety recall for something as serious as seatbelts, the manufacturer would repair or replace ALL the defective seatbelts, not just some of them. But not Hyundai.

NHTSA announced that Sonata Hybrid models produced between December 2, 2010 and shipped to dealers through March 7, 2012 are being recalled, because they are equipped with a center rear seat belt fail to meet federal safety standards. About 14,728 cars are covered under the recall. Astonishingly, Hyundai balked at replacing the defective belts on approximately 13,095 cars already sold and on the road. It wants to get off cheaply by replacing only the belts in approximately 1,633 new cars still sitting in dealer inventory.

Hyundai Motor Company announced that it intends to file a petition for exemption from the recall on the basis that “the noncompliance described is inconsequential as it relates to motor vehicle safety." Meanwhile, Hyundai is not obligated to conduct an owner notification campaign until the petition is resolved. Whoever wins in this dispute, we wish manufacturers would err on the side of safety, not minimum compliance.

February 20, 2012

Airbag Safety Recall

The National Highway Traffic Safety Agency has issued a safety recall for side airbag inflators used by a variety of manufacturers. The federal safety agency warns of the airbag's possible failure to deploy in the event of a collision, due to an error in the propellant mixture causing insufficient output of compressed gas.

Owners of the affected 2012 vehicles should be notified by mail, but you can get more information by clicking on the NHTSA campaign numbers here. For Nissan 12V055, for Honda 12V030, and for Suburu 12V047

Of course, drivers should never totally rely on airbags, but use them as a secondary safety device. It is still important to buckle-up. Think of it like the lifeboat on a vessel – you don’t really know if it will inflate until you are sinking.

If you get a recall notice, be sure to schedule an appointment to get your car fixed.

November 15, 2010

Windshield Wiper Defects Are A Winter Safety Hazard

The California lemon law covers defects that impair the use, value or safety of a vehicle. This is called the “substantial impairment” rule. Only truly trivial matters fall outside the scope of the lemon law.

To our surprise, some manufacturers try to tell car owners that defective windshield wipers are not worth worrying about and that a failure to fix them is not covered under the lemon law. Nothing could be further from the truth. Are they confusing “little” with “trivial?” If you live anywhere but the Atacama Desert, windshield wipers are among the most important safety devices on any passenger vehicle.

Just as November weather is upon us, the National Highway Traffic Safety Administration has issued a recall of Chrysler Jeep 2008 model SUVs for defective windshield wiper motors. NHTSA Campaign ID Number : 10V550 If you get this notice, respond right away.

The windshield wiper was first patented by a female inventor named Mary Anderson. During a winter visit to New York City in 1902, she noticed that the trolley car operator drove with the front window open because of difficulty keeping the windshield clear of blinding sleet. Bundling her own overcoat more tightly, she thought of a mechanism to control the blade from inside of the trolley and keep the draught out. She had a model made of her design and patented it shortly thereafter. In those days a patent was good for just 17 years, and the auto industry took it up as soon as it expired.

Most automobiles use two synchronized radial type arms, while some SUVs and station wagons use one pantograph arm. The intermittent windshield wiper was invented by Bob Kearns. His battle with Ford Motor Company was chronicled in the award-winning movie, “Flash of Genius.”

Although there is a range of acceptable design, properly functioning windshield wipers are standard safety features on passenger vehicles. Don’t let any car dealer tell you otherwise.

May 10, 2010

Infiniti Safety Recall for Airbags

Airbags in a car are like the lifeboat on a small vessel. You don’t need them often, but you do need to know that they will work in an emergency. The problem is there is no easy way to test them out, because once deployed they must be professionally repacked.

Several years ago, a man and his wife came into our office. They had purchased a truck advertised to have driver’s and passenger’s side airbags. When their grandchildren came to visit, they looked for a switch (sometimes called a PSIR) that can suppress the airbag when children are present in the front seat. airbag.jpgThere was no suppression switch. Why? Because there were no airbags! Somehow, the manufacturer had engineered the vehicle in just such a way that the airbag did not fit on the passenger side. Oooops. The manufacturer (in that case GM) later argued that it “forgot” to tell the buyers they had left the airbags out. The vehicle could not be modified to add the airbags later. We filed a class action and, in the end, the owners of thousands of vehicles were entitled to rescind and return their trucks.

Learning that the advertised airbags were missing was like tossing a packed lifeboat into the water only to watch it sink instead of float and deploy. Even with airbags in vehicles, it is wise (and required under California law) to buckle up as well for the best protection in a crash. While they should not be relied on in place of seatbelts, properly manufactured airbags do save lives.

The Center for Auto Safety deserves credit for being an early proponent of airbags, and remains a good source of information concerning the variations in safety records of different brands. Nissan has been no stranger to problems in its sudden restraint systems over the years. For that reason, it was not a total surprise today when NHTSA announced a Nissan recall for nondeployment of passenger airbags in 2005-2007 Infiniti cars. See NHTSA Campaign ID Number 10V175.

May 3, 2010

Toyota's Problems Continue

The National Highway Traffic Safety Administration reported today that Toyota is recalling certain 2003 Sequoia SUVs for a problem in the vehicle stability control system. Should the problem occur, the Sequoia "may not accelerate as quickly as the driver expects,increasing the risk of a crash." You can read the full recall notice here. The Sequoia was Toyota's first full-size SUV, coming out in 2001. Throughout the model lifetime, it has been marketed for families with children and carpool purposes, so even a remote or minor safety concern has serious implications for family use. The model has gone through a lot of changes since 2001, and for that matter since 2003. For the time being, this notice is limited to the 2003 model year.

Like other recalls, this announcement comes from the Office of Defects Investigation (ODI), a department within the National Highway Traffic Safety Administration (NHTSA). ODI conducts defect investigations and administers safety recalls to support the NHTSA’s mission to improve safety on the nation's highways. ODI also reports on and monitors the adequacy of manufacturers' own voluntary recall campaigns.
safercarlogo.gifToyota states that it will notify owners. However, most of the affected vehicles are otherwise out of warranty and may have changed ownership several times. For that reason, Toyota may not be able to notify new owners directly. If this applies to you, call the Toyota hotline at 800-331-4331 or go to the NHTSA sponsored website at

March 24, 2010

Lemon Law Coverage for Wheel Chairs and Adapted Vehicles

This week, we received notification from NHTSA's Office of Defects and Investigation concerning Ricon wheelchair lifts used in Diamond Coaches. These vehicles are small buses used to transport senior citizens and others who are unable to drive. The defect notices involve nonconformities in the restraint belt and lift software which could result in possible injury to wheelchair occupants. The manufacturer offers a warning label and a user DVD while Ricon attempts to fix the problem. You can find out more about these recall and investigation notices by checking out NHTSA Campaign ID Number 10V106 and 10V109.If, in fact, the occupant in the wheelchair is not secure when lifted into the vehicle, clearly more than a warning is needed. 1211448_wheelchair.jpg

The market for medical equipment, vehicle modifications and assistive devices, is big business. Health care patients are consumers of medical equipment. The California Lemon Law applies to such goods when purchased for consumers and small businesses. Other California consumer protection laws, such as the Consumer Legal Remedies Act, even offer additional penalties if false advertising or other sales practices target senior citizens or disabled persons who suffer substantial physical, emotional or economic damage thereby. Other statutes protecting against financial abuse of the infirm or elderly can also apply.

The California Lemon Law (the “Song Beverly Consumer Warranty Act”) even has a separate section devoted to wheelchairs, requiring that they “shall be accompanied by the manufacturer’s or lessor’s written express warranty that the wheelchair is free of defects.” In addition, the Act states that every sale of “assistive devices” in California carries an implied warranty that the “device is specifically fit for the particular needs of the buyer.” The definition of “assistive device” excludes eyeglasses, but is otherwise extremely broad.

At the same time, not every manufacturer is liable for vehicle modifications that it does not authorize. So-called “after market” adaptations, if unauthorized, may void the original manufacturer’s new vehicle warranty. The dealer or installer may be the party who is liable if the aftermarket alteration fails.

Seniors, health care patients and disabled persons are especially vulnerable to fraud and abuse. California lawmakers have enacted strong laws to protect this population from deceptive practices and defective products.

March 16, 2010

Kemnitzer, Barron & Krieg Launches New Website

Kemnitzer, Barron & Krieg LLP, the host of this California Lemon Law Blog, has just launched a new website with a Q&A section on a variety of consumer protection areas, ongoing consumer alerts, attorney biographies, internet resources, a bibliography and contact links. Check it out here

The firm represents consumers throughout California and has, to date, filed cases in 34 separate California counties. Bryan Kemnitzer, Nancy Barron and Bill Krieg have a combined 99 years experience as trial attorneys fighting to protect consumer rights.

Supported by a dedicated staff, attorneys in the firm have taken individual and class action cases to trial, obtaining verdicts and judgments that include punitive damages and civil penalties. On the other hand, the vast majority of cases settle prior to trial. In settlement, Kemnitzer, Barron & Krieg have obtained debt relief exceeding $300 million, as well as thousands of new car replacements and refunds.

As California consumer lawyers, the members of the firm believe that every consumer is entitled to safe and reliable transportation, fair credit, truth in lending, access to the courts and freedom from fraud. All clients have the opportunity to learn more about consumer protection in ways that increase consumer literacy and save money, as well as resolve the particular case at hand.

March 16, 2010

Tire Recalls Remind Us All to Check the Tread

prospector%20tires.JPGSeveral tire recalls went unnoticed last month, with media attention focused on Toyota recalls regarding sudden acceleration. National Highway Traffic Safety Administration notices, regularly delivered to my "lemon law" inbox, included manufacturer's voluntary recalls of SUV tires having a tendency to shred or exhibit “chunking,” with potential crash consequences. If you get a tire recall notice, be sure to arrange for your replacement tires without delay. Faulty tires can result in a serious loss of driver control, cause a crash, or leave you stranded. Recalls are expensive for manufacturers, which generally do not offer free parts – including free tires – without good reason.

Tires are like the fingers and toes of the vehicle. You take them for granted until they get injured or broken, and then you realize you can’t do without them. Tire checks are just not high on my personal "to do" list. But last weekend, my 17-year-old son noticed a loss of air in the left rear tire of the family station wagon. In a hurry, I thought of simply filling it with air at the gas station, but closer inspection found a nail embedded in the tread. We all need an occasional reminder to check the tires regularly, not just for nails and shredding, but overall condition and especially the traction surface.

Tire labeling regulations require that a lot of important information appear on the tire itself. tire-drawing-all-labels.jpg This and more information on tire safety is found on the NHTSA website.

In addition to having the tires rotated according to the schedule set out in the owner’s manual, you should periodically check for routine wear and tear. The “life” of a tire varies greatly with the kind of car or truck you drive. While a lightweight compact might enjoy 60,000 miles before needing new tires, a luxury sports car may need new rubber at 30,000 mile intervals.

Whether exercising routine maintenance or shopping for a used car, it is not enough to check for overall tire condition – pay particular attention to uneven wear. The technician will lapse into jargon like “camber” and “toe-in,” but if a simple visual inspection shows any kind of irregular wear pattern, it could be a symptom of more serious issues: alignment problems, steering defects or even frame damage from a prior accident. When buying a used car, the tires can thus be a potent indicator of whether the vehicle has seen previous abuse.

From a lemon law perspective, we look at tire issues as an important part of the vehicle history. Experts find that tire wear can reveal whether other defects have actually been fixed, as the service manager may insist, or are likely to recur over the life of the car.

March 9, 2010

Used Car History At Your Fingertips

Car buyers in the market for a used car now have a powerful tool to protect against dealer fraud, title washing, sale of rebuilt wrecks and other deceptive practices. The National Motor Vehicle Titling Information System (NMVTIS), a nation-wide database of used vehicle history is up and running. Consumer advocates have fought for many years to establish such a national public database for used cars and trucks. The car industry fought back and successfully stalled the implementation of this important mandate for a long time. But the waiting is over.

Rosemary Shahan, the executive director of Consumers for Auto Reliability and Safety and a tireless advocate for California drivers, emphasizes, "For used car buyers, this is the most valuable information, at the lowest price. Consumers should check this database first, then if they want more info, check Carfax and Experian. And of course ALWAYS get a vehicle thoroughly inspected by a trusted auto tech / body shop BEFORE agreeing to buy it."

Beginning in January 2010, every state now contributes to this valuable internet resource. Shahan is optimistic when she says, "Keep in mind that the national database has been receiving reports from over 8,000 insurers and junkyards, from all 50 states, and the data has to be updated every 30 days." The NMVTIS website itself cautions that it is only as good as its various sources, warning that there may be some variation in state reporting requirements. Although not foolproof, NMVTIS is an important step toward highway safety.

February 26, 2010

Stopping Sudden Acceleration in Cars and Trucks

Even as Toyota struggles to find the source of sudden acceleration, the U.S. Department of Transportation is offering advice on what do to if sudden acceleration happens while you are driving. Until either the company or federal investigators discover what component is causing the problem, no advice is a sure thing. However, the National Highway Traffic Safety Administration has posted the following steps a driver might take to control the vehicle racing out of control.

Actions Consumers Can Take If They Cannot Stop Their Vehicles

Regardless of the cause, if a consumer is experiencing unintended acceleration intheir vehicle, they should take the following steps:
• Brake firmly and steadily – do not pump the brake pedal.
• Shift the transmission into Neutral (for vehicles with automatic transmissions and the sport option, familiarize yourself with where Neutral is – the diagram may be misleading).
• Steer to a safe location.
• Shut the engine off (for vehicles with keyless ignition, familiarize yourself with how to turn the vehicle off when it is moving – this may be a different action than turning the vehicle off when it is stationary).
• Call your dealer or repair shop to pick up the vehicle. Do not drive it.

You can find more information about sudden acceleration and other recalls here.

April 12, 2007

Lemon Law Support: Technical Service Bulletins


Car defects are less of a mystery than they used to be. The National Highway Traffic Safety Administration (NHTSA) provides a source of information useful to investigation of Lemon Law complaints that was not readily available to consumers before the Internet Age. This includes Technical Service Bulletins.

The California Lemon Law requires every auto manufacturer to have authorized repair shops in this state, to carry out the terms of its warranties. In the absence of exclusive authorized dealers, a manufacturer can designate independent dealers to satisfy this requirement of the Lemon Law. As a further measure of consumer protection, the law requires that auto manufacturers have to make replacement parts available and they have to make service literature available to instruct their dealers how to make repairs.

Thus Ford, GM, Chrysler, Toyota, BMW and all other car manufacturers maintain written instructions with regard to known defects, nonconformities and conditions likely to be the subject of requested repairs. These are called TSB’s, or Technical Service Bulletins. When we started representing consumers in the 1980s, it was very difficult to obtain these internal records. Even after lawsuits were filed, the car companies refused to give these up without court orders, making the litigation unnecessarily expensive. Now however, the Internet makes an enormous amount of information readily available through government and other sources. It is important to realize that these sources are often incomplete, and discovery in the course of litigation is still needed to supplement these investigative tools. Still, it is useful to see what is publicly available in the early stages of investigating a Lemon Law claim.

A single TSB may not give enough information to know whether a particular vehicle is a lemon or not; but information contained in service bulletins may provide useful for experts inspecting a vehicle; likewise, it may clarify, confirm or call into question a service manager’s claim as to whether a particular condition is known to exist.

You can find TSB's on the website of the Office of Defects Investigation division of NHTSA . Have your car or truck's year, make and model information handy. It is sometimes useful to have the actual VIN (vehicle idenitifcation number) as well. The NHTSA website also provides recall and other useful consumer information.