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DOJ to possibly pursue Volkswagen execs

DOJ to possibly pursue Volkswagen execs

It could be just a matter of time before the U.S. Department of Justice names individual wrongdoers in connection with Volkswagen A.G.'s use of illegal diesel emissions software.

But it may also be that the German citizenship of alleged wrongdoers in the case is stymieing the department's pursuit of individuals, some observers say.

In the latest development in the worldwide scandal, the Department of Justice last week filed a complaint on behalf of the U.S. Environmental Protection Agency in U.S. District Court in Detroit against Volkswagen and affiliates, charging that nearly 600,000 diesel engine vehicles had illegal “defeat” devices installed that impaired their emission control systems and caused emissions to exceed EPA standards, resulting in harmful air pollution.

No individuals were named in the litigation, despite the Department of Justice's recently-announced policy of pursuing individual corporate wrongdoers.

“We have an active and ongoing investigation,” a department spokesman said in a statement Monday. “A civil complaint does not preclude the government from seeking other legal remedies, including criminal charges. The United States' investigation is continuing and will follow the facts and evidence wherever they lead.”

Some observers believe Volkswagen officials may eventually become the target of investigation.

“I don't know that what they have done so far is an indication of what they're going to do in the future,” said Dan A. Bailey, a member of law firm Bailey Cavalieri L.L.C. in Columbus, Ohio.

What the department has done so far is driven by the facts it has discovered to date, “and one of the big challenges that any regulator has in chasing individuals … is getting enough facts to show what involvement that individuals had as opposed to the company,” Mr. Bailey said.

“It's a lot easier to find out what the company did vs. what individuals did, so it's not surprising to me that the first proceedings that are being filed are only against the company.” He added that they will have to wait and see whether there are additional charges filed against individuals.

Some observers believe, though, that Volkswagen officials' German nationality could be a factor.

“I would think the most likely thing that's going on is they're dealing with German officers and directors,” said Patrick M. Kelly, a partner with Wilson Elser Moskowitz Edelman & Dicker L.L.P. in Los Angeles.

Mark Weintraub, Atlanta-based insurance and claims counsel for Lockton Cos. L.L.C., also pointed to state attorney generals' criticism of Volkswagen last week for citing German law in withholding documents from a group of states investigating the illegal software.

“It's just a hard (case) because of the international dynamics of it and some of the German privacy laws,” he said.

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