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 April 26, 2016
Volkswagen's Legal Endgame in Emissions Scandal

 The news that Volkswagen increased its reserves to $18 billion to cover the cost of penalties, legal claims and recalls in the United States and elsewhere related to diesel emissions cheating means that the company is at the beginning of the end of the scandal.

The particulars of the agreements in principle with government agencies and owners still have to be worked out. The main question that remains is whether any individuals inside the company will be prosecuted in the United States for installation of the "defeat device" designed to make certain diesel engines appear to comply with federal and state environmental laws when in fact they did not.

Paying out the money is probably the easiest part of the resolution for Volkswagen because those costs can be spread out over the next year or two. Moreover, it can deduct some of the payments from its taxes as a business expense as well, cushioning the damage to its bottom line at least a little bit.

How will the $18 billion be spent? Although the final total could rise, here are some rough estimates of how this pool could be divided.

The New York Times reported that the cost of buying back the diesel cars with the affected engines has been pegged at approximately $7 billion, citing an estimate by Kelley Blue Book, an automobile research firm.

There could be additional compensation paid to owners for the loss of use of their vehicles, plus Volkswagen will have to pay for fixing cars in Europe and other countries, which will not be as costly because they do not have the same stringent environmental requirements as the United States. Add in another billion dollars for those expenses, and it adds up to about $8 billion to get the diesel cars fixed and their owners compensated.

The penalties that will have to be paid to the Justice Department and federal regulators, along with attorneys general in the states and the California Air Resources Board, which helped uncover the cheating, can be expected to run into the billions of dollars.

General Motors paid a $900 million penalty for problems related to faulty ignition switches, while Toyota paid $1.2 billion for misleading statements about defects in its cars. Those cases were resolved through deferred prosecution agreements with the Justice Department, so the companies avoided a criminal conviction.

Federal prosecutors could take a harder line with Volkswagen by demanding a guilty plea because of indications that it failed to report the emissions cheating and initially claimed that it was in compliance with the law. Either resolution means a criminal fine can be expected, and it is likely to exceed the amount Toyota paid.

The Environmental Protection Agency could impose penalties of as much as $18 billion for the use of the defeat devices. The Justice Department has also been looking at possible civil violations of the Financial Institutions Reform, Recovery, and Enforcement Act, known as Firrea, for possible fraud by the company affecting banks that purchased securities packaging loans to buyers of its cars. The amount of any penalty under that provision could be the profits on the transactions, which could exceed a billion dollars.

The Federal Trade Commission sued Volkswagen over its advertisements promoting the environmental benefits of its diesel engines, another front that could produce significant penalties. Add in the investigations by the states into whether their own consumer protection laws were broken, and the total amount on the civil side is likely to exceed the criminal fine Volkswagen has to pay.

A rule of thumb in securities fraud settlements is that the penalty should match the harm caused to the victims, in this case the owners of cars with the defeat device along with any environmental damage. Using that approach would indicate that the fines and civil penalties could total about $8 billion, although if the company can convince the Justice Department that it has been cooperative then that figure may drop. How the money will be divided among the various agencies is not of much interest to Volkswagen, as long as the payment makes the investigations disappear.

That would leave roughly $2 billion available for the company to pay penalties to regulators in Europe and other parts of the world in which cars equipped with its diesel engines were sold.

Add it all up, and Volkswagen's $18 billion kitty should cover most of the costs it faces from the emissions scandal, with the chance to save a billion or two if it can show it was cooperative with the investigations. Of course, this assumes there are not any new revelations about using defeat devices or other environmental issues with its vehicles.

That will not be the end of the cheating story for Volkswagen, however, because there is also the issue of whether individuals will be accused of wrongdoing.

In a statement issued on Friday, Volkswagen said it would not provide an interim update on the status of the internal investigation because doing so "would present unacceptable risks for Volkswagen and, therefore, cannot take place now." Although the law firm retained to lead the review, Jones Day, has conducted over 450 interviews and looked at millions of documents, there are still additional employees to speak with.

The company expressed concern that revealing what it has learned to this point would be a problem "because individuals who have yet to be questioned could align their statements with the contents of the interim report." Getting complete --- and accurate --- information is important because the company is hoping to receive credit from the Justice Department for its cooperation, which could reduce the penalties it will have to pay.

The price for being considered cooperative these days requires identifying individuals within the company who are responsible for the violations. A memorandum issued by Sally Q. Yates, the deputy attorney general, in September states that to receive "any consideration for cooperation" a company under investigation "must completely disclose to the department all relevant facts about individual misconduct."

According to Volkswagen's statement, disclosing the information gathered to this point "could also jeopardize the credit that Volkswagen may expect to receive in the event of its full cooperation with the Department of Justice."

In other words, it needs to keep digging to provide the names of everyone who was involved in the emissions cheating, and tipping off who it has identified so far might make it difficult to pinpoint others who might be responsible.

If the Justice Department thinks Volkswagen has held back information or taken shortcuts in completing the investigation, then the cost of any settlement will increase by compounding the perception that the company was less than forthcoming when the emissions issue first arose. Getting to the bottom of who was responsible, and whether anyone in senior management was aware of --- or even encouraged --- the cheating, will be the litmus test of how much cooperation credit Volkswagen receives.

References to obtaining information from individuals inside the company is a good indication that Volkswagen is trying to comply with the requirement to aid the prosecution of its employees. If the Justice Department plans to seek charges against individuals, that raises the question of whether Germany would be willing to extradite its citizens to the United States to face trial.

The end may be in sight for Volkswagen, but there is still a long way to go for the company. To the extent that it identifies those who it believes were responsible for the emissions cheating, the case will continue as individuals are much more likely to fight charges than a company, keeping the scandal in the news.