By on November 9, 2015

Screen Shot 2015-11-09 at 8.31.07 AM

UPDATE: There is a clause in the ‘Program Rules’ that could allow Volkswagen to change the terms of the agreement after the fact. We’ve added statements from Volkswagen, a law firm representing TDI owners and a law professor so you can make an informed decision on whether or not to register for the Goodwill Package.

Owners who signed up for Volkswagen’s “Goodwill Program” to receive $1,000 will still be able to take the automaker to court, according to documents posted by Volkswagen on Monday.

The program outlines specific steps owners would need to take to receive the benefits offered. Including taking ownership of the 2-liter diesel cars before Nov. 9, owners would need to take their cars to Volkswagen dealers to have their gift cards activated, an action Volkswagen deems necessary to curb fraud. Cards will also be printed with the name of the goodwill package recipient.

Volkswagen said it would send one $500 black prepaid Visa card that could be used anywhere, and another $500 white prepaid card that could be redeemed at Volkswagen dealerships only.

The automaker also offered three years of roadside assistance in addition to the gift cards.

At least one dealer group is planning to use the activation procedure to its advantage, telling employees that dealer management hopes customers will spend both prepaid cards at its Volkswagen store.

Volkswagen said the goodwill program only covers 2-liter diesel cars for now. Its 3-liter diesel cars — which the EPA claimed are cheating as well — are not covered under the program.

According to a FAQ posted by the automaker, the prepaid cards can only be registered by the owner at a participating dealership. The owner would need to present a license, proof of ownership, the goodwill package and the affected vehicle to activate the cards and roadside assistance coverage. Volkswagen said the prepaid cards are not transferrable, but the roadside assistance would be if the owner sells the car.

Volkswagen will also record the mileage of the car at the dealership.

Volkswagen said owners who have registered for the goodwill program should be receiving their cards within four weeks. Owners would need to register their gift cards at a dealership before April 30, 2016. The cards are good for one year.

While the number of customers eligible for the program is likely the vast majority of owners of affected vehicles, there are some groups who are ineligible for the program. One of those groups is used car dealers.

You are not eligible for the Goodwill Package if:

  1. You purchase or lease an Affected Vehicle on or after November 9, 2015; or
  2. You sold, turned-in or otherwise transferred the Affected Vehicle prior to the program initiation (November 9, 2015) or prior to Goodwill Package activation; or
  3. Your Affected Vehicle is owned by either Volkswagen Group of America, Inc., or VW Credit, Inc. as part of an employee/retiree lease program or other corporate fleet program; or
  4. Your Affected Vehicle was reported sold as a Volkswagen corporate fleet sale; or
  5. You are a new vehicle or used vehicle automotive dealership and the Affected Vehicle is in your inventory.

A source tells us that the first round of goodwill packages are expected to be mailed out November 20.

Nearly 500,000 vehicles are affected by the Volkswagen diesel emissions scandal. Those vehicles can emit up to 40 times the legal level of NOx.

While the rules themselves do not limit a Goodwill Package recipient’s right to sue, there is a clause under “Additional Program Rules” that acts as a catch-all for future rule changes:

Program Rules are void to the extent where prohibited by law. Taxes may apply where required by law, and are the responsibility of the Goodwill Package recipient. Eligibility, registration, activation and redemption of Goodwill Package are subject to present and future program rules, which are incorporated by reference and may be modified by VWoA at any time without notice.

Companies routinely include catch-all lines in agreements, similar to the one used by Volkswagen, that gives them permission to revise conditions after the fact. Changes might be required due to a legislative change that impacts the original conditions of an agreement. For example, people living in a certain geographic area may have been exempt from an agreement in the beginning, but legislative changes could allow that group to be included, necessitating a change in the rules.

A law firm that represents Volkswagen diesel owners doesn’t see it that way.

“We believe that both the current language and the ability to change the rules creates a non-trivial risk to consumers of foregoing future rights,” said Amy Williams-Derry, partner of Keller Rohrback L.L.P., a law firm that currently represents approximately 100 Volkswagen diesel owners.

“This means the rules of the program a VW TDI diesel customer agrees to today could be changed by VW tomorrow, without notice to consumers, and yet consumers would still be bound.”

However, Volkswagen of America says customers will not be required to release the automaker of liability nor give up their right to sue by taking the Goodwill Package.

Affected customers eligible for the Goodwill Package are not required to waive their rights or release their claims against Volkswagen of America in order to receive the Package,” said a representative for the automaker.

Interpretations of the rules posted Monday have flummoxed even experienced law professionals.

University of Denver Law Professor Michael Siebecker pointed to the catch-all paragraph and said that it appears to apply to the Goodwill Program only — not future litigation — but that it contained obvious mistakes.

“It’s actually quite bizarre that they would publish something like this online. That’s normally something that people would get fired for — at least the lawyers who were supposed to be reviewing this should,” said Siebecker, who teaches corporate social responsibility at DU.

[Source: Goodwill Package FAQ, Program Rules]

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48 Comments on “UPDATE: Volkswagen Posts ‘Goodwill Program’ Details, Catch-All Causes Confusion...”


  • avatar
    WhiskeyRiver

    Here’s the problem with this program: VW is not a court. They’re not your attorney. They have no reason to throw money at you and then say you can still sue them.

    I contend that in a lot of jurisdictions in the US, this equals acceptance of compensation and you would not be eligible for further compensation. Many lawyers may shy away from your case if you accept this.

    I wouldn’t do this without legal counsel. Speedlaw, where are you when we need you?

    • 0 avatar

      I’m sitting in the Greenburgh, NY Justice Court, my third Court of the day. I’ve driven my TDi about 200 miles already, from Westchester to City of Beacon to Town of Ulster, NY, and still have to be in Town of Slate Hill tonight. I do at least 30k miles per year, which is why the TDi was such a draw when fuel was 4.50 per gallon..now I wish I’d done a GTi, but who knew fuel prices would crater ?

      $1000 goes a long way toward my 120k valve belt replacement, or pays for most of my busted DPF three months ago.

      I’m doing this via telephone hotspot. Believe me, I will read all of this very closely when I’m not in Court or driving :)

      • 0 avatar

        Ok, now that I’ve had a chance to read it, I’m still not sure. I bought the TDi to run forever. If the GTi is guitar, the TDi is a bass guitar. I love it, and so far have improved it with Bilsteins and better than OE Brakes and tires.

        I read all the stuff. The “agree to other terms” would, to me, appear to be poorly drafted, as a Release must specifically waive claims. I’m going to wait for clarification, but once they give you the package, I don’t see that you’ve agreed to DO anything, nor do I see a mechanism to enforce making you do anything. The issue of forcing a downgrade is up to your State and inspection regime in that state…not VWoA.

        I think VW is trying to withdraw the sting in some way, a good PR move. Indeed, I’d love to be a fly on the wall during the discussions at VW right now.

        I’m going to give it a week and see how the catchall is modified, but I don’t see it as a valid release.

        I’m inclined to take the package and keep the full amount to pay for a timing belt replacement, but the cards expire in a year, so kee that part in mind. If you take it, use it….oh, and the gift card won’t give you “cash”.

        Oh, and the standard disclaimer I give all my clients ‘Never take legal advice from Police Officers, Realtors, or the Internet”

  • avatar
    Drzhivago138

    I’m not sure if this is the correct place, but I’ll just say it: Congratulations to TTAC for being mentioned on NPR News this morning.

    • 0 avatar
      brettc

      Automotive News even referenced TTAC as “The Truth About Cars, a website”. I think they’ve hit the big time.

    • 0 avatar

      FoxNews has us today. NYT ran us as well. WSJ ran our story and didn’t give any credit.

      • 0 avatar
        28-Cars-Later

        We’re movin’ on up, / To the east side

      • 0 avatar
        05lgt

        Wait, the WSJ did something unethical? Do tell.

      • 0 avatar
        VolandoBajo

        Write the WSJ editors and tell them you will forgive them for using your material unattributed if they will publish an acknowledgement of their source PROMINENTLY on the editorial page in a weekday edition.

        Congratulations on hitting the big time.

        I just tried to post a lengthy reply to your reply on the Forum and it looks like the electric type lice just ate it.

        • 0 avatar

          You can always email me. I’m cool with that.

          • 0 avatar
            VolandoBajo

            Yeah, Mark, the sad thing is I didn’t write it in a text processor and then cut and paste…I typed it in, hit post and GONE IN 60 MILLISECONDS.

            Tried sending a reply to the origin of one of your emails which came from [email protected]~ but it bounced back.

            I have some ideas for promoting the forum, as well as other general ideas.

            Long story short, I went into computer science and IT work, but I came out of a journalism background, having done a few things that might be of interest to you before I went into IT. And now that I am semi-retired I might be interested in putting a reasonable amount of effort into some specific project that might make TTAC better, on a volunteer basis.

            And if you liked that, and if you get V/S to expand your budget, I might even be able to do some things for you.

            FWIW, Jack things I am a decent writer, among other things, or at least he is kind enough to say so. And I have written a ton of design specs for systems of various types over the years.

            Shoot me an email address and we can go over some stuff that way.

            Not trying to brag or humblebrag as the case may be, but I was at a FL newspaper when it went to coldtype and heavy automation, was the head of systems specs and QA for the NY Daily News and LI Newsday computerizations at Mergenthaler, was project mgr for the computerization of newspapers in Santa Ana and Torrance, etc., etc.

            So I might be able to provide you with specs you could use to sell V/S on doing projects with.

            Just one thing re: what I had complained about/suggested before, in case I get busy and don’t get back to the forum to try to do a detailed response to your comments.

            I was wondering why WordPerfect twenty years ago could do a better job of grammar checking and not just spell checking then, than most WP’s can do today.

            And lo, and behold, a couple of days later I saw an article about grammarly.com which provides what is supposed to be a good grammar checker to address the kind of things we see here all the time, they’re/their, its/it’s etc. etc.

            But the one thing in particular that I see is that forum needs some organization prebuilt in, and it would benefit from a lot of advanced features that would make it easy for a user to track and read only what they are interested in, including more granularity for tracking (at comment level vs. article level, for example).

            I occasionally post on a couple of other sites that do a better job by far, and as a result end up with tons of posts on forums.

            I also think that it would help if the articles and the reader replies were accessible through such a beefed up forum front end, very possibly in addition to, rather than in place of, the article interface you now have.

            It is “creaky” to say the least…hard to pick and choose what among all the replies interests you and what doesn’t, lack of reply buttons everywhere, no way to get a really good threaded view.

            In my idea of the best of all possible worlds (with apologies to Dr. Pangloss) for TTAC, the existing interface would remain, but would be tied into, and driven in part by, a much more modern forum design.

            The forum would, in my mind, also have places for people to post independently of articles, everything from tips to comments and questions about specific vehicles or classes of vehicles. Done right, users that might be able to answer some of those questions, or that have good info on special techniques for a specific vehicle might post there on the forum also, within a better designed hierarchy, and completely independently of the article structure.

            That would be in addition to the article comments being accessible through the forum as well as the current article interface, which would reside in another section of the forum.

            Drop me a line with a valid email and/or a phone number and some times when you might want to brainstorm a bit on the phone and I will reply there with the same.

            /s/ VolandoBajo

  • avatar
    brettc

    Just completed my registration. I was confused as to how I could use the $500 dealer money since I don’t want the dealer touching my car again. But then a post on the TDI forums reminded me that dealerships sell tires so I guess I’ll use it for some new winter tires sometime next year.

  • avatar
    APaGttH

    $500 will buy a few replacement ignition coils.

  • avatar
    Texwegian

    I’m not a lawyer, but in looking at the cardholder agreement you’ll have to agree to with the card
    ( https://www.vwdieselinfo.com/wp-content/uploads/2015/11/Goodwill_Package_Cardholder_Agreements.pdf )

    in section 10 you waive all rights to jury trial and agree to arbitration, which would preclude you from joining any class action lawsuit.

    • 0 avatar
      Pch101

      That language pertains to the bank that issued the Visa card, not to VW.

      That being said, I would not presume that there won’t be similar language in the papers that one would have to sign at the dealership in order to activate the cards.

    • 0 avatar
      Nick Engineer

      This was addressed in the comments to a TTAC article that was retracted this morning.

      This clause pertains to the CARD owner, not to the CAR owner.

      Every CC you have has an arb clause.

      This “rumor” needs to go away. It is not helpful to anyone. VW just made an announcement to the media that owners don’t give up their right to sue.

      There is zero reason for any TDI owner to sign up for anything by VW ASAP, as if the world will collapse. Especially if you want to play it safe, and be cautious. Others won’t think twice and get the cash. The larger issue is not solved whether you accept the cash or not, so the real decision time will come when VW announces how they will fix the emissions.

      • 0 avatar
        Pch101

        Per Michael Horn: “Affected customers eligible for the Goodwill Package are not required to sign a release of claims in order to receive the package.”

        That does not preclude the “goodwill package” from including language that requires the vehicle owner to waive a jury trial and to be limited to arbitration.

        Without seeing the documents that have to be signed for the cards to be activated, nobody here can claim that the litigation rights haven’t been limited, i.e. precluded from participating in a class action.

      • 0 avatar
        George B

        Nick Engineer writes: “There is zero reason for any TDI owner to sign up for anything by VW ASAP, as if the world will collapse.”

        As long as Volkswagen doesn’t have a “fix” for the TDI, the dealer can’t install it and mess up the vehicle performance. Wait until later and bringing your VW TDI to the dealership runs some risk of undesired changes. That said, the car owner could use the goodwill program $500 in the parts department without letting the dealer touch the car.

  • avatar
    automobiliben

    Any idea if Audi A3 TDI owners will be offered anything? If I put my VIN in on that site it says “Invalid Entry”… (2010 A3 TDI Owner)

  • avatar
    schhim

    Stage 2 APR tune w/ DPF delete?

  • avatar
    Nick Engineer

    “It’s actually quite bizarre that they would publish something like this online.”

    What does the law professor refer to when he says “something like this”?

    Did he actually say that customers may have the wool pulled over their eyes if they accept the gift cards? If he said that, put the quote verbatim.

    Or are we quoting him in the hope that readers will jump into conclusions about the possibility of a ruse?

    Quite frankly I am seeing very little in terms of journalistic standards from TTAC on this story today.

    Maybe i am wrong, but there is STILL nothing to see here.

    • 0 avatar

      The professor was talking about the “obvious mistakes” in the clauses.

      • 0 avatar
        Nick Engineer

        @Mark

        OK, but “obvious mistakes in the clauses” does NOT equal “they are trying to wrest an owner’s rights away”.

        And let’s face it, if some legal intern at VWofA managed to screw up the clauses in a way that ends up reducing VWs liabilities, they will get promoted to VP, not fired. Whatever is a fireable offense for the legal scholar, this is not it.

        Today, you guys retracted a story in this (arbitration is for the credit card not the emissions scandal as your article had suggested).

        • 0 avatar

          “OK, but “obvious mistakes in the clauses” does NOT equal “they are trying to wrest an owner’s rights away”.”

          And we aren’t saying that, or implying it. We have three different sources: Volkswagen (saying you will not give up your rights if you participate in the Goodwill program), a law firm with skin in the game (that says the language isn’t air tight from a consumer perspective), and a law professor who offered up those words on his own accord. We didn’t ask him about the quality of the clauses. We were simply trying to find out when a company might use a clause like the one found in the Program Rules of VW’s Goodwill Program.

          The clause is fairly confusing when there is no plain language equivalent and the general public does not know why it would be there.

    • 0 avatar
      Pch101

      Signing away ones rights for a gift card is a story.

      • 0 avatar
        Nick Engineer

        For anyone who believes that the gift card equals signing away one’s rights, sure it is a “story”.

        A story full of FUD is very different from a newsworthy one.

        • 0 avatar
          Pch101

          The use of weasel language that potentially allows the gift cards to be used as a quid pro quo that limits liability is a legitimate concern. Just because you don’t want to see a problem doesn’t mean that there isn’t one.

          • 0 avatar
            VolandoBajo

            @pch101 We have been on opposite sides of issues in the past, as I’m sure you will remember, but on what you just said, you and I are “in the same church, on the same side of the aisle, and seated in the same pew”, if you will allow a religious allegory.

            It is always better to prepare for the worst and to be pleasantly surprised to find out that it didn’t come to pass, than it is to expect the best, and end up shocked and wounded when you expected the best about a thing, only to find out that there was something not quite right about it.

            And you can be sure that VW will not be giving anything away for nothing, just to generate some intangible goodwill feeling among its customer base.

            They are a business, a big one, with a large legal department and a large marketing department, and even though they may have made a bonehead blunder with the TDi emissions, and even though they may have made a couple of false starts in the scramble to try to get in front of the issue again, they will not continue to just wander around aimlessly, throwing money at customers in some vague attempt to appease them, but without any specific strategy for actually doing so, or for at least limit the damages that they will incur.

            As their strategy evolves, expect a marketing and legal Blitzkreig, even if it is in defense of a poor position, and even if it is destined to cost VAG an arm and a leg.

            They are a very big business that has made a lot of money per vehicle off of a lot of vehicles over the years, and if they have stockpiled cash for a rainy day, they will have an ample war chest that will enable them to take a lot of hits for their current fleet of vehicles that have problems, without causing enough damage to force them into bankruptcy, except perhaps as a ploy to limit the effects on them.

            They will be a formidable opponent, and don’t let any feel good gestures of good will convince you otherwise, if you are an owner of one of those vehicles, they will de facto be your opponent when it is time to assess the damages, and the damages have to be allocated.

            Unless such owners have really good legal representation, and their cases are heard in a jurisdiction not particularly favorable to VAG, they are almost certain to end up less than whole, while VAG is almost certain to put this behind them and live to build more “peoples’ cars” stuffed with a variety of types of “Fahrfugnugen” or whatever the H way it is that they spell it.

            “I know not what course others may choose, but as for me, give me a good attorney before I sign anything.” And VAG hopes you won’t or that you will give up your right to do so, if they throw some candy at you.

            But you can be damn sure that if they give you a Hershey bar, then they are very likely to have calculated that it will end up costing them more than a Hershey bar if they can’t keep you away from a good lawyer.

            IANAL, but I sure as hell would want one to help me sort this out, if I were a TDi owner.

            Anything else is just a bet that VAG will be so nice to you that what they offer you will be more than you could expect if you went after them for BS’ing you at the time of purchase.

            And if you bet like that, I have some bridges for sale, and would you like to play poker this weekend?

  • avatar
    seth1065

    Gonna sit on the sidelines w my TDI wagon until I know what the fix is and how it will affect MPG and warranty of said fix, I will say this is more than a class action suit would give the TDI driver I think.

    • 0 avatar
      Jimal

      That is my thought as well. My wife drives a 2013 Passat TDI that we intend on running into the ground, which you should do if you’re going to spend the extra money on any Diesel. I signed up for the Good Will offer because I’m not concerned with resale value. I don’t know if I’d take it in for the recall, and since her warranty is up before too long, I’m not worry about having the recall work done.

      • 0 avatar
        caysedave

        If you don’t get the recall work done then it won’t pass the updated emissions test.

        • 0 avatar
          Jimal

          What updated emissions test? Emissions tests in Connecticut are done by private garages that have signed up for the program. I don’t see the garages investing in new equipment just for these cars, nor do I see them changing the test.

          • 0 avatar

            No new test in CT, the system connects to a state database when you plug in the car today. It will flag it as a fail until confirmation of the recall being completed is entered. Typically as mentioned this is a sticker or mark installed by the dealer but given the case the EPA may require something more stringent like having the dealer send a form to the state DMV’s to manually update the database after doing the recall which would mean the car would be redflagged until it hit the dealer. I’m not sure if the can or will do this but it’s been thrown out there before as a way of tracking safety related recalls on used car sales.

      • 0 avatar

        If you live in a emission testing area they will force you to complete the recall. They will try to force it in other areas as well because the EPA will be on them to do so.

        • 0 avatar
          Scoutdude

          I’m not so sure about that. Many areas do not have the systems in place to properly check that the car has the recall completed. If it is a software only tweak the only wat to tell might be the authorized modification sticker placed under hood. It won’t take long for someone to take a couple of those home with them and start selling them on Ebay, and then someone to start making “reproductions”. You can buy them from Fords from the companies that specialize in late model Mustang restoration supplies.

          • 0 avatar

            The system will flag the VIN. It will then ask to check for a sign the update was done(which may be a sticker and easily faked). If hardware will be required they may be required to check for that as well.

        • 0 avatar
          Jimal

          Unless they radically change the testing procedure, I’m not worried about this. Right now, the test in my state is plugging into the OBD-II port, and checking for 1) codes and 2) how long it has been since the codes have been reset. The defeat device doesn’t throw a code.

  • avatar
    VolandoBajo

    Time will tell. The prudent will wait and see what develops. Fools will rush in. As Mario Puzo once wrote “Fools Die”.

    I don’t think anyone will be able to fully sort this out until the reflashes are available, and the result is both emission tested and road tested.

    Until then, all that can be seen is that performance is likely to be adversely affected, mileage effect probably indeterminate in advance, and degree of compliance attainable will remain unknown until the flashing process is defined and released by VAG.

  • avatar
    VolandoBajo

    PS And no one will know how many owners will end up accepting this goodwill “peace” offering from VW until the key ingredient, effect on an owner’s vehicle, is fully known.

    And my guess is that even if the engineers are burning the midnight oil, VW will want to take a bit more time before it rushes out a fix, just in case it causes premature wear, thereby compounding an already nightmare situation for VAG.

  • avatar

    One more thought on this. In 1987 a friend of mine was head of sales at a local Dodge dealer. In 87 Rod hall made a deal with Dodge to build a offroad package on the ram. They started production on 1500 units they began to hit dealers and owners when NHTSA put on a stop sale and threatened Dodge with big fines if they sold the trucks with modified suspension that they hadn’t tested. My friend had several on order and delivered 2 one owner brought it back and was refunded in full a month after he bought it the other owner would not bring it back until dodge eventually offered a full refund $500 cash and a new truck well under cost. The threat of fines were large enough for them to do this. The rumor is 7 made in to the wild but were never bought back for various reasons (owners would not give them up). The same story happened for the Nissan Pyro edition van of the late 80’s.
    The moral of the story car builders have been forced to buy cars back at full boat before and they will again it’s very rare but it does happen and usually the stubborn owners make out well in the end.

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