Client Success: Litigation.

A Winston-Salem litigation team led by partners Rich Keshian and Chad Hansen recently defeated a hotly contested class certification motion for Volvo Group North America, LLC, in a breach of warranty case in the United States District Court for the Middle District of North Carolina.

In October 2011, a large group of plaintiffs filed suit against Volvo asserting claims based on alleged defects in two models of Volvo’s high-displacement diesel engines. Typically, these engines come installed in Class 8 commercial trucks either used for long-distance hauling or in heavy-duty regional and vocational operations. Plaintiffs alleged that defects in various systems of the engines led to repeated malfunctions and breakdowns of the trucks in the field and that Volvo was unable to develop and implement adequate solutions to the defects.

In defense of Volvo, Rich and Chad put together a team that included associates Thurston Webb, Daniel Vandergriff, Amanda Johnson, and paralegal Lynn Charbonneau. Critical support was also provided by Valerie Smith and Carol Helms. The KT team initially was able to obtain dismissal of three of Plaintiffs’ claims, leaving only two breach of warranty claims. The case then proceeded to more than a year of contentious discovery, during which the KT team worked hard to keep Plaintiffs, who had virtually no paper documents or electronic information to produce, from plundering Volvo’s extensive engineering and development files. The discovery sought by Plaintiffs implicated over 200 Volvo employees in locations across the United States and in Sweden! It was not until KT noticed depositions to occur in Winston-Salem of each of the then 37 named Plaintiffs (who live across to country) and filed a motion to compel on behalf of Volvo, that Plaintiffs abandoned additional discovery and agreed to proceed to class certification.

Plaintiffs moved to certify a nationwide class in January 2013. In opposition to this motion, the KT team launched a two pronged attack. First, they demonstrated the lack of any fact common to the validity of each class member’s claims by focusing on the vast differences in engines, emissions years, and performance characteristics over time as well as the great variety of use and customization of the engines by members of the purported class. Second, they demonstrated the difficulty in determining which state’s law would apply to each claim, the extensive variation among the states, and the fact-specific analysis required to adjudicate breach of warranty claims. The KT team’s briefing was so thorough that the court requested Plaintiffs file a supplemental brief—including providing proposed jury instructions and verdict interrogatories—addressing how their claims could satisfy Rule 23 in light of the issues raised by the KT team.

On April 22, only five days after the court held a hearing on the class certification motion, Judge Catherine Eagles entered an order denying Plaintiffs’ motion for class certification. The court found that Plaintiffs failed to show how they could prove any issue central to the validly of their claims on a class-wide basis. The court also found that Plaintiffs failed to address the substantial choice of law issues or how the court could address the material variances in state law.


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