Baylor Lawyer Joshua Van Eaton, JD '01, Lead Counsel for the DOJ in Unprecedented Volkswagen Emissions Fraud Settlement

May 17, 2017
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Baylor Lawyer Joshua Van Eaton, JD '01, Lead Counsel for the DOJ in Unprecedented Volkswagen Emissions Fraud Settlement


WACO, Texas -

Baylor Lawyer Joshua Van Eaton, JD '01, along with his co-counsel Bethany Engel represented the United States Department of Justice (DOJ) in a recent lawsuit against Volkswagen over widespread vehicle emissions fraud. The magnitude and scope of the fraud and the resulting settlements are unprecedented.



From Baylor Law to the Department of Justice


Following his graduation from Baylor Law, Van Eaton took a direct commission to the Army JAG corps. Within a year of joining the Army, Van Eaton was prosecuting criminal cases in front of panels of Army officers. As a JAG officer, Van Eaton started his career in the courtroom, prosecuting criminal misdemeanors in U.S. District Court and felony courts-martial at his station in the northwest. When Van Eaton was re-assigned to Washington, D.C., he was tasked with defending the Army in civil environmental litigation.

In the case United States v. Sunoco, Inc., Van Eaton had his first opportunity to work alongside United States Department of Justice lawyers. In Sunoco, the United States brought a civil suit against Sunoco, alleging that a Sunoco owned refinery had leaked millions of gallons of petroleum hydrocarbons, polluting the water table in Philadelphia. Van Eaton sufficiently impressed his DOJ colleagues during the three years that he worked with them on Sunoco, that in May of 2008, he transitioned from the Army JAG to working for the DOJ in the Environmental & Natural Resources Division.



The EPA, Volkswagon, and Clean Air Act Violations


In January 2016, the DOJ filed suit on behalf of the Environmental Protection Agency (EPA) against Volkswagen for alleged Clean Air Act violations. Van Eaton was appointed lead counsel and, together with his co-counsel Bethany Engel, led a team of 14 attorneys and 11 additional legal professionals from DOJ's Environmental Enforcement Section to litigate the case.

The emissions controversy began when the EPA discovered that Volkswagen had equipped its TDI "Clean Diesel" cars with software designed to detect when the vehicles were undergoing the federal test procedures, which all vehicles must pass in order receive an EPA certificate of conformity ("COC"). Vehicles cannot be sold in the United States without a valid COC. The software ensured that during testing, emission control systems worked properly, but when the vehicles were being driven on the road, the software rendered certain emission control systems inoperative. Volkswagen's use of these so-called "defeat devices" resulted in vehicle emissions that exceed EPA-compliant levels. Volkswagen could not have obtained the COCs, and would have been unable to sell the vehicles in the United States had VW disclosed the existence of the defeat device to regulators. Volkswagen, Audi, and Porsche vehicles in the 2.0- and 3.0-liter sizes released from 2009 to 2016 were among the vehicles included in the scheme. The boldness of Volkswagen's fraud resulted in a staggeringly large and complex lawsuit–the case was certified as a multidistrict litigation (MDL) and Van Eaton and the DOJ worked alongside the private party Plaintiffs Steering Committee that represented class members from across the nation to negotiate multiple settlements with Volkswagen.



Unprecedented Settlements


The DOJ's lawsuit is now nearing conclusion, with three partial settlements totaling nearly $17.5 billion having been filed with the court. The first partial settlement resolves the 2.0-liter engines, and covers about 500,000 cars on the roads today. In October 2016, the Court ordered Volkswagen to spend $14.7 billion in monetary relief. Of the $14.7 billion, approximately $10 billion is designated for a buyback and modification program, in which affected consumers can elect to have Volkswagen either buy back their vehicles or have Volkswagen retrofit their vehicles to pass emissions tests. Approximately $2.7 billion of the $14.7 billion will go into an independently administrated environmental mitigation trust where states, tribes, and territories can apply for approval to use the money for emission-reduction projects. And, finally, Volkswagen must invest an additional $2 billion on zero emission vehicle infrastructure and education efforts.

The second partial settlement, which is currently pending the Court's order and set for hearing in May 2017, addresses approximately 100,000 cars with 3.0-liter engines. The order, once signed, would require Volkswagen to spend another $1.25 billion in relief. Of that $1.25 billion, $225 million would be added to the environmental mitigation trust and the rest would go toward buyback and modification programs. Under the third partial settlement, entered in April 2017, Volkswagen must pay a $1.45 billion civil penalty under the Clean Air Act, and perform injunctive relief in the form of corporate governance reforms and additional testing designed to ensure that a fraud of this magnitude never happens again.



Work Ethic, Training, and Practice Court


When asked what it was like to work on the case, Van Eaton was humble and self-deprecating, attributing his success to the professionalism and competency of his colleagues and to his training. "I probably wouldn't have picked me to handle it," he said as he laughed, "but I think you can't let the moment overwhelm you...there's training and experience you can fall back on, but most importantly I think it's your work ethic. You just work hard at it. The other piece is having incredibly talented people around you. Fortunately for me, I am surrounded by brilliant, hard working folks–the people who work in the Environmental Enforcement Section are very committed to their mission."

Van Eaton also finds confidence in the providence that has led him to where he is now. "When I went to Baylor Law School, I was not intending to be a trial lawyer," he said. "But, coming out of Practice Court straight into the JAG corps, within a year of graduating I was prosecuting cases in court. When I went into my Army training, it was pretty clear that my Practice Court training at Baylor Law provided me with a leg up in trial advocacy skills. There is also certainly a faith component," he continued, "for some reason I was picked for this moment now, and it is a blessing and an honor to serve."



WRITTEN BY: Joshua Weaver, Marketing and Public Relations Specialist, Baylor Law School
CONTACT: josh_weaver@baylor.edu or 254.710.6681


ABOUT BAYLOR LAW SCHOOL
Established in 1857, Baylor Law School was one of the first law schools in Texas and one of the first west of the Mississippi River. Today, the school has more than 7,400 living alumni. It is accredited by the American Bar Association and is a member of the Association of American Law Schools. Baylor Law School has a record of producing outstanding lawyers, many of whom decide upon a career in public service. The Law School boasts two governors, members or former members of the U.S. House of Representatives and the U.S. Senate, two former directors of the FBI, U.S. ambassadors, federal judges, justices of the Texas Supreme Court and members of the Texas Legislature, among its notable alumni. In its law specialties rankings, U.S. News & World Report ranked Baylor Law's trial advocacy program as #3 in the nation. Baylor Law School is also ranked #51 in the magazine's 2018 edition of "America's Best Graduate Schools." The National Jurist ranks Baylor Law as one of the "Best School for Practical Training," and #4 in the nation in its most recent "Best Law School Facilities" listing. The Business Insider places Baylor Law among the top 50 law schools in the nation. Baylor Law School received the 2015 American Bar Association Pro Bono Publico Award, making it only the third law school in the nation to be honored with the award since the award's inception in 1984.

ABOUT BAYLOR UNIVERSITY
Baylor University is a private Christian University and a nationally ranked research institution, characterized as having "high research activity" by the Carnegie Foundation for the Advancement of Teaching. The University provides a vibrant campus community for approximately 16,000 students by blending interdisciplinary research with an international reputation for educational excellence and a faculty commitment to teaching and scholarship. Chartered in 1845 by the Republic of Texas through the efforts of Baptist pioneers, Baylor is the oldest continually operating University in Texas. Located in Waco, Baylor welcomes students from all 50 states and more than 80 countries to study a broad range of degrees among its 12 nationally recognized academic divisions. Baylor sponsors 19 D1 varsity athletic teams and is a founding member of the Big XII Conference. Learn more at baylor.edu

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