Volkswagen and Global Forum Shopping

The 2015 Volkswagen clean diesel scandal continues to dominate headlines, most recently, reporting on the indictment and arrest of high ranking VW officials. A court approved a $14.7 billion settlement for U.S. drivers suing Volkswagen in October 2016, but other consumer and securities litigation in the United States is still ongoing. An often neglected part of the story, however, is how much VW consumer litigation is happening around the world—not in U.S. courts. These suits are often brought by “forum shopping” plaintiffs who seek out the most advantageous courts for addressing their claims.

Business interests, led by the Chamber of Commerce, have been rallying for a long time to narrow the pathways for foreign plaintiffs to get into U.S. courts. Painting the global reach of U.S. regulatory prerogatives as too far-flung, they dub foreign plaintiffs seeking out the most advantageous forum for their case as “forum shoppers”—the lowest kind of litigant. The Chamber has likened forum shopping to fraud and “out-of-court tactics” (like bribing judges). As I explored in an earlier work profiled in the Temple 10-Q, U.S. courts have been listening, and have closed their doors to foreign plaintiffs. But while forum shopping in U.S. courts is widely condemned, so is forum shopping in other countries’ courts—as the same voices call out for stricter standards for enforcing foreign judgments, criticizing the validity of many foreign courts.

This categorical vilification of forum shopping plaintiffs is unjustified. Conventional wisdom depicts the “forum shopping” lawyers bringing these suits as chomping at the bit to find the most favorable forum in order to extort the highest possible judgment or settlement out of Volkswagen. But one’s opinion of forum shopping often depends on one’s opinion about the merits of the case. This kind of “opportunistic” plaintiff lawyering doesn’t seem as bad if you have a negative opinion of Volkswagen’s conduct and an appreciation for the role of private litigation in enforcing the laws that Volkswagen blatantly disregarded and compensating victims for those violations.

As I argue in The Unsung Virtues of Global Forum Shopping in the December 2016 issue of the Notre Dame Law Review, forum shopping—even if “opportunistic”—can serve unappreciated and important functions in preserving access to justice for rights-holders, like affected consumers, and encouraging the development of law, including court procedures in other countries.

The Volkswagen litigation around the world illustrates this potential. Although the United States historically has been the epicenter of transnational litigation, in recent years, litigation in many countries, particularly in European and Commonwealth nations, has been changing, in part in response to forum shoppers’ needs. For example, Germany created its first securities fraud aggregate litigation process after thousands of plaintiffs’ claims languished on court dockets for years following alleged misrepresentations about Deutsche Telekom’s securities offerings. Forum shopping Volkswagen shareholders around the world are now using this innovative procedure, which creates access to justice for those harmed by a global securities fraud scheme. Moreover, the VW case—and the forum shoppers behind it—may again provide an impetus for further reform of this process.

As multinational firms’ global reach expands, the rules of procedure in many different countries are also changing, in large part in response to the kinds of cases brought to the courthouse steps. As the United States defines the role of its courts in this evolving global order, it will be well served to appreciate U.S. courts’ interaction with these other courts as well as the role of forum-shopping in the preservation of access to justice and the promotion of procedural reform.


Pamela Bookman is a professor at Temple where she teaches Contracts and Civil Procedure. Her work focuses on the challenges of adapting the U.S. domestic judicial system to the complexities of modern transnational disputes.

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