Robert Mueller, then FBI director, testifies on Capitol Hill in 2006. Mueller was named Monday special settlement master in Volkswagen litigation. (Photo by Diego M. Radzinschi/ THE NLJ)
A federal judge plans to appoint former FBI director Robert Mueller to oversee settlement negotiations in the class actions filed over Volkswagen A.G.’s emissions scandal.
In an order on Monday, U.S. District Judge Charles Breyer said that Mueller’s government and private-practice experience make him “uniquely qualified to work and earn the trust of the parties.” Those parties include consumer and car dealer plaintiffs, the U.S. government, state governments and Volkswagen. Mueller is a partner at Wilmer Cutler Pickering Hale and Dorr focusing on crisis management and cybersecurity.
“There are few, if any, people with more integrity, good judgment, and relevant experience than Mr. Mueller,” Breyer wrote.
Breyer has given lawyers until Friday to respond to his choice.
Mueller, who was FBI director from 2001 to 2013, was not among the 28 names submitted by plaintiffs lawyers who have filed more than 500 lawsuits against Volkswagen.
Breyer had asked lawyers to submit names for the settlement post, although judges can make such appointments on their own. Leading contenders among the plaintiffs bar had been retired U.S. District Judge Layn Phillips, former U.S. Magistrate Judge Edward Infante of the Northern District of California and famed claims administrator Kenneth Feinberg, whom Volkswagen hired on Dec. 17 to create an out-of-court compensation fund for an estimated 500,000 U.S. customers.
“I don’t think anybody saw this one coming,” said Frank Pitre of Cotchett, Pitre & McCarthy in Burlingame, California, although he noted that Breyer “always thinks outside the box.”
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As special settlement master, Mueller will have no role in assisting Breyer with any court decisions but will “facilitate settlement discussions among the various parties,” according to the judge’s order.
Unlike many of the people lawyers suing Volkswagen recommended, Mueller isn’t known for his work as a mediator or arbitrator.
“A lot of lawyers on both sides are into people that are mediating various cases—different groups at these mediation companies,” said Mark Robinson, a senior partner at Robinson Calcagnie Robinson Shapiro Davis in Newport Beach, California. “And I think we never thought to pick somebody like this—who was ex-director of the FBI.”
In September, Volkswagen admitted that more than 11 million diesel vehicles worldwide had a defeat device in them designed to cheat emissions tests. Customers allege they were duped into paying premium prices for “clean diesel” cars that the U.S. Environmental Protection Agency has said emit as much as 40 times the standard for nitrogen oxides.
The appointment of a special settlement master comes after the Justice Department sued Volkswagen on Jan. 4 for violations of the Clean Air Act that could result in fines of more than $18 billion. Volkswagen is scheduled to meet with EPA officials on Wednesday.
Stephanie Goldstein, a spokeswoman for Wilmer, said Mueller declined to comment, but she provided this statement: “Mr. Mueller appreciates Judge Breyer’s proposal that he serve as the settlement master for the Volkswagen multidistrict litigation cases.”
Wilmer represents PricewaterhouseCoopers A.G., Volkswagen’s auditor, and has been retained by Volkswagen for advice on U.S. tax implications of the emissions scandal, according to a Jan. 8 letter attached to Breyer’s order. In the letter, Mueller said he hasn’t been involved in any of the Volkswagen matters and that the firm’s attorneys who have would be “walled off” from his work as special settlement master.
In his order, Breyer said he was unconcerned about any potential conflict.
He seemed largely swayed by his professional experience with Mueller. In his order, Breyer also noted that he had known Mueller for more than 40 years, starting with his days as a federal prosecutor in the Northern District of California. According to Wilmer’s website, Mueller, a University of Virginia School of Law graduate, began his career in the 1970s as a litigator in San Francisco, where he later served as a federal prosecutor. During that time, Breyer was an assistant district attorney in the City and County of San Francisco District Attorney’s office.
Mueller moved to Boston in 1982 and, by 1990, was assistant attorney general in charge of the criminal division of the Justice Department, overseeing the prosecutions of Panama military leader Manuel Noriega and mobster boss John Gotti, and the Pan Am Flight 103 bombing case. He returned to San Francisco to serve as U.S. attorney from 1998 to 2001.
In 2013 and 2014, he returned to the San Francisco Bay Area to serve as a consulting professor and lecturer on cybersecurity matters at Stanford Law School.