Class actrion settlement was approved as is. Objections were found to be without merit and not enough people wrote in to object to make it seem like they were true.
The Fairness Hearing was held on March 16, 2012. The Court was advised of twelve class
members who objected to the Settlement. Three of those class members withdrew their objections
before the final hearing, and two others withdrew them after the final hearing. The Court has given fair
consideration of all remaining objections. Each of the objections is overruled for the following reasons:
1. With respect to objectors’ concerns regarding whether the settlement actually addresses
the problems complained of in this action – the defective high pressure fuel pumps
(HPFPs) – the Court relies on plaintiffs’ assertion that their experts found that the
redesign of the new-generation HPFPs being installed under the Recall fixes the specific
problem complained about. BMW’s own evidence also demonstrates that for
new-generation HPFPs, the failure rate is below 1.7%. The objectors point to no
evidence that would suggest that the new-generation HPFPs are failing at a rate that is
unexpected or otherwise indicates ongoing defects. Finally, the 10 year/120,000 mile
extended warranty being provided by BMW, provides additional protections to class
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members in the event that the new-generation HPFPs are defective – and there is no
evidence they are.
2. With respect to the turbocharger and wastegate defects alleged, the Court finds that the
extended additional 1 year/12,000 mile warranty provides fair relief for this allegation.
Objectors provide no evidence that the turbocharger and wastegate defects claimed in
this lawsuit will manifest after the 8 year/82,000 mile extended warranty provided under
3. With respect to objectors’ complaints that the settlement releases significant lemon law
claims, those objections are without merit. It is doubtful that any lemon law recovery
could have been included or secured through this class action, as lemon law claims tend
to involve inherently individual issues. Moreover, any class member who has a lemon
law claim based on past failures could have opted out. Finally, if there are failures of the
new-generation HPFPs, those will likely be addressed by BMW’s extended warranty.
4. With respect to objectors’ complaints that the settlement does not account for lost value
of the vehicles, the Court finds the objections lack merit. Plaintiffs provide evidence that
after new-generation HPFPs are installed under the Recall, there is no appreciable lost
value to the Class Members’ vehicles. Objectors have submitted no evidence to the
5. With respect to objectors’ complaints about the notice, the Court finds them without
merit. The notice provided sufficient information for class members to be able to make
an informed decision as to whether to opt-out or stay in the class and, as a result, release
claims related to the operation of their HPFPs and turbocharger wastegates. Also, any
discrepancies between the dates for class members to submit claims, objections or
requests to opt-out included in the Notice and the claims forms were not material and the
Claim Administrator has confirmed that requests for exclusion and objections that were
postmarked on February 6, 2012 were considered timely.
6. Finally, the Court rejects the contention that the settlement provision allowing BMW to
audit the claims of class members is subject to abuse. There is no reason to suspect that
the audit process will be abused by BMW. However if such abuse occurs, Class Counsel
will be responsible for bringing those issues promptly to the Court’s attention.
Having reviewed all of the submissions presented with respect to the proposed Settlement, as
well as the arguments of counsel for the class, counsel for BMW NA and counsel for the objectors who
appeared at the Final Hearing, the Court grants final approval to the Settlement, finding it fair, adequate
and reasonable. The Court finds that plaintiffs faced significant risks in litigating this case as a
nationwide class action; but that the settlement provides a fair amount of relief for class members’
federal and state law breach of warranty claims as well as the state law consumer protection claims
given the strength of those claims. The Court also relies on the fact that the settlement was reached only
after significant arms’ length negotiations in multiple sessions with a nationally recognized mediator.
The extent of discovery - in particular, Class Counsels’ expert’s opinions as to the redesigned HPFPs
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and BMW’s evidence regarding failure rates for replaced HPFPs – supports a finding that the settlement
is fair and adequate; as does the small percentage of opt-outs (0.1 %) and objectors (0.0023 %)
Pursuant to Rule 23, the Settlement Class as finally certified shall consist of:
All Persons in the United States who are now or have been at any time owners of record or
lessees of any of the following types of vehicles: BMW Model Years 2007-2010 335i models;
Model Years 2008-2010 135i, 535i and X6 xDrive35i Sports Activity Coupes; Model Years
2009 - 2010 Z4 Roadster sDrive35i vehicles.
Excluded from the Settlement Class are: Persons who validly and timely exclude themselves
from the Settlement Class; Persons who have settled with and released Defendant from
individual claims substantially similar to those alleged in this matter; BMW NA, its subsidiaries
and affiliates, officers, directors and employees; Persons who have suffered personal injury as
a result of the defects alleged; Insurers or other providers of extended service contracts or
warranties for the Settlement Class Vehicles; all Persons or entities claiming to be subrogated
to the rights of Settlement Class; consumers and/or business that have purchased Class Vehicles
for use as rentals (i.e. fleet vehicles); consumers and/or businesses that have purchased Class
Vehicles deemed a total loss (i.e. salvage); United States residents that have purchased Class
Vehicles in the United States but have since transported the Class Vehicle outside the United
States; and The Honorable Judge Susan Illston.
3. Plaintiffs, members of the Settlement Class, and BMW NA shall consummate the
Settlement according to the terms of the Settlement Agreement.
4. The Action is dismissed with prejudice, each party to bear its respective costs (except
as provided in the Settlement Agreement), and each Settlement Class Member not opting out of this
Settlement shall be deemed to have granted Released Persons as defined in section 1.27 of the
Settlement Agreement a release of claims in accordance with sections 1.26 and 4.8 of the Settlement