# Lawsuit against BMW - UPDATE !!



## mallards (Oct 30, 2003)

siak said:


> ....This lawsuit benifits all BMW owners....


this lawsuit in no way *garantees* bmw will improve anything ...

you cannot make that assumption

ben


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## siak (Jul 8, 2003)

I agree that they might not do anything about it. 

I said they will take issue. Which could lead to improvements. At least this lawsuit will have the higher ups talking about it, instead of ignoring it. From reading pior postins that is what BMW is doing.


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## brkf (May 26, 2003)

siak said:


> I just want to say Thank You for doing this. I just recently brought my BMW and did not buy the HK system but did get the NAV system. I expercience the same problems you do. I don't understand why everyone is so against this. This lawsuit benifits all BMW owners. The lawsuit will make BMW take issue and imporve their product. The bigger issue here is that BMW knew about this problem for four years and have not fixed it. If you never voice any dissatisfaction with any bussiness they would not be so incline to improve on their product.
> 
> Regarding BMW raising prices, BMW is a business and as a business they should have allocated money/resources to handle these lawsuits/issues so the price has already been factored into your vechile. I'm sure this is not their first lawsuit.


I don't think I'm alone when I say, I don't think it's a problem. It's a cruddy radio. All manu installed radios are pretty much worthless. This is what I expect when buying a car.


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## siak (Jul 8, 2003)

You're not and that is the reason Named got all those negative replys. I'm not sure if you are one of those unfortunates that have this problem or not, but still I don't think we should rationalize that "its just a radio". We should take issue with BMW no matter how small or big the defect is. As such, most agree that this is a defect, except you  . You expected it, I didn't. I didn't read anything in their literature that said "radio may fade".


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## andy_thomas (Oct 7, 2002)

siak said:


> I just want to say Thank You for doing this. I just recently brought my BMW and did not buy the HK system but did get the NAV system. I expercience the same problems you do. I don't understand why everyone is so against this. This lawsuit benifits all BMW owners.


I find that insufferably self-fulfilling. I think you'll find it makes damn-all difference to the BMW buyers of Denmark, South Africa, New Zealand, Thailand, Japan, the UK, Scandinavia, Chile, Finland, Estonia, not to mention the rest of eastern and western Europe, Australia, PNG, Malaysia, Argentina...


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## BradS (Aug 27, 2003)

A couple of points, without completely re-hashing all the points that were made in the original thread:

1. Finding a law firm to take a potential class action is rarely a problem. The potential fee recovery means that firms are normally willing to take these on a contingency basis whereas if they were individual cases, they would demand retainers. 

2. xfactor posted "If the law firm can't verify it, they wouldn't take the case. All the proof that will be used to prove the defect will be made available to BMW during discovery. If no proof exists, BMW will not settle out of court and the case will proceed to trial. A fact finder (jury or judge) would not approve a class action verdict without proof of a breach." Slightly mixed up. First off, lawyers don't verify or prove issues before taking cases--they are paid to advocate on behalf of parties to a dispute. In other words, anyone with a filing fee and a retainer can file a suit. Without a aretainer, the lawyer evaluates the case, and determines wheyther its worth taking on a contingency basis. The validity of the claim will be established in court, if it ever gets there. Second, any verdict on "proof of breach" is found by the fact-finder, not approved. Fact-finders weigh the evidence, and then make findings whether or not the elements of the claim have been met by a preponderance of the evidence. Those findings become the basis of the verdict. If no proof exists, then BMW will file a motion for summary judgement, and ask the judge to dismiss the case as there are no issues of material fact. (They will lose that motion in this case, as the burden for continuing to trial is pretty low)

3. By electing a CAL, Eric has made a choice that will ensure that he does not benefit financially to near the extent he could have in an individual suit, nor anywhere as timely. The social aspects of CAL vs individual lawsuits was debated pretty vigorously on the original thread. I happen to disagree with his, and others, choice of using CALs to punish defendants. But it's his choice and our system permits it. 

4. This, like many CALs, has become a bandwagon: all of a sudden everyone is jumping on. Well, there was nothing stopping any aggrieved owners from pursuing litigation in their individual capacities before, so why now? Because someone (Eric) is doing all the leg work. While the hassle involved in puruing litigation was not worth it to those owners before, the CAL opens the door for them to receive compensation for an issue they were not willing to pursue on their own. 

5. I think that one factual hurdle in this will be whether and to what extent the plaintiffs inspected their, or similar vehicles before purchase. If this radio defect is so severe and pervasive, then why didn't the plaintiffs discover it during a test drive of their or a similarly-optioned vehicle? Does this really bear on alleged fraud? I think it might. Everyone had the opportunity to inspect the goods prior to acceptance, and discover the radio defect/fraud/operational charcteristic for themselves. While it may not negate fraud, if fraud exists, it mitigates it.

Anyways, there are some excellent, important issues being discused here, and I think its a great forum to do this. Cheers!


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## xfactor (Nov 5, 2003)

BradS,

I'm not entirely sure what you are disagreeing with me over. I believe I am correct in saying this law firm is handling the case on a contingency basis. It is my guess that Named_Plaintiff has not paid that firm for handling the case. Therefore, my point remains the same -- this law firm would not have taken the case without the ability to prove Named_Plaintiff's contention. Law firms do not blindly choose to represent clients when their fees are contingent on winning the case. There is no way this firm would invest the hours required to bring this case to trial, and then subsequently conduct a trial, if they didn't already know they could prove the defect existed. It would be irresponsible of them to file this complaint against BMW without some investigation into the defect.


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## swchang (Oct 5, 2003)

BradS said:


> 3. By electing a CAL, Eric has made a choice that will ensure that he does not benefit financially to near the extent he could have in an individual suit, nor anywhere as timely. The social aspects of CAL vs individual lawsuits was debated pretty vigorously on the original thread. I happen to disagree with his, and others, choice of using CALs to punish defendants. But it's his choice and our system permits it.
> 
> 4. This, like many CALs, has become a bandwagon: all of a sudden everyone is jumping on. Well, there was nothing stopping any aggrieved owners from pursuing litigation in their individual capacities before, so why now? Because someone (Eric) is doing all the leg work. While the hassle involved in puruing litigation was not worth it to those owners before, the CAL opens the door for them to receive compensation for an issue they were not willing to pursue on their own.


Do you not believe in CALs ever? Are there any instances or situations in which you would condone their usage?


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## BradS (Aug 27, 2003)

swchang said:


> Do you not believe in CALs ever? Are there any instances or situations in which you would condone their usage?


Yes, but not in this case. I believe CALs are only appropropriate where (and this is solely my opinion):

1. A large number of plaintiffs implying there is judicial economy in a consolidated case; and

2. The members of the class all suffered identical damages; and

3. The plaintiffs have no other reasonable means of access to the courts.

In this case, the plaintiffs all have individual remedy easily available through local small claims court. I doubt they have identical damages due to the differing levels of radio malfunctioning. ie, someone who has almost no stereo reception has greater damages versus someone whose radio has only lost stereo once or twice. What's worse is what will undoubtedly happen in this case if Eric prevails: all HK/NAV owners (the Class) will receive some amount of compensation regardless of whether their radio works or not. This amounts to an unwarranted windfall for many in the class. I find that appalling.

I subscribe the quaint, old fashioned notion that civil courts exist to remedy wrongs by making damaged plaintiffs whole to the extent possible, typically by the award of monetary damages. In the modern world, courts have become forums for social justice by levying quasi-criminal sanctions against ordinary tortfeasors. What has happened is that the CAL has become an over-used and over-abused, but preferred method of punishing corporations for misdeeds small, de minimus, or wholly imagined, and for law firms that specialize in them to get very high fees. The nuisance value of a CAL is much higher, and so the settlement fee is higher. Many, if not most CALs brought today are based on transgressions so minor (to wit, very technical violations of obscure federal banking regulations that result in all Visa cardholders getting checks for 12 cents) that none of the affected class suffered any tangible damage.

xfactor, I don't think we disagree--I was simply restating your point so people would not get confused over what happens during the litigation process, and what the role of counsel is. I figure if I don't quite get it, since I am close to the lowest common denominator, then others may have misconstrued as well. Just trying to keep things clearer is all.

Cheers!


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## swchang (Oct 5, 2003)

BradS said:


> Yes, but not in this case. I believe CALs are only appropropriate where (and this is solely my opinion):
> 
> 1. A large number of plaintiffs implying there is judicial economy in a consolidated case; and
> 
> ...


You raise compelling points in an eloquent manner. I'm now inclined to agree with you that perhaps he shouldn't have filed as a CAL. However, now that the decision is in the past, I wish him success with it, as I still believe the faulty radio thing is an injustice that should be rectified.


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## BradS (Aug 27, 2003)

swchang said:


> You raise compelling points in an eloquent manner. I'm now inclined to agree with you that perhaps he shouldn't have filed as a CAL. However, now that the decision is in the past, I wish him success with it, as I still believe the faulty radio thing is an injustice that should be rectified.


And that I think is the bottom line here for me: I no problem with someone filing suit on their own behalf in order to receive compensation for a faulty product. But as I understand Eric's motives in this particular case, based on what he has posted, he is not so much concerned with compensation for his faulty product as he wants to use the courts, via the application of drastic, wide reaching penalties, in order to:

1) Obtain a fraud verdict, finding that BMW acted with actual knowledge (IOW, they deliberately lied for no reason other than greedy profiteering); leading to

2) A large punitive judgement against BMW; which

3) As a result, force BMW to change their business and marketing practices.

So, my hope is that the judge doesn't certify the class, but that the case resolves itself in his favor on his individual claim, so that he is made whole for the defective product.


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## Named Plaintiff (Jan 6, 2004)

BradS said:


> So, my hope is that the judge doesn't certify the class, but that the case resolves itself in his favor on his individual claim, so that he is made whole for the defective product.


I appreciate you hoping that I am made whole in this, but if the outcome only benefits me, how would that help anyone else?

You see, there is no way of knowing if BMW has settled a great many lawsuits involving this same issue. With a one-on-one litigation, BMW can just sweep it under the rug and continue business as usual.

My motivation in doing this (and I am beginning to sound like a broken record here) is to change "business as usual." It is an utter disgrace that BMW continues to sell cars with an unresolvable problem that they have known about for at least 4 years. They have gotten away with it for too long. It has to stop!

If I achieve what I am aiming for, it will benefit every BMW owner by forcing BMW to change for the better the way it handles customer relations.


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## gray330 (Feb 21, 2002)

Named Plaintiff said:


> If I achieve what I am aiming for, it will benefit every BMW owner by forcing BMW to change for the better the way it handles customer relations.


man, you are naive if you think something like this will change how BMW handles customer relations....


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## Named Plaintiff (Jan 6, 2004)

gray330 said:


> man, you are naive if you think something like this will change how BMW handles customer relations....


Naive? Maybe.

When I first brought this issue to the forefront here I took a beating from the faithful. I was accused, basically, of being a lowlife scuzzball for trying to get rich off of everybody's darling car company for something that most people had no idea was an issue.

But time passes. And others with the same problem came forward. And what started as a pile-on has evolved into some very interesting and cogent debate (and quite civil too, for the most part).

Now, it appears, I am just considered a naive idealist trying in vain to achieve a sisyphean task,

I think I am making progress.

But consider this. If BMW realizes that their approach to customer service was an exacerbating factor that triggered a costly class action law suit against them, it is highly conceivable that they will change the way they address consumer complaints in the future. Actually, knowing corporate culture the way I do, it is more than just conceivable, it is likely to occur.


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## BuffaloBimmer (Jan 8, 2004)

Named Plaintiff said:


> Naive? Maybe.
> 
> But consider this. If BMW realizes that their approach to customer service was an exacerbating factor that triggered a costly class action law suit against them, it is highly conceivable that they will change the way they address consumer complaints in the future. Actually, knowing corporate culture the way I do, it is more than just conceivable, it is likely to occur.


Maybe I've been watching too much Law and Order lately, but I'm all for Named Plaintiff here. I do think that you guys are fretting a little too much over the fear that this "cost increase" will be passed onto you in the future, however. The numbers here (affected autos) are just too small, and as it has been pointed out many times, a large punitive damage judgement just ain't gonna happen.

Recalls and their ilk are an ugly fact of life in the automotive world (I know - I work for the largest supplier in the world - thank you Euro!), and it's something that every manufacturer now is trying to get a handle on. Take a look at the latest JD Power quality rankings.. it was a rather big deal when the Big Three made such big gains in the rankings, and the Germans dropped / held steady.

It's well known that the corporate culture at BMW is characterized by the belief in their own infallibility - and it is this combination of bravado and technical know-how that has brought us some of the best cars ever produced. However, issues like this reveal the dark side of that culture - where the comapny cannot simply admit a mistake was made. (I apologize for the slight exaggeration here, but I hope you get my point). Not to get into this discussion, but see: Bangle, Chris. Oh dear... flame (surfacing) ON! 

If anything, I think that this issue was brought up at a very timely matter, when all OEMs are looking at quality issues so strictly now. It's a rediculously complicated issue that affects the whole lifecycle of the car - from design to engineering to manufacturing to sales to customer care after the sale. I say good luck to you for calling them on this issue, and I definately feel you are totally within your rights to do so.

BTW, every week there's a publication called Automotive News that publishes (among a myriad of other industry data) new recall info, and I know not all of it is for totally safety-critical applications (i.e. the door seals on the Mazda6, for example). I've seen recalls where the number of affected units was something in the hundreds, so I think there's precedent on your side. Their web site is www.automotivenews.com, but I can't seem to find it on there - I'll check the print copy on my desk at work tomorrow and post more anecdotal evidence then.


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## BradS (Aug 27, 2003)

Named Plaintiff said:


> But consider this. If BMW realizes that their approach to customer service was an exacerbating factor that triggered a costly class action law suit against them, it is highly conceivable that they will change the way they address consumer complaints in the future. Actually, knowing corporate culture the way I do, it is more than just conceivable, it is likely to occur.


It's equally likely that the class gets $100 each, Milberg Weiss gathers in $6-10million in fees, BMW writes it off as a cost of doing business, and nothing changes.


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## Named Plaintiff (Jan 6, 2004)

BradS said:


> It's equally likely that the class gets $100 each, Milberg Weiss gathers in $6-10million in fees, BMW writes it off as a cost of doing business, and nothing changes.


So by your reasoning then I stand a 50% chance of changing the way a giant corporation does business. That's pretty good in my book.


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