A BMW dealership in Georgia told a federal court that the proposed class action lawsuit filed against the car manufacturer alleging that certain vehicles experience a software defect must be dealt with via arbitration due to the contract terms signed by the vehicle owner upon purchase.
Nalley BMW LLC told the judge that plaintiff Shawn B. McCullers signed a contract in June 2013 as part of his purchase of a used 2009 BMW 535i that stipulated that defect claims are subject to mandatory arbitration, and specifically bars consumers from bringing class allegations.
According to the dealer, McCullers signed an “Agreement on Mandatory Arbitration” in the purchase agreement that “clearly and conspicuously” referred to a separate “Agreement to Arbitrate” and class action waiver. Nalley BMW asserted that the plaintiff signed both agreements and should be bound by his agreement to arbitrate and should not be allowed to proceed with class action claims.
In his lawsuit filed last month, McCullers claimed that his BMW has been in the repair shop 21 times since he purchased the vehicle as part of a BMW of North America campaign was launched to update the engine control unit (ECU) software in eight of its models that are all equipped with 3-liter twin turbo engines.
Instead of fixing the problems with his vehicle, McCullers claimed that the updates to the ECU actually made the problems worse. He said these problems could allegedly include issues such as dangerous acceleration delays, decreased gas mileage and sudden loss of power.
In its memorandum to compel arbitration or dismiss the lawsuit, Nalley BMW insisted that McCullers “expressly acknowledged that he read and agreed to be bound by the arbitration agreement” in his 2013 purchase contract.
“The arbitration agreement specifically references plaintiff’s vehicle and broadly covers all claims and disputes concerning the vehicle and any related products or services purchased, as well as the negotiations of any contracts, including the purchase agreement,” Nalley BMW maintained. “The arbitration agreement also clearly describes the ramifications of the agreement, including an unambiguous class action waiver.”
In response to McCullers’ initial filing of the lawsuit, Nalley BMW claimed it promptly sent a notice to the plaintiff by mail of his obligation to arbitrate his claims, but allegedly the plaintiff did not respond to the mailed notice.
Nalley BMW asserts that if the court will not agree to compel arbitration, the lawsuit should be dismissed in its entirety because the claims fail under the applicable laws in Georgia.
McCullers brought forth claims of fraud, negligent misrepresentation, fraudulent concealment and alleged violations of the Uniform Deceptive Trade Practices At and the Fair Business Practices Act. Nalley BMW asserts that these claims “are not based on any plausible facts or actionable representations” and are also barred by the “as is” contract that McCullers signed upon purchase.
McCullers is represented by Sean R. Campbell of Champion Law Group, LLC.
The BMW Engine Software Defect Class Action Lawsuit is Shawn B. McCullers v. BMW of North America LLC, et al., Case No. 1:16-cv-00767, in the U.S. District Court for the Northern District of Georgia.
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4 thoughts onBMW Dealer Argues for Arbitration in Software Defect Class Action
I purchased my vehicle from BMW of Tampa FL. They were TRIGGERED that a black female was able to do a trade in on a paid off BMW and purchase a new one. They kept begging to me to allow their tech to do a phone sync with the car at the time I didn’t know why. On the day I disputed the price of the vehicle the used inventory department took full control of my vehicle to the point I could not even turn on the AC mind you it was 90 degrees outside. I looked up and it was a group of white men laughin and looking right at me. I should also add that on this visit there was a tire losin air and they kept the vehicle for 3 hours tire issue was not resolved but i guess they successfully hacked it while i was there..
I need you to understand that my estranged wife used this and provided this info to the police/ems/fire and anyone who wanted to get in on the action of gang stalkin a black female. Due to this software default I have been gangstalked by police ems and fire and others since the purchase of the vehicle. The hackers are so comfortable hacking the vehicle that all they have to do is ride by and gain access. I know this because when they hack the vehicle it always goes back to default radio station 87.7…..
I called BMW several times it got so bad that i had to buy a data blocker but that didnt stop the hackers do you know within 2 weeks they had figured out how to break the link between the GPS blocker and the CAR display. I know its only because they know the actual bluetooth and wifi name of the car this is why BMW OF TAMPA pressured me to let their tech guy sit there and assist with me connecting my phone so he could take a pic of the info and they could continue to access the vehicle.
They do things like reverse certain settings such as turning off vehicle (they choose this setting because when the car is off the GPS blocker is not working so they can access exact location of vehicle) They will make a false report that my tire pressure is too low to drive when its not lol….They will do things like uncheck Audio Confirmation, GPS parking etc,…which lets me know that they arent allowing me to fully reset the vehicle on my end. I have to do things like get out of the vehicle lock it and then pop the trunk because i believe the previous owner still has the key…when trying to access vehicle on bmw app it made it worse because they would take over the app and reset the password and remove the account from the car or lock the entire car like they did when i initially purchased the car.
Today 4/15/26 i reset my vehicle because its still happening..do u know that because i started using the gps blocker again that these people just started downloadin alexa, spotify, weather app and other lil random apps. Now this should not be possible i cant even get Siri radio because i disconnected BMW drive due to the hacking thinkin it would stop but it just got worse…so u mean to tell me that i havent been connected to bmw drive since 2024 that because im blockin my location the hacker just decided to install apps on the vehicle that will grant them access to vehicle location…because all of those apps do correct they allow u to hear and see where the person is..
They hack my vehicle so much that do u know on the wifi screen they have added the bluetooth dialog box so they can see the car name and the wifi name at the same time so they can hack it faster…Do u know that when i reset my car they can access the car so fast that it takes 3 to 5 mins to gain access to my own car display i can start my vehicle and the car display will still be blacked out because they are trying to prevent me from changing bluetooth name and wifi name….when i ride down the street i can hear them hack the car because the radio will pause…..
I HAVE ALL THIS ON CAMERA
I would like to join this lawsuit. I have a 2009 bmw 335i and replaced both turbos at 51,000 miles. I also experienced limp mode, which almost got me killed. John Decker
I would like to join in on this suit. I also own a 2009 bmw. That constantly shut down. I can’t drive it more than 20 minutes.