BMW AG Moves to Dismiss Class Action Lawsuit Based on BMW NA Ruling

On Monday, BMW AG submitted a motion to dismiss the putative class action lawsuit concerning an alleged failure to warn American car consumers about a convertible top defect associated with its BMW 6 series vehicles.

BMW AG asserts that since similar claims were dismissed for their North American branch, BMW NA, that the court should likewise dismiss allegations of fraud, warranty, and unjust enrichment for BMW AG.

On May 28, presiding U.S. District Judge William J. Martini tossed out several claims in the ongoing BMW NA Convertible Top class action lawsuit, one specifically concerning the use of New Jersey’s consumer fraud law, which could not be applied to a case filed in California.

Another major claim thrown out by Judge Martini alleged that BMW NA had violated California’s Song-Beverly Act, more commonly known as the “Lemon Law,” based on the fact that the plaintiffs’ warranties had expired at the time of the allegations.

In June 2013, the original BMW E64 Convertible Top Defect Class Action Lawsuit was filed by California residents Robert Gray and Markum George against BMW NA. The lead plaintiff Robert Gray, “alleges BMW knew that its model year 2004 to 2013 6 Series convertibles contained a defect that causes the convertible tops to jam or fail to fully open or close.”

Both Gray and George bought used 2005 BMW 645Ci convertibles from certified California car dealerships with odometers under 50,000 miles. After several alleged problems with this model, Gray sold his car back and bought a used 2006 BMW 650i convertible.

Plaintiffs’ allege that all three cars of the two BMW models exhibited the same convertible top defect, that being that the top would fail to completely open or close when directed. Gray and George also allege that even when the top appeared to be completely closed, the BMW sensors would not detect the latch closing, preventing the car owners from opening the vehicles’ trunks.

The plaintiffs and their legal representatives allege that this convertible top defect is expensive to repair or replace and poses a serious hazard to themselves and other BMW Class Members who own  6 series cars.

In addition to tossing out the application of New Jersey Fraud Law and California “Lemon Law” to BMW NA’s class action lawsuit, Judge Martini also dropped claims of unjust enrichment and breach of good faith against BMW NA, because Gray and George bought the cars second-hand. BMW did not directly profit from Gray’s or George’s purchase and they did not have a direct contract or warranty linking BMW NA with either plaintiff’s claims.

Based on these earlier court rulings, BMW AG moves to have these same convertible top class action lawsuit claims dismissed against their European branch.

Judge Martini did uphold three allegations of common law fraud and California consumer protection law violations against BMW NA. However, BMW AG asserts that these claims should not apply to their European branch based on the fact that the plaintiffs’ complaint does not specify which BMW AG statements and materials they consulted when buying the products in question.

Whether or not the court will dismiss these and other convertible top class action lawsuit allegations against BMW’s European unit is still undecided.

Gray is represented by Matthew R. Mendelsohn of Mazie Slater Katz & Freeman LLC, Payam Shahian of Strategic Legal Practices APC and Dara Tabesh of EcoTech Law Group PC.

The BMW E64 Convertible Top Defect Class Action Lawsuit Gray v. BMW of North America LLC, Case No. 2:13-cv-03417, in the U.S. District Court for the District of New Jersey.

UPDATE: On Nov. 14, 2016, plaintiffs in a BMW class action lawsuit finally secured a settlement that should get their allegedly defective convertible tops repaired or replaced.

UPDATE 2: On Feb. 17, 2017, the court granted preliminary approval to the BMW 6 Series convertible top class action settlement.  Top Class Actions will provide claim filing instructions as soon as they are available.

UPDATE 3: The BMW 6 Series Convertible Top Class Action Settlement is now open! Click here to file a claim.