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California Class Action Says BMW Software Causes Engine Problems

Accuses BMW of installing updates without customers' permission

By Jon Hood
ConsumerAffairs.com

December 30, 2009

The suit, brought in the U.S. District Court for the Central District of California, implicates the BMW 1-, 3-, and 5-Series lines, as well as the Z4 convertible, X5 sport utility, and X6 crossover. All subject vehicles were manufactured between 2007 and 2010 and are equipped with the "N54" engine, a three-liter six-cylinder motor equipped with a twin turbo.

According to the suit, BMW tried to remedy an "undisclosed defect" with the cars by installing an updated version of its so-called "Engine Control Unit" (ECU) software. The defect allegedly originated in the cars' turbochargers, fuel pumps, gas waste mechanisms, and/or turbo software.

The plaintiffs contend that BMW installed the updated ECU software without customers' permission and, in some cases, without their knowledge. The complaint says that BMW installed the software "whenever one of the vehicles in question appeared in the service department of a BMW dealership, regardless of the reason for the service visit." Thus, consumers who experienced "problems with loud rattling...under the hood," for example, were unwittingly outfitted with updated ECU software and sent on their way.

Shortly after the software update, consumers began to complain of engine problems, specifically "loss of power in the lower RPM [revelations per minute] range, decreased fuel efficiency, and most notably, turbo acceleration lag."

Turbo lag, a little-known but potentially dangerous phenomenon, describes a delay between the time a turbocharged car's accelerator is depressed and the time its engine develops enough power to properly accelerate. Turbo lag presents an especially serious risk if it occurs on a highway on-ramp or other area where traffic is moving quickly.

According to the suit, BMW at first dismissed consumers' complaints, assuring them that their respective experiences were "normal." As the complaints continued to grow in number, BMW allegedly installed more ECU updates in a futile attempt to make the problems go away. The plaintiffs also contend that BMW quietly did away with ads bragging that the automaker "eliminated turbo lag altogether."

The class is being represented by Wayne Barney of Orange County. Barney began experiencing turbo lag after his 2007 BMW 335i was serviced for a faulty fuel pump. Barney communicated his concerns to BMW several times, but was "repeatedly assured that he was mistaken about the existence of any problems."

The suit alleges breach of implied and express warranties; breach of the covenant of good faith and fair dealing; deceptive trade practices; and breach of the Magnuson-Moss Act, a federal statute that governs consumer product warranties. The plaintiffs accuse BMW of "us[ing] ECU software to deceive its customers and avoid the cost and labor of properly resolving the hardware problems, which required actual engine work and/or part replacement that was covered under BMW's warranty." The class is seeking compensatory damages and an injunction.

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