BMW Class Action Litigation
Frequently Asked Questions & Responses about the BMW Class Action Lawsuit:
1. What Is This Class Action Lawsuit About?
2. Are You Suing Me?
3. What Is A Class Action?
4. Why did I receive this class action notice?
5. How do I know if I am part of this settlement?
6. What is the proposed settlement in this case?
7. If I own or lease one of the BMW automobiles identified in the Notice, what are my legal rights?
8. I do not want to participate in the settlement. How do I opt-out or exclude myself?
9. How do I object to this class action settlement?
10. When will I receive my benefits under the settlement?
11. Do I have to pay an attorney for any of this?
12. What if I still have questions?
1. What Is This 'Notice' Letter Talking About?
The 'Notice' you received refers to the settlement of a class action lawsuit against BMW (discussed in the next paragraph). You received the Notice because you may be a member of the Class, and may be able entitled to certain settlement benefits, such as reprogramming of your seat occupation detection system and a limited waiver of your warranty mileage limit. YOU ARE NOT BEING SUED.
Beginning in December 2004, a lawsuit was filed against BMW of North America. The lawsuit alleges that the “seat occupation detection system” in some 2004-2005 BMW 5-Series automobiles is defective, in that it deactivates the front-passenger airbags even when the front passenger seat is occupied by an adult who exceeds the minimum weight activation threshold. The system is intended to deactivate only when the front passenger seat is occupied by child whose weight does not exceed a certain threshold.
The parties to the action reached a Settlement and the letter you received is the 'Notice' required under the law to be given to each class member that can be identified with reasonable efforts. BMW denies these allegations but has agreed to settle this case to avoid further expense.
The Notice is provided to you so that you can decide if you want to be included as part of the Settlement and receive the benefits under the Settlement, or if you want to opt-out (exclude yourself) from the Settlement Class, or if you want to comment about the settlement, as described below.
YOU ARE NOT BEING SUED. If motor vehicle records show that you own or lease a BMW 5-Series automobile from the 2004 model year or the 2005 model year (produced on or before March 31, 2005) equipped with either Multifunction Seats without climate control or with Sport Seats, then under the terms of the Settlement you are included in the Settlement Class.
In a class action, one or more people, called Class Representatives (in this case Samuel H. Kim), sue on behalf of all other people, the 'Class,' who have similar claims. All of these people are called 'Class members.' One court resolves the issues in the case for all Class Members, except for those who exclude themselves from the Class. California Superior Court Judge Wendell Mortimer, Jr. of the Los Angeles Superior Court is the judge assigned to this class action.
4. Why did I receive this class action notice?
This notice is designed to inform members of the class of the proposed settlement, and to notify class members of their rights and options.
5. How do I know if I am part of this class action settlement?
You are a class member if you are a resident of the United States and, as of March 13, 2007, own or lease a BMW 5-Series automobile from the 2004 model year or the 2005 model year (produced on or before March 31, 2005), and equipped with either Multifunction Seats without climate control or with Sport Seats.
You are not part of the class if the reprogramming has already been performed on your car by upgrading the software, including an upgrade performed when an Occupant Classification mat was replaced.
You are not part of the class if you are are BMW; any affiliate, parent, or subsidiary of BMW; any entity in which BMW has a controlling interest, any officer, director, or employee of BMW; any successor or assign of BMW; anyone employed by counsel for Plaintiff in this action; any Judge to whom this case is assigned as well as his or her immediate family.
6. What is the proposed settlement in this case?
If the Settlement is approved and you are a Class Member, you may be eligible to receive the following benefits:
a. Reprogramming of seat occupation detection system
Under the proposed settlement, BMW has agreed to provide reprogramming for the seat occupation detection system in Subject Vehicles, meaning an update of the system’s software that BMW has designed to significantly reduce the chances of this problem occurring. If the settlement is approved, BMW will make the reprogramming available through its dealers and will perform the reprogramming at your request. The reprogramming will be performed free of charge so long as the reprogramming request is made within the time limit of the New Vehicle Limited Warranty for the car (i.e., four years after the date of purchase or lease). For warranties due to expire in 2007 because of the four-year time limit, warranty holders will have up to and including December 31, 2007 to request reprogramming. If the settlement is approved, BMW will mail a notification to class members stating that the reprogramming is available and providing more information on how to obtain the reprogramming.
b. Limited waiver of warranty mileage limit
Under the settlement, BMW will also waive the mileage limit of its New Vehicle Limited Warranty with respect to the seat occupation detection system components causing the problem.
c. Class members' retention of certain claims
Furthermore, if the seat occupation problem continues after obtaining the reprogramming described above, class members retain any rights they would otherwise have to pursue an action against BMW asserting statutory consumer protection claims, breach-of-warranty claims, lemon law related claims, or any other claims under state law. The deadline to bring such claims will be (1) six months after the date the reprogramming was performed or (2) the deadline set by the applicable statutes of limitations, whichever is longer.
7. If I own or lease one of the BMW automobiles identified in the Notice, what are my legal rights?
If you are a member of the Class as defined above, you have the following rights and options:
- Do Nothing- You will be a part of this lawsuit, and will be obligated to accept the proposed settlement if it is approved by the Court;
- Request to be excluded from the class- This is your only option if you do not want to be a part of this lawsuit or if you want to bring your own lawsuit against BMW at your own expense;
- File an objection- If you are a member of the class and you do not request to be excluded, you may object to the terms of the settlement or to Class Counsel’s request for attorneys’ fees and expenses.
8. I do not want to participate in the settlement. How do I opt-out or exclude myself?
If you are a Class Member and you do not wish to stay in the class, you may request exclusion from the class. If you request exclusion from the class, you will not be entitled to any settlement benefits, will not be bound by any judgment, and your claims will be not released.
To exclude yourself, you must mail a written exclusion request, so that it is received no later than August 10, 2007, to Class Counsel and BMW’s counsel at the following addresses:
Eric H. Gibbs
Girard Gibbs LLP
601 California Street, 14th Floor
San Francisco, California 94108
Class Counsel
Roy M. Brisbois
Lewis Brisbois Bisgaard &Smith LLP
221 North Figueroa Street, Suite 1200
Los Angeles, California 90012
Counsel for BMW
To be effective, the exclusion request must include: (i) your full name, address and telephone number, (ii) the vehicle identification number (VIN) of your Subject Vehicle(s), (iii) a statement that you request exclusion from the class and settlement in Kim v. BMW, Case No. BC326313, and (iv) your signature.
9. How do I object to this class action settlement?
If you are a Class Member, you can object to the Settlement if you don’t like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views.
If you object to the settlement, you must, on or before August 10, 2007: (1) file with the Office of the Clerk of the Superior Court of the State of California for the County of Los Angeles, located at Central Civil West, 600 South Commonwealth Avenue, Los Angeles, California 90005 and (2) serve upon Eric H. Gibbs, Girard Gibbs LLP, 601 California Street, 14th Floor, San Francisco, California 94108 and Roy M. Brisbois, Lewis Brisbois Bisgaard & Smith LLP, 221 North Figueroa Street, Suite 1200, Los Angeles, California 90012 (counsel for BMW), a written objection, including (i) your full name, address and telephone number, (ii) the year, model, and vehicle identification number of your vehicle, along with proof that you owned or leased a Subject Vehicle, in the form of a true copy of a vehicle title, registration, or license receipt, (iii) a written statement of all grounds for the objection accompanied by any legal support for your objection, (iv) copies of any papers, briefs, or other documents upon which the objection is based, (v) a list of all persons who will be called to testify in support of the objection (if any), (vi) a statement of whether you intend to appear at the fairness hearing, and (vii) your signature or your counsel’s signature. Also, at the start of your objection, please include a reference to Kim v. BMW, Case No. BC326313.
Class members who do not timely make their objections in this manner will be deemed to have waived all objections and shall not be heard or have the right to appeal approval of the settlement.
10. When will I receive my benefits under the settlement?
On September 14, 2007 at 9:00 a.m. in Department 307 in the Superior Court of the State of California for the County of Los Angeles, Central Civil West Courthouse, 600 South Commonwealth Avenue, Los Angeles, California 90005, the Honorable Wendell Mortimer Jr., Judge of the Superior Court, will hold a fairness hearing for the purpose of deciding (a) whether the settlement should be approved as fair, reasonable, and adequate for the class; (b) whether a judgment granting approval of the settlement and dismissing the lawsuit with prejudice should be entered; and (c) whether Class Counsel’s application for attorneys’ fees and expenses and an incentive award for the named Plaintiff should be granted. The hearing may be postponed, adjourned, or rescheduled by the Court without further notice to the class. You do not need to attend this hearing to remain a member of the class or participate in the settlement.
11. Do I have to pay an attorney for any of this?
No. You are not responsible for paying any attorneys' fees or expenses out of your own pocket. Any fees and expenses of the Plaintiffs' attorneys in connection with this case will be paid by BMW in the amounts approved by the Court.
From the filing of this lawsuit in December 2004 to the present, none of Plaintiffs' counsel have been paid for their services or received any reimbursement for out-of-pocket expenses. As a result of Plaintiffs' counsels' efforts in this litigation, they were able to successfully negotiate the present settlement. As part of the settlement, Plaintiffs' counsel will apply for attorneys' fees and expenses in an amount not to exceed $760,000.00.
Any award of attorneys' fees and expenses will not reduce the value of benefits provided to the class under the settlement, and will be paid separately by BMW. Under no circumstances will you be required to pay any attorneys' fees or costs as a consequence of your decision to participate in the settlement.
12. What if I still have questions?
If you still have questions, feel free to contact us by filling out the form HERE.
If you would like to receive updates concerning the status of the case or for further inquiries, you may fill out the form located at BMW Settlement.
FOR MORE INFORMATION ON THE STATUS OF THIS CASE, OR FOR ADDITIONAL INQUIRIES:
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Please fill out the form at BMW Settlement.
