Key Dates & Deadlines

• • February 28, 2024: Class period ends, preliminary settlement approval granted
  • August 6, 2024: Opt-out and objection deadline
  • September 24, 2024: Final approval hearing held telephonically; settlement approved
  • November 20, 2024: Deadline to provide preferred payment method (Venmo, PayPal, Zelle, etc.)
  • December 18, 2024: Claim submission deadline – file online or postmark mail-in forms by this date

Settlement by the Numbers

• • $6 Million: Total non-reversionary settlement fund
  • $2 Million: Maximum attorneys’ fees sought (33.3% of fund)
  • $1 Million: Litigation costs reimbursement cap, in addition to fees
  • $5,000: Service award requested for each named plaintiff
  • $1,500+: Approximate “diesel premium” and minimum estimated damages per vehicle

Benefits for Class Members

• • Cash Compensation: Eligible claimants will get a proportional cash payout from the remaining settlement funds, calculated based on how long they owned or leased their vehicle.
  • Flexibility: Option to choose payment via check or electronic methods like PayPal, Venmo, Zelle.
  • Straightforward Process: Simple claim form requiring only basic information and proof of ownership/lease.
  • No Release of Future Claims: Settlement resolves claims about the alleged emissions issues but preserves class members’ rights to sue over other matters.
  • No Admission of Wrongdoing: BMW settled to avoid further litigation costs and burdens, but continues to deny culpability.

What Is a “Defeat Device”?

• • A defeat device is a technology that intentionally weakens a vehicle’s emissions control system when it’s not being tested in a lab, leading to higher real-world emissions.
  • It’s usually software in the vehicle’s electronic control module (ECM) that detects when the car is not being emission tested based on factors like speed, time, engine operation, etc.
  • The software then alters fuel injection, combustion, exhaust gas recirculation (EGR), selective catalytic reduction (SCR) or other parameters to increase power or fuel economy at the cost of higher emissions.
  • This results in legal emission levels during testing but much higher real-world emissions that violate standards and harm the environment.
  • Defeat devices are considered illegal “auxiliary emission control devices” under EPA rules and the Clean Air Act.

Dieselgate & the BMW models at issue

• • The BMW emissions case followed major scandal and litigation against VW, Mercedes, FCA, Ford and GM over similar allegations of “defeat devices” in their diesel vehicles.
  • VW famously paid over $20 billion in civil and criminal penalties plus buybacks after admitting to cheating, while other automakers faced class action suits, EPA fines and DOJ probes.
  • The BMW models at issue were the 2009-2013 X5 xDrive35d SUV and the 2009-2011 335d sedan, both of which used a 3.0L turbo diesel engine.
  • BMW marketed these models as having “BluePerformance” technology that made them environmentally friendly, fuel efficient, low emission and 50-state legal.
  • But testing allegedly showed that in real-world driving, the vehicles’ emissions systems were dialed back, producing NOx levels far higher than EPA Tier 2 Bin 5 standards allow.

The Bosch Connection

• • Aside from BMW, the lawsuit also named Bosch as a key co-conspirator in the alleged emissions cheating scheme.
  • Bosch supplied BMW and many other automakers with electronic diesel control (EDC) units that managed fuel injection, combustion, emissions and more.
  • The suit claimed Bosch worked closely with BMW to develop the “defeat device” software and knew it was being used to circumvent emissions testing.
  • Bosch was alleged to have been an active participant in “Dieselgate,” separately paying out over $300 million to settle claims by VW diesel owners.
  • Reports indicated Bosch was under criminal investigation in Germany and the U.S. for its role in the diesel emissions scandals.

The RICO Claims

• • RICO stands for the federal Racketeer Influenced and Corrupt Organizations Act – a law originally designed to prosecute organized crime but also used in civil cases.
  • The lawsuit claimed BMW and Bosch engaged in racketeering activity through a pattern of mail and wire fraud to hide the alleged emissions cheating.
  • Plaintiffs argued this conduct amounted to a criminal enterprise causing their financial losses from purchasing the allegedly defective vehicles.
  • The court, however, found the RICO claims were deficient because plaintiffs failed to properly allege elements like causation and injury and dismissed them with prejudice.
  • As a result, the RICO claims were dropped from the case and are not covered by the settlement, which focuses on state law consumer protection issues.

Common Elements of State Law Claims

• • Deception/Misrepresentation – BMW allegedly deceived consumers by marketing the vehicles as “clean,” “green,” and compliant with emissions standards while knowing they contained defeat devices to circumvent testing.
  • Concealment/Omission – BMW was accused of actively concealing the existence of the defeat devices from both regulators and consumers while touting the environmental friendliness of the cars.
  • Unfairness – The alleged scheme was attacked as an unfair business practice that gave BMW an improper competitive advantage by making false green claims.
  • Damages/Injury – Plaintiffs claimed they overpaid for the cars by thousands of dollars based on the alleged misrepresentations and would not have bought them at all if the true emissions were disclosed.
  • Intent/Knowledge – BMW was alleged to have knowingly engineered the defeat devices with Bosch’s help, installed them secretly, and lied about the vehicles’ real performance in order to increase sales and profits.

Settlement Provision Highlights

• • Non-Reversionary Fund – The $6 million is a firm amount that doesn’t revert to BMW. If there are unclaimed funds after full payments to class members who make claims and two rounds of distribution, the rest goes to charity.
  • Pro Rata Payments – Class members get a proportional share of the fund based on how long they owned/leased their vehicle rather than a flat amount, ensuring those with longer duration get more.
  • Broad Release – Class members who don’t opt out release BMW from all present and future claims related to the diesel emissions allegations and software at issue in this specific case.
  • Attorneys’ Fees & Costs – Plaintiffs’ lawyers can request up to 33.3% of the fund for fees ($2 million), plus up to $1 million more for costs. These amounts come from the total fund, not on top of it.
  • Incentive Awards – The named plaintiffs who represented the class can apply for $5,000 service payments to reward their time and effort, subject to court approval.

What If I Wanted to Opt Out?

• • August 6, 2024 was the last day to opt out of the settlement and preserve your right to sue BMW individually.
  • If you opted out, you are not eligible to receive any payment from this settlement.
  • You would have had to send a written request to the settlement administrator clearly stating your desire to be excluded.
  • “Mass” or “class” opt-outs were not allowed – exclusion requests must have been made individually.
  • If you did not properly opt out by the deadline, you are bound by the settlement terms and the class release of claims.

What If I Objected to the Settlement?

• • The deadline to object to the settlement terms was also August 6, 2024.
  • To object to the settlement, you needed to submit a written statement to the court explaining your reasons for objection and send copies to the settlement administrators and attorneys by August 6, 2024.
  • Your objection needed to include specific information like your name, address, vehicle details, factual basis for objecting and any legal authorities supporting your position.
  • If you wanted to appear and argue your objection at the final approval hearing, you needed to state that intention and file a notice of appearance.
  • Objection filing does not exclude you from the settlement. If the court overrules your objection, you will still be bound by the terms and cannot opt out.

Final Approval & What Happens Next

• • The court held a final approval hearing on September 24, 2024 where it considered any objections and evaluated the settlement for fairness.
  • On that date, the judge issued a final order approving the settlement as fair, adequate and reasonable, overruling any objections.
  • BMW now has to fund the full $6 million settlement within 10 days of the effective date (when any appeals are resolved or the appellate period expires).
  • The settlement administrator will then review all claims and calculate each class member’s pro rata payment amount based on the number of valid claims.
  • Payments should begin going out within approximately 90 days of the effective date first to those who filed valid claims, then later to those who elected direct electronic payment.

Claim Filing & Payment

• • What’s the deadline to file a claim? You must file online or mail your claim postmarked by December 18, 2024.
  • What if I miss the claim deadline? Late claims will not be accepted, so you will forfeit your right to payment.
  • How will I know if my claim is approved? The settlement administrator will notify you of any deficiencies or if your claim is denied.
  • When will I get my payment? Initial payments should go out within 90 days after the settlement’s effective date, likely in late 2024 or early 2025.
  • How much will I get? Payments are pro rata shares of the fund based on the number of valid claims filed. BMW estimates most will get around $1,500.

Benefits & Limitations

• • What if my vehicle had problems because of the alleged defect? The settlement compensates for economic losses at purchase, not performance issues, which you’d need to pursue separately.
  • Does this cover future repairs if my emissions system fails? No, the settlement only provides compensation for the diminished value of your vehicle, not future costs.
  • Will BMW have to fix the emissions systems? This settlement doesn’t require a recall or repair by BMW. You keep your vehicle as-is.
  • What if I traded in or sold my vehicle? You’re still eligible for payment as long as you owned an included vehicle during the relevant time period.
  • Why isn’t BMW admitting guilt or apologizing? It’s typical in class settlements for defendants to deny liability. This isn’t a criminal case – it’s about economic recovery.

Case History & Settlement Process

• • Why did it take so long to reach a settlement? Complex class actions like this often take years to resolve. There was extensive fact discovery and legal briefing before the parties reached agreement.
  • How was the settlement amount determined? The $6 million figure was negotiated by the parties with the help of an experienced mediator and is based on the estimated harm to class members.
  • Why was the RICO claim dismissed? Courts apply high standards for RICO claims in consumer cases. Here, the judge found the plaintiffs failed to properly plead the elements of RICO.
  • What were the key rulings in the case? The court dismissed the RICO claims and some state law claims, but let many consumer protection claims proceed. It also denied BMW’s challenges to jurisdiction and the sufficiency of the allegations.
  • What happens if there’s an appeal? If objectors appeal final approval, payments will be delayed until the appeals are resolved, which can take months or even years.