Both parties in the case have mutually agreed to amend the original complaint, expanding it to a nation-wide class. U.S. District Judge George H. Wu told the attorneys that he didn’t “have any problems” with the agreement but requested case law to support it. The judge is seeking confidence that the agreement doesn’t conflict with Mazza vs American Honda Motor Co. (2012) in which the Ninth Circuit court ruled that California protection laws can’t apply to a national class action.
“This case started out as a California class action, not as a nationwide class action,” Judge Wu said. “I don’t know whether at this point in time, just prior to the preliminary approval of the class action settlement, if I can say, ‘Oh, I’ll allow you to make the class not in one state but all 50 states,’ without there being some sort of adverse consequence later on.”
MINI Cooper owners are represented in the case by Stephen Harris of Knapp Petersen & Clarke APC. Harris told the court that he is confident that the concerns can be overcome and that the expanded class applies to the settlement, not litigation.
Judge Wu asked the parties to return with case law backing that assertion. “If you can find me some cases from the Ninth Circuit or any reputable circuit,” the judge said, his words cut off by the laughter in the courtroom. “Did that come out wrong? Poor choice of words. If you can find me some appellate court that says that’s not a problem. And if it is a problem, then it will be something we’ll have to address.”
The original complaint was filed by Plaintiff Trish Herremans in California federal court in March 2014. She alleged that BMW concealed and failed to disclose evidence to consumers that a design flaw would prompt water pump failures in more than 50,000 Mini Cooper models from the 2007 to 2013 model years. The alleged pump defect can cause engines to overheat and fail. The defect cost Herremans $1,700 when her water pump failed for a second time, after her warranty expired.
The proposed expanded settlement class consists of all U.S. residents who at any point have owned or leased a MINI that was produced between October of 2006 through November of 2012. Most of the class vehicles — 165,000 — were sold in California, the settlement states.
The proposed settlement would expand the normal warranty to provide for consumers to obtain reimbursements for out-of-pocket payments for water pump repairs for up to seven years or 84,000 miles after the vehicle is placed in service with a maximum value of $500. BMW says its water pump fix data shows an average repair cost of $389.
Counsel representing the class will also seek $692,500 for attorneys’ fees and costs.
The settlement states that BMW has spent more than $3.8 million to date reimbursing California consumers for warranty and “goodwill” claims related to water pump failures.
In October 2014, U.S. District Judge Margaret M. Morrow granted BMW’s dismissal motion for an earlier version of her complaint, finding at the time that Herremans didn’t properly state a claim under the Consumer Legal Remedies Act or California’s Unfair Competition Law. In February 2015, the judge granted BMW’s motion to dismiss a second amended complaint, finding that even though it made references to BMW’s internal testing and to customer complaints, among other things, she wasn’t specific enough.
Herreman filed a third amended complaint in March 2015, which maintained claims that BMW violated California’s Consumer Legal Remedies Act and Unfair Business Practices Act, but dropped the claim for fraud. This time, instead of filing another motion to dismiss, BMW agreed to participate in mediation, which resulted in the settlement before the court.
The case is Herremans v. BMW of North America LLC, case number 2:14-cv-02363, in the U.S. District Court for the Central District of California.
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