A putative class action has been filed against BMW, accusing the automaker of installing software in a number of its vehicle models meant to fix a turbo engine defect that instead is said to have led to dangerous acceleration delays, sudden loss of power and decreased gas mileage. According to the suit originally filed in state court, BMW of North America in 2013 implemented a widespread campaign – without the consent of vehicle owners – to update the engine control unit, or ECU, software in eight models of its vehicles equipped with 3-liter twin turbo engines.
Instead of fixing the problem, it’s alleged that the change led to more engine performance issues. Shawn B. McCullers, an Atlanta resident, claims his 2009 BMW 535i has been in the repair shop 21 times since June 2013 as a result of the alleged problems. His complaint alleges that BMW refused to acknowledge the software update led to engine performance issues and instead misled customers to believe that their reported problems were imagined or non-existent. The complaint states:
Owners were faced to resolve these problems with numerous unfruitful service visits, extended periods of loss of uses, and by obtaining an aftermarket ECU flash update that effectively cost thousands of dollars in out-of-pocket expenses and voided the BMW warranty.
McCullers is suing the automaker on behalf of all owners and lessees in the state of Georgia of 2007-2011 BMW 135i, 335i, 335xi, 535i, 535xi, XS, X6 and 24 sDrive 3.5i models with N54 3.0 liter twin turbo inline-6 engines. According to his complaint, the vehicles in question continued to exhibit a noticeable performance reduction despite the ECU software updates, which it says “detuned” the vehicles to mask underlying problems with their turbo system. The complaint said:
BMW eventually changed problematic hardware and/or introduced new engine control units in its newly manufactured vehicles, but customers of the vehicles in question remain saddled with vehicles that possessed underlying defects, exhibited turbo lag and other potentially dangerous and/or deadly problems, and did not possess the performance characteristics that were advertised, bargained and paid for.
McCullers is accusing BMW in the complaint of violating the Magnuson-Moss Warranty Act, breach of express and implied warranty, breach of implied covenant of good faith and fair dealing, fraud, fraudulent concealment, negligent misrepresentation, defamation, and slander. The case has been removed to a Georgia Federal court. McCullers is represented by Sean Raymond Campbell of Champion Law Group, a firm located in Atlanta, Ga. The case is in the U.S. District Court for the Northern District of Georgia.
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