Felgoise Law Firm

Brian M. Felgoise 

261 Old York Road – Suite 518

Jenkintown, PA 19046

215-886-1900

215-886-1909 (Facsimile)

Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MICHAEL B. WINN, individually and on 

behalf of all others similarly situated, 

No: 

Plaintiff, CLASS ACTION COMPLAINT

-against- JURY TRIAL DEMANDED

BMW OF NORTH AMERICA, LLC,

Defendant.

Plaintiff Michael B. Winn (“Plaintiff”), by and through his attorneys, brings this 

class action complaint on his own behalf and on behalf of all others similarly situated, to 

obtain an injunction, damages, costs of suit, and attorneys’ fees from defendant BMW of 

North America, LLC (“BMW”). Plaintiff complains and alleges upon knowledge as to 

himself and his own acts, and upon information and belief as to all other matters, as 

follows:

NATURE OF THE ACTION

1. This is a nationwide class action against BMW on behalf of all persons 

and entities in the United States who purchased or leased a BMW automobile in any State 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 1 of 35 PageID: 1
2

equipped with a BMW N54 automobile engine (the “Vehicles”) from 2006 to the present 

(the “Class”).

2. BMW manufactured, distributed, advertised, marketed, promoted, 

warranted and sold the Vehicles to consumers throughout the United States. BMW did 

so without disclosing that the Vehicles contained a defective fuel injection system (the 

“Fuel Injection System”) and high pressure fuel pump (the “Fuel Pump”). 

3. Indeed, in 2006 BMW announced that it had completed development of its 

N54 engine which incorporated state of the art technology including twin turbo engines, 

the Fuel Injection System, and a highly pressurized Fuel Pump that were designed to 

eliminate “turbo lag” (a common problem in turbo-charged vehicles that refers to the 

delay between the time it takes for the turbines to begin spinning until the time that power 

transfers to the engine). BMW touted the N54 automobile engine, Fuel Injection System 

and Fuel Pump combination as having increased fuel efficiency and completely 

eliminated turbo lag, and as superior to that of vehicles manufactured by other 

companies. 

4. Among other things, BMW stated:

By combining twin turbochargers with BMW’s direct fuel injection 

system and advanced piezo injector technology, we achieved the benefits 

of turbocharging without the drawbacks, namely poor fuel efficiency and 

turbo lag. In fact, we eliminated turbo lag altogether.

5. In addition, through window stickers and other marketing materials, BMW 

provided very specific performance data about the Vehicles, including the expected 

horsepower of the N54 engine and the expected gas mileage that the Vehicles would 

achieve.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 2 of 35 PageID: 2
3

6. Plaintiff and the Class were routinely exposed to BMW’s representations, 

including, but not limited to, BMW’s promotional literature and advertisements, all of 

which BMW routinely and intentionally communicated to the public through various 

media and upon which Plaintiff and the Class were intended to, and did, rely. 

7. However, as demonstrated below, BMW failed to disclose that the Fuel 

Pump (responsible for injecting fuel into the pistons that run the engine) would fail under 

normal driving conditions causing the Vehicles to go into “limp mode” – a highly 

reduced power mode that could cause the Vehicle to come to a complete stop. This 

makes the Vehicles extremely unsafe to drive. As demonstrated below, this failure 

routinely occurs while driving on highways, amidst traffic traveling at very high speeds, 

posing life-threatening risks to drivers and passengers of the Vehicles and to all other 

persons on the road at the time the failure occurs.

8. Absent an adequate recall that corrects the defect, this risk cannot be 

avoided.

9. BMW has concealed the significant safety risk that this defect poses to the 

public. In addition, BMW has failed to disclose that the defect actually causes decreased 

fuel efficiency and performance – that the “limp mode” causes an even more significant 

performance delay than the turbo lag delay the N54 engine, Fuel Injection System, and 

Fuel Pump were designed to avoid. 

10. Since 2006, thousands of BMW customers who purchased or leased the 

Vehicles nationwide have experienced this failure, and the unreasonable safety risk 

associated with it, and have had their Fuel Pumps repeatedly replaced; some within the 

first 1,000 miles of driving the Vehicle.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 3 of 35 PageID: 3
4

11. Despite this knowledge, BMW continues to improperly conceal these 

defects and has not taken the necessary steps to properly cure the defect and ensure the 

public safety. BMW knowingly sold, and continues to sell, the Vehicles to the detriment 

of unsuspecting consumers nationwide.

12. In addition, the Vehicles were sold pursuant to a New Vehicle Limited 

Warranty that provides coverage for defects in materials and workmanship for four years 

or 50,000 miles (the “Warranty”). However, BMW has not corrected the defect; BMW 

continues to sell, lease and manufacture Vehicles with the defect. Although BMW has 

agreed to replace the Fuel Pumps, BMW has refused to fix the defect that causes the Fuel 

Pump failures and prevent the failure from occurring in the first instance; posing a 

known, unnecessary safety risk of which the consumer is not aware at the time the 

consumer purchases or leases his or her Vehicle.

13. As a result of BMW’s affirmative misrepresentations, concealment of 

material information, deceptive conduct, and refusal to honor its Warranty, BMW has 

damaged Plaintiff and the Class and has unjustly profited from its wrongdoing. In 

addition, BMW has wrongfully refused to notify customers that the Fuel Pumps it places 

on its Vehicles will routinely fail, and that the replacement Fuel Pumps will also fail, 

posing a repeated, unnecessary safety risk to the public safety. 

14. As a result, Plaintiff brings this class action for two purposes: (1) to 

obtain an injunction preventing BMW from selling or leasing the Vehicles (whether new 

or certified pre-owned) and to compel BMW to issue a recall for the Vehicles that fixes 

the known defect and eliminates the unnecessary and significant safety risk the defect 

poses to consumers at BMW’s expense; and (2) to remedy BMW’s unlawful conduct, 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 4 of 35 PageID: 4
5

which constitutes a violation of the Magnuson-Moss Warranty Act, Chapter 15 U.S.C.A., 

Section 2301, et seq., and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.

JURISDICTION AND VENUE

15. This Court has jurisdiction over this action under the Class Action 

Fairness Act, 28 U.S.C. § 1332(d). The aggregated claims of the individual Class 

members exceed the sum or value of $5,000,000, exclusive of interests and costs, and this 

is a class action in which more than two-thirds of the proposed Class, on the one hand, 

and defendant BMW, on the other, are citizens of different states.

16. This Court has jurisdiction over BMW because it maintains its principal 

headquarters in New Jersey; is registered to conduct business in New Jersey; has 

sufficient minimum contacts in New Jersey; or otherwise intentionally avails itself of the 

markets within New Jersey through the promotion, sale, marketing, and distribution of its 

vehicles to render the exercise of jurisdiction by this Court proper and necessary. 

Moreover, BMW’s wrongful conduct (as described herein) emanates from New Jersey 

and foreseeably affects consumers in New Jersey. Most, if not all, of the events 

complained of below occurred in or emanated from BMW’s corporate headquarters 

located at 300 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677-7731. 

17. Venue is proper in this District under 28 U.S.C. § 1391(a) because BMW 

resides in this District.

THE PARTIES

18. Plaintiff Michael B. Winn (“Plaintiff”) is a Texas resident. Plaintiff 

purchased a 2008 BMW 535i Vehicle from an authorized BMW dealership. After 

driving the Vehicle approximately 35,000 miles, the Vehicle’s loss of power light came 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 5 of 35 PageID: 5
6

on and the Vehicle stalled while the Plaintiff was driving. The Vehicle was taken to an 

authorized BMW service center. The authorized BMW service center informed Plaintiff 

that his Fuel Pump had failed. Like all members of the Class, BMW never notified 

Plaintiff before he purchased his Vehicle that the Vehicle contains this defect; that it 

would repeatedly fail under normal driving conditions; and that the known defect would 

not be corrected pursuant to his Warranty. Like all members of the Class, Plaintiff did 

not learn of the defect until his Fuel Pump failed. 

19. BMW is a Delaware limited liability company with its principal place of 

business and North American headquarters located in Woodcliff Lake, New Jersey. 

BMW maintains corporate offices and a training center in Montvale, New Jersey, a parts 

distribution center in Mount Olive, New Jersey, and a Vehicle Preparation Center in Port 

Jersey. BMW does business throughout New Jersey, including throughout this judicial 

district. Upon information and belief, all corporate decisions regarding the Vehicles, the 

use and replacement of Fuel Pumps on the Vehicles, the applicable technical service 

bulletins, and the representations and acts of concealment which are the subject of this 

lawsuit were directed by, or emanated from, BMW representatives working in New 

Jersey or directly reporting to superiors situated in New Jersey. At all times relevant 

hereto, BMW was in the business of designing, manufacturing, distributing, advertising, 

marketing, promoting, and/or selling the Vehicles in interstate commerce and in New 

Jersey. BMW is also in the business of marketing, supplying, and selling written 

Warranties to the public at large through a system of authorized dealers and sales agents.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 6 of 35 PageID: 6
7

PLAINTIFF’S CLASS ALLEGATIONS

20. Plaintiff seeks to bring this case as a nationwide class action on behalf of 

himself and all others similarly situated in the United States as members of the proposed 

Class, defined as follows:

All persons and entities in the United States who purchased or leased a 

BMW automobile equipped with a BMW N54 automobile engine from 

2006 to the present.

21. Excluded from the Class are all claims for wrongful death, survivorship 

and/or personal injury by Class members. Also excluded from the Class is BMW, any 

entity in which BMW has a controlling interest, and its legal representatives, heirs, and 

successors.

NUMEROSITY

22. The Class is so numerous that joinder of all of its members is impractical. 

Upon information and belief, BMW has sold thousands of Vehicles.

23. Although the precise number of Class members and their addresses are 

unknown to Plaintiff, that information is readily ascertainable from BMW’s records. 

Class members may be notified of the pendency of this action by mail, supplemented (if 

deemed necessary or appropriate by the Court) by published notice.

COMMON QUESTIONS OF LAW AND FACT

24. Common questions of law and fact exist as to all Class members. These 

questions predominate over questions affecting only individual Class members. These 

common legal and factual questions include but are not limited to the following:

a. Whether BMW breached its express warranties;

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 7 of 35 PageID: 7
8

b. Whether the N54 engine, Fuel Injection System, and/or Fuel Pump 

was defectively designed;

c. Whether BMW engaged in a pattern and practice of deceit or 

deceptive conduct in connection with the offer and sale of the Vehicles, or in connection 

with its representations or disclosures regarding the N54 Engine, the Fuel Injection 

System and/or the Fuel Pump;

d. Whether BMW concealed or failed to disclose material 

information concerning the N54 Engine, the Fuel Injection System and/or the Fuel Pump 

or its Warranty as it relates to these items; 

e. Whether BMW’s publicly disseminated advertisements constitute 

affirmative misrepresentations that demonstrate that the N45 engine, the Fuel Injection 

System, and the Fuel Pump could properly operate under normal driving conditions 

without defect or incident; 

f. Whether BMW’s publicly disseminated promotional materials and 

advertisements were accurate; 

g. Whether BMW failed to adequately test the N54 engine, Fuel 

Injection System and/or Fuel Pump prior to distribution of the Vehicles;

h. Whether BMW failed to adequately test the N54 engine, Fuel 

Injection System and/or Fuel Pump after they were combined with other components on 

the Vehicles; 

i. Whether the N54 engine, Fuel Injection System and/or Fuel Pump

are defective as a result of combining them with other components on the Vehicles;

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 8 of 35 PageID: 8
9

j. Whether BMW failed to simulate real driving conditions when 

testing the N54 engine, Fuel Injection System and/or Fuel Pump;

k. Whether an injunction should be issued to prevent BMW from 

selling or leasing the Vehicles and to recall, inspect and, as necessary, repair and/or 

replace engines and/or component parts in their Vehicles and adequately inform members 

of the Class of the design defects at BMW’s expense; and

l. Whether Plaintiff and the Class are entitled to damages and 

attorneys’ fees as a result of BMW’s unlawful conduct.

TYPICALITY

25. Plaintiff’s claims are typical of the claims of the Class. Plaintiff and each 

member of the proposed Class purchased or leased a BMW Vehicle. In connection with 

their respective Vehicle purchases or leases, Plaintiff and each Class member were 

subject to the same disclosures and received the same written Warranty from BMW. 

Similarly, Plaintiff and all Class members sustained damages. The losses of each Class 

member were directly caused by BMW’s actions as alleged herein.

ADEQUACY OF REPRESENTATION

26. Plaintiff can and will fairly and adequately represent and protect the 

interests of the Class and has no interests that conflict with or are antagonistic to the 

interests of the Class. Plaintiff has retained attorneys competent and experienced in class 

action litigation. 

SUPERIORITY

27. A class action is superior to any other available method for the fair and 

efficient adjudication of this controversy since, as demonstrated above, common 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 9 of 35 PageID: 9
10

questions of law and fact overwhelmingly predominate over any individual questions that 

may arise.

28. The prosecution of separate actions by individual members of the Class 

would create a risk of inconsistent or varying adjudications with respect to individual 

members of the Class which would establish incompatible standards of conduct for 

BMW, or adjudication with respect to individual members of the Class which would, as a 

practical matter, be dispositive of other members not parties to the adjudications or 

substantially impair or impede their ability to protect their interests.

29. BMW has acted or refused to act on grounds generally applicable to all 

Class members, thereby making appropriate any final judgment with respect to the Class 

as a whole.

SUBSTANTIVE ALLEGATIONS

BMW’s Representations

30. BMW designed and manufactured the N54 engine, the Fuel Injection 

System, and the Fuel Pumps installed in the Vehicles.

31. BMW spent millions of dollars to publicly disseminate print 

advertisements, television commercials, website graphics and videos extolling the virtues 

of its N54 Engine, Fuel Injection System and Fuel Pump, and their combined ability to 

eliminate turbo lag.

32. BMW’s promotional literature and advertisements include extensive 

representations about the quality, strength and high-performance capabilities of its N54 

Engine, Fuel Injection System and Fuel Pump.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 10 of 35 PageID: 10
11

33. BMW publicly disseminated these representations in its promotional 

literature and advertisements with the intention that Plaintiff and the Class would be 

exposed to and would rely upon the representations and purchase or lease the Vehicles.

34. Plaintiff and the Class did, in fact, rely on the representations made by 

BMW in its brochures, promotional literature and advertisements, as well as 

representations made by its authorized dealers, in purchasing the Vehicles.

The Defect

35. Contrary to BMW’s representations, the Fuel Pump fails when subjected 

to ordinary, on-road driving conditions in the complete absence of driving-related trauma, 

on roadways maintained by federal, state and local governments.

36. The failures result from the defective design and/or manufacture of the 

N54 engine, Fuel Injection System or Fuel Pump alone, failure to properly test the Fuel 

Pump, and/or a defect resulting from combining the Fuel Pump with other components of 

the Vehicles.

37. This defect, alone or when combined with other factors, causes the Fuel 

Pump to fail under normal driving conditions and renders the Vehicles unsafe and unfit 

for their intended use. 

38. Based on information it had, should have had, or of which it was aware or 

should have been aware, BMW knew the N54 Engine, Fuel Injection System, and Fuel 

Pump were designed and/or manufactured so that they could not withstand normal 

driving conditions and, as a result, would fail under normal driving conditions and were 

accordingly defective.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 11 of 35 PageID: 11
12

39. Despite these defects, the resulting Fuel Pump failures, and the significant 

safety risk this defect poses to the public, BMW has refused to issue an adequate recall 

that permanently fixes the defect pursuant to its Warranty.

The BMW Warranty

40. BMW Vehicles are warranted by a 48 month/50,000 mile Warranty. The 

Warranty provides as follows:

Warrantor

BMW of North America, LLC (BMW NA) warrants...against defects in 

materials or workmanship to the first retail purchaser, and each subsequent 

purchaser. 

Warranty Period

The warranty period is 48 months or 50,000 miles, whichever occurs first.

Warranty Coverage

To obtain service under this warranty, the vehicle must be brought, upon 

discovery of a defect in material or workmanship, to the workshop of any 

authorized BMW center in the United States or Puerto Rico, during 

normal business hours. The BMW center will, without charge for parts 

or labor, either repair or replace the defective part(s) using new or 

authorized remanufactured parts.1

41. The Warranty specifically states that BMW will repair or replace the 

defective parts; however, BMW has failed to correct the defect that causes the Fuel Pump 

failures, and knows at the time it replaces a failed Fuel Pump that the defect has not been 

corrected and that the failure could re-occur.

42. By Technical Service Bulletin dated May 2010 (the “Bulletin”), BMW 

recognized the Fuel Pump failures for some (but not all) Vehicles, and extended its 

 

1 All emphasis is added unless otherwise stated herein.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 12 of 35 PageID: 12
13

Warranty of the Fuel Pump to 10 years or 120,000 miles. Specifically, BMW’s Bulletin 

stated:

BMW has become aware of a potential problem that could affect the 

durability of the High-pressure Fuel Pump (HDP) of certain MY 2007, 

2008, 2009, and 2010 BMW automobiles equipped with N54 engines. 

We estimate that only a small percentage of vehicles will actually develop 

the problem. Vehicles affected may have the Service Engine Soon lamp 

illuminated with various low fuel pressure-related faults....Also, the 

affected vehicles may experience an extended engine starting time (“long 

crank”) or reduced engine performance (“engine failsafe mode”) when the 

High-pressure Fuel Pump malfunctions.

* * *

As a commitment to our customers and to demonstrate our confidence in 

our product, BMW will extend the emissions warranty of the Highpressure Fuel Pump (HDP) from 4 years or 50,000 miles to 10 years or 

120,000 miles, whichever comes first.

* * *

Warranty coverage for all other parts is not affected. 

43. The Bulletin did not commit to fixing the defect; only to replacing failed 

Fuel Pumps, and only after the failure manifests itself during the extended warranty 

period.

44. Thereafter, on October 26, 2010, BMW notified consumers that it would 

be recalling “some model year 2007-2010 BMW’s” equipped with the N54 engine and 

which featured BMW’s Fuel Injection System and Fuel Pump (“the Recall”). BMW 

further stated that the Recall will “entail replacement of the high-pressure fuel pump 

and/or a software update.” 

45. The Recall only commits to replacing the Fuel Pumps or updating the 

software in “some” of the Vehicles. In addition, the Recall will not cure the defect; it 

will simply replace old, defective Fuel Pumps with new, defective Fuel Pumps.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 13 of 35 PageID: 13
14

46. Indeed, both the Bulletin and the Recall notify consumers of a “problem” 

that affects the Fuel Pumps, but they do not identify what that problem is. In addition, 

although BMW commits to repairing or replacing some of the Fuel Pumps, BMW has, to 

date, failed to issue a recall that commits to fixing the “problem” that causes the failures 

in the first instance.

47. Instead, BMW continues to misrepresent the ability and performance of its 

Vehicles, conceals the known “problem” or defect, and allows the failure to repeatedly 

manifest itself, thereby presenting an unnecessary safety risk to consumers, and the 

public at large.

48. To make matters worse, BMW’s Owner’s Manual specifically warns of 

the detrimental effects and dangers to personal safety associated with the use of parts and 

accessories that are not “approved by BMW.” In tandem with this warning, BMW 

reiterates its Warranty of defects, stating:

For your own safety, use genuine parts and accessories approved by 

BMW. When you purchase accessories tested and approved by BMW and 

Genuine BMW Parts, you simultaneously acquire the assurance that they 

have been thoroughly tested by BMW to ensure optimum performance 

when installed on your vehicle

BMW warrants these parts to be free from defects in material and 

workmanship.

49. Accordingly, Plaintiff and the Class cannot substitute BMW’s N54 engine, 

Fuel Injection System or Fuel Pump with parts from another manufacturer in order to 

alleviate the problems or potential danger posed by their defects.

50. Thus, BMW repeatedly profits from its refusal to honor the Warranty and 

correct the defect, forcing Plaintiff and the Class to repeatedly replace the Fuel Pump 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 14 of 35 PageID: 14
15

each time a Fuel Pump fails, repeatedly exposing Plaintiff and the Class to an 

unnecessary safety risk.

51. BMW’s Bulletin and Recall significantly downplay this defect. As 

described more fully below, BMW’s Bulletin and Recall fail to appreciate, or purposely 

turn a blind eye to, the significant number of consumers who have experienced this 

failure while driving their Vehicles, and the magnitude of the safety risk that this defect 

poses to the public safety. 

52. As a result of BMW’s failure to honor its Warranty and correct this defect, 

Plaintiff and the Class have been injured and damaged. Plaintiff and the Class purchased 

or leased Vehicles they otherwise would not have purchased or leased, paid more for 

those Vehicles than they otherwise would have paid, and have been, and will continue to 

be, subjected to an unreasonable risk to their safety.

Complaints are Numerous and Ongoing

53. On April 28, 2008, the National Highway Traffic Safety Administration 

(“NHTSA”) opened an investigation into this defect. However, at that time, BMW 

represented that the 2007 BMW 335I was the only Vehicle affected and provided 

NHTSA with a spreadsheet listing complaints from 2007 BMW 335I customers only. 

The spreadsheet listed 718 complaints from customers across the country who had 

experienced a Fuel Pump failure. As a result, the 2007 BMW 335I was the only Vehicle 

NHTSA tested, and the investigation was closed approximately three months later, on 

August 15, 2008.

54. The NHTSA investigation stated:

In response to ODI’s Information Request for PE08-032 BMW stated that 

“during failure of the high pressure pump the customer should initially 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 15 of 35 PageID: 15
16

experience longer engine start times or rough engine running. After a 

distance of approximately 1 to 2 miles the pump-and engine-emergency 

operation program is activated, and the malfunction indicator lamp is 

illuminated.”

Despite reduced engine power BMW believes that safe vehicle operation 

is possible and that vehicle driveability, steering, and braking systems are 

not affected and function in a normal manner. BMW indicated that only 

in very rare cases could the engine stall.

* * *

ODI’s analysis of consumer complaints determined that about half 

describe the consequence of the failure as operation in limp mode, 27 

percent indicate the problem resulted in a hard start or no start condition 

and 19 percent state that the problem was detected by illumination of the 

malfunction indicator lamp or a minor driveability symptom. Only four 

percent of the complaints to ODI and BMW indicate that an engine stall

occurred. BMW has indicated that a service action was initiated in April 

2008 to address the problem and it is continuing to monitor the field 

situation and analyze field data.

* * *

Further investigation of this matter would not be an efficient allocation of 

agency resources. Accordingly, this investigation is closed. The closing 

of this investigation does not constitute a finding by NHTSA that a 

safety-related defect does not exist.

55. Since the NHTSA investigation was closed, thousands of other BMW 

owners and lessees have experienced Fuel Pump failures, and the defect has manifested 

in all Vehicles that contain the N54 engine, Fuel Injection System and Fuel Pump – not 

just the 2007 BMW 335I – as recently admitted by BMW in its May 2010 Bulletin and 

subsequently in its Recall. 

56. The following are examples of complaints filed by consumers with 

NHTSA after the investigation was closed. The complaints reflect the strikingly 

consistent and regular incidence of the Fuel Pump failure, BMW’s refusal to honor its 

Warranty or correct the defect, and the unreasonable safety risk associated with it:

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 16 of 35 PageID: 16
17

Make: BMW

Model: 335I

[Model] Year: 2008

Complaint Number: 10356714

Date of Failure: August 30, 2010

Summary: I have now experienced four failures of the high pressure fuel 

pump on my 2008 BMW 335I coupe in the past year. Three of these 

failures resulted in situations where power was lost while the vehicle was 

in heavy traffic that could have resulted in collisions from the rear. In all 

cases the car was behaving normally at speeds up to 70mph and then the 

engine would stop or go into limp mode allowing travel at less than 

20mph. The fourth case resulted in the car not starting. In all four 

instances the BMW dealer stated the problem was the high pressure fuel 

pump. The pump has now been replaced twice and the engine software 

has been updated three times. The most recent instance occurred in late 

August and required that the vehicle be towed. That is the occurrence

reported in the balance of the form. Previous failures were in June of 

2010, August of 2009 and July of 2009. This is clearly a problem that 

could result in a very serious accident if it were to occur in close charters 

at high speed. 

Make: BMW

Model: 335I

[Model] Year: 2008

Complaint Number: 10353710

Date of Failure: August 24, 2010

Summary: I bought a new 2008 BMW 335I convertible. At 

approximately 13,000 miles, 12 months after purchase, the high pressure 

fuel pump failed “engine malfunction-reduced power”. The car began 

shaking when trying to start it. It took progressively longer to start the car. 

A brand new fuel pump was installed by BMW of Dallas. 12 months 

later, the same problem recurred with similar symptoms. Roseville BMW 

kept the car for 1 week and updated the software claiming BMW 

authorized the safe release of the vehicle per their standards. The service 

personal instructed me that there is really no fix for the car and numerous 

customers have come in for this issue, some with extremely unsafe 

presentations, such as the car suddenly losing power on the freeway while 

going 80 miles/hour in front of a big rig. He said that my problems are 

related to this safety compromise. I took the car home after Roseville 

BMW deemed it safe. The next morning, I turned the car on and the car 

started shaking violently and the rpms would go to 3,000 back to 1,000 

and back to 3,000 on its own. Then it began shaking excessively and the 

“engine malfunction reduced power” light came on. I called into 

Roseville BMW, and the same service advisor called it unsafe to drive and 

had it towed in (within 16 hours of releasing it to me in “safe condition”). 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 17 of 35 PageID: 17
18

They are attempting to replace the fuel pump again but admit that this is 

not a fix because there is really no fix for this problem.

Make: BMW

Model: 335I

[Model] Year: 2008

Complaint Number: 10347964

Date of Failure: November 7, 2009

Summary: Car showed signs of long crank, when starting and hesitation 

when driving the vehicle at all speeds. Eventually the check engine light 

would come on and off. Car eventually stalled out and engine light came 

on when driving on the freeway in heavy traffic, all power was lost in the 

vehicle including steering. Dealership replaced the high pressure pump 

and two months later when it failed again reprogrammed the car. Two 

additional visits to the shop for the same circumstances – car stalled on the 

freeway losing all power and dealership replaced injectors, ignition coils, 

sparkplugs and the most recent claim that the car was low on fuel with 1⁄4 

tank! When car dies all of a sudden on the freeway at a speed of 60+ 

miles per hour is extremely dangerous. Seeing all the others with the same 

problems made me realize that BMW is not going to address the problem 

until something tragic happens.

Make: BMW

Model: 335I

[Model] Year: 2008

Complaint Number: 10346455

Date of Failure: July 24, 2010

Summary: On July 24, 2010, my 2008 BMW 335I sedan experienced an 

HFPF failure in heavy traffic at highway speed. My 335I (delivered July 

2008) has had long start cranks for at least one year. My Washington, DC 

BMW dealership has said it cannot replace the HPFP until it fails or 

throws an electronic code. On July 24, I was driving approx 500 miles to 

a vacation. 350 miles into the trip, on I-87 at approx 65 mph in very 

heavy traffic, a car cut into my (middle) lane. I moved to the left lane and 

quickly applied medium throttle to keep up with traffic. My engine 

stumbled severely as I changed lanes/accelerated and the half-power 

engine light came on. The car began running extremely roughly, would 

not accelerate and lost speed rapidly, in the left lane of a very crowded 

highway. The car behind me nearly rear-ended me. I shut off any 

accessories (air conditioning, stereo, etc.), pushed the gas pedal to the 

floor and was able to maintain approx 50-55mph on a long downhill as I 

merged over to the right lane and was able to get out of traffic. As I pulled 

off, the car neared a stall, with the engine idle jumping wildly. I turned 

the car off. A minute or two after turning it back on, the half-power 

engine icon came on again, along with a service engine soon light, and the 

engine again had almost no power to accelerate and ran roughly. The 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 18 of 35 PageID: 18
19

HPFP and lower pressure fuel sensor were replaced by Keeler BMW, 

Latham, NY, on July 29, 2010. My car had received the software update 

during a past service. I’ve known about the HPFP problem for several 

years. Because of the long cranks, I have been waiting for mine to fail and 

hoped it would not be in a dangerous situation. I noted a recent article in 

which a BMW spokesperson said the failures are not occurring at highway 

speed. Given my experience, BMW needs to be honest about this 

problem. I was driving at highway speed, in very heavy traffic, and feel 

fortunate to have come out without getting in an accident or worse.

Make: BMW

Model: 335I

[Model] Year: 2008

Complaint Number: 10346449

Date of Failure: July 26, 2010

Summary: Engine starts are preceded by long cranks, fluctuating rpms 

and shaking felt at the driver’s seat. Car going 70mph, host power upon 

acceleration on a busy highway driving back from work. “Engine 

malfunction-reduced power” warning came on the dashboard, as well as 

the half engine light. Cars behind me frantically switched lanes to avoid 

collision. The warning message went away after I restarted car later, but 

kept showing up every time I drove. This happens without fail every time 

I drive. I’ve already made an appointment with the dealership to fix the 

problem. This is, apparently, a well known failure. BMWNA has issued 

an extended warranty on the fuel pump system, but has not issued an 

official recall. This problem can potentially lead to serious 

injuries/collisions. BMWNA must issue an official recall soon.

Make: BMW

Model: 335I

[Model] Year: 2008

Complaint Number: 10345013

Date of Failure: July 22, 2010

Summary: Another high pressure fuel pump failure in my 2008 BMW 

335I. This time it happened without any warning, just after picking up my 

children at pre-school. I pulled out onto a busy street which is difficult to 

get a whole in traffic. Stepped on the gas to pull out and speed up quickly 

to the flow of traffic (45mph), the car starts to accelerate for about 2 

seconds, then acts like I took my foot off the accelerator, goes into limp 

mode, rpm drip to 4-500rpm and the car shakes and runs rough and will 

barely accelerate no matter how hard I push the gas pedal. The flow of 

traffic has to brake extremely hard to avoid rear ending me since there is 

no real shoulder or any time to even pull over, thank god I was not hit and 

everyone else in traffic managed to slow down quickly without incident –

it would have been easy for this to have ended in a 40mph speed 

differential rear end collision with 2 small children in my car. I would like 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 19 of 35 PageID: 19
20

to feel confident that I can return my car for repair, but since this is the 

apparently repaired part already installed and that even the new repair part 

that will be put in my car has already failed many times according to the 

dealer, I feel that BMW is just putting me back in potentially the same 

dangerous position to happen again. My first fuel pump failed at 2000 

miles, this one failed at 10000 miles, at this rate I will need 20 fuel pump 

replacements before the 100000 mile warranty runs out and potentially be 

in up to 20 accidents before someone is seriously injured or killed!

Make: BMW

Model: 335XI

[Model] Year: 2008

Complaint Number: 10357166

Date of Failure: September 7, 2010

Summary: 20078 BMW 335XI: Under moderate acceleration, car loses 

power and eventually stalls. Can sometimes be restarted, though it has 

completely failed as well. Can cause loss of control while driving vehicle. 

High-pressure fuel pump has been replaced twice and failure still occurs.

Make: BMW

Model: 335XI

[Model] Year: 2008

Complaint Number: 10356254

Date of Failure: September 17, 2010

Summary: The car started but it started extremely “rough” while the 

engine rpms racing then dropping down to 500 rpms, feeling like it was 

going to stall. Eventually it evened out. Unfortunately, starting issues are 

frequent occurrence since I purchased this car and it has been to the dealer 

several times for similar starting issues. They replaced: the high pressure 

fuel pump which BMW knows it has issues with, made “software” 

updates, and replaced the DMA. This time, however, when I began to 

drive it and turn on to a busy street, I essentially lost most of the power in 

the car. It was extremely disconcerting to step on the gas, expect the car 

to respond and it didn’t. This could have been a disaster if it had 

happened while attempting to get on a busy freeway. Thankfully, it 

wasn’t but I’m worried it will happen again if I attempt to drive it to the 

dealer. After researching to see if others have had similar issues, indeed 

they have. All issues seem to be related to BMW’s high pressure fuel 

pump issue, which they clearly have not solved given many have been 

replaced several times with the same unfortunate outcome of going bad 

again. I have had mine replaced by the dealer but am now having issues 

again. Detailed accounts are all over the internet (some serious safety 

issues as it has happened on the freeway) and I am surprised NHTSA 

hasn’t done any serious investigation, nor forced BMW to recall either the 

vehicle or replace all parts that are affected and needed to correctly fix the 

issue (fuel pump, low pressure sensor, fuel injectors, etc.). I am 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 20 of 35 PageID: 20
21

considering contacting reporters because this is a Toyota type safety issue 

waiting to happen. While it may only happen in a certain % of vehicles, 

does someone have to die to have this issue taken seriously and properly 

corrected? People have been “lucky” thus far, but this really is a safety 

issue and someone must force BMW to address it. 

Make: BMW

Model: 335XI

[Model] Year: 2008

Complaint Number: 10301653

Date of Failure: January 15, 2010

Summary: My BMW 335XI has repeatedly had fuel pump issues. The 

engine will malfunction when I am in the middle of the road (often times 

in the middle of the highway). This is not only a potential safety issue for 

myself, but for others on the road as well. This fuel pump failure issue 

prevents my car from moving, which can potentially lead to someone’s 

death, especially on the highway. Please force BMW to recall this fuel 

pump asap.

Make: BMW

Model: 5 Series

[Model] Year: 2008

Complaint Number: 10345570

Date of Failure: May 20, 2010

Summary: On 5/20/10, my 2008 535XI suddenly lost power while driving 

on a single lane, resulting in a near rear-end collision. This happened once 

previously. Both times the car was towed and the dealer said they 

replaced the high pressure fuel pump. I complained about the latest 

incidence to BMW customer relations and services department.

Make: BMW

Model: 5 Series

[Model] Year: 2008

Complaint Number: 10345080

Date of Failure: June 26, 2010

Summary: June 2010 – I was driving my 2008 BMW 535 station wagon 

on the highway (Long Island Expressway I-495, New York) at 65 miles 

per hour when the car lurched, made a loud noise and lost power. BMW 

replaced the high pressure fuel pump. August 2009 – the car started but 

lights on dash board wend on saying “vehicle had reduced power”. It was 

towed to BMW dealership, where they replaced the high pressure fuel 

pump. August 2008 – the BMW lost power on the highway and was 

towed to dealer. They made a repair to the fuel injection system.

Make: BMW

Model: 5 Series

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 21 of 35 PageID: 21
22

[Model] Year: 2008

Complaint Number: 10255778

Date of Failure: January 17, 2009

Summary: I want to voice my utmost dissatisfaction with my 535I 

(customer #113894) thus far based on following details. Service dated: 

5/22/08, mileage: 7592, vehicle experienced difficulty starting ignition. 

Your service department replaced “high pressure fuel pump.” Service 

date: 1/17/09, mileage: 16495, vehicle displayed message, “engine 

malfunction, reduced speed” then engine stalled during driving in 5 

freeway. Your service department replaced “high pressure fuel pump.” 

Latest episode happened driving in 5 freeway with my two kids in back 

seat. Car stalled in the middle of freeway and I’ve had close call with 

semi truck coming right behind me. I thought he was going to slam right 

into me! Needless to [say] this experience [has] given me a scare and fear 

for my kids’ safety, which prompted me to file a complaint with NHTSA. 

This 535I is my first BMW and it will probably be my last one. I’ve had 

Acuras before this vehicle and had not had this type of life threatening 

vehicle malfunction.

Make: BMW

Model: 335I 

[Model] Year: 2009

Complaint Number: 10355896

Date of Failure: September 10, 2010

Summary: I own a 2009 BMW 335I which has the type N54 engine. I 

have owned this car since May 2009. I have had 2 high pressure fuel 

pumps replaced. The last malfunction just occurred as I was at highway 

speed 65mph + and the engine went into the limp home mode. Because of 

this mode the car had a drastic reduction of power, without any warning. I 

was lucky I was able to get to the right lane and limp to dealership with a 

top speed of 50mph. This was a dangerous situation to me and other 

drivers on the highway. The N54 engine is a major issue for BMW, their 

own service advisors state that almost 60% of these engines have had fuel 

pump malfunctions, resulting in replacement.

Make: BMW

Model: 335I

[Model] Year: 2009

Complaint Number: 10351761

Date of Failure: August 19, 2010

Summary: The car’s high pressure fuel pump failed on freeway on-ramp 

acceleration leading to a near rear-end collision by a following car. This 

failure was preceded by a long-crank starting and engine racing on 

starting. The HPFP was replaced at 6,000 miles (10/09). At 12,000 miles 

the software was reprogrammed. (6/10) The dealer says it is replacing the 

HPFP again. This appears to be an ongoing problem with the BMW 335I 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 22 of 35 PageID: 22
23

engine starting with the 2007 models as reported on this website. 

According to a survey of 300+ owners nearly 50% have experienced this 

problem.

Make: BMW

Model: 335I

[Model] Year: 2009

Complaint Number: 10345597

Date of Failure: December 11, 2009

Summary: The fuel pump on my 2009 BMW 335I has failed and I believe 

it’s starting to fail again but every time I take it in they say its fine and 

they can’t do anything until it actually fails. Problem with that is if it fails 

on the highway doing 70mph then I’m going to be in a world of hurt. The 

pump has already failed once.

Make: BMW

Model: 335XI

[Model] Year: 2009

Complaint Number: 10327549

Date of Failure: April 26, 2010

Summary: Fourth replacement of HPFP on 2009 BMW 335XI less than 

12k miles. Less than 12 months old.

Make: BMW

Model: 335I

[Model] Year: 2010

Complaint Number: 10348364

Date of Failure: August 7, 2010

Summary: I own a Jan. 2010 BMW 335I with 5,800 miles on it. While 

driving on a freeway, the warning system came on and read that the engine 

was at reduced power but I could continue driving at a reduced speed. As 

I was reading the notice, the engine died and I had to glide over 5 lanes 

with no power to reach the side of the freeway. When the car was towed 

to a dealership and the problem explained, someone in the service 

department suspected it was the high injection fuel pump because they’ve 

had to replace others. That was the problem. So why isn’t there a recall 

out on this? I was travelling 65mph and could have been killed trying to 

get to the side of the freeway.

Make: BMW

Model: 335XI

[Model] Year: 2010

Complaint Number: 10345851

Date of Failure: May 27, 2010

Summary: My 2010 BMW 335XI (3,500 miles) suddenly stalled on WA 

Highway 520, on the Lake Washington Bridge in the middle of rush hour 

traffic due to HPFP failure. There was a malfunction warning on the nav 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 23 of 35 PageID: 23
24

display, stating that only limited engine power was available, when two 

seconds later the engine stalled, losing power steering and brakes as well. 

I was going approx. 25 mph in heavy traffic entering the bridge that has no 

shoulder. I was blocking one of two eastbound lanes and posed a 

significant safety risk. I was able to restart the engine and go for approx. 

50 yards before the engine stalled again. Doing so 4-5 times I reached the 

midspan turnout and stopped in an extremely dangerous spot. I called 

roadside assistance when a DOT truck approached and pushed me off the 

remainder of the bridge. I was in an extremely unsafe position for approx. 

30 minutes! The car was towed and the problem was a high pressure fuel 

pump failure, the pump was replaced. When I called BMW to complain, 

the rep said she had never heard of this problem before. I just read an 

article and this problem seems to be widespread. A brand new car stalling 

on the freeway without warning is extremely unnerving and dangerous.

Make: BMW

Model: 535I

[Model] Year: 2010

Complaint Number: 10354995

Date of Failure: September 3, 2010

Summary: Recurrent engine failure secondary to high pressure fuel pump 

in brand new BMW 535I. First failure at 3000 miles; second failure after 

repair around 6000 miles. Both failures without warning and severe loss 

of power in high speed traffic.

Make: BMW

Model: 535I

[Model] Year: 2010

Complaint Number: 10353954

Date of Failure: August 30, 2010

Summary: The vehicle suddenly shows an engine malfunction alert and 

then the power immediately slows down and then I had a minute to try and 

get off to the right on the freeway before the engine turned itself off. The 

vehicle was towed to the dealer and was told that it was the high powered 

fuel pump. There are numerous other people on the internet with the same 

experience. I am seven months pregnant and am grateful that I was able to 

get to the right side of the highway.

Make: BMW

Model: 535I

[Model] Year: 2010

Complaint Number: 10345207

Date of Failure: July 1, 2010

Summary: At around 3000 miles (2010 535XI), while attempting to 

accelerate onto highway engine power died – engine light came on, and 

car eventually stalled. Luckily was in right lane at time so managed to 

pull over. Tried to start car several times with no luck. Waited several 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 24 of 35 PageID: 24
25

minutes and car did start but continued having acceleration problems. 

Took it to dealer and had fuel pump replaced. Told it was a common 

problem.

57. Similar consumer complaints are published frequently on the internet. For 

example, as of December 22, 2010, more than 767 owners or lessees of BMW Vehicles 

had signed a petition entitled, “BMW No More Fuel Pump Failures.” The petition states, 

in pertinent part:

To: BMW

Dear BMW management,

As educated, experienced, and dedicated automotive enthusiasts who love 

to drive, we buy BMW’s and we do so with high expectations. We pay a 

premium for the engineering and attention to detail that creates the 

“Ultimate Driving Machine”, and recently we have been let down. The 

continuing problems with the high pressure fuel system on the N54 

engines has reached epidemic levels, with owners of cars less than two 

years old having had as many as three replacement pumps installed, and 

countless hours of their time wasted. The problem has existed since the 

introduction of the engine over three years ago, and we feel that we’ve 

been extremely patient in waiting for a real solution, which hasn’t come. 

The pump failures continue even on the most recent model year, and the 

replacement pumps aren’t lasting any longer than the originals in many 

cases.

Because of the likelihood of failure and the lack of a proactive approach 

on BMW’s part, we have new cars we’re afraid to drive on long distance 

trips for fear of being stranded on the side of the road in the middle of 

nowhere. Even when the obvious symptoms start to appear our 

dealerships are reluctant to repair the vehicles even though everyone 

involved knows it is about to experiencing a failure, which leaves us no 

choice but to drive the vehicle until it dies, then call for a truck to pick it 

up. The extended warranty was a nice gesture, but at the end of the day 

we’re all driving a car with a major and well known engineering issue 

that we will eventually be responsible for repairing and a vehicle that 

can’t be depended on.

The effects of this issue on resale are already apparent, and there’s no 

doubt it’s affecting new vehicle sales as well. The horrible reliability 

we’re experiencing with this engine is unacceptable form “The Ultimate 

Driving Machine”, as is your handling of the issue. 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 25 of 35 PageID: 25
26

* * *

Sincerely,

The Undersigned

58. Both the petition and the NHTSA complaints are illustrative of the type of 

complaints common between Plaintiff and other Class members. Regardless of the 

Vehicle’s make or model, the complaints are strikingly similar, each demonstrating that 

the Fuel Pumps fail regularly, under normal driving conditions, and that Class members 

have repeatedly replaced the Fuel Pump on their Vehicles. The complaints also 

demonstrate that although BMW was made aware of the defect, it refuses to fix the defect 

pursuant to the Warranty. 

59. As demonstrated above, BMW has long known that the N54 engine, Fuel 

Injection System and Fuel Pump combination is defective, manifesting in repeated Fuel 

Pump failures. Additionally, BMW has exclusive access to information about the 

defective Fuel Pumps through its dealerships, pre-release testing data, Warranty data, 

customer complaint data and replacement parts data, among other sources of aggregate 

information about the problem.

60. By contrast, the defect manifested by the Fuel Pump failures was not 

known or reasonably discoverable by Plaintiff and the Class prior to purchase or lease of 

the Vehicles. Plaintiff and the Class had to experience the defect first-hand, thereby 

exposing them to an unreasonable safety risk.

61. Notwithstanding BMW’s knowledge of numerous Fuel Pump failures and 

the defective material and design, BMW has engaged in a calculated pattern and practice 

to hide the true nature of the Fuel Pump failures. 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 26 of 35 PageID: 26
27

62. BMW knew that potential car buyers and lessees would deem the defect to 

be material such that reasonable consumers who knew of the defect either would have 

paid less for the Vehicles or would not have purchased or leased them at all.

63. Had Plaintiff and the Class been advised of the defects, or the fact that 

BMW would refuse to honor its Warranty and correct the defect, Plaintiff and the Class 

would not have purchased or leased the Vehicles or would have paid substantially less for 

them.

64. As a result of BMW’s actions and inactions, Plaintiff and the Class have 

been injured and damaged. Plaintiff and the Class purchased or leased Vehicles they 

otherwise would not have purchased or leased, paid more for those Vehicles than they 

otherwise would have paid, and continue to be subjected to an unreasonable risk to their 

safety, all to the financial benefit of BMW.

SPECIFIC FACTUAL ALLEGATIONS AS TO PLAINTIFF

Plaintiff’s Vehicle

65. On or about March 31, 2007, Plaintiff purchased a new, 2008 BMW 535i 

Vehicle from an authorized BMW dealership.

Plaintiff’s Warranty

66. Like all members of the Class, BMW provided Plaintiff with various 

materials at the time he purchased his Vehicle. Among those materials were two 

manuals: (1) a manual entitled, “Service and Warranty Information” (“Plaintiff’s 

Warranty Manual”); and (2) a manual entitled, “Owner’s Manual for Vehicle” 

(“Plaintiff’s Owner’s Manual”). 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 27 of 35 PageID: 27
28

67. Like all members of the Class, Plaintiff’s Warranty Manual made the 

following representations about the standard BMW Warranty: 

Warrantor

BMW of North America, LLC (BMW NA) warrants...against defects in 

materials or workmanship to the first retail purchaser, and each subsequent 

purchaser. 

Warranty Period

The warranty period is 48 months or 50,000 miles, whichever occurs first.

Warranty Coverage

To obtain service under this warranty, the vehicle must be brought, upon 

discovery of a defect in material or workmanship, to the workshop of any 

authorized BMW center in the United States or Puerto Rico, during 

normal business hours. The BMW center will, without charge for parts 

or labor, either repair or replace the defective part(s) using new or 

authorized remanufactured parts.

68. Plaintiff’s Owner’s Manual reiterated BMW’s Warranty against defects 

and also warns of the detrimental effects and dangers to personal safety associated with 

the use of parts and accessories that are not “approved by BMW,” stating:

For your own safety, use genuine parts and accessories approved by 

BMW. When you purchase accessories tested and approved by BMW and 

Genuine BMW Parts, you simultaneously acquire the assurance that they 

have been thoroughly tested by BMW to ensure optimum performance 

when installed on your vehicle

BMW warrants these parts to be free from defects in material and 

workmanship.

Plaintiff Was Repeatedly Exposed To BMW Representations

69. In addition to the representations in Plaintiff’s Warranty Manual and 

Plaintiff’s Owner’s Manual, Plaintiff was repeatedly exposed to advertisements and other 

representations that BMW publicly disseminates in magazines, on television, throughout 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 28 of 35 PageID: 28
29

the internet and in other media, as well as in brochures, manuals, and other printed 

advertisements BMW provides to potential customers at all BMW authorized dealerships.

70. Like all members of the Class, Plaintiff was exposed to the following 

BMW representations at the time he leased his Vehicle, which were widely disseminated 

in a variety of BMW commercials and print advertisements:

a. BMW Vehicles are high-quality, high-performance Vehicles;

b. BMW Vehicles are durable, without defect, and suitable for the 

purposes for which they are intended;

c. BMW Vehicles are tested by BMW to ensure that they maintain 

the highest standards of safety, innovation, performance, durability and strength in the 

automotive industry; and

d. BMW Vehicles eliminate turbo lag.

The Fuel Pump on Plaintiff’s Vehicle Failed Twice

71. Plaintiff’s Vehicle had been driven approximately 35,000 miles when 

Plaintiff experienced the Fuel Pump failure in November of 2010. 

72. Plaintiff took the Vehicle to an authorized BMW dealership to cure the 

defect. 

73. When Plaintiff took his Vehicle for repair, the reduced power/engine 

malfunction warning appeared on Plaintiff’s dashboard.

74. Plaintiff was told that the Fuel Pump had failed.

75. The defect was not corrected pursuant to his Warranty.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 29 of 35 PageID: 29
30

TOLLING OF THE STATUTE OF LIMITATIONS

76. The defect as alleged herein is latent and self-concealing. Accordingly, 

exercising reasonable care, Plaintiff and the Class members cannot discover that such 

inherent defect exists.

77. By suppressing the dissemination of truthful information regarding the 

defect, BMW has actively foreclosed Plaintiff and the Class members from learning of 

the latent defect.

78. By reason of the foregoing, the claims of Plaintiff and other Class 

members are timely under any applicable statute of limitations (as tolled by the filing of 

this class action petition) pursuant to the discovery rule and the doctrine of fraudulent 

concealment.

79. BMW has been aware of the defective nature of the N54 Engine, Fuel 

Injection System and Fuel Pump combination for several years.

80. Despite this knowledge and awareness, BMW has continued to 

manufacture and sell the Vehicles on which the N54 Engine, Fuel Injection System and 

Fuel Pump are installed, has engaged in an ongoing scheme to hide the defective nature 

of the combination as set forth above, and has failed to take appropriate action towards 

inspecting, repairing, or correcting the defect.

81. BMW’s failure to take necessary steps to remedy the defect, their failure 

to suspend sales of the Vehicles in the United States, and their refusal to inspect, repair, 

or replace the defective parts, in light of their knowledge that these parts would fail 

prematurely and damage Plaintiff and the members of the Class, was and is willful, 

wanton, malicious, outrageous, and was and continues to be undertaken in deliberate 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 30 of 35 PageID: 30
31

disregard of, or with reckless indifference to, the rights, interests, and safety of Plaintiff 

and the Class members.

COUNT I

BREACH OF EXPRESS WARRANTIES

82. Plaintiff realleges and incorporates by reference each and every allegation 

set forth above as though fully set forth herein.

83. Plaintiff, and all others similarly situated, relied in good faith upon 

BMW’s written representations and warranties in making their determination to purchase 

or lease their BMW Vehicles.

84. With the purchase or lease of each Vehicle, BMW specifically and 

uniformly warranted in writing that any part of the Vehicle that proved to be defective 

would be replaced or repaired by BMW at no cost to Plaintiff or members of the Class.

85. BMW has breached its express warranties to Plaintiff and the Class 

members in that the N54 engine, Fuel Injection System and Fuel Pump do not perform as 

represented by BMW.

86. BMW has also breached its express warranties to Plaintiff and Class 

members in that BMW has failed, and continues to fail, to correct the defect. 

87. As a direct and proximate result of BMW’s breach of its express 

warranties, Plaintiff and the Class members have suffered or will suffer damages, which 

include, without limitation, the diminution in value of Plaintiff and the Class members’ 

Vehicles, reimbursement of the costs and expenses already expended by Plaintiff and the 

Class members as a result of the Fuel Pump failures, and other damage caused by the 

defect in an amount to be determined at trial.

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 31 of 35 PageID: 31
32

COUNT II

BREACH OF WRITTEN WARRANTY PURSUANT TO

THE MAGNUSON-MOSS WARRANTY ACT

88. Plaintiff realleges and incorporates by reference each and every allegation 

set forth above as though fully set forth herein.

89. Plaintiff and the other Class members are “consumers” within the meaning 

of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3).

90. BMW is a “supplier” and “warrantor” within the meaning of sections 

2301(4)-(5).

91. The Vehicles are “consumer products” within the meaning of section 

2301(1).

92. BMW’s express warranty is a “written warranty” within the meaning of 

section 2301(6).

93. BMW breached the express warranty by:

a. Warranting to repair or replace any part defective in material or 

workmanship at no cost to the owner or lessee; 

b. Selling and leasing Vehicles that were defective in material and 

workmanship, requiring repair or replacement within the warranty period; and

c. Refusing to honor the express warranty and correcting the defect, 

free of charge.

94. BMW’s breach of the express warranty has deprived Plaintiff and the 

other Class members of the benefit of their bargain.

95. The amount in controversy of the Plaintiff’s individual claims meets or 

exceeds the sum or value of $25. In addition, the amount in controversy meets or 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 32 of 35 PageID: 32
33

exceeds the sum or value of $50,000 (exclusive of interests and costs) computed on the 

basis of all claims to be determined in this suit.

96. BMW has been afforded a reasonable opportunity to cure its breach of 

written warranty, including when Plaintiff and other Class members brought their 

Vehicles in for repair each time a Fuel Pump failed.

97. As a direct and proximate result of BMW’s breach of its express written 

warranties, Plaintiff and the Class members have suffered damages and other losses in an 

amount to be determined at trial. Accordingly, Plaintiff and the Class are entitled to 

recover damages, consequential damages, specific performance, diminution in value, 

costs, attorneys’ fees, rescission, and/or other relief as appropriate.

COUNT III

VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT

98. Plaintiff realleges and incorporates by reference each and every allegation 

set forth above as though fully set forth herein.

99. Plaintiff and the Class members are consumers who purchased or leased a 

BMW Vehicle from an authorized BMW dealer.

100. BMW used, by means of an affirmative act, an unconscionable 

commercial practice, deception, fraud, false pretense, false promise or misrepresentation, 

in connection with the advertisement or sale of its Vehicles with the capacity and/or 

intent to mislead or deceive Plaintiff and the Class in violation of N.J.S.A. 56:8-1 et seq.

(the “New Jersey Consumer Fraud Act”).

101. In addition, BMW knowingly concealed, suppressed, omitted, left out, or 

did not mention important or significant facts purposely or with the intent that Plaintiff 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 33 of 35 PageID: 33
34

and the Class would rely on that concealment, suppression and/or omission in connection 

with the sale or advertisement of its Vehicles in violation of the New Jersey Consumer 

Fraud Act. Plaintiff and the Class relied upon the facts as communicated to them without 

having the opportunity to also consider the facts which were concealed, suppressed, or 

omitted when they purchased or leased their BMW Vehicles.

102. As a direct and proximate result of BMW’s unlawful conduct, Plaintiff 

and the Class members have suffered or will suffer damages, which include, without 

limitation, the diminution in value of Plaintiff’s and the Class members’ Vehicles and 

reimbursement of the costs and expenses already expended by Plaintiff and the Class 

members as a result of the defect in an amount to be determined at trial.

103. As a direct and proximate result of BMW’s conduct, Plaintiff and the 

Class are entitled to treble damages and attorneys’ fees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself and all others similarly situated, 

pray the Court to enter judgment against BMW and in favor of Plaintiff, on behalf of 

himself and the Class members, and to award the following relief:

A. Certifying this action as a nationwide class action, certifying Plaintiff as a 

representative of the Class and designating his counsel as counsel for the Class;

B. Tolling the statute of limitations pursuant to the discovery rule and the 

doctrine of fraudulent concealment;

C. Affording Plaintiff and the Class final injunctive relief compelling BMW 

to stop selling and leasing the Vehicles and to recall, inspect and, as necessary, repair 

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 34 of 35 PageID: 34
35

and/or replace Engines and/or component parts in their Vehicles at BMW’s expense, and 

adequately inform members of the Class of the defects;

D. Awarding the Plaintiff and each Class member compensatory damages for 

the acts complained of herein;

E. Awarding the Plaintiff and each Class member treble damages for the acts 

complained of herein;

F. Awarding the Plaintiff and each Class member costs and attorneys’ fees, 

as allowed by law, and/or awarding counsel for the Class attorneys’ fees;

G. Awarding the Plaintiff and each class member statutory pre-judgment 

interest;

H. For legal and equitable relief as this Court may deem just and proper; and

I. Granting such other or further relief as may be appropriate under the 

circumstances.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury as to all issues so triable.

Dated: January 4, 2011

Felgoise Law Firm

By: s/ Brain M. Felgoise

Brian M. Felgoise

261 Old York Road – Suite 518

Jenkintown, PA 19046

215-886-1900

215-886-1909 (Facsimile)

Counsel for Plaintiff

Case 2:11-cv-00020-JLL -CCC Document 1 Filed 01/04/11 Page 35 of 35 PageID: 35