Source - BMW Urges Dismissal Of Mini Cooper Steering Class Action - Law360 (registration required) Law360, Dallas (October 15, 2012, 2:17 PM ET) -- BMW of North America LLC asked a California federal court on Friday to toss a putative class action alleging it concealed a safety defect in its Mini Cooper vehicles, saying the plaintiff's counsel brought nearly identical allegations in another suit dismissed last year. The car company wants out of named plaintiff Sonya Perry's suit alleging that BMW made failed to make disclosures in its advertising about an allegedly defective power steering system its model year 2002 through 2009 Mini Coopers, telling the court Perry's suit should be tossed for the same reasons the "nearly identical" brought a in New Jersey federal court suit over alleged Mini Cooper power steering pump problems that was axed last year. "Forum shopping should not be a basis to save this copycat complaint from dismissal again," BMW argued in a memorandum submitted with its dismissal bid. The plaintiff claims the defect often results in engine fires, and is bringing claims under California's Consumer Legal Remedies Act, its Unfair Competition Act, its False Advertising Law, its Secret Warranty Law and state common law for fraudulent concealment and unjust enrichment. On Friday, BMW told the court that Perry alleges she drove her 2004 Mini Cooper for more than eight and a half years before experiencing any loss of power steering assist. After BMW fully performed its obligations under warranty "for years," Perry is now trying to impose an obligation on the company to "fix her car for free in perpetuity" by claiming her car and other Mini Coopers suffer from the alleged defect, Friday's memo said. BMW argued that nearly all of Perry's allegations should be disregarded as conclusory, that her fraud-based claims should be dismissed because they fail to meet the heightened pleading requirements that apply. Specifically, Perry cannot establish that BMW intended to defraud consumers or had presale knowledge of any defect, and her complaint failed to allege facts showing that the car company's advertising influenced her decision to buy a Mini Cooper, BMW told the court. BMW also argued that all of Perry's claims are time-barred because the statutes of limitations on her claims are all four years or less and she alleges that BMW sold her car more than eight years ago. BMW further argued that, as an alternative, the suit should be stayed or tossed to allow the National Highway Traffic Safety Administration to conclude its ongoing investigation involving 2004 and 2005 model year Mini Coopers. Perry referenced that probe and an earlier one regarding 2002 and 2003 Mini Coopers that the NHTSA already closed in her complaint, and BMW told the court that Perry had, "in an effort to manufacture a safety concern where none exists," excerpted "selected consumer hearsay complaints about 'fires' in the engine compartment purportedly attributable to the alleged 'defect.'" BMW told the court Perry had still conceded that most of the NHTSA complaints were unrelated to the defect she alleges in her complaint or stemmed from an unknown cause, and that when the NHTSA closed its earlier investigation it found that even the most severe reported incidents were limited to "localized thermal damage" to the steering pump's electrical connections and wire insulation. Gregory Scarlett of Wasserman Comden Casselman & Esensten LLP, who represents Perry, told Law360 on Monday that while Perry's suit alleges the same power steering defect as the New Jersey suit that was dismissed, she is a different plaintiff bringing claims under a different state's law. The dismissal of the plaintiff's individual claims in the New Jersey suit, which was never certified as a class action, does not bar other Mini Cooper purchasers from pursuing class claims stemming from the alleged defect, Scarlett said. Perry is represented by Robert L. Esensten, Gregory B. Scarlett and Jordan S. Esensten of Wasserman Comden Casselman & Esensten LLP. BMW is represented by Troy M. Yoshino, Eric J. Knapp and Emma E. Graglia of Carroll Burdick & McDonough LLP and Rosemary J. Bruno and Christopher J. Dalton of Buchanan Ingersoll & Rooney PC. The case is Sonya Perry v. BMW of North America LLC, case number 2:12-cv-07129, in the U.S. District Court for the Central District of California.
Probably not. I don't think there was a recall in any other market besides Canada. BMW legal can point out that everywhere else in the world it's fine. They can do that with a straight face too.