NEWARK, N.J. – An amended class-action lawsuit filed against BMW details an illegal emissions-cheating system installed in tens of thousands of its diesel vehicles to mask pollution up to 27 times the legal standard, in similar fashion to Volkswagen’s Dieselgate scandal, according to law firm Hagens Berman.

The lawsuit states BMW X5 and 335d models promised by BMW to “protect the environment every day” actually contain a manipulative software that masks illegally high levels of pollution while undergoing emissions testing. The suit was originally filed in March 2018 in the U.S. District Court for the District of New Jersey and states collusion between Bosch and BMW amounts to racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act.

If you own or lease a 2009-2013 BMW X5 or 2009-2011 335d vehicle, you may be entitled to compensation. Find out more about your rights against BMW.

In June, the court granted BMW and Bosch’s motions to dismiss, in which Judge McNulty expressed concern that allegations against the companies rely on testing of a single vehicle. The court dismissed the complaint but allowed the opportunity to file an amended complaint following additional vehicle testing.

Additional Testing Results

“Our firm has conducted extensive and exhaustive testing, and all five of the BMW models we tested outright failed,” said Steve Berman, managing partner of Hagens Berman. “We look forward to continuing this case against BMW and Bosch to reveal the full scale and scope of the emissions cheating present in the X5 and 335d models.”

“When BMW promised these vehicles to be ‘better for the environment,’ ‘clean’ and emissions compliant, it was clearly just blowing smoke,” he added.

The firm independently tested five diesel-powered BMWs to measure emissions performance for comparison with certification testing and certification standards, according to the lawsuit. On-road, real world emissions were measured with a PEMS. Laboratory emissions were measured with a Code of Federal Regulations-compliant chassis dynamometer running the applicable city driving test, and highway certification cycles, two of the main cycles used to certify the vehicles with CARB and EPA. In addition, on-road testing was also performed on an equivalent gasoline vehicle for comparison with the diesel vehicles.

“The diesel vehicles were found to have a defeat device that causes a dramatic increase in NOx emissions when operating at ambient temperatures less than 68°F, which happens to be the lower allowable laboratory temperature limit for the certification test cycles. At low ambient temperatures, NOx levels are as high as 2,365 mg/mile, or 34 times the standard,” the lawsuit states.

In city driving conditions, NOx emission results for the diesel vehicles are 1.4 to 7.5 times the 50 mg/mile emission standard for the Federal Test Procedure 75, which is designed to reflect emissions in city driving conditions, the suit says. Maximum emissions for city driving conditions range from 454 mg/mile to 3,664 mg/mile, or 9 to 73 times the standard.

“Furthermore, emission results on the road were found to be well over the results found on the chassis dynamometer for the same conditions for all five diesel vehicles. On-road testing using the certification test cycle indicates the diesel vehicles can detect that they are being driven on the FTP certification test cycle.”

In highway driving conditions, NOx emission results for four of the five diesel vehicles are 1.3 to 3.4 times the 70 mg/mile emission standard used to simulate highway driving conditions for certification.

Despite BMW promoting these vehicles as having “exemplary fuel economy,” the complaint states, “…all five diesel vehicles were found to have active diesel particulate filter (DPF) regeneration rates higher than the levels submitted in the applications for certification. As a result, there is a significant increase in NOx and a loss in overall fuel economy.”

“For the X5 diesels, the overall increase in NOx as a result of active regeneration is some 4.5 to 11 times higher than the levels indicated by the certification application; for the 335 diesels, the increase in NOx as a result of active regeneration is some 2.5 to 4 times higher than the value indicated in the application for certification.”

The firm has used its same emissions testing to uncover emissions-cheating by Ford, Mercedes, Fiat Chrysler, Audi and General Motors. Hagens Berman’s investigations have spurred government action and investigations against automakers.

The lawsuit seeks damages, injunctive relief to end the sale of the affected X5 and 335d models, and equitable relief for BMW’s misconduct related to the design, manufacture, marketing, sale and lease of its illegally polluting cars.

Find out more about the class-action lawsuit against BMW.

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About Hagens Berman
Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with nine offices across the country. The firm’s tenacious drive for plaintiffs’ rights has earned it numerous national accolades, awards and titles of “Most Feared Plaintiff’s Firm,” and MVPs and Trailblazers of class-action law. More about the law firm and its successes can be found at hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw.

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