United States District Court, D. New Jersey
GARNER RICKMAN, individually and on behalf of all others similarly situated, Plaintiffs,
BMW OF NORTH AMERICA, et al., Defendants.
putative class action alleges that the diesel engines of two
BMW models, the 2009-2013 BMW X5 xDrive35d (the
"X5") and the 2009-2011 335d (the "335d")
(together, "the Subject Vehicles"), emit nitrogen
oxides ("NOx") at levels in excess of federal and
state emissions standards. Plaintiffs assert that Defendants
BMW of North America ("BMW USA") and Bayerische
Motoren Werke Aktiengesellschaft ("BMW AG")
(together, "BMW") colluded with Defendants Robert
Bosch GmbH and Robert Bosch LLC (together, "Bosch")
to market the cars as "clean diesel" while they
knew that the Subject Vehicles discharged emissions at
impermissible levels. The true level of emissions was
allegedly masked during laboratory testing by deceptive
technology (a "defeat device") that Defendants
developed and employed. The Complaint brings counts under the
Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1962, and various state
consumer protection laws. Plaintiffs seek to bring these
claims on behalf of themselves and a nationwide class of all
persons or entities who purchased or leased the BMW models at
issue. Now before the Court are motions by BMW USA (DE 29)
and Robert Bosch LLC (DE 30) to dismiss the Consolidated
Class Action Complaint ("the Complaint", DE 26,
cited as "Comp.") pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
are some 42 named plaintiffs who allegedly own the X5 or 335D
models. Lacking here is a straightforward allegation that an
identified plaintiff bought a car which, when tested or
analyzed, turned out to contain a defeat device. Rather, the
Complaint alleges that one six-year-old X5 model car with 60,
000 miles on the odometer was tested. It is not alleged that
this car was owned by any plaintiff; it seems to be proffered
as an exemplar. That testing revealed a discrepancy between
on-road and laboratory emissions levels. There seems to have
been no further physical or electronic analysis attributing
the discrepancy, which might have a number of explanations,
to a defeat device.
testing surely suffices to raise suspicions, if little more.
The real weak link, however, is the suggested inference that
anyone (including the 42 plaintiffs) who bought that model
car unknowingly purchased a defeat device. I have examined
the allegations in the context of other diesel vehicle defeat
device cases in which motions to dismiss were denied. Those
complaints tended to offer more corroboration, generally
consisting of official findings or testing from independent
sources which tended to suggest a uniform practice of
installing a defeat device in a particular model.
however, the named Plaintiffs have not adequately alleged
that they personally (or the putative class members) have
suffered an injury in fact. For the reasons set forth below,
Defendants' motions are granted and Plaintiffs'
Complaint is dismissed. That dismissal is without prejudice
to a properly supported motion to amend the complaint,
perhaps following further scientific analysis. Before I will
put this massive class action on the road, however, I will
require a more careful look under the hood.
Plaintiffs initiated this action on March 27, 2018,
originally under the caption Garner Rickman v. BMW of
North America, et al. (DE 1). Plaintiffs filed an
amended complaint as of right on April 19, 2018, which was
captioned Chad Maccanelli, et al, v. BMW of North
America, et al (DE 6). On May 8, 2018, certain other
plaintiffs, represented by the same counsel, filed a
complaint captioned Ricky Evans, et al. v. BMW of North
America LLC, et al, No. 2:18-cv-08935, which added 21
new plaintiffs but was otherwise substantially identical to
the complaint in Maccanelli. On August 3, 2018,
Plaintiffs consolidated the two actions through the filing of
a Consolidated Class Action Complaint, which is the currently
operative pleading. (DE 26). In light of the consolidation,
Plaintiffs voluntarily dismissed the complaint filed in the
Evans matter. (DE 28).
16, 2019, this case was reassigned from Judge Vazquez to
Judge McNulty for all further proceedings. (DE 57). Presently
before the Court are motions to dismiss the Consolidated
Class Action Complaint by BMW USA (DE 29) and Robert Bosch
LLC (DE 30). Plaintiffs filed briefs in opposition
(DE 37, 39), to which Defendants replied (DE 43, 44). After
briefing on the motions was complete, Plaintiffs filed
notices of supplemental authority (DE 46, 49, 50), and BMW
USA and Robert Bosch LLC filed responses (DE 47, 48, 51).
makes and sells automobiles. Bosch is alleged to have
manufactured components that enabled BMW to fool regulatory
tests of their cars' emissions.
several leading auto manufacturers, most prominently
Volkswagen, have been embroiled in civil and criminal
proceedings involving assertions that they evaded emissions
standards for their diesel vehicles. Such evasion typically
included the use of a defeat device, consisting of software
within a car that alters the emission control system when
tested by regulators in a specific test environment. This use
of a defeat device would deceptively make a car's
emissions appear to be lower when tested in the lab than they
would be under normal road conditions. In this way, a defeat
device enables the vehicle to pass emissions tests but then
reduces the effectiveness of the emissions control system
during normal operation.
leading diesel manufacturers have been accused of misleading
regulators in this fashion. Volkswagen pled guilty to
criminal violations of the Clean Air Act; Mercedes is under
investigation by the U.S. Department of Justice
("DOJ"); Fiat Chrysler Automobiles
("FCA") has been subjected to civil proceedings by
the Environmental Protection Agency ("EPA"). (Comp.
¶¶ 3, 9-11, 74). According to Plaintiffs, these
diesel manufacturers used defeat devices made by Bosch that
turn off or turn down emission controls when the vehicles
electronically sense that they are not in a test environment.
assert that BMW and Bosch have similarly engaged in an
unlawful scheme to evade emissions standards with a defeat
device for the Subject Vehicles. Specifically, plaintiffs
claim that due to the use of a defeat device the Subject
Vehicles emit levels of NOx many times higher than (i) their
gasoline counterparts; (ii) what a reasonable consumer would
expect; (iii) what BMW has advertised; (iv) the EPA's and
certain states' maximum standards; and (v) the levels
necessary to obtain certificates of conformity, a
prerequisite to selling motor vehicles in the United States.
(Comp. ¶ 2).
is a corporation doing business in all fifty states and the
District of Columbia that is organized under the laws of
Delaware with its principal place of business in New Jersey.
(Comp. ¶ 61). BMW USA manufactured, sold, and warranted
the Subject Vehicles throughout the United States at all
relevant times to this action and installed the diesel engine
systems. (Id. ¶ 62). Germany-based BMW AG,
which supervised the manufacturing and advertisements of the
Subject Vehicles in the United States, is the parent company
of the BMW Group. (Id. ¶ 63).
Bosch LLC is organized under the laws of Delaware and has its
principal place of business in Michigan. (Comp. ¶ 68).
Robert Bosch GmbH is a German multinational engineering and
electronics company headquartered in Germany and is the
parent company of Robert Bosch LLC. (Id. ¶ 67).
Plaintiffs refer to both entities jointly as
"Bosch" and assert that the Bosch entities share a
collective identity. (Id. ¶ 69-72, 230).
Plaintiffs' Testing and Defeat Device
Plaintiffs claim that Bosch developed and manufactured the
electronic diesel control ("EDC") that allowed BMW
to implement defeat devices in the Subject Vehicles as a
means of evading regulatory scrutiny. (Comp. ¶¶ 15,
64, 67, 70, 201-14). One such Bosch EDC-the EDC17-allegedly
is a "perfect enabler" for the use of a defeat
device because it empowers software within the car to detect
whether the car is experiencing a test environment versus
normal driving conditions and alters emissions output
accordingly. (Id.). Almost all of the diesel vehicle
manufacturers who allegedly manipulated emissions in the
U.S., see supra, used a Bosch EDC 17 device.
(Id.). German and U.S. prosecutors are currently
investigating certain Bosch managers for their role in the
emissions scandal involving Volkswagen and other
manufacturers. (Id. ¶¶ 73, 74). The
Complaint alleges that, since the BMW Subject Vehicles use a
Bosch EDC17, as did the Volkswagen cars and other suspect
diesel vehicles, "Bosch was a participant in the scheme
to hide the true emissions" of the Subject Vehicles.
order to be sold in the United States, a vehicle must be
covered by a certificate of conformity ("COC")
issued by the EPA. (Comp. ¶ 77). The COC certifies that
the vehicle comports with the specific emissions standards
for pollutants set forth in the Clean Air Act. (Id.
¶¶ 76-77, 85, 108). To receive a COC, a diesel
vehicle must not emit more than a specific amount of both
NOx, which is a byproduct of diesel combustion, and
particulate matter ("PM"). (Id.
¶¶ 82-83, 85, 108). Pollution from NOx and PM
has been linked with serious environmental problems and
health risks. (Id. ¶¶ 6, 78, 81-83, 106,
265-67). Diesel engines have higher NOx and PM emissions than
their gasoline counterparts due to differences in fuel
combustion and the treatment of emissions within the engine
following combustion. (Id. ¶ 84).
manufacturer's application for a COC must accurately
describe the vehicle "in all material respects,"
including any auxiliary emission control device
("AECD") installed in the vehicle. (Comp." 85,
109, 209, 244). A defeat device is a type of AECD.
(Id.). A manufacturer would not be able to obtain a
COC if it disclosed the existence of a defeat device because
defeat devices impermissibly reduce the effectiveness of an
automobile's emission control system during normal
driving use. (Id. ¶¶ 4, 110, 209-10).
Plaintiffs allege that BMW failed to disclose to regulators
the presence of one or more defeat devices that it developed
with Bosch for the two BMW diesel vehicles at issue. (Comp.
¶¶ 15, 210). As discussed below, Plaintiffs base
their allegation on an inference from their own testing on
one vehicle. They argue that since that one vehicle emitted
suspiciously discrepant levels of emissions during road
testing and lab testing, it follows that a defeat device must
be present in all the Subject Vehicles.
regulators test emission levels in a lab, they typically do
so with a device called a chassis dynamometer, which might be
compared to a treadmill. (Comp. ¶¶ 116, 146, 208).
A chassis dynamometer is "a Fixture that holds a car in
place while allowing its driven wheels to turn with varying
resistance meant to simulate the actual load on the engine
during on-road driving." [Id.). The regulators
then measure the emission levels at varying speeds and
acceleration levels to see if the tested vehicle meets the
relevant emission standards. (Id] When properly
calibrated, the chassis dynamometer can simulate real world
driving with a high degree of accuracy. (Id. ¶
separate form of testing can be done using a portable
emission measurement system ("PEMS"), which
measures the gaseous emissions from a vehicle, including NOx
and PM. Being portable, the device can test emission levels
during normal, on-road driving. (Comp. ¶ 143). The
critical distinction between PEMS and chassis dynamometer
testing, then, is that the PEMS can operate during normal
driving, while the chassis dynamometer operates only in a
simulated, laboratory setting. [Id. ¶ 143,
defeat devices circumvented regulatory scrutiny by detecting
that the vehicle was on a chassis dynamometer-i.e.,
not actually driving on the road. (Comp. ¶r
2, 14, 157-58). If so, the defeat device would limit the
emissions output to meet regulatory standards. If
not-e.g., when the vehicle was driven on the road
under normal conditions-the emission levels would not be
limited, allowing the car to have better fuel economy and
superior driving performance. (Id.).
to the revelations of the Volkswagen scandal in 2015,
regulators did not perform PEMS testing for the relevant
diesel vehicles, but instead relied on chassis dynamometer
testing to certify regulatory compliance. (Comp. ¶ 146).
Volkswagen's manipulation of chassis dynamometer results
came to light when a group of university scientists working
with a nonprofit organization performed PEMS testing on
Volkswagen diesel cars. They noticed that Volkswagen
emissions levels, as revealed by PEMS testing, did not meet
regulatory standards, and they reported their findings to
regulators. (Id. ¶ 144).
emissions test cycle defines a protocol that specifies
certain criteria under which an engine is tested, including
lab temperature, vehicle conditions, and varying sample
speeds. (Comp. ¶ 115). The test cycle defines the
vehicle speed and time intervals at which the vehicle runs at
a certain speed. The object is to simulate a typical driving
scenario and provide a uniform protocol for testing purposes.
[Id.). The protocol that the EPA uses for emission
certification and fuel economy testing of passenger vehicles
is called the FTP-75 (Federal Test Procedure) cycle.
FTP-75 is the primary dynamometer cycle used to certify light
and medium duty passenger cars and trucks. (Comp. ¶
117). This cycle incorporates rapid changes in speed and
acceleration meant to reflect city driving (i.e., frequent
stops), along with some steadier, higher speed sections meant
to account for highway driving. (Id. ¶¶
115, 117). Regulators measure emissions during the test cycle
and compare those levels to an emissions standard that
defines the maximum pollutant levels that can be released
during such a predefined cycle. (Id. ¶ 116).
FTP-75 comprises three separate phases. (Comp. ¶ 177).
It begins with a "cold start" phase ("Phase
1"), meaning that the vehicle starts the test cycle with
the engine having been off for at least eight hours.
(Id. ¶¶ 118, 178). The "cold
start" portion of the FTP-75 test is challenging for
diesel engines employing selective catalytic reduction
technology because catalysts meant to control emissions are
not yet at temperatures where they work effectively.
(Id.). The second phase ("Phase 2") starts
immediately after Phase 1 and is a stabilized phase.
(Id. ¶¶ 179-80, 185). The third phase
("Phase 3") is a "hot" phase; it occurs
after the vehicle is turned off for ten minutes following
Phase 2. (Id. ¶¶ 179-80, 185). Regulators
test emission levels during each of the three phases of the
FTP-75 test cycle. (Id. ¶ 181).
plaintiffs here performed emissions testing on one model year
2012 X5 (the "Tested Vehicle"). The tests
encompassed both PEMS and chassis dynamometer testing meant
to replicate the FTP-75 test cycle. (Comp. ¶ 141). The
Tested Vehicle had around 60, 000 miles on it at the time of
Plaintiffs' testing. (Id.). Plaintiffs inspected
the Tested Vehicle to ensure that it had no engine faults,
that regular maintenance had been performed, that the vehicle
had not been in an accident, and that the emission control
components were functioning properly. (Id. ¶
assert that the Tested Vehicle is "representative of the
entire population" of the Subject Vehicles, including
all X5 vehicles for the years 2009 through 2013 and all 335d
vehicles for the years 2009 through 2011. (Comp. ¶¶
141, 161). Plaintiffs contend that it was not necessary to
separately test an exemplar of the 335d model, because the
"engine architecture is nearly identical for both the X5
and 335d with the only difference being that the X5 employs
both high- and low- pressure [exhaust gas recirculation
("EGR")] because of its higher weight, while the
335d uses high pressure EGR only." (Id.
¶¶ 91, 100, 161).
all other aspects of the engine are "nearly
identical." (Id. ¶¶ 91, 100, 161).
Furthermore, "all other model years [subsequent to 2009]
are identical to the 2009 [X5] model year from an emissions
standpoint" and BMW "did not change the engine in
any significant way with respect to diesel emissions in these
models." (Id. ¶¶ 161-62).
evaluated the emission levels of the Tested Vehicle using a
chassis dynamometer in a way intended to replicate the FTP-75
test cycle. (Comp. ¶¶ 177-89). For Phase 2,
Plaintiffs' testing found that the composite emission
levels of the Tested Vehicle on the chassis dynamometer was
"quite close to the standard." (Id.
¶¶ 186-88). In other words, the Tested Vehicle
"appears to be working as designed on the chassis
dynamometer" during Phase 2. (Id. ¶ 189).
the PEMS testing. Plaintiffs' PEMS testing, which was
intended to "closely approximate" the FTP-75
certification test cycle, revealed that the Tested Vehicle
had emissions levels that were higher than regulatory
standards. (Comp. ¶¶ 163-76). According to
Plaintiffs, over the course of 2, 401 miles of testing on
flat road highway driving, the Tested Vehicle released
emissions above the "emission standard" for 82% of
the miles it travelled. (Id. ¶¶ 163-66).
on Plaintiffs' PEMS testing, the emission levels of the
Tested Vehicle for flat road testing increased when the
ambient temperature was outside of the dynamometer test lab
temperature range, which is between 68CF and
86°F. (Id. ¶¶ 167-71). When the Tested
Vehicle was near 72°F, which is within the certification
test window, the emissions met the regulatory standard.
(Id. ¶ 167). However, when tested between
50°F and 60°F, which is below the certification
temperature window, the emissions "increased
dramatically." (Id. ¶ 168). The
implication is that the Defendants intentionally designed the
emission controls to game the ambient temperature parameters.
(Id. ¶¶ 169-71).
Plaintiffs' PEMS highway testing on hills, emission
levels increased as the road grade, or incline, increased.
(Id. ¶¶ 172-73). The implication here is
that emission controls are "de-rated (turned down or
off) on hills." (Id. ¶ 173). During PEMS
"stop and go testing," Plaintiffs' found
emissions to be on ...