BMW X5 xDrive35d and 335D Settlement

Basic Information

1. Why should I read the Notice?

   A Court has preliminarily established, or “certified,” this case as a class action lawsuit for purposes of settlement.

   The Notice and this website explain the class action lawsuit, the proposed Settlement, your legal rights, what benefits are available, who is eligible for the benefits, and how to get the benefits. If you are a Settlement Class Member, you have legal rights and options before the Court decides whether to give final approval to the proposed Settlement. This website explains all of these things. For the precise terms and conditions of the Settlement, please review the Settlement Agreement.

   The Court in charge of this case is the United States District Court for the District of New Jersey. The lawsuit is known as Rickman v. BMW of North America, LLC, No. 2:18-cv-04363.

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2. What is this lawsuit about?

   This lawsuit asserts claims for fraudulent concealment and violations of various states’ consumer protection acts.

   The lawsuit alleges that the BMW Defendants defrauded consumers by developing, advertising, and selling model year 2009–2013 BMW X5 xDrive35d or 2009–2011 BMW 335d vehicles that were equipped with so-called “defeat devices” that turned off or down emissions controls when the vehicles were in normal operation and not in a regulatory testing environment. The BMW Defendants deny all allegations. The Court has not decided who is right.

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3. What is a class action?

   In a class action lawsuit, one or more persons or entities called named plaintiffs sue on behalf of other persons and entities that have similar claims. The people and entities together are a “Settlement Class” or “Settlement Class Members.” In this lawsuit, the people who sued are called the “Named Plaintiffs.” The entities they are suing, BMW of North America, LLC and Bayerische Motoren Werke Aktiengesellschaft, are called the “BMW Defendants.” One court resolves the issues for everyone in the Settlement Class, except for those people who choose to exclude themselves (opt out) from the Settlement Class.

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4. Why is there a Settlement?

   The Court has not decided in favor of the Named Plaintiffs or the BMW Defendants. Instead, both sides agreed to a Settlement. By agreeing to settle, both sides avoid the cost and risk of a trial, and all Settlement Class Members who do not opt out and who complete a Valid Claim Form will receive a Cash Award. The Named Plaintiffs and Class Counsel believe the Settlement is best for the Settlement Class and represents a fair, reasonable, and adequate resolution of the lawsuit.

   The BMW Defendants deny the claims in the lawsuit; deny all allegations of wrongdoing, fault, liability, or damage to the Named Plaintiffs and the Settlement Class; and deny that they acted improperly or wrongfully in any way. The BMW Defendants nevertheless recognize the expense and time that would be required to defend the lawsuit through trial and have taken this into account in agreeing to this Settlement.

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Who is in the Settlement

To see if you are eligible for benefits, you first have to determine if you are a Settlement Class Member.

5. Am I part of the Settlement?

   You are a Settlement Class Member if you purchased or leased a model year 2009–2013 BMW X5 xDrive35d or 2009–2011 BMW 335d vehicle on or before February 28, 2024.

   Excluded from the Settlement are (i) the BMW Defendants and their officers, directors, employees, and the BMW Defendants’ corporate affiliates and corporate affiliates’ officers, directors, and employees; (ii) Class Counsel; (iii) the judges who have presided over the Action; (iv) Persons who have settled with, released, or otherwise had claims dismissed with prejudice or had claims adjudicated on the merits against the BMW Defendants arising from the same allegations or circumstances as the Action; and (v) all other persons who have timely elected to become Opt-Outs from the Settlement Class in accordance with the Court’s Orders and as approved by the Court.

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6. What are the Class Vehicles?

   The “Class Vehicles” are model year 2009–2013 BMW X5 xDrive35d and model year 2009–2011 BMW 335d vehicles.

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The Settlement Benefits—What You Get

7. What does the Settlement provide?

   The $6 million Settlement Amount will provide Cash Awards to all Settlement Class Members. Notice and Administrative Costs, Attorneys’ Fees and Costs and Service Awards to the Named Plaintiffs will also be paid out of the Settlement Amount if approved by the Court.

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8. What can I get from the Settlement?

   Cash Award: If you are a Settlement Class Member and you submit a Valid Claim Form with any necessary supporting documentation, you are eligible to receive a Cash Award. Your Cash Award will be a pro rata share of the Net Settlement Fund based on each Settlement Class Member’s respective length of ownership and/or lease of their Class Vehicle.

   If any unclaimed funds remain in the Net Settlement Fund after the initial Cash Awards are distributed, there shall be a second round of distributions to Settlement Class Members who cashed their checks or successfully received an electronic payment via the first distribution of Cash Awards. To the extent funds remain unclaimed after the Second Distribution, additional distributions will be made to Settlement Class Members who cashed their initial checks in the same manner. If Class Counsel, the BMW Defendants and the Settlement Administrator determine that any re-distribution is not cost effective, upon approval by the Court any amount remaining in the Settlement Fund will be distributed to recipient(s) agreed upon by the Parties and reported to the Court.

   Claims are limited to one Claim Form for each Class Vehicle owned or leased by a Settlement Class Member.

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How to Get Benefits from the Settlement

9. How can I get my Cash Award?

   If you are a Settlement Class Member, you must fill out and submit a Claim Form and any supporting documentation to qualify for a Cash Award. You can file your Claim here. You can also download a paper Claim Form here or get one by calling the Claims Administrator at 1-877-540-1859. The completed Claim Form must be submitted online by December 18, 2024, or by mail at the address below, postmarked by December 18, 2024.

   BMW X5 xDrive35d & 335d Settlement
   c/o Settlement Administrator
   P.O. Box 2390
   Portland, OR 97208-2390

   Upon receiving a completed Claim Form, the Claims Administrator will review the documentation and confirm or deny your eligibility for a cash payment.

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10. When will I receive my Cash Award?

    The Court will hold a hearing on September 19, 2024, at 1:00 p.m. EDT (which is subject to change) to decide whether to finally approve the Settlement. Even if the Court finally approves the Settlement, there may be appeals. The appeal process can take time, perhaps more than a year. You will not receive a cash payment until any appeals are resolved. Please be patient.

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11. What am I giving up to receive these Settlement benefits?

    Unless you exclude yourself (“opt out”) from the Settlement Class by timely submitting a request for exclusion from the Settlement Class, you will remain in the Settlement Class, and that means you cannot sue, continue to sue or be part of any other lawsuit against the BMW Defendants about the claims in this case. It also means that all of the Court’s orders will apply to you and legally bind you. The Release is defined and detailed in the Settlement Agreement.

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The Lawyers Representing You

12. Do I have lawyers in this case?

    The Court has appointed attorneys from the law firms Hagens Berman Sobol Shapiro, LLP; Carella Byrne Cecchi Brody Agnell, P.C.; and Seeger Weiss LLP to represent you and the other Settlement Class Members. The lawyers are called Class Counsel. They are experienced in handling similar class action cases. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.

    You may contact Class Counsel if you have any questions about the Notice or the Settlement. Please do not contact the Court.

    Class Counsel
    Steve Berman Hagens Berman Sobol Shapiro, LLP 1301 2nd Avenue Suite 2000 Seattle, WA 98101 Telephone: 206-623-7292 Email: Steve@hbsslaw.com	James E. Cecchi Carella Byrne Cecchi Brody Agnell, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: 973-994-1700 Email: jcecchi@carellabyrne.com	Christopher A. Seeger Seeger Weiss LLP 55 Challenger Road Sixth Floor Ridgefield Park, NJ 07660 Telephone: 973-679-9100 Email: cseeger@seegerweiss.com

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13. How will the lawyers be paid?

    Class Counsel has asked the Court for an award of attorneys’ fees up to one-third (1/3) ($2 million) of the $6 million Settlement Fund, and in addition to fees, reimbursement of litigation costs plus reasonable costs incurred through the Effective Date to not exceed $1,000,000. Any award of attorneys’ fees and costs will be paid from the Settlement Amount. Class Counsel also asked the Court for Service Awards of $5,000 for each of the Named Plaintiffs. The purpose of the Service Awards is to compensate the Named Plaintiffs for their time, efforts, and risks taken on behalf of the Settlement Class. Any Service Award payment to the Named Plaintiffs will be paid from the Settlement Amount. The Court may award less than these amounts. Class Counsel’s Motion for Attorneys’ Fees and Costs is available here.

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Your Rights—Excluding Yourself From the Settlement

If you do not want a Cash Award and want to keep the right to sue or continue to sue the BMW Defendants on your own about the legal issues in this case, then you must take steps to exclude yourself from the Settlement (get out of the Settlement). This is called “excluding yourself”—or is sometimes referred to as “opting out” of the settlement class.

14. How do I get out of the Settlement?

    To exclude yourself from the Settlement, you must send a written “request for exclusion” that includes the following:

    • Your name;
    • Your address;
    • Your telephone number;
    • Your personal signature;
    • The VIN of your Class Vehicle;
    • A statement as to whether you own/owned or lease/leased the Class Vehicle and the beginning and end dates (if applicable) of your ownership or lease of the Class Vehicle; and
    • A statement that indicates a desire to exclude yourself from the Settlement Class. Your request for exclusion must be mailed.

    via U.S. Mail, postmarked by August 6, 2024, to:

    BMW X5 xDrive35d & 335d Settlement
    c/o Settlement Administrator
    P.O. Box 2390
    Portland, OR 97208-2390

    Only individual requests for exclusion are allowed. “Mass” or “class” requests for exclusion are not allowed according to the terms of the Settlement.

    If you do not follow these procedures and deadlines, you will remain a Settlement Class Member and lose any opportunity to exclude yourself from the Settlement. This means that your rights will be determined in this lawsuit by the Settlement Agreement if it receives final approval from the Court.

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15. If I exclude myself, can I get anything from this Settlement?

    No. If you exclude yourself, you cannot receive a Cash Award. However, you may sue, continue to sue, or be part of a different lawsuit against the BMW Defendants.

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Your Rights—Objecting to the Settlement

You can tell the Court that you do not agree with the Settlement or some part of it.

16. How do I tell the Court that I do not like the Settlement?

    If you are a Settlement Class Member, you can object to the Settlement if you do not like any part of it. You can give reasons why you think the Court should not approve it. The Court will consider your views. You cannot ask the Court for a different Settlement; the Court can only approve or reject the Settlement. If the Court denies approval of the Settlement, no Cash Awards will be sent out and the lawsuit will continue.

    To object, you must file a written objection, which includes the following information:

    • Your name, address, and telephone number;
    • A statement of whether you are represented by counsel and if so, the name and contact information for your counsel;
    • The VIN of your Class Vehicle;
    • A statement as to whether you own/owned or lease/leased the Class Vehicle and the beginning and end dates (if applicable) of your ownership or lease of the Class Vehicle
    • A detailed written statement of each objection asserted, including the grounds for objection, any legal authority in support of such objection and reasons for appearing and being heard;
    • Any copies of any papers, briefs, declarations, affidavits or other documents upon which the objection is based;
    • A statement indicating whether you intend to appear at the Fairness Hearing (either personally or through counsel who files an appearance with the Court in accordance with the Local Rules), and a list of all persons, if any, who will be called to testify in support of the objection;
    • A list of all cases in which you or your counsel filed an objection or in any way participated—financially or otherwise—in objecting to a class settlement during the preceding five years; and
    • Your actual written or electronic signature as the objector in addition to the signature of your attorney (if any). An attorney’s signature alone shall not be deemed sufficient to satisfy this requirement.

    Your objection must be submitted to the Court either by mailing to the Clerk for the United State District Court for the District of New Jersey, 50 Walnut Street, Room 4015, Newark, NJ 07101, or electronically by ECF on the docket for this case.

    Your objection must also be served by mail or hand delivery, including all papers or evidence in support thereof, upon the Settlement Administrator, Class Counsel and Counsel for the BMW Defendants, at the addresses below by August 6, 2024:

    Settlement Administrator	Class Counsel	Defense Counsel
    BMW X5 xDrive35d & 335d Settlement c/o Settlement Administrator P.O. Box 2390 Portland, OR 97208-2390	Zachary A. Jacobs CARELLA, BYRNE, CECCHI, BRODY & AGNELLO, P.C. 222 S. Riverside Plaza Chicago IL 60606 Telephone: 973-994-1700 Steve A. Berman Peter A. Shaeffer HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue Suite 3300 Seattle, WA 98101 Telephone: 206-623-7292 Scott A. George SEEGER WEISS LLP 55 Challenger Road Ridgefield Park, NJ 07660 Telephone: 212-584-0700	Sean M. Berkowitz Arthur F. Foerster Johanna Spellman LATHAM & WATKINS LLP 330 North Wabash Avenue Suite 2800 Chicago, IL 60611 Thomas P. Branigan Matthew G. Berard BOWMAN and BROOKE LLP Columbia Center 101 W. Big Beaver Rd. Suite 1100 Troy, MI 48084

    If you file a timely objection, it will be considered by the Court at the Fairness Hearing. You do not need to attend the Fairness Hearing for the Court to consider your objection.

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17. What is the difference between objecting and asking to be excluded?

    Objecting is telling the Court that you do not like something about the Settlement and do not want the Court to approve the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself is telling the Court that you do not want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because you are no longer part of the case.

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Your Rights—Appearing at the Fairness Hearing

18. When and where will the Court decide whether to approve the Settlement?

    The Court will hold a “Fairness Hearing” to decide whether to approve the Settlement. You may attend and you may ask to speak, but you do not have to.

    The Court will hold a Fairness Hearing on September 19, 2024, at 1:00 p.m. EDT at the United States District Court for the District of New Jersey, 50 Walnut Street, Newark, New Jersey 07102, in Courtroom MLK 4C.

    At the hearing, the Court will hear any comments, objections, and arguments concerning the fairness of the proposed Settlement, including the amount requested by Class Counsel for attorneys’ fees and expenses. If there are objections, the Court will consider them. You do not need to attend this hearing. You also do not need to attend to have a comment or objection considered by the Court. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

    Note: The date and time of the Fairness Hearing are subject to change by Court Order. You should check the website to confirm that the date and/or time have not changed.

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19. Do I have to attend the Fairness Hearing?

    No. Class Counsel will answer all questions the Judge may have about why the Settlement should be approved and all claims paid. However, you are welcome to attend the hearing at your own expense. If you submit an objection, you do not have to attend the hearing to talk about your objection. As long as you postmarked your written objection by the deadline, the Judge will consider it. You may also pay your own lawyer to attend, but it is not necessary.

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20. May I speak at the Fairness Hearing?

    If you wish to appear at the Fairness Hearing and orally present your objection to the Court, your written objection must include your statement of intent to appear at the Fairness Hearing.

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Your Rights—Do Nothing

21. What happens if I do nothing at all?

    If you fit the Settlement Class definition described above and do nothing, you will be part of the Settlement Class, but you will not get a Cash Award from the Settlement. Unless you request to exclude yourself from the Settlement, you will not be permitted to continue to assert claims about the issues in this case or subject to the Release in any other lawsuit against the BMW Defendants ever again.

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Getting More Information

22. Are there more details about the Settlement?

    This website summarizes the proposed Settlement. More details are in the Settlement Agreement.

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23. How do I get more information?

    You can call toll-free 1-877-540-1859; write to P.O. Box 2390, Portland, OR 97208-2390; or read the FAQs above and the documents found on the Important Documents page of this website, where you will find answers to common questions about the Settlement, motions for approval of the Settlement and Class Counsel’s request for attorneys’ fees and expenses and other important documents in the case.

    You may also contact Class Counsel.

    PLEASE DO NOT TELEPHONE THE COURT OR THE COURT’S CLERK OFFICE TO INQUIRE ABOUT THIS SETTLEMENT.

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