[Below is a re-posting of text originally posted in the thread entitled "CARBON PROBLEM- update & draft letter to BMWNA: US members PLS READ". Pls feel free to respond to either thread. -Dave]
Dear board members,
Talk is cheap, so I carved out some time to dig into a possible approach to BMW N.A. on the carbon build-up issue. I also drafted a letter to BMWNA (attached). Please read the information below and the attached letter and provide your input.
I researched the www on BMW litigation and settlements, but this was not particularly fruitful. I also explored the e34 "Nikasil" engine situation from a precedent standpoint, and this doesn't seem to be the optimal example. Folks who were familiar with the Nikasil situation steered me to the pixel problem on e38/e39 models that was championed by JC Fox. This looks like the better example of how we would proceed with BMWNA, since in this situation the 'action' was initiated by BMW owners (lead by Fox) and was effective largely due to the organization through and participation by members of BMW message boards like this one (in this case, Roadfly.org and Bimmerforums.com). I tried to get into contact with Fox directly. He is (or was) a lawyer practicing in San Diego. I called the firm he was practicing with in '03 (the time of the pixel campaign), but he is no longer working at the firm. His e-mail address has also been deactivated. However, I researched the Roadfly.org board, and found most of his correspondence from the '02-03 period.
Basically, from what I can gather, Fox called his effort a "Class Action Investigation" (ie, it was not a class action law suit). He wrote BMWNA after getting the names of a 100 or so BMW owners who had the problem. He used the names to give the issue more traction, referring to the 'undersigned' in his letters. I have not been able to locate a copy of the original letter to BMWNA. I was interested in seeing it to get a look at the 'lawyer jargon' that might be present. I have posted on the above-mentioned message boards as to whether anyone knows how to reach Fox, or possibly could link me to the original letter.
In any case, BMWNA replied to Fox in a letter dated May 7, 2003. In the letter, they essentially agreed to work with owners on a case-by-case basis to resolve the pixel problem. BMWNA turned down Fox's request for a 15 year warranty on the dash cluster. Although BMWNA's response did not on the surface appear to be a breakthrough, what ensued has been quite satisfactory. Fox suggested that owners print out the letter and bring it to their BMW dealers when there was a pixel issue. Basically, this gave 'BMWNA-leaverage' to the dealings with the dealer. Fox pointed out that nobody should except less than full coverage on parts if the vehicle was out of warranty (or full replacement cost if in warranty). The replacement labor should also be no more than about an hour (which the owner would assume when out of warranty). BMWNA's response essentially amounted to a 'hidden warranty' on the pixels. If the owner didn't ask about it, the dealers would typically not volunteer the information (and of course there were no official communications from BMWNA to all potentially affected owners). But if the owner did
ask about it, and they were refused, Fox advised the message board members to contact BMWNA directly (specifically the BMWNA representative that wrote the response letter). This gave additional teeth to the resolution. It put a name and face at BMWNA to the issue, as well as specific contact information (e-mail and phone number). Thus, free replacement of the instrument cluster was effectively available for those who asked, and those who asked got it.
Draft letter to BMWNA
It seems to me that the pixel situation may be a good example for us to follow with the carbon build-up issue. Accordingly, I have drafted a letter (very rough draft!) to BMWNA asking for 'due consideration' of the intent of the Federal Clean Air Act when considering good will repairs on the secondary air system while within warranty. I suspect this is likely as far as BMWNA would be willing to go in writing. I don't see them re-writing warranty literature or sending out a letter to all M5 owners. But as we've seen in the pixel example, a letter from BMWNA acknowledging the issue and promising to work with owners on the issue can be a powerful tool. If the dealer doesn't 'get it', we simply pick up the phone and call the point person at BMWNA and ask why we weren't given due consideration.
As for the situation with high mileage M5's, I took a stab at proposing that it is in BMW's interest to offer an option to owners of disabling the monitoring of the secondary air system, provided that the system is already confirmed to be in 'failure' status. I don't know how technically feasible this is for BMW; ie, I don't know what it would take to re-program the car to disable the monitoring. I also haven't spent much time researching the legalities. There may be aspects here that I don't know about as far as automotive smog system regulations. But from what I can tell at this point, both owner AND manufacturer responsibility essentially terminates beyond a certain point. The Federal 'termination' is 80,000 miles. State-level 'termination' is at a certain reasonable cost of repair (eg, $450 in CA), if a given state even has
a cold-start emission requirement.
In the letter, I pretty much do a brain dump on the issue. My intent on this is to highlight to BMWNA that we are a sophisticated market segment and not a bunch of dummies that they can placate with stock responses and platitudes. Personally, I think it is remarkable how the M5board has pieced together the picture of the carbon/secondary air flow issue. We certainly have not had any help from BMW! If we sound like we know what we are talking about, it might make the letter more compelling.
I also tried to set the table for cooperation by outlining the potential case we would have against BMW vis-a-vis the Clean Air Act. I mention the fact that we view BMW as responsible for all in-warranty repair costs of the secondary air system per the FCAA mandate. I don't think there is much room for them to bob and weave on what constitutes a 'system' or 'failure' of the system (under normal use). Trying to duck out of the intent of the federal mandate based on an argument that no parts are technically 'broken' seems to be a VERY weak position. After outlining what is probably a pretty reasonable case citing FCAA, I didn't use a threatening tone; rather offered what should be a very reasonable request to give us "due consideration". I hope that overall this reads like we want to 'partner' with BMWNA to achieve a satisfactory solution. My buisiness experience has taught me that when two sides start to polarize, it is very bad for both sides.
- Please look this over and let me know what you think.
- Do I have the 'permission' of the M5board to speak on their behalf?
- I don't think we'll get 100 people to sign on with names like with Fox's pixel campaign, since we don't have 100 examples of the carbon build up problem to draw upon (it is not as common as the pixel issue). Therefore, perhaps speaking 'on behalf of the board' might be the next best thing.
- Can someone please do some research to verify my argument on the legality of disabling the monitoring of an already dead emission system on a high mileage car? If we want BMW to turn off our SES lights, we may need to do our homework on this.
- In the draft below, I don't give the link to the FCAA mandate that I reference. In the final letter, this should probably be included in the body of the text.
That's all I can think of for now. I'll post this on the "FAQ on the Carbon Build-up" thread also to increase the visibility of this and to keep everything in one place. It might be best to keep responses on this thread, but I don't really care as long as we have discussion.
I look forward to your comments.