Law360, New York (June 17, 2016, 2:35 PM ET) By Dani Meyer — A New York federal judge on Thursday blocked BMW’s bid to shut down a proposed class action alleging a design defect that leads to electrical damage through leaky trunks, while also finding that the lead driver can obtain some discovery once he narrows the scope of his request.
U.S. District Judge Katherine B. Forrest said that to the extent BMW AG sought to dismiss named plaintiff George Catalano’s New York deceptive business practice claim, the automaker is effectively asking the court to revisit its March ruling upholding the claim.
“Even if the court construes defendants’ arguments relating to the [deceptive practice] claim as a motion for reconsideration, defendants here fail to meet the requisite standard,” Judge Forrest ruled.
As for Catalano’s New York fraudulent concealment claim, which the court dismissed in March with leave to replead, Judge Forrest said the revised allegations are enough to beat BMW’s attempt to get the claim dismissed.
“Although perhaps still not the strongest allegations of fraudulent concealment, the court concludes that the [second amended complaint] does enough to meet the requirements of Rule 9(b) and plead a plausible claim,” Judge Forrest said.
In the same order, Judge Forrest agreed to grant in part Catalano’s motion to compel BMW to hand over documents and information that are located in Germany, saying he can use the Federal Rules of Civil Procedure to pursue the discovery rather than the Hague Convention process as BMW had requested.
“However, Catalano’s fifty-five document requests and twenty-four interrogatories are excessive and overbroad, especially in light of the particular concerns raised by the fact that the documents and information that Catalano seeks are located in Germany,” Judge Forrest said. “The court will not grant Catalano discovery as broad as if he were seeking documents and information located in the United States from a domestic party.”
She ordered the parties to meet and confer to try and narrow the scope of Catalano’s discovery request.
Amy Keller, an attorney for Catalano, told Law360 in a Friday email that:
“we look forward to litigating this case and obtaining the discovery necessary for our underlying claims, including from BMW AG as the designer of these vehicles.”
Catalano sued BMW in June on behalf of all New York owners and lessors of X3 and X5 models, claiming his pre-owned 2007 BMW wagon purchased in 2010 unexpectedly shut down two years later while he was driving with his wife on a four-lane highway.
When the car was brought to a dealership for inspection, it found about two inches of standing water had accumulated underneath the trunk as a result of clogged sunroof drains, which caused electrical components located around the rear cargo area to corrode and fail.
Despite knowing of the issue due to numerous customer complaints, including those made with the National Highway Traffic and Safety Administration since 2008, Catalano said BMW did not recall the vehicles or notify many current owners of the potential problem. Instead BMW issued a technical service bulletin, which Catalano said he never received.
If he had been made aware of the potential defect, Catalano said he would never have purchased his BMW.
Catalano’s allegations are similar to those in another suit filed against BMW in California in which named plaintiffs Monita Sharma and Eric Anderson allege that a design defect can lead to electrical damage through leaky trunks.
Representatives for BMW didn’t immediately respond Friday to a request for comment.
Catalano and the proposed class are represented by Edward A. Wallace and Amy E. Keller of Wexler Wallace LLP, William A. Kershaw, Stuart C. Talley and Ian J. Barlow of Kershaw Cutter & Ratinoff LLP, Stephen M. Harris of The Law Offices of Stephen M. Harris PC, Robert L. Starr of The Law Offices of Robert L. Starr and Joseph R. Santoli of The Offices of Joseph R. Santoli.
BMW is represented by Rosemary J. Bruno, Christopher J. Dalton and Lauren A. Woods of Buchanan Ingersoll & Rooney PC.
The case is Catalano v. BMW of North America LLC et al., number 1:15-cv-04889, in the U.S. District Court for the Southern District of New York.
–Additional reporting by Kali Hays. Editing by Kelly Duncan.
This article first appeared on Law 360.