[bostonzack]

I know it doesn't exist; however, BMW's website from fall 2012 said it is a standard feature and even my window sticker says it's a standard feature. After an excruciatingly frustrating experience with BMW customer service, they are telling me that it was "opted out of" on my particular vehicle.

Sounds like complete BS to me. Anyone know any different information on what happened last year with these cars?

Are there any attorneys on here? I think this is false advertising and consumer fraud of some sort.

[ezmaass]

From the technical release (training materials) I've seen from BMW on the N63TU, they specifically note valvetronic as being new for the N63TU, likening it to the update that occurred with the N54 to N55... same thing with the injectors, went from piezo to Bosch, same as with the N54 to N55.

I saw a post recently (older thread) where it sounded like someone was saying BMW mistakenly listed specs for 2013 on the 550 as having the N63TU and then reverted it thereafter on the website. I'm not sure how accurate this is, but it may account for some of the confusion. I think the 550 GT got the N63TU a year earlier than the F10... perhaps that was also part of the mishap in the marketing materials.

I'm not an attorney, so take it for what's worth... but I don't think anyone would argue that it was fraud if, indeed, there was a marketing mistake (understandably between the overlapping N63/N63TU availability) and the specs were temporarily misprinted. From the account I read on the other thread, it sounds as if the specs on the web were then reverted - the OP was discussing the HP (445hp reverted to 400hp after correction).

As for "opting out" that sounds plain old wrong to me. You couldn't opt out since it was never an option... and then again, it's not even something "configurable" - not like you can opt out of valvetronic on a 2014 if you wanted!

[bostonzack]

I'm not an attorney either, so I don't know if "fraud" is the correct legal term for what BMW did, but the matter is that companies need to be held accountable for the content of their advertisements and sales literature. We sure are in my industry, not sure why car marketing is special. And this wasn't just a quick misprint like the HP rating was, Valvetronic was listed from summer 2012 onwards.

I have heard some rumors that there was a "split production" and some 2013 cars got the engine with Valvetronic and some did not. Don't know if that's true, would be worse if it is. Either way there is a large group of 2013 550i owners who were misled by BMW's false advertising. BMW's attitude that they aren't responsible for delivering a vehicle with the specs shown on both their website (advertising) and window sticker is just disgusting.

Probably will chat with the state attorney general about the relevant consumer protection laws and go from there.

If there are any attorneys on the board, please contact me.

[Alan l.]

I remember when the 2013's was first announced. So much misinformation came from BMW that they scrambled to fix it everywhere it was posted up. The valvetronic being one plus they even said it had the 445hp N63TU engine for awhile until they corrected it on the website.

Sounds just like the 2014 July/August build Msport suspension debacle.

[Mbbrewer]

I can't believe this issue is still coming up. It was a misprint plain and simple. I was as upset about it as the next guy at the time. I ordered my car with the understanding that it did not have the TU motor. My sticker said it had valvetronic when I took delivery but it does not. I asked about it, got confirmation and moved on. If you're asking this question now, it is likely that you had no idea of the misprint when you bought the car. Meaning you didn't base your decision on whether or not it had valvetronic. At the end of the day, what would you want BMW to do about it?

[ezmaass]

There needs to be some accountability in marketing, and that's why we have laws regarding false advertising. Again, I'm not an attorney so I don't know what constitutes an acceptable mistake versus false advertising. I suspect, though, that claiming fraud (false advertising) would require evidence that BMW intended to mislead people... Versus an advertising error that was acknowledged and corrected.

Now, if you made a purchase decision based upon an error in marketing, what recourse do you have? For small ticket items you can usually return them... not so easy with a car. If the error persisted for some unreasonable amount of time (maybe greater than 30 or 60 days?), maybe it's reasonable for them to do something to compensate buyers who felt they were mislead? I don't know. Are there people who could legitimately claim they wouldn't have bought the 550 had they known it didn't have valvetronic?

[Boss330]

Only in the USA...

No wonder every product gets more expensive as manufacturers need to fight expensive US lawsuits... Or that we have coffe cups warning us that "Content is hot"... I mean, how stupid are you if you need to be warned that the cup of coffee you bought is hot But I'm sure someone sued someone after burning themselves on a hot cup of coffee, hence the warning labels and stickers everywhere...

It was a plain mistake from PR dept, that was fixed. Did you or did you not make Your decision based on Valvetronic and did you get confirmation when signing the dotted line?

Did you read the legal part of the BMWUSA website?

The information in these Web pages is intended for U.S. customers only and is provided 'AS IS' WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. In no event shall BMW NA be liable to any person for any special, indirect or consequential damages relating to this material.



BMW NA may at any time change this information by updating this posting. Visitors are bound by any such revisions and therefore should periodically visit this page to review the then-current website information.

While BMW NA makes all reasonable efforts to provide accurate information on this site, there is no guarantee or warranty of accuracy. Furthermore, we do not assume any liability for the accuracy or completeness of information presented on this site.

http://www.bmwusa.com/Standard/Conte...formation.aspx

[ezmaass]

Originally Posted by Boss330

Only in the USA...

No wonder every product gets more expensive as manufacturers need to fight expensive US lawsuits... Or that we have coffe cups warning us that "Content is hot"... I mean, how stupid are you if you need to be warned that the cup of coffee you bought is hot But I'm sure someone sued someone after burning themselves on a hot cup of coffee, hence the warning labels and stickers everywhere...

It was a plain mistake from PR dept, that was fixed. Did you or did you not make Your decision based on Valvetronic and did you get confirmation when signing the dotted line?

Did you read the legal part of the BMWUSA website?



http://www.bmwusa.com/Standard/Conte...formation.aspx

This is standard practice - world-wide, not just in the US I may add. My company, who operates internationally, expressly exempts marketing content in all of our contracts. It's well understood in business that marketing people may, from time to time, misunderstand a concept, a specification, or express a concept in such a way that makes it less than technically accurate. It's essentially a disclaimer.

That said, there ARE limits to the legality of a disclaimer. For instance, in my business part of our legal responsibility is compliance with certain regulations that govern "personally identifiable information" (PII) and consequently regulations such as HIPAA, FERPA, EU Privacy, etc. Can I stick a disclaimer in our contracts with our clients that says we won't comply? No, I can't. The point being, a disclaimer stills need to be compatible with the broader laws that govern the business. I can't disclaim-away a legal responsibility.

To the same extent, there ARE consumer protection laws in place regarding false advertising, and I suspect, just as in my example above, I can't "disclaim away" my responsibilities under those consumer protection laws. If that was the case, I could simply publish far-reaching claims about my product, inflated specifications, etc, and then put a disclaimer at the bottom of the web page to make it all legal.

So, given this discussion, I became curious and actually looked up what the criteria is for establishing a claim of false advertising. Direct from a legal dictionary:

"To establish that an advertisement is false, a plaintiff must prove five things: (1) a false statement of fact has been made about the advertiser's own or another person's goods, services, or commercial activity; (2) the statement either deceives or has the potential to deceive a substantial portion of its targeted audience; (3) the deception is also likely to affect the purchasing decisions of its audience; (4) the advertising involves goods or services in interstate commerce; and (5) the deception has either resulted in or is likely to result in injury to the plaintiff. The most heavily weighed factor is the advertisement's potential to injure a customer. The injury is usually attributed to money the consumer lost through a purchase that would not have been made had the advertisement not been misleading. False statements can be defined in two ways: those that are false on their face and those that are implicitly false."

So, is it possible that someone could claim false advertising against BMW here? Maybe. I believe 1, 2, and 4 are simple. However, 3 and 5 may be more questionable in this case. One by one:

1. Yes, the material they printed (and supposedly kept printed for quite some time) was already proven to be false. HP ratings, motor type, valvetronic, etc - all false, as we know.

2. The statements clearly had the potential to deceive a broad number of people as the advertising error was on the web along with even window stickers.

3. This one is trickier. Would the deception impact a purchasing decision? I guess this is subjective. Claiming 445HP over 400HP to someone who's a performance enthusiast and claims they were purchasing in part based upon power? Valvetronic? I don't know - personally it wouldn't impact my decision, but perhaps someone could make a claim here.

4. Yes, it's interstate.

5. This one is perhaps the hardest for me to imagine in this case. Perhaps if one could claim, and show evidence of, cars without the N63TU motor being less reliable, more expensive to maintain sans valvetronic, etc, you may have a case here. I think the law is looking for clear evidence of damage as a result of the false advertising... so a plaintiff would need to be prepared to describe how they were damaged by the result of this purchase.

So, it actually may not be that cut-and-dry after all. From a legal perspective, regardless of their disclaimer, BMW must still comply with consumer protection laws in the US. I think the law seems to be divined in such a way to provide wiggle room for companies to make legitimate advertising errors, requiring that plaintiffs prove a number of conditions applied. In this particular case, and to a layman, it actually looks like it could go either way depending upon how well arguments could be made (or not) for #3 and #5. Out of sheer curiosity now, I'd be interested to hear from a lawyer on the forum and get their opinion.

[Boss330]

Originally Posted by ezmaass

This is standard practice - world-wide, not just in the US I may add. My company, who operates internationally, expressly exempts marketing content in all of our contracts. It's well understood in business that marketing people may, from time to time, misunderstand a concept, a specification, or express a concept in such a way that makes it less than technically accurate. It's essentially a disclaimer.

That said, there ARE limits to the legality of a disclaimer. For instance, in my business part of our legal responsibility is compliance with certain regulations that govern "personally identifiable information" (PII) and consequently regulations such as HIPAA, FERPA, EU Privacy, etc. Can I stick a disclaimer in our contracts with our clients that says we won't comply? No, I can't. The point being, a disclaimer stills need to be compatible with the broader laws that govern the business. I can't disclaim-away a legal responsibility.

To the same extent, there ARE consumer protection laws in place regarding false advertising, and I suspect, just as in my example above, I can't "disclaim away" my responsibilities under those consumer protection laws. If that was the case, I could simply publish far-reaching claims about my product, inflated specifications, etc, and then put a disclaimer at the bottom of the web page to make it all legal.

So, given this discussion, I became curious and actually looked up what the criteria is for establishing a claim of false advertising. Direct from a legal dictionary:

"To establish that an advertisement is false, a plaintiff must prove five things: (1) a false statement of fact has been made about the advertiser's own or another person's goods, services, or commercial activity; (2) the statement either deceives or has the potential to deceive a substantial portion of its targeted audience; (3) the deception is also likely to affect the purchasing decisions of its audience; (4) the advertising involves goods or services in interstate commerce; and (5) the deception has either resulted in or is likely to result in injury to the plaintiff. The most heavily weighed factor is the advertisement's potential to injure a customer. The injury is usually attributed to money the consumer lost through a purchase that would not have been made had the advertisement not been misleading. False statements can be defined in two ways: those that are false on their face and those that are implicitly false."

So, is it possible that someone could claim false advertising against BMW here? Maybe. I believe 1, 2, and 4 are simple. However, 3 and 5 may be more questionable in this case. One by one:

1. Yes, the material they printed (and supposedly kept printed for quite some time) was already proven to be false. HP ratings, motor type, valvetronic, etc - all false, as we know.

2. The statements clearly had the potential to deceive a broad number of people as the advertising error was on the web along with even window stickers.

3. This one is trickier. Would the deception impact a purchasing decision? I guess this is subjective. Claiming 445HP over 400HP to someone who's a performance enthusiast and claims they were purchasing in part based upon power? Valvetronic? I don't know - personally it wouldn't impact my decision, but perhaps someone could make a claim here.

4. Yes, it's interstate.

5. This one is perhaps the hardest for me to imagine in this case. Perhaps if one could claim, and show evidence of, cars without the N63TU motor being less reliable, more expensive to maintain sans valvetronic, etc, you may have a case here. I think the law is looking for clear evidence of damage as a result of the false advertising... so a plaintiff would need to be prepared to describe how they were damaged by the result of this purchase.

So, it actually may not be that cut-and-dry after all. From a legal perspective, regardless of their disclaimer, BMW must still comply with consumer protection laws in the US. I think the law seems to be divined in such a way to provide wiggle room for companies to make legitimate advertising errors, requiring that plaintiffs prove a number of conditions applied. In this particular case, and to a layman, it actually looks like it could go either way depending upon how well arguments could be made (or not) for #3 and #5. Out of sheer curiosity now, I'd be interested to hear from a lawyer on the forum and get their opinion.

Very good info, and I obviously know that no one can make disclaimers that violate national or international law