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ARTICLE · 15 AUGUST 2012

Establishing Predominance In Defective Disclosure Cases

Cozen O'Connor
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A recent New York federal court opinion illustrates the difficulty in establishing predominance where the primary injury alleged is overpayment for a defective product based on misrepresentation or concealment of the defect

United StatesLitigation, Mediation & Arbitration
Ronald Wick
Ronald Wick

A recent New York federal court opinion illustrates the difficulty in establishing predominance where the primary injury alleged is overpayment for a defective product based on misrepresentation or concealment of the defect.

In Oscar v. BMW of North America, the plaintiff attempted to sue BMW on behalf of a class of New York purchasers of MINI vehicles with Goodyear run-flat-tires whose tires had "gone flat and been replaced." The plaintiffs alleged that BMW had violated New York state law by making defective disclosures regarding the reliability and replacement cost of the RFTs. Specifically, the lawsuit alleged that BMW had improperly failed to disclose RFTs' increased risk of failure; the lack of a spare tire; that RFTs cannot be repaired; that RFTs cost more than normal tires to replace; and that replacing RFTs is more inconvenient and time-consuming than replacing normal tires.

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