46.  For years, BMW has imported, distributed, marketed, advertised, warranted,  serviced, repaired, sold and leased the Class Vehicles.  Upon information and belief, it has  sold directly or indirectly, through dealers and other retail outlets, thousands of Class  Vehicles nationwide.     47.  The Class Vehicles contain one or more defects that prevent their convertible  tops from completely opening and closing; cause their convertible tops to become jammed  into a fixed position; and cause the convertible top operation light to flash, the “top not  locked” warning message to appear, and/or an alarm to sound. When this occurs, consumers  cannot open the trunk lid and/or are unable to roll the windows up or down    48.  Plaintiff is informed and believes and based thereon alleges that BMW  acquired its knowledge of the Convertible Top Defect through sources not available to Class  Members, including but not limited to pre-release testing data, early consumer complaints  about the defect to Defendant directly and its dealers, testing and investigations conducted in  response to these complaints, replacement parts sales data, aggregate data about the  Convertible Top Defect from BMW’s dealers, including high number of warranty  reimbursement claims (contained in BMW’s warranty database), and from other internal  sources that are only accessible to BMW.    50.  BMW has a duty to disclose the Convertible Top Defect and the associated  out-of-pocket repair costs to Class Vehicle owners and lessees, among other reasons, because  the defect poses an unreasonable safety hazard; because BMW had and has exclusive  knowledge or access to material facts about the Class Vehicles and convertible tops that were  and are not known or reasonably discoverable by Plaintiff and Class Members; and because  BMW has actively concealed the defect from its customers.    51.  Hundreds, if not thousands, of purchasers and lessees of the Class Vehicles  have experienced Convertible Top Defect.  Complaints posted by consumers on the Internet  demonstrate that the defect is widespread.  The complaints also indicate BMW’s awareness  of the defect and its potential danger (note that spelling and grammar mistakes remain as  found in the original):    I have a 2004 645ci, and for some reason the top wont go down.. When i  hit the button the green light comes on, and the windows drop...but the  roof wont move. Its strange? Any reset? anyone have advise?   Like many frustrated owners but still loyal lovers of their pre-2012 650i  convertible, I am at my wits end on my faulty top sensor leaving me  stranded with window half down, top fully down, and 12 plus wasted  days at an equally frustrated dealership. I have concluded my ONLY  solution to fix this problem once and for all is to move up to a 2012.  BUt, before I drop 100k plus on the new beauty.....  59.  Plaintiff brings this lawsuit as a class action on behalf of himself and all others  similarly situated as members of the proposed Plaintiff Class pursuant to Federal Rules of  Civil Procedure 23(a) and (b)(3) and/or (b)(2).  This action satisfies the numerosity,  commonality, typicality, adequacy, predominance, and superiority requirements of those  provisions.    60.  The Class and Sub-Class are defined as:  Nationwide Class:  All current and former owners and lessees of any 2004- 2010 model year BMW E64 (6 Series Convertible) vehicles.   California Sub-Class: All Members of the Nationwide Class who purchased or  leased the subject vehicles in the state of California.   61.  Excluded from the Class and Sub-Class are: (1) Defendant, any entity or  division in which Defendant has a controlling interest, and its legal representatives, officers,  directors, assigns, and successors; (2) the Judge to whom this case is assigned and the  Judge’s staff; and (3) those persons who have suffered personal injuries as a result of the  facts alleged herein.  Plaintiff reserves the right to amend the Class and Sub-Class definitions  if discovery and further investigation reveal that the Class and Sub-Class should be expanded  or otherwise modified.     63.  Typicality:  The claims of the representative Plaintiff are typical of the  claims of the Class in that the representative Plaintiff, like all Class Members, purchased and  leased a Class Vehicle designed, manufactured, and distributed by BMW in which the  convertible top is defective.  The representative Plaintiff, like all Class Members, has been  damaged by Defendant’s misconduct in that he has incurred or will incur the cost of  replacing the convertible top and/or repairing the damage caused from the Class Vehicles and  their defective convertible top.  Furthermore, the factual bases of BMW’s misconduct are  common to all Class Members and represent a common thread of fraudulent, deliberate, and  negligent misconduct resulting in injury to all Class Members.     65.  Adequate Representation:  Plaintiff will fairly and adequately protect the  interests of the members of the Class.  Plaintiff has retained attorneys experienced in the  prosecution of class actions, including consumer and product defect class actions, and  Plaintiff intends to prosecute this action vigorously   67.  Plaintiff and the Nationwide Class incorporate by reference each preceding  and succeeding paragraph as though fully set forth at length herein.   68.  The NJCFA protects consumers against “any unconscionable commercial  practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing,  concealment, suppression, or omission of any material fact with intent that others rely upon  such concealment, suppression or omission, in connection with the sale or advertisement of  any merchandise . . . .”  N.J.S.A. 56:8-2.   69.  Plaintiff and Class Members are consumers who purchased and/or leased  Class Vehicles for personal, family, or household use.   70.  Defendant engaged in unlawful conduct, made affirmative misrepresentations  and material omissions, or otherwise violated the NJCFA.  Specifically, Defendant was  aware that the Class Vehicles suffered from a common defect resulting in failure of the  convertible tops in the Class Vehicles, but purposefully failed to disclose this to Plaintiff and  Class Members during the purchase of the vehicle or thereafter.  Defendant failed to disclose  the Defect with the knowledge that many Class Members may not discover the Defect until  after the expiration of their warranties.      71.  Defendant also engaged in unlawful conduct in violation of the NJCFA by  making knowing and intentional omissions.  Defendant purposefully and knowingly failed to  disclose the Defect in the Class Vehicles in order to secure the sale of these vehicles at a  premium price and also to mislead owners during the limited warranty period to avoid having  to perform their contractual duties under the warranty.   73.  Defendant intended that Plaintiff and all Class Members rely on the acts of  concealment and omissions, so that they would purchase the Class Vehicles and not have the  defects remedied under warranty.   74.  As a result of Defendant’s conduct, Plaintiff and Class Members have suffered  an ascertainable loss.  In addition to direct monetary losses to repair the Defect, which can be  thousands of dollars, Plaintiff and Class Members have also suffered an ascertainable loss by  receiving less than what was promised.    75.  A causal relationship exists between Defendant’s unlawful conduct and the  ascertainable losses suffered by Plaintiff and the Class Members.  Had the Defect in the  Class Vehicles been disclosed, consumers would not have purchased them, would have paid  less for the Class Vehicles had they decided to purchase them, or would have presented their  vehicles for repair of the Defect under warranty.  76.  Plaintiff and the Classes incorporate by reference each proceeding and  succeeding paragraph as though fully set forth at length herein.   78.  These omissions and statements were made by Defendant with knowledge of  their falsity, and with the intent that Plaintiff and Class Members rely on them.   79.  Plaintiff and Class Members reasonably relied on these statements and  omissions, and suffered damages as a result.  80.  Plaintiff and the Classes incorporate by reference each preceding and  succeeding paragraph as though fully set forth at length herein.   81.  Every contract in New Jersey contains an implied covenant of good faith and  fair dealing.  The implied covenant of good faith and fair dealing is an independent duty and  may be breached even if there is no breach of a contract’s express terms.   82.  Defendant breached the covenant of good faith and fair dealing by, inter alia,  failing to notify Plaintiff and Class Members of the Defect in the Class Vehicles, and failing  to fully and properly repair this defect.    83.  Defendants acted in bad faith and/or with a malicious motive to deny Plaintiff  and Class Members some benefit of the bargain originally intended by the parties, thereby  causing them injuries in an amount to be determined at trial.  85.  As a direct and proximate result of Defendant’s failure to disclose known  defects and material misrepresentations regarding known defects, and the scope of the  Warranty coverage in the Class Vehicles, BMW has profited through the sale and lease of  said vehicles.   86.  Additionally, as a direct and proximate result of Defendant’s failure to  disclose known defects and material misrepresentations regarding known defects in the Class  Vehicles, Plaintiff and Class Members have incurred substantial costs to repair the defects,  which requires the replacement of the defective parts with “updated” parts also sold by  Defendant.  As a result of having to purchase these “updated” parts to fix the Defect, plaintiff  and class members have conferred an unjust substantial benefit upon BMW.     87.  Moreover, as a direct and proximate result of defendant’s failure to disclose  known defects and material misrepresentations regarding known defects in the Class  Vehicles, BMW has profited to the extent that Plaintiffs and Class Members purchased and  leased Defendant’s vehicles, purchased certified parts directly from the Defendant to repair  the defects, and had to pay for repairs out of their own pocket that should have been covered  under warranty.     88.  BMW has therefore been unjustly enriched due to the known defects in the  Class Vehicles through the use of funds that earned interest or otherwise added to  Defendant’s profits when said money should have remained with Plaintiff and Class  Members.   89.  As a result of the Defendant’s unjust enrichment, Plaintiff and Class Members  have suffered damages.  91.  Plaintiff brings this cause of action against Defendant on behalf of himself and  on behalf of the members of the California Sub-Class.   92.  Defendant is a “person” as defined by California Civil Code § 1761(c).     93.  Plaintiff and Class Members are “consumers” within the meaning of  California Civil Code § 1761(d).     94.  By failing to disclose and concealing the defective nature of the Class  Vehicles and their convertible tops from Plaintiff and prospective Class Members, Defendant  violated California Civil Code § 1770(a), as they represented that their Class Vehicles and  their convertible tops had characteristics and benefits that they do not have, and represented  that their Class Vehicles and their convertible tops were of a particular standard, quality, or  grade when they were of another.  See Cal. Civ. Code §§ 1770(a)(5) & (7).   95.  Defendant’s unfair and deceptive acts or practices occurred repeatedly in  Defendant’s trade or business, were capable of deceiving a substantial portion of the  purchasing public, and imposed a serious safety risk on the public.     96.  Defendant knew that its Class Vehicles and their convertible tops suffered  from an inherent defect, were defectively designed or manufactured, would fail prematurely,  and were not suitable for their intended use.     97.  Defendant was under a duty to Plaintiff and the other Class Members to  disclose the defective nature of the Class Vehicles and their convertible tops and/or the  associated repair costs:   BREACH OF THE DUTY OF GOOD FAITH  AND FAIR DEALING  (On Behalf of the Nationwide Class or,   Alternatively, the California Sub-Class)   COMMON LAW FRAUD  (On Behalf of the Nationwide Class or,   Alternatively, the California Sub-Class)   UNJUST ENRICHMENT  (On Behalf of the Nationwide Class)   VIOLATION OF THE NJCFA  (On Behalf of the Nationwide Class)   Violation of California’s Consumer Legal Remedies Act,   California Civil Code section 1750 et seq.  (On Behalf of the California Sub-Class)  