Arent Fox Attorney, Michael McMahan Was 'Shocked' Over BMW's Info Hiding

Arent Fox automotive attorney, Michael McMahan, who is representing a Firm client in suing BMW of North America, told a federal magistrate judge on Friday that he was in "utter shock" when he saw the $18 million settlement between the carmaker and the U.S. Securities and Exchange Commission that contained information he had been denied in discovery.

McMahan, who has coordinated the discovery efforts for car dealer Braman Motors in its suit over BMW's "punching" sales programs, took the stand in a Zoom hearing on a motion for sanctions before U.S. Magistrate Judge Alicia Otazo-Reyes to tell how a Sept. 24, 2020, cease-and-desist order by the SEC led him to realize that certain documents had been produced to federal investigators but not to his client.

McMahan said he ran word searches of the quotes from the documents that were included in the SEC order but could not match them with any documents that BMW had produced in discovery to Braman. Both cases involve the same "punching" program that Braman says pressured car dealers at the end of each month to designate certain vehicles as loaners in order to "punch up" BMW's retail sales figures.

"I just could not believe the number of documents directly relevant to exactly what we had asked for and we didn't get," McMahan said. "Had the SEC never published this order, we would've never gotten them."

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