It seems like a safety issue since you are basically sucking engine bay air right into the cabin. I put a little screw into mine to hold it in place until something is done to fix it.

I talked to BMW and they said said the same thing about the CPO warranty not covering it. However, if I wanted to push it I could always blame it on them since they took all that stuff off to do the service bulletin. Fact is, I don't really know if it was like that before.

I'm probably going to remove it and reinforce it with Alclad aluminum while I'm at work some night.