Amended Settlement in Klee v. Nissan

[leafkabob]

Sorry for the length of this, but I wanted to get it all down at once, as much for myself as anyone else. All of the Court Docs can be found here: http://www.nissanleafsettlement.com/content.aspx?c=5619&sh=1

The Amended Class Action Complaint http://www.nissanleafsettlement.com...LD-COM Nissan Leaf - With EXH (Conformed).pdf, at paragraph 69, states that the "Nationwide Class" or "Class" is "all persons in the United States who purchased or leased any 2011 through 2012 Nissan Leaf Vehicle, excluding fleet and government purchasers or lessees."

To me, that means that the original class was intended to be anyone that bought a new or used 2011 or 2012 Leaf. I include used because David Wallak, one of the named plaintiffs in the case, purchased his leaf used, with 11of 12 capacity bars. Not sure if it is significant, but he did purchase from a dealer.

So after the Amended Complaint, the next relevant document is the Settlement Agreement (which by the way was negotiated before any formal Discovery was conducted).

The Settlement Agreement (http://www.nissanleafsettlement.com/Documents/NNK0001/NNK_Settlement_Agreement.pdf) has a section titled "Definitions." The definition of "Class Vehicles" is, "Class Vehicles means 2011-2102 model year Nissan Leaf vehicles sold or leased in the United States and its territories, including Puerto Rico."

To me, that agrees with the definition of class vehicles in the Amended Complaint.

But, the Settlement Agreement also includes a definition of Settlement Class: "Settlement Class means all former and current owners and lessees of a 2011-2012 model year Nissan Leaf vehicle in the United States and its territories, including Puerto Rico. The "Settlement Class" is defined in the same way as the proposed class in the Amended Class Action Complaint in the Lawsuit and includes the same members as those in the proposed class in that Complaint."

I still see no conflict in the intended population of the Class in these two documents.

The Settlement Agreement also includes a definition of Settlement Class Members: "Settlement Class Members means all persons who are members of the Settlement Class, except those who validly request exclusion from the Settlement Class as provided in the Notice." (The Notice was mailed out on June 7, 2013 to all Class Members.)

Still no conflict, although this definition clarifies that those who opt-out are not considered Settlement Class Members.

Then came the Amendment to Settlement Agreement (http://www.nissanleafsettlement.com... to Settlement Agreement - Fully Executed.pdf), which also has a "Definitions" section that includes this: "All terms used in this Amendment shall have the same defined meanings as set forth in paragraphs 1-26 of the Settlement Agreement unless modified below." (bolding is mine)

The definitions of Class, Settlement Class, or Settlement Class Members do not appear to be modified. The first definition of the section is "Amended Settlement" and the last one in the section is "Settlement Agreement." They were clearly listed in alphabetical order and Class, Settlement Class and Settlement Class Members are not found in this section.

The next section of the Amendment to Settlement Agreement is titled "Additional Relief to Settlement Class Members." It is in this section that the definition of Settlement Class Member is "revised to mean 'all persons who are members of the Settlement Class, except those who validly requested exclusion . . ." In other words, those who opted out are not Settlement Class Members.

In my non-lawyer opinion, all of the definitions up to this point are in agreement. If you purchased a 2011 or 2012 Nissan Leaf, and didn't opt-out (or if you did, but opted back in), then you are a member of the Settlement Class.

But then came the "Order Granting Final Approval of Class Action Settlement and Awarding Attorneys' Fees." http://www.nissanleafsettlement.com...Final Approval of Class Action Settlement.pdf
On the last page, it says:
"IT IS ORDERED: 1. The court hereby certifies, for settlement purposes only, the following class:
All former and current owners and lessees of a 2011-2012 model year Nissan Leaf vehicle, at the time the original notice was issued in 2013, in the United States and its territories, including Puerto Rico." (bolding is mine. )

So why did the Judge change the definition? Back on Page 6, there is a footnote that says "It was clarified at the hearing that the class includes only those current/former owners at the time the notice was issued in 2013." :shock:

I am surprised that verbal discussions at the hearing could "clarify" or modify all of the previous written definitions of the class. But I guess the Order took care of reducing those verbal clarifications to writing.

I am now even more disgusted with the Plaintiffs attorneys than I was before. They clearly just wanted to get their fees and didn't really care about the class members.

 

[Evoforce]

In response to two former posts:

Neither of my cars were opted out vehicles. I am not a class member because they narrowly defined the class to those 19,000ish that were mailed the packet in September 2013. I purchased my 2011 Leaf's after September 2013.

My theory about them more narrowly defining the class, was to limit the amout of free charge cards or checks, to only go to original owners/lessors. But... what they effectively did was inadvertently also remove us from battery replacement. That was a bad oversight because I believe it was an unintended consequence. The defense was not diligent enough. However, they were successful at raking in almost $2,000,000 for themselves. How do you feel about that?

The bottom line is that people like myself who bought their 2011-12 Leaf, after September 2013, are not class members and will not legally receive any benefit of this lawsuit.

We can only hope that Nissan will continue it's business practice of replacing all warranty packs for 2011-12 with lizard batteries or better...

 

[Evoforce]

As a note on this thread. As of today, Nissan replaced a battery on my 2011 Leaf in exception to my not being a owner when the packets were mailed to owners in 2013 but before (and for others) after the settlement was final. Even though technically they could have repaired it to a minimum of 9 bars, they still continue to replace depleted traction batteries packs with new replacement battery packs as a business practice. We hope this trend will continue.

I personally had my battery replaced as soon as it hit 8 bars instead of waiting closer to the 5 year mark (9/xx /16) because of my worry of them changing their practice. Also the vehicle barely making the distance was a motivator (40 miles under 45mph). There are going to be many that need replacements in the near and foreseeable future. So again, I hope they summarily replace all of them as they appear to be doing.

 

[matth]

So... Here is a summary. If you are a member of the class (one of the 19,000ish original owners/lessors of a 2011-2012 Nissan Leaf who were sent a packet in September 2013 and did not opt out) you will be entitled to a charge card or a $50 check...

Have any class members received the above? I believe the settlement has been final for some time, and I am a member of the class, but have seen nothing since the 2013 notice.

 

[DaveEV]

So... Here is a summary. If you are a member of the class (one of the 19,000ish original owners/lessors of a 2011-2012 Nissan Leaf who were sent a packet in September 2013 and did not opt out) you will be entitled to a charge card or a $50 check...

Have any class members received the above? I believe the settlement has been final for some time, and I am a member of the class, but have seen nothing since the 2013 notice.

I have not received a thing...

 

[JPWhite]

So... Here is a summary. If you are a member of the class (one of the 19,000ish original owners/lessors of a 2011-2012 Nissan Leaf who were sent a packet in September 2013 and did not opt out) you will be entitled to a charge card or a $50 check...

Have any class members received the above? I believe the settlement has been final for some time, and I am a member of the class, but have seen nothing since the 2013 notice.

I have not received a thing...

Not a dickie bird.

 

[TimLee]

^^^ Haven't received anything either.

I opted back in.
Nissan has removed the Opt Out in the maintenance system.
I had the service manager check.
But no Nissan correspondence since receiving Opt In package.

 

[Marktm]

Brand new to the forum;

Recently purchased a 2012 SL that was auctioned at the end of a lease period. A one owner vehicle near me in Texas. The title was issued 9/17/12. Mileage at 25,500. I took it to the local dealer and they did the "24 month" battery check for free - all passed with "5 stars".

The energy bars are down to 9. Can you synopsize what this class action could do for me? I don't know about the previous owner, so that's not an avenue for information. My guess (hope) is that late next summer or maybe even summer of 2017, the 9th bar will disappear?

The price was definitely right and the fit for me was good for a commuter type vehicle. I have been absolutely elated with the performance, quality of build, fun factor, and unbelievable number of features of this car - well beyond my expectations. The driving range is another story.

Anyone's suggestions/experience about the battery replacement to get the driving range back is certainly appreciated.

Mark

 

[91040]

Assuming this is the original traction battery:

You are covered by the Capacity Warranty unless the previous owner opted out of the Class Action (unlikely). The Service department can check that on their computer as well as if the battery has already been replaced.

Nissan will replace the traction battery if your drops to 8 capacity bars within 60k miles or 5 years.

There are multiple threads on this forum regarding driving more efficiently. Use the Google Search on the search page. In general, pressurize your tires to ~40 lbs. (assuming this is not beyond rated maximum); drive slow and steady; easy on the acceleration; anticipate when you need to slow down; slow first by coasting, then regen and lastly brakes.

Brand new to the forum;

Recently purchased a 2012 SL that was auctioned at the end of a lease period. A one owner vehicle near me in Texas. The title was issued 9/17/12. Mileage at 25,500. I took it to the local dealer and they did the "24 month" battery check for free - all passed with "5 stars".

The energy bars are down to 9. Can you synopsize what this class action could do for me? I don't know about the previous owner, so that's not an avenue for information. My guess (hope) is that late next summer or maybe even summer of 2017, the 9th bar will disappear?

The price was definitely right and the fit for me was good for a commuter type vehicle. I have been absolutely elated with the performance, quality of build, fun factor, and unbelievable number of features of this car - well beyond my expectations. The driving range is another story.

Anyone's suggestions/experience about the battery replacement to get the driving range back is certainly appreciated.

Mark

 

[vrwl]

Brand new to the forum;

Recently purchased a 2012 SL that was auctioned at the end of a lease period. A one owner vehicle near me in Texas. The title was issued 9/17/12. Mileage at 25,500. I took it to the local dealer and they did the "24 month" battery check for free - all passed with "5 stars".

The energy bars are down to 9. Can you synopsize what this class action could do for me? I don't know about the previous owner, so that's not an avenue for information. My guess (hope) is that late next summer or maybe even summer of 2017, the 9th bar will disappear?

The price was definitely right and the fit for me was good for a commuter type vehicle. I have been absolutely elated with the performance, quality of build, fun factor, and unbelievable number of features of this car - well beyond my expectations. The driving range is another story.

Anyone's suggestions/experience about the battery replacement to get the driving range back is certainly appreciated.

Mark

As a newbie to the forum, you may find the Nissan LEAF Wiki to be very helpful. It was created through the dedicated efforts of many of the original LEAF owners, many of whom you'll encounter while you read posts here in the forum. Here's the link to the Wiki: http://www.electricvehiclewiki.com/Nissan_Leaf

 

[mbutter]

Any recommendations on a good attorney with applicable experience in Austin or Central Texas willing to sue Nissan (and work for contingency fee)?

I opted out of original settlement and did not opt in after revised settlement. I dropped to 8 bars in late fall. Called Nissan Customer Relations in November, and after initially stating the battery had NO warranty, they agreed to replace battery after I questioned about the warrant I received before class action became known. Said they were only obligated to bring back to 9 bars, but they would replace with new battery. Got case number and agent name, and call details.

I took car to Town North Nissan in December, they verified battery was 8 bars, but when service called Nissan Corp, they refused to provide ANY coverage. I made sure to get that in writing.

I am very disappointed in usability and range of car, and loss of fair market value. I am extremely embarrassed that I was a strong supporter of the Nissan leaf before learning about the battery problems, and inconsistent braking behavior of the car.

I am still below 50k miles, and hit 60 months in early May.

(Edit: fixed typo)

 

[Valdemar]

^^^ Wonderful, now we also have people on the other side of 60,000 miles that were also screwed by NIssan. I have to admit I'm a bit surprised you didn't opt back in being in Texas. Unless your goal is something else than just getting a new battery you can save yourself some $$$ and start a case with BBB Auto Line. The main argument Nissan uses against BBB claimants is the class-action lawsuit, but since you opted out they can't use it against you. Insist that the battery shouldn't have lost so much capacity, but it did so it must be because of a manufacturing defect and it should be covered under the original 100k mile/96 months warranty.

 

[mbutter]

^^^ Wonderful, now we also have people on the other side of 60,000 miles that were also screwed by NIssan. I have to admit I'm a bit surprised you didn't opt back in being in Texas. Unless your goal is something else than just getting a new battery you can save yourself some $$$ and start a case with BBB Auto Line. The main argument Nissan uses against BBB claimants is the class-action lawsuit, but since you opted out they can't use it against you. Insist that the battery shouldn't have lost so much capacity, but it did so it must be because of a manufacturing defect and it should be covered under the original 100k mile/96 months warranty.

I did not opt back in as I did not expect to hit 8 bar and expected all would get is a modest charge card I would never use (I charge at home 99% of time). Class action lawyers and Nissan wins, I get a card to use as an ice scraper.

I was going to be satisfied with*just* the new battery as promised in November by Nissan, but after refusal by dealer (via Nissan), I am no longer content to settle for a new battery, they are wasting my time. I have a very short range car with significantly reduced resale value. It's hard to ignore the personal humiliation after bragging about my 'really cool' car to friends in the early days, only to have to eat those words recently. Nissan is not even honoring the 'pre-class-action' warranty to restore at least 9 bars. I made sure that sevice paperwork noted the lack of warranty coverage.

At least I retained my right to sue (if that even means anything)

I am still bullish on electric cars in general, and share my thoughts and experiences whenever someone asks about my Leaf. I expect to own another electric in the future.

 

[JPWhite]

Is there anyone who opted out that has done better than being part of the class action?

 

[sub3marathonman]

I opted out of original settlement and did not opt in after revised settlement. I dropped to 8 bars in late fall. Called Nissan Customer Relations in November, and after initially stating the battery had NO warranty, they agreed to replace battery after I questioned about the warrant I received before class action became known. Said they were only obligated to bring back to 9 bars, but they would replace with new battery. Got case number and agent name, and call details.

I took car to Town North Nissan in December, they verified battery was 8 bars, but when service called Nissan Corp, they refused to provide ANY coverage. I made sure to get that in writing.

Once again, I'm not an attorney and this isn't legal advice, but if Nissan PROMISED you in November, in my opinion that would take precedence over any other argument or claim. But, I'll bet they didn't put it in writing???

If you are opted out of the settlement though, you may be in an excellent position to prove suspicions about the method of warranty claims, strictly losing the 9th capacity bar, as I believe that Nissan altered the code with the warranty required update P3227. I believe, through discovery, that Nissan could be required to show how the $6K ninth bar was calculated, and how P3227 changed that. And if that was the reason you opted out of the settlement, because there was no independently verifiable method used to determine remaining battery capacity for the warranty, your claim should be valid.

I would think that with a bit of research you might be able to do this yourself. I know a guy, yes really smart but still not a lawyer, who argued a case with all appeals up to the Florida Supreme Court. He lost, but it was a 4-3 decision, the 4 had some pretty convoluted findings of reason, and I think if he'd been a lawyer at least one would have switched and he would have won. As it is, people are discouraged from acting as their own attorneys, thus benefiting the group.

 

[DaveinOlyWA]

Any recommendations on a good attorney with applicable experience in Austin or Central Texas willing to sue Nissan (and work for contingency fee)?

I opted out of original settlement and did not opt in after revised settlement. I dropped to 8 bars in late fall. Called Nissan Customer Relations in November, and after initially stating the battery had NO warranty, they agreed to replace battery after I questioned about the warrant I received before class action became known. Said they were only obligated to bring back to 9 bars, but they would replace with new battery. Got case number and agent name, and call details.

I took car to Town North Nissan in December, they verified battery was 8 bars, but when service called Nissan Corp, they refused to provide ANY coverage. I made sure to get that in writing.

I am very disappointed in usability and range of car, and loss of fair market value. I am extremely embarrassed that I was a strong supporter of the Nissan leaf before learning about the battery problems, and inconsistent braking behavior of the car.

I am still below 50k miles, and hit 60 months in early May.

(Edit: fixed typo)

well, you opted out for a reason I am guessing so looks like its time to put that reason to work. I would put add in paper or craig's list. I know someone in a work related matter who got a lawyer by advertising in Craig's list and did very well with that

 

[palmermd]

Is there anyone who opted out that has done better than being part of the class action?

Better than what? I did not opt out, so did not opt back in. So no card for me opting back in. My car is right on schedule to lose the fourth bar at 65 months and 65,000 miles, in other words, just after the warranty period ends. It is amazing how there was not any warranty, and then after some real world data comes in they figure out a warranty period that will keep them from replacing most of the bad packs. So it looks like it get nothing but a car that now barely goes 50 miles on a charge and no warranty in a little over a month. I was a big supporter of Nissan bringing out this car, but they have managed to squash all the excitement. I was recommending Leaf highly the first year or so of ownership, but now I don't at all because of all the battery issues.

 

[Valdemar]

It is amazing how there was not any warranty, and then after some real world data comes in they figure out a warranty period that will keep them from replacing most of the bad packs.

So far it feels there are more people here who actually got their packs replaced under warranty than those who do not/will not qualify. But it could be just a distorted perception as I'm biased being on the wrong side of 60k miles.

 

[JPWhite]

Is there anyone who opted out that has done better than being part of the class action?

Better than what?

Better than a free battery within the 5/60,000 capacity warranty period, or better than nothing outside of the 5/60,000 capacity warranty period.

People like mbutter opted out in the belief that it was in their best interests to do so. I'm interested if anyone who opted out has been able to get a better deal than simply accepting the class action.

 

[Reddy]

....I did not opt back in as I did not expect to hit 8 bar and expected all would get is a modest charge card I would never use (I charge at home 99% of time)....

Sorry for your current plight. I also opted out, but did some estimates and came up with predicting a 3rd bar being lost right around my 5 yr anniversary. I wanted to retain the ability to sue in the future if the battery had other problems. However, if I had been anywhere warmer (e.g., Texas, AZ, CA), I would have taken their deal right away and driven my little LEAF to the nearest DCQC. It sounds like suing is your only recourse. Good luck. If I was doing it, I might file every motion possible to get every internal documents relating to battery testing, design, heat-resistance, etc. Once Nissan saw all of the requests, and the potential for public release, they might back off and settle out of court. Just a thought.