Form Letter to "Opt Out" of the Nissan Class Action by Oct28

[TomT]

No, objectors are different than opt-outs.

Thank you, Mike. The following caught my attention. Anyone would want to hazard a guess if this figure refers to all opt-outs?

(A previous version of the story erroneously said there were 134 objectors. There were 13.)

 

[surfingslovak]

No objectors are different than opt-outs.

Oh, good! Is it premature to speculate that there might have been 134 opt-outs, which was then misquoted? Also, Nissan's response reveals some interesting additional information, even though some of the numbers and details have been blacked out.

 

[mwalsh]

I've tried to post my thoughts to that blog. I have a Reuters account, but what I just typed has not appeared yet. However, I don't remember if stuff needs to be moderated before they allow it through.

I also copied my own counsel on the blog post in an effort to get him more interested in the situation than he has been thus far. That said, if it turns out they still aren't interested in a case I might wish to pursue, they were at least willing to refer me to another firm who might.

 

[gbarry42]

I would think that one well-written, comprehensive brief, accompanied by a multitude of informal statements from various objectors, saying basically the same thing, would serve the cause well. Then again, maybe the legal system doesn't work by "votes".

 

[kolmstead]

Nissan would really stir things up if it revoked the enhanced battery warranty from those of us who opted-out of this pathetic class action! Especially since there is no reference to the lawsuit or settlement in the letter we got detailing our new warranty, and no such conditions stated in the communications we got from Andy and Jeff.

Promising folks something and then taking it away is the quickest way I know to make them angry and encourage them to sue.

-Karl

 

[mwalsh]

"Do you hear the people sing, singing the songs of angry men..."

 

[TomT]

And to make them do everything that they can to dissuade anyone from ever buying any Nissan product...

Nissan would really stir things up if it revoked the enhanced battery warranty from those of us who opted-out of this pathetic class action! Especially since there is no reference to the lawsuit or settlement in the letter we got detailing our new warranty, and no such conditions stated in the communications we got from Andy and Jeff.

Promising folks something and then taking it away is the quickest way I know to make them angry and encourage them to sue.

 

[jhm614]

Oh, and here is Nissan's response to the objection letter. It's worth noting that this thread has seen significant traffic from Sedgwick LLP, Nissan's counsel in this case.

http://blogs.reuters.com/alison-frankel/files/2013/11/nissanclassaction-responsetokozinski.pdf" onclick="window.open(this.href);return false;

Interesting... On page 9, looks like the current number of replacements were redacted before it was posted to PACER

 

[surfingslovak]

And to make them do everything that they can to dissuade anyone from ever buying any Nissan product...

I love the following quote from counsel's response to the Kozinski objection letter:

Perhaps if it had been less vocal in communicating with its customers about issues of common concern, no action would have been filed at all.

It's worth noting that the class action lawsuit was filed on September 24, 2012. Nine days after the Phoenix range test and long before we have seen any high-level representatives here on the forum.

 

[surfingslovak]

Oh, and here is Nissan's response to the objection letter. It's worth noting that this thread has seen significant traffic from Sedgwick LLP, Nissan's counsel in this case.

http://blogs.reuters.com/alison-frankel/files/2013/11/nissanclassaction-responsetokozinski.pdf" onclick="window.open(this.href);return false;

Interesting... On page 9, looks like the current number of replacements were redacted before it was posted to PACER

Yes, noticed that too. Apparently, there was a replacement in California. They didn't mention Texas, which was reported here on the forum, I believe.

 

[jhm614]

Yes, noticed that too. Apparently, there was a replacement in California. They didn't mention Texas, which was reported here on the forum, I believe.

One of the two Class representatives is a 4BL replaced under warranty in California. And, yes, there's been at least one Texas 4BL replacement

 

[Stoaty]

A poor response to the objection which does not get to the heart of the matter: the oft stated claim by Nissan employees that the "average" vehicle would retain 80% of capacity at 5 years and 70% at 10 years. We were assured over and over that Nissan had been working on Lithium ion batteries for over 15 years and they knew that their batteries would perform as stated. If my Leaf, driven extremely conservatively and never abused, never quick charged, kept at a low SOC (30-50%) for most of its life, never subjected to extremely high temperatures, and with only 22,600 miles in 29 months were to meet this standard, I would be very pleased. I don't see that happening based on the Battery Aging Model and my own observations of capacity loss... unless I lose only 4% more capacity over the next 2 years and 7 months. If Nissan had disclosed that for my climate I should expect a bit over 6 years use before I hit 70% loss I likely would have passed on the Leaf.

Nissan may convince the judge based on their legal arguments, but they will lose in the court of early adopters public opinion. I find it particularly galling that the Leaf is still being sold in many places with the breezy statement that the Leaf has a range of 100 miles. If that isn't essentially lying to your average customer, I don't know what else to call it.

 

[oakwcj]

Thank you, Mike. The following caught my attention. Anyone would want to hazard a guess if this figure refers to all opt-outs?

(A previous version of the story erroneously said there were 134 objectors. There were 13.)

Thirteen is the number of people who filed objections. I think there were at least three couples. The number has no relation to the number of people who opted out. That number remains unknown.

 

[JimSouCal]

There are several legal arguments to prevent Nissan from pulling any warranty from those who opted out. Not worried a bit.

And really, the "new" warranty isn't so great anyway as we've all figured out... On the other hand, while I I haven't experienced even a first bar loss, and like my car, it's the antics of Nissan (shutting down future remedies) and the Legal Clowns at Capstone is what is raising my ire and disdain.

Very glad some light is being shown on the matter.

 

[DaveEV]

A poor response to the objection which does not get to the heart of the matter: the oft stated claim by Nissan employees that the "average" vehicle would retain 80% of capacity at 5 years and 70% at 10 years. We were assured over and over that Nissan had been working on Lithium ion batteries for over 15 years and they knew that their batteries would perform as stated. If my Leaf, driven extremely conservatively and never abused, never quick charged, kept at a low SOC (30-50%) for most of its life, never subjected to extremely high temperatures, and with only 22,600 miles in 29 months were to meet this standard, I would be very pleased. I don't see that happening based on the Battery Aging Model and my own observations of capacity loss... unless I lose only 4% more capacity over the next 2 years and 7 months. If Nissan had disclosed that for my climate I should expect a bit over 6 years use before I hit 70% loss I likely would have passed on the Leaf.

Well said, Stoaty.

Some quotes from NNA's response to Mr. Kozinski which ruffled my feathers.

NNA’s website showed that NNA provided customers with a bounty of accurate information about their vehicles and what they could expect from their batteries.

BS: All NNA supplied us with was to expect 80% after 5 years and 70% at 8 years and that it may vary - but most would get to 10 years and still have 70-80% capacity remaining. NNA never told us how much to expect it to vary specifically, except that Dubai was too hot. Given than Phoenix is not as hot as Dubai, but was a launch market, what else are we supposed to assume other than Phoenix LEAFs would not vary significantly from their expectations and certainly not by a factor of 4! I supposed by providing no upper/lower bounds on what to expect, NNA can say with a straight face that the information provided is "accurate"!

Factors that will affect and may hasten the rate of capacity loss include, but are not limited to:
exposure to very high ambient temperatures for extended periods of time, driving habits, vehicle usage, and charging habits. (Quick Charging the vehicle more than once per day.)15

Here's what the owners manual says:
1. Avoid ambient temps over 120F for 24+ hours (really hard to do unless you are baking the car)
2. Let vehicle and battery cool down after use before charging (this is the most useless advice ever unless doing multiple QCs/day).
3. Park/store out of direct sunlight and away from heat sources. (really? Nissan doesn't even follow this at the dealer lot and while shade does grow on trees, it is completely unrealistic to expect people to park in the shade all the time)
4. Minimize use of QC (duh)
5. Avoid exceeding 70-80% SOC when using QC more than once/week (never mind that cars that never/rarely QC still experienced rapid capacity loss)
6. Allow battery to be below 80% before charging (ok)
7. Moderate driving (what is defined as moderate?)
8. Use of ECO mode (doesn't actually do anything for battery life except encourage one to accelerate more slowly)
9. Use long-life charge mode unless vehicle is going to be driven a long distance (ok, but there were statements made that said to ignore this advice, and 80% charging appears to have had a negligible effect on rate of capacity loss).

I will note that it takes conscious effort for one to follow 4 of these steps and that Nissan could have easily made two of them (ECO mode, 80% charging) the default.

That is why warranties have both time and mileage limitations. Why would an electric battery be different from an engine, brake rotors, a fuel hose or any other vehicle component?

I don't think that anyone (including Mr. Kozinski) expects anything different. Why are they raising strawmen?

Nevertheless, they have lost only one of twelve bars of capacity as reflected on the vehicle’s battery capacity gauge

Extremely misleading by neglecting to note that the first capacity bar means that their battery has lost between 15-20% of it's capacity.

An unsolicited email received on November 14, 2013 by counsel for NNA from class member David Silvan reflects this sentiment:
I purchased a 2011 Nissan LEAF over two years ago and have been very happy with it. I have driven over 47,000 miles in it, using it not only for commuting but also as a family vehicle. . . . Even with the 2.5 years of active use, I have yet to see a discernible drop in my battery capacity.

Anyone want to guess where Mr. Silvan lives? (hint - our most well known high mileage LEAF owner resides there). Never mind that I highly suspect with that many miles he is close to losing a bar despite living there. If he doesn't notice a loss of ~10-15% capacity I'm not sure what to say... We've seen others make the same claims before, but they typically reverse their position within another year.

Anyway, I am glad that Mr Kozinski is on this and hope that he is successful for all our sake.

 

[TonyWilliams]

... except that Dubai was too hot. Given than Phoenix is not as hot as Dubai, but was a launch market, what else are we supposed to assume other than Phoenix LEAFs would not vary significantly from their expectations and certainly not by a factor of 4!

........................Dubai............................................Phoenix........

May: avg high 100F avg low 76F......ave high: 95F, average low: 69F
Jun: avg high 103F avg low 81F....... ave high: 104F, average low: 78F
July: avg high 105F avg low 86F.......ave high: 106F, average low: 83F
Aug: avg high 106F avg low 86F......ave high: 104F, average low: 83F
Sept: avg high 102F avg low 81F.....ave high: 100F, average low: 77F

 

[mwalsh]

As reported in another thread: Story picked up in the American Bar Association Journal:

http://www.abajournal.com/news/article/nissan_leaf_owner_alex_kozinski_is_scathing/" onclick="window.open(this.href);return false;

Also some commentary on the issue with respect to potential conflicts of interest in National Review Online:

http://www.nationalreview.com/bench-memos/364504/judge-kozinskis-personal-objection-class-action-settlement-ed-whelan" onclick="window.open(this.href);return false;

 

[oakwcj]

Kozinski's objection is getting a lot of attention in the land of Google. A Public Citizen blog quotes from Kozinski's response to the motion for final approval of the settlement and indicates that the total number of objectors and opt-outs is 134. Since there were thirteen objections, we can infer that 121 people opted out.

http://pubcit.typepad.com/clpblog/2...nse-objection-to-class-action-settlement.html

 

[JimSouCal]

As reported in another thread: Story picked up in the American Bar Association Journal:

http://www.abajournal.com/news/article/nissan_leaf_owner_alex_kozinski_is_scathing/" onclick="window.open(this.href);return false;

Also some commentary on the issue with respect to potential conflicts of interest in National Review Online:

http://www.nationalreview.com/bench-memos/364504/judge-kozinskis-personal-objection-class-action-settlement-ed-whelan" onclick="window.open(this.href);return false;

Setting aside the pragmatics of the matter, I find observing the whole of the affair intellectually entertaining, including the online responses. As it much, much of the commentary seems to cling to tangential issues, as well as some of the relatedness of past class action outcomes... The activation energy of having a "colorful" judge is catalyzing the process. Meanwhile, I just wonder if the presiding judge has technical mechanical abstract thinking abilities to separate the wheat from the chaff and put down the sham of the settlement and see the self dealing for what it is...? We'll see... I am staying tuned...

 

[oakwcj]

As reported in another thread: Story picked up in the American Bar Association Journal:

http://www.abajournal.com/news/article/nissan_leaf_owner_alex_kozinski_is_scathing/" onclick="window.open(this.href);return false;

Also some commentary on the issue with respect to potential conflicts of interest in National Review Online:

http://www.nationalreview.com/bench-memos/364504/judge-kozinskis-personal-objection-class-action-settlement-ed-whelan" onclick="window.open(this.href);return false;

Setting aside the pragmatics of the matter, I find observing the whole of the affair intellectually entertaining, including the online responses. As it much, much of the commentary seems to cling to tangential issues, as well as some of the relatedness of past class action outcomes... The activation energy of having a "colorful" judge is catalyzing the process. Meanwhile, I just wonder if the presiding judge has technical mechanical abstract thinking abilities to separate the wheat from the chaff and put down the sham of the settlement and see the self dealing for what it is...? We'll see... I am staying tuned...

The wheat/chaff separation process is a fundamental part of being a judge. Once you've identified the wheat, you then have to apply the law to it, which leads to one of the ironies in Kozinski's objection. He's been part of the "conservative" judicial effort to make it harder and harder for class action cases to be certified and for attorneys to conduct meaningful discovery. What's left are cases like this one in which a corporate defendant uses a class action filing to insulate itself from further liability by buying off the named plaintiffs and their attorneys for a relative pittance. If the settlement is approved, there will remain only 121 LEAF owners who will still have the right to litigate battery-related claims in the future, even if some damning new evidence comes to light.

The first judge assigned to this case recused himself after Kozinski filed his objection, apparently because Kozinski had previously talked to him about his LEAF's battery issues. The new judge has been on the Federal bench for about seven months, although she was a Superior Court Judge in Los Angeles County for quite some time. She is definitely in a delicate position:

http://herculesandtheumpire.com/tag/ninth-circuit-chief-judge-alex-kozinski/