Judge Class Member Objects to Nissan LEAF Class Action Settlement

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Just when we thought the Nissan LEAF class action settlement had put to rest a class action lawsuit filed by LEAF owners against Nissan North America Inc., now comes a Class objector who’s threatening to derail the deal.

The class action lawsuit alleges that Nissan did not disclose that its electric-powered LEAF cars contain defective batteries that cause them to prematurely lose battery life and driving range. The class action settlement deal calls for Nissan to expand the warranty coverage for its 2011-2012 model year LEAF cars to cover battery capacity loss and repairs. The proposed settlement would set back the car-maker within the range of $38 to $200 million.

The objector to the proposed Nissan LEAF settlement are Class Members Alex Kozinski and his wife Marcy Tiffany. It so happens that Mr. Kozinski is also the Chief Judge of the 9th Circuit Court of Appeals.

An objection to a class action settlement is allowed prior to the final approval. It may lengthen the process of paying out the settlement but it may prove beneficial to the Class Members in the end if the objection calls for more benefits to be distributed to them.

Kozinski alleges in his opposition filed with the U.S. Central District of California, Western Division, under Hon. Beverly Reid O’Connell, that the Plaintiff’s counsel “sat down to the negotiating table and cut a deal, without knowing a single thing about what cards their opponents held.”

He also claims that the Plaintiff’s counsel have overlooked their basic responsibility to discover the facts, hinting that the counsel don’t even know anything about the battery, which is at the heart of the lawsuit. The objector also noted that the Plaintiff’s counsel did not hire an engineer or technical expert to help evaluate the information obtained from Nissan.

The most critical component of Konzinski’s objection is his statement about the counsel’s fee. “Plaintiff’s counsel had locked plaintiffs into a settlement that guaranteed counsel a $1.9 million fee. At that point, Plaintiff’s Counsel no longer had an incentive to look for evidence establishing liability; their incentive was to get the settlement finalized so they could cash in their bounty.”

Kozinski also downplayed the Plaintiff counsel’s claim that they have obtained a class action settlement worth $38 million and as much as $200 million. “It is obvious that the $200 million ‘estimate’ is worthless as it is based on the assumption that every single one of the 18,000+ Nissan LEAFs will have their battery replaced by a new battery,” Kozinski said.

“Plaintiff’s Counsel put forth minimal effort in preparing for negotiations and unsurprisingly walked away with a ‘deal’ that gives class members nothing of value,” he added.

Kozinski is requesting that the court ask the Settlement Administrator to place copies of all documents appearing on the the docket on the Nissan LEAF settlement website. He also wants the Class Members to be provided with an accurate statement as to why they will lose if they choose to opt out of the class action settlement, and is requesting that the court reopen the opt-out period and objection period so that other Class Members will have no less than 60 days to become aware of the alleged problems with the class action settlement. This way, they can come up with a fully informed decision about whether to opt out or object.

We will continue to monitor the Nissan LEAF class action settlement and will keep you updated here.

The case is Humberto Daniel Klee, et al. v. Nissan North America, Inc., et al., Case No. 12-cv-08238, U.S. District Court, Central District of California, Western Division. The Plaintiffs are represented by Jordan L. Lurie, Andrew Sokolowski and Tarek Zohdy of the Initiative Legal Group, APC.

UPDATE 1/2/14: The judge overseeing the Nissan LEAF battery class action settlement has recused herself from the case to avoid questions of impartiality due to the status of the objector.