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

[essaunders]

there appears to be two options - state valid objections or exclude

There are only 7 elements of an exclusion letter, but 11 (xi) parts to an objection letter.

based on the letter templates in this thread, it appears we are discussing 'objections' - however, i haven't seen this discussion.

1. did I miss discussion about the two options?
2. shouldn't we change this thread title - 'Opt Out' seems to imply exclusion, not objection.
3. does anyone else think that anyone exludung themselves won't have the option to get a warrantee battery replacement (or at least put themselves at risk if Nissan wants to exercise their lawyers)?

53. Settlement Class Members may elect to exclude themselves from this Settlement Agreement, relinquishing their rights to benefits under this Settlement Agreement (SA).

edits to add:
I rescanned this thread.

There has been NO discussion about the difference between Exclusion and Objection.
The settlement agreement is very clear that there is a difference. If greater than 925 people exclude themselves (paragraph 55 of the SA) then nissan can get out of it. I read that to mean that don't have to offer the warrantee.

I'm not sure what happens if boatloads of people object to the fairness.

So, my current thoughts. If you want a battery warrantee, you can't exclude yourself, but you can object. If you want to stop the whole thing (and potentially take away the warrantee (Yes, I know Nissan has publicly announced etc) for everyone, you can exclude yourself. If you want to sue, you must exclude yourself.

but, I'm not a lawyer, so what do I know.

 

[Stoaty]

Opting out is very simple, no reason needs to be given. See relevant portion of Settlement Agreement attached.

 

[essaunders]

Opting out is very simple, no reason needs to be given. See relevant portion of Settlement Agreement attached.

correct. that is 'Exclusion'. You must give a reason to "object to the fairness"

the other big difference is to exclude yourself you send a letter to the Settlement administrator. To 'object' you send a letter to the lawyers.

 

[oakwcj]

I'm a retired attorney and judge. I litigated several federal class actions in employment discrimination cases many moons ago. The procedures are governed by Rule 23 of the Federal Rules of Civil Procedure. A lot of the confusion in this thread has been caused by some sloppy work by the plaintiffs' attorneys who drafted the order signed by Judge Pregerson. That's what happens when you cut-and-paste, but fail to proofread. The requirements for objection were copied into the paragraph dealing with exclusions. I don't think it's bad faith. It's just inexcusable sloppiness.

No one can be forced to be a class member. To "opt-out" or be "excluded" you do not need to give any reason. Only the seven items of information under "How can I exclude myself from the settlement?" are required. In fact, it would make no sense for a potential class member who wants to be excluded from the class to call witnesses or be represented at the settlement hearing. Contrary to some comments, the notice we received in the mail came from, and was approved by, the court. The court will often order the plaintiffs to mail out the notice, but the notice is from the court. The exclusion request goes to the settlement administrator, because it is a simple administrative act. Only an objection is sent to the court. The settlement administrator may well be confused if it receives exclusion requests giving reasons for the request. It is perfectly safe to rely upon the instructions in the notice.

The notice dances around the effect of being excluded from the class. The warranty enhancement letter we received from Nissan suggests that the warranty is being sweetened simply to achieve the noble goal of "customer satisfaction." It is not tied to the settlement in any way and appears to be unconditional. I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

 

[Vuman]

I'm a retired attorney and judge. I litigated several federal class actions in employment discrimination cases many moons ago. The procedures are governed by Rule 23 of the Federal Rules of Civil Procedure. A lot of the confusion in this thread has been caused by some sloppy work by the plaintiffs' attorneys who drafted the order signed by Judge Pregerson. That's what happens when you cut-and-paste, but fail to proofread. The requirements for objection were copied into the paragraph dealing with exclusions. I don't think it's bad faith. It's just inexcusable sloppiness.

No one can be forced to be a class member. To "opt-out" or be "excluded" you do not need to give any reason. Only the seven items of information under "How can I exclude myself from the settlement?" are required. In fact, it would make no sense for a potential class member who wants to be excluded from the class to call witnesses or be represented at the settlement hearing. Contrary to some comments, the notice we received in the mail came from, and was approved by, the court. The court will often order the plaintiffs to mail out the notice, but the notice is from the court. The exclusion request goes to the settlement administrator, because it is a simple administrative act. Only an objection is sent to the court. The settlement administrator may well be confused if it receives exclusion requests giving reasons for the request. It is perfectly safe to rely upon the instructions in the notice.

The notice dances around the effect of being excluded from the class. The warranty enhancement letter we received from Nissan suggests that the warranty is being sweetened simply to achieve the noble goal of "customer satisfaction." It is not tied to the settlement in any way and appears to be unconditional. I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

Thank you your Honor, this definitely clears things up quite a bit.

 

[uwskier20]

I'm a retired attorney and judge. I litigated several federal class actions in employment discrimination cases many moons ago. The procedures are governed by Rule 23 of the Federal Rules of Civil Procedure. A lot of the confusion in this thread has been caused by some sloppy work by the plaintiffs' attorneys who drafted the order signed by Judge Pregerson. That's what happens when you cut-and-paste, but fail to proofread. The requirements for objection were copied into the paragraph dealing with exclusions. I don't think it's bad faith. It's just inexcusable sloppiness.

No one can be forced to be a class member. To "opt-out" or be "excluded" you do not need to give any reason. Only the seven items of information under "How can I exclude myself from the settlement?" are required. In fact, it would make no sense for a potential class member who wants to be excluded from the class to call witnesses or be represented at the settlement hearing. Contrary to some comments, the notice we received in the mail came from, and was approved by, the court. The court will often order the plaintiffs to mail out the notice, but the notice is from the court. The exclusion request goes to the settlement administrator, because it is a simple administrative act. Only an objection is sent to the court. The settlement administrator may well be confused if it receives exclusion requests giving reasons for the request. It is perfectly safe to rely upon the instructions in the notice.

The notice dances around the effect of being excluded from the class. The warranty enhancement letter we received from Nissan suggests that the warranty is being sweetened simply to achieve the noble goal of "customer satisfaction." It is not tied to the settlement in any way and appears to be unconditional. I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

Thank you your Honor, this definitely clears things up quite a bit.

+1

Very much appreciate your expertise on this, and providing us some background on the mechanics of class actions. All my lawyer friends are prosecutors and lobbyists, so I knew they'd be useless. :twisted:

 

[TomT]

This makes my choice and procedure to opt out easy. Thank you.

The notice dances around the effect of being excluded from the class. The warranty enhancement letter we received from Nissan suggests that the warranty is being sweetened simply to achieve the noble goal of "customer satisfaction." It is not tied to the settlement in any way and appears to be unconditional. I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

 

[nosuchthing]

but extinguishes our right to sue Nissan in the future over battery range issues

Anyone REALLY up to suing Nissan? The only way to do it is in small claims court. Not kidding. This woman sued Honda couple years ago in small claims about mpg falsehood, and won. But that's not what the statement implies, I presume.

So, really? Retain the ability to sue Nissan? Because it you have money to spend on that kind of lawyers you're driving Tesla and won't look at no Leaf except over your shoulder.

 

[TomT]

Actually, she ultimately lost on appeal...

This woman sued Honda couple years ago in small claims about mpg falsehood, and won. But that's not what the statement implies, I presume.

 

[surfingslovak]

So, really? Retain the ability to sue Nissan? Because it you have money to spend on that kind of lawyers you're driving Tesla and won't look at no Leaf except over your shoulder.

I think you might be oversimplying it a bit. Your argument, as it appears, is that there is no point in retaining your rights, because you won't exercise them. Since we are firmly on hypothetical ground, let me ask you, how much did you pay for this class action? And who is to say that it was not a significant factor, and did not help compel Nissan to voluntarily extend a retroactive warranty? You seem to think that you won't benefit from this new capacity warranty. Can you be sure of that? This battery apparently already caught a number of people by surprise. What if it degraded faster than you thought, and in exchange for your patience you received a refurbished 10-bar pack in year five. Would you be OK with that outcome? And what if some other unknown factors or issues came to the fore next year, and there was another settlement. Would you want to partake in that? How about the new hot battery? Will the rental scheme be the only option to get it? What if you don't qualify for a free replacement under the warranty, yet your battery degraded much faster than anticipated. Again, I'm speculating here, obviously. I'm not advising or encouraging to sue, merely playing devil's advocate, and using these what-if scenarios as food for thought.

 

[TonyWilliams]

The notice dances around the effect of being excluded from the class. The warranty enhancement letter we received from Nissan suggests that the warranty is being sweetened simply to achieve the noble goal of "customer satisfaction." It is not tied to the settlement in any way and appears to be unconditional. I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

Thank you for the brief.

Tony

 

[Vuman]

I I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

Your Honor, I was wondering if I may ask a few questions:
1. If this Class Action Lawsuit is so harmful for the Class, why would Judge Pregerson allow this case to proceed?
2. How many Class members are needed for a new Class Action Lawsuit?
3. Would you be interested in being a Class Representative in a new Class Action?

4. I think most people in here would agree that the following are fair and reasonable goals of a new Class Action:
a. Nissan to agree to offer a battery purchasing option in addition to the rental plan.
b. An 8yr/100,000mi instead of 5/60,000 battery warranty which would cover many more drivers. (Reason I came up with 8yr/100k is because the battery is also covered under the 8yr/100k electrical system warranty for failure/defect.)
c. If battery falls under 9 bars in the given 8yr/100,000mile period, it should be replaced by the new "hot" battery if available and not just restored to 9 bars.
d. Owners to be given a certificate for the new "hot" battery if car needs the battery swap before it is available. (this was mentioned by Brian Brockman, the Nissan rep in this forum, but Nissan failed to do in this current Class Action)

Any other thoughts are welcomed.

 

[oakwcj]

I I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

Your Honor, I was wondering if I may ask a few questions:
1. If this Class Action Lawsuit is so harmful for the Class, why would Judge Pregerson allow this case to proceed?
2. How many Class members are needed for a new Class Action Lawsuit?
3. Would you be interested in being a Class Representative in a new Class Action?

4. I think most people in here would agree that the following are fair and reasonable goals of a new Class Action:
a. Nissan to agree to offer a battery purchasing option in addition to the rental plan.
b. An 8yr/100,000mi instead of 5/60,000 battery warranty which would cover many more drivers. (Reason I came up with 8yr/100k is because the battery is also covered under the 8yr/100k electrical system warranty for failure/defect.)
c. If battery falls under 9 bars in the given 8yr/100,000mile period, it should be replaced by the new "hot" battery if available and not just restored to 9 bars.
d. Owners to be given a certificate for the new "hot" battery if car needs the battery swap before it is available. (this was mentioned by Brian Brockman, the Nissan rep in this forum, but Nissan failed to do in this current Class Action)

Any other thoughts are welcomed.

I never said that I thought the suit was harmful. And I do think that retaining the option to sue Nissan is unlikely to be worth much. My point is that the settlement is worth absolutely nothing to anyone except Nissan, the plaintiffs' attorneys, and the two named plaintiffs. Why be bound by an agreement that offers zilch as consideration? The class certified by the court includes everyone who bought or leased a 2011 or 2012 Leaf. It has two named plaintiffs. You're automatically included in the class unless you opt out. I have no interest in suing Nissan. I live in the Bay Area and my battery is doing fine. Thanks to Stoaty and others we have a pretty good idea of what to expect in the next few years, but it's always possible that something new will emerge. That's the only reason to opt out. If you don't want to opt out, then don't. It almost surely will make no difference. I expect that very few people will actually opt out. I don't think that Nissan will agree to the additional relief that you are suggesting, because they've already negotiated a settlement that is likely to be approved. You can always object to the settlement and appear at the hearing, but that's not likely to do much good unless you are able to convince the court that the settlement is unfair and that you are willing and able to prove all of the underlying claims against Nissan.

 

[Vuman]

I I agree that the settlement gives us nothing that we don't already have, but extinguishes our right to sue Nissan in the future over battery range issues. So, I'll be "opting-out" of the settlement.

Your Honor, I was wondering if I may ask a few questions:
1. If this Class Action Lawsuit is so harmful for the Class, why would Judge Pregerson allow this case to proceed?
2. How many Class members are needed for a new Class Action Lawsuit?
3. Would you be interested in being a Class Representative in a new Class Action?

4. I think most people in here would agree that the following are fair and reasonable goals of a new Class Action:
a. Nissan to agree to offer a battery purchasing option in addition to the rental plan.
b. An 8yr/100,000mi instead of 5/60,000 battery warranty which would cover many more drivers. (Reason I came up with 8yr/100k is because the battery is also covered under the 8yr/100k electrical system warranty for failure/defect.)
c. If battery falls under 9 bars in the given 8yr/100,000mile period, it should be replaced by the new "hot" battery if available and not just restored to 9 bars.
d. Owners to be given a certificate for the new "hot" battery if car needs the battery swap before it is available. (this was mentioned by Brian Brockman, the Nissan rep in this forum, but Nissan failed to do in this current Class Action)

Any other thoughts are welcomed.

I never said that I thought the suit was harmful. And I do think that retaining the option to sue Nissan is unlikely to be worth much. My point is that the settlement is worth absolutely nothing to anyone except Nissan, the plaintiffs' attorneys, and the two named plaintiffs. Why be bound by an agreement that offers zilch as consideration? The class certified by the court includes everyone who bought or leased a 2011 or 2012 Leaf. It has two named plaintiffs. You're automatically included in the class unless you opt out. I have no interest in suing Nissan. I live in the Bay Area and my battery is doing fine. Thanks to Stoaty and others we have a pretty good idea of what to expect in the next few years, but it's always possible that something new will emerge. That's the only reason to opt out. If you don't want to opt out, then don't. It almost surely will make no difference. I expect that very few people will actually opt out. I don't think that Nissan will agree to the additional relief that you are suggesting, because they've already negotiated a settlement that is likely to be approved. You can always object to the settlement and appear at the hearing, but that's not likely to do much good unless you are able to convince the court that the settlement is unfair and that you are willing and able to prove all of the underlying claims against Nissan.

Well guys, that's real somber news. Looks like what I'm going to do is:
1. Send in my opt-out letter.
2. Hope that the two Class Representatives come to their senses, stop the settlement and renegotiate because even if 950 of us opt-out, its Nissan's option to withdraw from the Lawsuit (no way in hell they would walk from this sweet deal).
3. Wish I can show up in court that day to give those plaintiffs' attorneys an earful. Although it will fall on deaf ears considering it will be stuffed with 1.9 mil

 

[mwalsh]

Well, I guess the answer is to opt out; then ASK Nissan again to do the RIGHT thing with respect to the grievances we still have over the battery situation; and the retain counsel to sue over again if all else fails. And that appears to be exactly where I'm heading (though I didn't hear back from my class-action guy yesterday like I thought I would).

 

[uwskier20]

Well, I guess the answer is to opt out; then ASK Nissan again to do the RIGHT thing with respect to the grievances we still have over the battery situation; and the retain counsel to sue over again if all else fails. And that appears to be exactly where I'm heading (though I didn't hear back from my class-action guy yesterday like I thought I would).

If you think you will hear back, I think I might wait for that second opinion, although I am quite sure of oakwcj's evaluation. We have the luxury of time, still.

It seems like there is absolutely nothing to gain by staying in, only the loss of subsequent legal recourse. I am fairly sure that I won't benefit from the expanded coverage, as I am already approaching 43,000 miles and just on the verge of losing my first bar (55.96 Ahr; 85.30%, down from nearly 97% in April!). I could see falling below 70% at a time shortly after my eligibility lapses, and man, that would just stink.

 

[LTLFTcomposite]

I'm going to drop the letter in the mail tomorrow, advancing the expense of a postage stamp, envelope, and a sheet of printer paper, all of which combined likely has a value greater than any benefit I'll get by doing so, but at least it feels like I'm not just going along for the ride as a pawn for the benefit of others.

Getting back to the letter originally posted in this thread by Tony (from voltswagen) was it decided there is no need to give a reason? So the body can just be:

(7) I do not wish to be a Settlement Class Member and want to be excluded from the Klee & Wallak Settlement.

 

[Vuman]

I'm going to drop the letter in the mail tomorrow, advancing the expense of a postage stamp, envelope, and a sheet of printer paper, all of which combined likely has a value greater than any benefit I'll get by doing so, but at least it feels like I'm not just going along for the ride as a pawn for the benefit of others.

Getting back to the letter originally posted in this thread by Tony (from voltswagen) was it decided there is no need to give a reason? So the body can just be:

(7) I do not wish to be a Settlement Class Member and want to be excluded from the Klee & Wallak Settlement.

-You do not have to give a reason to opt-out.
-I don't think it will matter much to the Settlement Administrator, but this is the template to opt-out:

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
[today's date]

Nissan Leaf Settlement Administrator
P.O. Box 43191
Providence, RI 02940-3191


(1) Re: Humberto Daniel Klee and David Wallak, individually, and on behalf of a class of similarly situated individuals v. Nissan North America, Inc., Civil Action CV 12-08238.

(2) [your full name] [your current address] [phone number]

(3) [year] Nissan LEAF

(4) VIN: [VIN number], mileage: [odometer reading]

(5) Please exclude me from the Klee Settlement.

(6) I do not wish to be a Settlement Class Member and want to be excluded from the Settlement.

(7) [signed] [date]

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Letter must be recieved by the Administrator by Oct. 28, 2013

 

[mwalsh]

And don't forget to mail it Certified!

 

[Vuman]

And don't forget to mail it Certified!

It does not need to be certified. Just first-class per the notice.