Nissan to Mediate with Judge Opposed to LEAF Class Action Settlement

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Nissan appears to have agreed to mediate with the Class Member and 9th Circuit Judge who filed an opposition to the $38 million Nissan LEAF Class Action Lawsuit last November.

In July 2013, Nissan North America and lead plaintiffs Humberto Klee and David Wallak had agreed to settle the Nissan LEAF class action lawsuit that accused the car-maker of hiding a design defect in the LEAF’s battery system that causes the electric car to suffer “widespread, severe and premature loss of driving range, battery capacity and battery life,” among other allegations.

The class action settlement agreement included expansion of the warranty coverage for 2011-2012 model year LEAF cars to add battery capacity loss to its existing limited warranty for up to 60 months or 60,000 miles. The new warranty would have also required Nissan to repair the battery to at least 70 percent of its full capacity and if repair as not possible, Nissan had agreed to replace the defective LEAF battery with a new or remanufactured one. Class Members would have been automatically included in the Nissan LEAF battery settlement. About 18,588 people were to be covered by the class action settlement.

However, 9th Circuit Judge Alex Kosinski and his wife Marcy Tiffany of Tiffany Law Group PC filed an opposition to the Nissan LEAF settlement in November, arguing the plaintiffs “sat down to the negotiating table and cut a deal, without knowing a single thing about what cards their opponents held.” Judge Kosinski also alleged that Class Members had received nothing of value form the class action settlement and that “Plaintiff’s counsel had locked plaintiffs into a settlement that guaranteed counsel a $1.9 million fee.”

“At that point,” Judge Kosinski argued, “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.”

Several judges have recused themselves from the class action settlement proceedings to avoid questions of impartiality.

On Tuesday, U.S. District Judge A. Wallace Tashima ordered mediation between the opposing parties and Nissan. “On its face, however, the request appears to be problematic, Judge Tashima notes. “While the court is aware that the potential settlement of a class action … has been the subject of mediation, … it is unaware of any reported case sanctioning mediation of an objection to the fairness of a proposed settlement.”

Judge Tashima continues, “Because the validity of any objection turns on the strength of that objection to the fairness, reasonableness, and adequacy of the settlement, unless objectors are ready to concede that their objection lacks merit, dealing with it, even in mediation, necessarily requires an examination of the merits of the proposed settlement.” The judge determined that “it would seem futile to mediate an objection without the participation of Defendant in the mediation. The court, therefore, is reluctant to defer consideration of the pending motion for final approval of the settlement pending completion of a mediation limited to class counsel and Objectors.”

The plaintiffs are represented by Jordan L. Lurie, Andrew Sokolowski and Tarek Zohdy of the Initiative Legal Group, APC.

The Nissan LEAF Battery Defect Class Action Lawsuit Settlement is Humberto Daniel Klee, et al. v. Nissan North America Inc., et al., Case No. 12-cv-08238, in the U.S. District Court for the Central District of California, Western Division.