High Profile Objection To Settlement On LEAF Battery Case – “Class Members Are Getting Absolutely Nothing Of Value”

NOV 24 2013 BY JAY COLE 35

Class Action Settlement On 2011 and 2012 Nissan LEAF Battery Performance Hits A Snag

Class Action Settlement On 2011 and 2012 Nissan LEAF Battery Performance Hits A Snag

A little over a year ago (September 2012) a class action was started based on unexpected battery deterioration loss on 2011 and 2012 model year Nissan LEAFs.   More specifically, it claimed Nissan did not make customer’s fully aware of what could happen to the car’s range if too many miles were driven, or if the battery was charged too frequently to 100%.

Tony William's "Range Test" First Released In September of 2012

Tony William’s “Range Test” First Released Via InsideEVs In September 2012 Helped Raise Awareness Of Potential Battery Issues

In December, there was an agreement to settlement terms that required Nissan to repair or replace batteries that could not hold a set amount of charge.

By July, class counsel (Capstone) moved for preliminary approval of the settlement.   At the time Capstone’s “valuation expert” said the new warranty was worth from $38 to $200 million to the 18,500+ members of the action.  However (much to LEAF owner’s delight), Nissan had already decided to expand their warranty to cover battery loss for all LEAF owners.

This week the settlement approval hearing was held, and only one objection to the settlement was represented…but it was a very BIG objection, as it came from a very big name – Alex Kozinski, the Chief Judge of the Ninth Circuit Court of Appeals, and 2011 Nissan LEAF owner.

“The proposed settlement is a sham, benefiting only class counsel, named plaintiffs and Nissan. Class members are getting absolutely nothing of value, while having their rights abrogated.  The class lawyers will benefit to the tune of $1.9 million; the named Plaintiffs will get $5,000 each (note to InsideEVs readers – there is two of them); and Nissan will reap waivers from 18,000+ class members whose product-defect and related claims will be barred by the proposed settlement.” – said Kozinski in his objection

Battery Capacity Loss Became A Big Issue During An Historically Hot Summer In Arizona In 2011 (picture via MyNissanLeaf)

Battery Capacity Loss Became A Big Issue During An Historically Hot Summer In Arizona (picture via MyNissanLeaf)

The heart of his objection is that Mr. Kozinski feels that Nissan has essentially offered nothing to those in the class action that everyone else has already received as part of Nissan’s expanded warranty program that covers 9 (of 12) bars of battery capacity; while insuring that those 2011-2012 owners in the class action no longer have future recourse against the company.

“This is doubtless a great deal for Nissan, which manages to buy itself peace, just as certain of the defects with the Nissan LEAF battery are becoming apparent to consumers.  And it’s easy money for the Plaintiff’s Counsel, who have clearly placed their interests above those of the class to whom they owe fiduciary duties.  With respect this court should not allow it.”

Basically, Mr. Kozinski has taken both Nissan and the Plaintiff’s Counsel to task, insinuating that there was no chance for a fair process and determination to be sussed out.

He further argues that the settlement is worthless, and that there is no doubt to him that Nissan would still honor the current warranty that is in place for all new LEAF buyers today, regardless of purchase date and therefore the settlement has no value and that those who have not opted out of the class action actually have lost their rights in the deal.

“What then is the class getting then in result of the settlement?  What are the benefits that class members would lose if they opt out?  The answer, of course, is nothing.  The only thing that will happen to class members if the settlement is approved is that they will lose rights — the rights they have to sue Nissan under the various theories outlined in the complaint.  And of course, class counsel will receive their fat fees for provided zero benefit to the class.”

Mr. Kozinski sums up what relief his objection is looking for on the 3rd page of the court documents filed October 15th:

“As more fully detailed below, we urge the court to reject this bogus “settlement;” reject Capstone as class counsel and commence a process for selecting new class counsel; and appoint a Special Master to determine whether counsel should be sanctioned for their lack of candor to the court and betrayal of the class.”

Basically, the Chief Judge is really not at all pleased with the class action results; and as a noted figure, a person of means who knows his way around the system, is a real threat to the approval of the settlement.

Persons interested can check out the colorful, 58 page “Objection to the Class Settlement” here.  Nissan’s response to the objection (filed November 13th) can be found here (Reuters via MyNissanLeaf) – but it isn’t nearly as entertaining.  (Hat tip to David R)

Categories: Battery Tech, Nissan


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35 Comments on "High Profile Objection To Settlement On LEAF Battery Case – “Class Members Are Getting Absolutely Nothing Of Value”"

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I don’t get it.
The batteries are covered by Nissan now.
So what’s the beaf.

The beefs: That the lawyers are getting 2 million bucks for a worthless settlement… And that this worthless settlement absolves Nissan of any responsibility or liability in the future.

Another stab at the beef:

Many people who bought a 2011-2012 Leaf and lives in the “heat zone” e.g. Phoenix area, have suffered as a result of unexpected battery degradation. Some of them are part of the lawsuit – they will get $5k from Nissan now.

*Everyone* else who has a 2011-2013 Nissan, is now entitled to 9 bars up to 60k miles or 5 years, and free replacement if not. Because Nissan has changed the policy, mostly to stem the tide of bad PR from those “Wilting Leafs”.

But that doesn’t compensate for whatever they might have suffered. So the “class” doesn’t really exist. Only the people directly on the lawsuit.

At the very least, the settlement should compensate the 2011-2012 owners who have had unexpected climate-caused degradation, and who are *not* named in the lawsuit, with the same $5k that the named plaintiffs get.

So would this not be an issue if the capacity warranty only covered those who didn’t opt out of the class-action suit? And if so, is that what we really want?

How is it a worthless settlement? They are getting an improved warranty on their Leaf battery packs. Just because the rest of the Leaf owners benefit as well doesn’t make it worthless.

In regards to the lawyers getting 2 million bucks, they are suckers for signing up to a class action lawsuit expecting something different.

I think the beef is over why only two people are getting payment and none of the rest of the “class” is getting any payment. Therefore it should not qualify as a “class action” and it certainly should not be a signing away of rights to further action.

Also the expanded warranty, from the original article, appears to be a marketing promise and makes no mention of a settlement to the lawsuit.

The short version:

1. Nissan offered the capacity warranty before the result of the class action settlement became known. Thus, all cars are covered regardless.
2. By remaining in the class action settlement, you give up your rights to sue Nissan later for any battery related defects.
3. The lawyers and two class reps get paid, while having done very little. The rest of the class gets nothing.

I dont know why anyone thinks its ok to charge any battery at 480. Or even 240 regularly. This is going to be a problem for Tesla soon too. Lots of Californians are charging at superchargers every couple of days. This is going to cause the EV movement more problems over the next few years. Charge with 110 as much as possible!

Charge with 110???
Have you gone thru the numbres?
6.6 kw charger=.27C
3.3 kw charger=.13 C
1.6 kw= .1 C

Anything below 1C is no problem. So your not saving your battery by charging on 110V.

It will be interesting to see how it plays out long term when comparing L1 to high kW L2s. I’d say the split difference also depends more so on the environment you are doing the charging in. I’d be willing to bet trickle recharging (L1) initiated over the summer when it is 100F+ at home, or in a work/public parking lot is better than a 6.6 kW L2.

WTH??? Voltage (110V, 240V, 480V) at the plug doesn’t make any difference to voltage each cell in a pack receives (~3V-4V depending on chemistry use by manufacturer). The charger and battery management system adjust cell voltage keep them within operational specs.

While voltage is not a concern, there may be EV concerns depending on battery design. Extreme levels of SoC (State of Charge), below 10%, or above 90% for long periods (months) could result in reducing storage capacity over time. Extreme temperatures that bake (chemically change), or freeze the electrolyte will effect long-term battery health. A vehicle with an active battery management system (including thermo control) will maintain cells in ideal state for long life in most any habitual environment; unless the EV is abused well beyond the battery packs’ design limits.

Dr. Kenneth Noisewater

Tesla warrants its batteries to be SuperCharged at all times. That is, if you can do so, and you charge Teslas _only_ with SuperChargers, your battery is still protected under warranty.

While your battery is protected under warranty from failure, that warranty does not cover capacity loss.

Except of course it’s got nothing to do with charging, 2kw is definitely no problem. I don’t know where some people get their ideas.

What does it have to with then?

Average long term pack temperature mainly driven by ambient outdoor temperature. Maybe some of the people with big problems were keeping their car in non air conditioned garages during the day too, which wouldn’t have helped. I do think the Leaf pack should have been more robust though.

I think both sides have a point. Even 12 kW is a relatively low speed for the LEAF, and should not result in any incremental degradation. In fact, laboratory studies have shown that 0.5 C rate could ideal. Better than any other (slower or faster) charge rate. That said, the problem with the LEAF could be heat development, and not necessarily the charge rate itself. Owners who parked their vehicle outside, and trickle charged it on level 1, reportedly observed modestly slower battery capacity loss.

So, as a 2011 Leaf owner in Texas… I get what? If I understand it, basically nothing. However, I’m not complaining as my battery has held up just fine. I’m at 3 years and have lost just one bar. But it is irritating to think that lawyers are making millions of dollars from Nissan.

My 2011 LEAF down here in Houston has taken a bigger beating. I am down 4 capacity bars after 2 1/2 years and 37k miles, so technically I can have Nissan refurb the pack. However, my lease is up in 6 months so I would rather not deal with the hassle not having the vehicle for weeks while they fix it. They can take care of it when I turn it back into them.

As for the class action suit, I never responded too it. I trust Nissan more than the lawyers.

Read you lease agreement very closely. Things like tires can be charged back if they are not in serviceable condition. If your battery is below spec and you did nothing to remedy, you may take a hit for that as well.

If not fixing your battery pack resulted in further pack damage, or other sub-system damage, it could go sideways. This could be read as not performing required maintenance.

Thanks for pointing this out.

I notified Nissan about the issue over the phone and at my local dealer. They took no more steps in addressing the issue. I have brought it in at every service interval, so I expect that Nissan should be aware and handling it.

“As for the class action suit, I never responded too it. I trust Nissan more than the lawyers.”

By not responding, you are included in the class action suit by default.

Indeed. By not taking any action, you followed the path plaintiff’s counsel has outlined for you. One could argue that by opting out, you would indicate that you don’t want to be part of this litigation, for whatever reason. What Judge Kozinski has done was write an objection letter, which is something else entirely.

Good to know. I hope the objection letter sticks in that case.


All of this because Nissan went the cheap route and did not want to pay the cost of engineering thermal protection for the battery, like Tesla, GM, Mercedes Benz and Ford have. And the new ‘warranty’ covers the battery up to only 60k miles, so after that if the bars go below 9, you are on your own if you actually bought a Leaf. You can’t even trade it in, because Nissan won’t accept and can’t resell it as a ‘certified’ pre-owned Leaf. Nobody with half a brain will be willing to buy it from you with the known battery issue. Even the battery lease plan only guarantees the $100/mo battery has just 9 bars……right at the edge where the owner started who now need to have their battery replaced. Best option is to only Lease and just recycle ever 3 years with a new lease if you want a Leaf. And if you have to buy, get rid of it before 60k miles or before any battery capacity loss is visible. So yeah, the ‘settlement’ is worthless. The problem is only brewing for current owners, and will quickly become obvious for anyone who buys a ‘certified’ pre-owned Leaf from… Read more »

@Bloggin, liquid cooling (as the manufacturers you mentioned implemented, but not others, like Mitsubishi and possibly Renault) actually offers only limited benefit compared to low-impedance cells like the Leaf’s.


The reason some/many of the 2011/2012 batteries in hot climates degraded faster than expected may very well be a shortcoming in chemistry design or manufacturing.
Also, unlike any other plug-in, the Leaf displays capacity prominently on the dash, making this much visible than on other vehicles (good luck figuring out how much your Tesla or Focus have left).
As was noted elsewhere on this thread, while all manufacturers (including Nissan) warrant against battery failure for 100k/8years or more, Nissan is the ONLY one to also guarantee capacity for purchased (not rented) packs. Yes, after 60kmiles you’re on your own, but isn’t this better than everyone else’s 0 mile?
Last, the reason Renault turned to LG for batteries was because Nissan’s supplier, AESC didn’t have the production capacity to accommodate both.

“Also, unlike any other plug-in, the Leaf displays capacity prominently on the dash, making this much visible than on other vehicles”

Actually my two Volt Plug-In’s do display similar bars, but it is more of an estimated range than pure capacity display.

To date there are no reports of any Volt’s losing any capacity.

Even when the battery does degrade (they all will eventually), the Volt will just keep motoring on with its generator for years to come.

I live near Phoenix and am so glad that I did not buy a Leaf as it would have barely covered my commute when the capacity was 100%.

I cannot imagine how awful it must be for those folks that can no longer use their leafs’ to make their commute (how many payments remaining???). Then throw in the fact that the Nissan dealers won’t even take them on a trade (their own car!), then this tells me all I ever need to know about Nissan. They will NEVER see me or mine in their store.

If you think your batteries haven’t lost any capacity yet, you’re just fooling yourself. Of course they have, all Li-ion start degrading the minute after they are manufactured, and there is nothing you or anyone else can do to stop this.
Only thing is, your car doesn’t give you a way to assess this with any degree of precision; “miles remaining” indications heavily depend on past driving, which obviously varies.

Keeping batteries cool only slows down aging, and not even that much. See the presentation I linked above, page 25: http://www.nrel.gov/vehiclesandfuels/pdfs/48933.pdf

I applaud Nissan for adding the the capacity warranty after the fact but it simply does not go far enough for me. I will not come close to any replacement option due to time and mileage so I would be out. I leased so I am not worried about it and also the main reason why I opted to not opt out of the class. Essentially my LEAF performed just as Nissan said it would. I rolled 43,701 miles last night and still have 12 bars. My lease ends Jan 18, and I expect to still have them.

So the Judge’s statement that the lawsuit only benefits the lawyers is correct because ALL lawsuits do. I have never seen a judgement where the lawyers were paid way more than they were worth IMHO but then again, this is something I do not investigate or care to.

What would have been a truly effective warranty would be 60,000 miles and 20% degradation for the first pack exchange. This is still less than Nissan had predicted and in my situation, I would expect to get near that level

Good comment, It’s worth adding that you were near Seattle. Battery capacity loss appears to be following the average temperature at the place of residence. LEAF owners in Canada, Norway or even Seattle have done reasonably or even surprisingly well. Others in warmer climates, such as Texas or Florida, have experienced more range and capacity loss.

It almost sounds like the Leaf owners in the class action are worse off….


That’s exactly what it is. It’s not just a sound.

Yeah, that is the way most class actions settle. The attorneys get millions, the named plaintiffs get a little bit, and the class gets a coupon for 20% on the third Tuesday of the month.

What if a daily commute is right at 80 miles a day and every night the battery is regarded to 100 percent. Is that a serious problem for batteries? A short term lease would seem the better choice 2-3 year max.