Class Action Lawsuit Status and Legal Commentary
05-14-2005, 06:44 AM
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Class Action Lawsuit Status and Legal Commentary
Allright guys, here is the deal:
I offered to do a little commentary/status thread on the Classs Action Lawsuit involving the 03 and 04 350z concerning irregular and premature tireware.
As for me, Im a civil litigator out of Florida, and am admitted to practise in the Federal Courts as well. I've had experience with Class action lawsuits in the past and am pretty familiar with them. Concerning civil procedure, I'm somewhat of an expert.
I know I'm not the only attorney on the boards, and I invite the others to chime in, or provide any light on the topic that may be appropriate.
OK, lets get to it.
So far, the law firm of Friedemann, O'Brien, Goldberg and Zarian, LLP., filed a compaint in the Superior Court of California as of October 1, 2004. It is a 3 count complaint and can be viewed here: http://www.sheller.com/Library/NissanDoty%20Compl.pdf
Now, with a Class action lawsuit, before Nissan has to reply to the Complaint (be it with an answer or some type of motion to dismiss), the Plaintiffs (us) have to Certify the class. That is, they have to show that this proposed class of plaintiffs (owners of the 2003-04 Z), are similarly situated so as to properly be a Class, for a Class Action Lawsuit.
To certify a class you have to basically show:
• numerosity - the plainitiffs are numerous
• commonality - the plaintiffs claim arrises from common facts
• predominance - the common facts must predominate over individual plaintiffs facts
• typicality - the claims or defenses of the named plaintiff are typical thruought the class
• superiority - the class action is a superior method then individual's pursuing their own lawsuit
• adequacy - the representation thruought the class will be fair and adequate.
Numerosity and commonality concern the entire class, while typicality and adequacy concern the nexus of the named class representatives with the class itself. Superiority and adequacy concern the selected forum.
COMMENTARY
We should have no problem certifiying a class. This is classic class action material.
More later.
~AJ.
I offered to do a little commentary/status thread on the Classs Action Lawsuit involving the 03 and 04 350z concerning irregular and premature tireware.
As for me, Im a civil litigator out of Florida, and am admitted to practise in the Federal Courts as well. I've had experience with Class action lawsuits in the past and am pretty familiar with them. Concerning civil procedure, I'm somewhat of an expert.
I know I'm not the only attorney on the boards, and I invite the others to chime in, or provide any light on the topic that may be appropriate.
OK, lets get to it.
So far, the law firm of Friedemann, O'Brien, Goldberg and Zarian, LLP., filed a compaint in the Superior Court of California as of October 1, 2004. It is a 3 count complaint and can be viewed here: http://www.sheller.com/Library/NissanDoty%20Compl.pdf
Now, with a Class action lawsuit, before Nissan has to reply to the Complaint (be it with an answer or some type of motion to dismiss), the Plaintiffs (us) have to Certify the class. That is, they have to show that this proposed class of plaintiffs (owners of the 2003-04 Z), are similarly situated so as to properly be a Class, for a Class Action Lawsuit.
To certify a class you have to basically show:
• numerosity - the plainitiffs are numerous
• commonality - the plaintiffs claim arrises from common facts
• predominance - the common facts must predominate over individual plaintiffs facts
• typicality - the claims or defenses of the named plaintiff are typical thruought the class
• superiority - the class action is a superior method then individual's pursuing their own lawsuit
• adequacy - the representation thruought the class will be fair and adequate.
Numerosity and commonality concern the entire class, while typicality and adequacy concern the nexus of the named class representatives with the class itself. Superiority and adequacy concern the selected forum.
COMMENTARY
We should have no problem certifiying a class. This is classic class action material.
More later.
~AJ.
05-14-2005, 06:59 AM
#2
Originally Posted by bstfugtfomrfn
Allright guys, here is the deal:
I offered to do a little commentary/status thread on the Classs Action Lawsuit involving the 03 and 04 350z concerning irregular and premature tireware.
As for me, Im a civil litigator out of Florida, and am admitted to practise in the Federal Courts as well. I've had experience with Class action lawsuits in the past and am pretty familiar with them. Concerning civil procedure, I'm somewhat of an expert.
I know I'm not the only attorney on the boards, and I invite the others to chime in, or provide any light on the topic that may be appropriate.
OK, lets get to it.
So far, the law firm of Friedemann, O'Brien, Goldberg and Zarian, LLP., filed a compaint in the Superior Court of California as of October 1, 2004. It is a 3 count complaint and can be viewed here: http://www.sheller.com/Library/NissanDoty%20Compl.pdf
Now, with a Class action lawsuit, before Nissan has to reply to the Complaint (be it with an answer or some type of motion to dismiss), the Plaintiffs (us) have to Certify the class. That is, they have to show that this proposed class of plaintiffs (owners of the 2003-04 Z), are similarly situated so as to properly be a Class, for a Class Action Lawsuit.
To certify a class you have to basically show:
• numerosity - the plainitiffs are numerous
• commonality - the plaintiffs claim arrises from common facts
• predominance - the common facts must predominate over individual plaintiffs facts
• typicality - the claims or defenses of the named plaintiff are typical thruought the class
• superiority - the class action is a superior method then individual's pursuing their own lawsuit
• adequacy - the representation thruought the class will be fair and adequate.
Numerosity and commonality concern the entire class, while typicality and adequacy concern the nexus of the named class representatives with the class itself. Superiority and adequacy concern the selected forum.
COMMENTARY
We should have no problem certifiying a class. This is classic class action material.
More later.
~AJ.
I offered to do a little commentary/status thread on the Classs Action Lawsuit involving the 03 and 04 350z concerning irregular and premature tireware.
As for me, Im a civil litigator out of Florida, and am admitted to practise in the Federal Courts as well. I've had experience with Class action lawsuits in the past and am pretty familiar with them. Concerning civil procedure, I'm somewhat of an expert.
I know I'm not the only attorney on the boards, and I invite the others to chime in, or provide any light on the topic that may be appropriate.
OK, lets get to it.
So far, the law firm of Friedemann, O'Brien, Goldberg and Zarian, LLP., filed a compaint in the Superior Court of California as of October 1, 2004. It is a 3 count complaint and can be viewed here: http://www.sheller.com/Library/NissanDoty%20Compl.pdf
Now, with a Class action lawsuit, before Nissan has to reply to the Complaint (be it with an answer or some type of motion to dismiss), the Plaintiffs (us) have to Certify the class. That is, they have to show that this proposed class of plaintiffs (owners of the 2003-04 Z), are similarly situated so as to properly be a Class, for a Class Action Lawsuit.
To certify a class you have to basically show:
• numerosity - the plainitiffs are numerous
• commonality - the plaintiffs claim arrises from common facts
• predominance - the common facts must predominate over individual plaintiffs facts
• typicality - the claims or defenses of the named plaintiff are typical thruought the class
• superiority - the class action is a superior method then individual's pursuing their own lawsuit
• adequacy - the representation thruought the class will be fair and adequate.
Numerosity and commonality concern the entire class, while typicality and adequacy concern the nexus of the named class representatives with the class itself. Superiority and adequacy concern the selected forum.
COMMENTARY
We should have no problem certifiying a class. This is classic class action material.
More later.
~AJ.
05-14-2005, 07:38 AM
#3
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I think you will miss these 2 components.
• predominance - the common facts must predominate over individual plaintiffs facts
• typicality - the claims or defenses of the named plaintiff are typical thruought the class
As I metmore 03 and 04's owners that dont have the problems than do.
As such both typicality and predominance are not met.
Fred..
PS: I rather have Nissan have money to spend on addressing the problem ( improving dealers alignments skills etc) than having to spend the money that could go towards fixing it, on a lawsuit that goes into the pockets of attorneys.
• predominance - the common facts must predominate over individual plaintiffs facts
• typicality - the claims or defenses of the named plaintiff are typical thruought the class
As I metmore 03 and 04's owners that dont have the problems than do.
As such both typicality and predominance are not met.
Fred..
PS: I rather have Nissan have money to spend on addressing the problem ( improving dealers alignments skills etc) than having to spend the money that could go towards fixing it, on a lawsuit that goes into the pockets of attorneys.
Last edited by palmerwmd; 05-14-2005 at 07:41 AM.
05-14-2005, 07:41 AM
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I don't think he is handling this lawsuit, only commentating... breaking it down so us non-attorney types can understand it better...
Besides, it is about time they did something about this issue (tirefeathering).. I for one feel ripped off that I am paying for a car that has an uncorrectable problem. Don't get me wrong, I love the car, but I would love it more if it didn't have a terminal flaw in it's design that is going to cost me down the road!
Besides, it is about time they did something about this issue (tirefeathering).. I for one feel ripped off that I am paying for a car that has an uncorrectable problem. Don't get me wrong, I love the car, but I would love it more if it didn't have a terminal flaw in it's design that is going to cost me down the road!
05-14-2005, 07:52 AM
#5
Regarding predominance, common facts do predominate over individual plaintiff facts - they all claim uneven tire wear and road noise due to a defective suspension. Regarding typicality, the claims or defenses are typical throughout the class - a claim of products liability, breach of warranty etc.
I agree with AJ, there should be no problem certifying the class. Zach, from what I see, AJ just misspoke when he said "WE should have no problem certifying a class." He isn't representing anyone, he's just offering legal commentary for the benefit of forum members. However, I agree that a class action is bad for the majority of Z owners but, if the claim in fact has merit, I'm willing to forego the loss of value of my Z if it means someone with a defective Z gets his car fixed. I'm just glad I'm not someone afflicted with something that is recognized as a known and numerous problem.
I agree with AJ, there should be no problem certifying the class. Zach, from what I see, AJ just misspoke when he said "WE should have no problem certifying a class." He isn't representing anyone, he's just offering legal commentary for the benefit of forum members. However, I agree that a class action is bad for the majority of Z owners but, if the claim in fact has merit, I'm willing to forego the loss of value of my Z if it means someone with a defective Z gets his car fixed. I'm just glad I'm not someone afflicted with something that is recognized as a known and numerous problem.
05-14-2005, 08:04 AM
#6
Registered User
Its not the loss of value I am worried about but the moeny Nissans gonna have to spend to defend which will come form its income, ie the prices we pay for purchase and services
05-14-2005, 08:27 AM
#7
Actually, Nissan has been having record years. The cost of defense isn't that significant by comparison. Frankly I'm just surprised they've turned a blind eye to the problem. Their TSB solution just wasn't adequate. This should never have even gotten to class action suit status. But, some bean counter sat down, figured out the expense relative to suspension replacement etc. and put down those numbers next to a few tire replacements and wheel alignments in some report that someone in upper management looked at and decided to go cheapo. In my opinion, that was a bad call on Nissan's part where they usually are excellent and stand up with service.
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05-14-2005, 09:12 AM
#8
Originally Posted by KManZ
I don't think he is handling this lawsuit, only commentating... breaking it down so us non-attorney types can understand it better...
Besides, it is about time they did something about this issue (tirefeathering).. I for one feel ripped off that I am paying for a car that has an uncorrectable problem. Don't get me wrong, I love the car, but I would love it more if it didn't have a terminal flaw in it's design that is going to cost me down the road!
Besides, it is about time they did something about this issue (tirefeathering).. I for one feel ripped off that I am paying for a car that has an uncorrectable problem. Don't get me wrong, I love the car, but I would love it more if it didn't have a terminal flaw in it's design that is going to cost me down the road!
05-14-2005, 12:38 PM
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How can I join the class action suit. I have a Roadster 2004 with the same problems as the 2003. Nissan wont even offer the repairs offer to the 2002 customers. Their official line is that the problem was changed for the 2004 model. My tires wore on the inside by ~10,000 miles and the dealer is recommending I change them for my own safety but at my cost.
05-14-2005, 02:40 PM
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Heh, my bad; let me clarify:
1. Im not handling this case, (in no way shape or form)... I just own an 03 and am interested in the result... I was going to follow this case to see what happens and figured some other 03-04 owners might like to be updated.
2. If there is an award, and if attorneys fees are granted, class action lawsuits fees are admittedly signficant. Typically fees are goverend by the American Bar Association Model Rules on Professional Responsibility. Most state have adopted the ABA rules. lol, California has not. Here are their rules regarding fees.
Professional Rules
(A) A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.
(B) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the conscionability of a fee are the following:
(1) The amount of the fee in proportion to the value of the services performed.
(2) The relative sophistication of the member and the client.
(3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
(5) The amount involved and the results obtained.
(6) The time limitations imposed by the client or by the circumstances.
(7) The nature and length of the professional relationship with the client.
(8) The experience, reputation, and ability of the member or members performing the services.
(9) Whether the fee is fixed or contingent.
(10) The time and labor required.
(11) The informed consent of the client to the fee.
California Statutes
§1021. Attorney’s Fees—Determined by Agreement
Except as attorney's fees are specifically provided for by
statute, the measure and mo de of com pensation o f attorneys
and counselors at law is left to the agreement, express or
implied, of the parties; but parties to actions or proceedings are
entitled to their costs, as hereinafter provided. (Enacted 1872.
Amended by Stats.1 933, ch. 7 44; Stats.19 86, ch. 37 7.)
http://www.calbar.ca.gov/state/calba....jsp?cid=10158
To be very frank, that is some sketchy stuff. The ABA rules provide precise percentages for fees. They curb them as they go up. California's rules are a little ambigous to say the least. Any Cali attorneys out there that can point to something I must be missing???
3. Im going to be as objective as I can. I am aware of the stigma against attorneys, and to some extent, I agree with them. Im relitively young, and would like to hope i havent been completely "tainted" by the system yet. With that said, a lot of the negatiove notions about attorneys are incorrect. Bottom line, Im not going to sugar coat sh;t, and I'll be the first to fess up if something doesnt smell right....(like this fees thing)
I'd like to think the case was brought in California for a reason besides their fee system.
4. You can email your information to http://www.sheller.com/Practice.asp?PracticeID=145 if you are interested in becoming a member of the class.
~AJ
1. Im not handling this case, (in no way shape or form)... I just own an 03 and am interested in the result... I was going to follow this case to see what happens and figured some other 03-04 owners might like to be updated.
2. If there is an award, and if attorneys fees are granted, class action lawsuits fees are admittedly signficant. Typically fees are goverend by the American Bar Association Model Rules on Professional Responsibility. Most state have adopted the ABA rules. lol, California has not. Here are their rules regarding fees.
Professional Rules
(A) A member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.
(B) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the conscionability of a fee are the following:
(1) The amount of the fee in proportion to the value of the services performed.
(2) The relative sophistication of the member and the client.
(3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
(5) The amount involved and the results obtained.
(6) The time limitations imposed by the client or by the circumstances.
(7) The nature and length of the professional relationship with the client.
(8) The experience, reputation, and ability of the member or members performing the services.
(9) Whether the fee is fixed or contingent.
(10) The time and labor required.
(11) The informed consent of the client to the fee.
California Statutes
§1021. Attorney’s Fees—Determined by Agreement
Except as attorney's fees are specifically provided for by
statute, the measure and mo de of com pensation o f attorneys
and counselors at law is left to the agreement, express or
implied, of the parties; but parties to actions or proceedings are
entitled to their costs, as hereinafter provided. (Enacted 1872.
Amended by Stats.1 933, ch. 7 44; Stats.19 86, ch. 37 7.)
http://www.calbar.ca.gov/state/calba....jsp?cid=10158
To be very frank, that is some sketchy stuff. The ABA rules provide precise percentages for fees. They curb them as they go up. California's rules are a little ambigous to say the least. Any Cali attorneys out there that can point to something I must be missing???
3. Im going to be as objective as I can. I am aware of the stigma against attorneys, and to some extent, I agree with them. Im relitively young, and would like to hope i havent been completely "tainted" by the system yet. With that said, a lot of the negatiove notions about attorneys are incorrect. Bottom line, Im not going to sugar coat sh;t, and I'll be the first to fess up if something doesnt smell right....(like this fees thing)
I'd like to think the case was brought in California for a reason besides their fee system.
4. You can email your information to http://www.sheller.com/Practice.asp?PracticeID=145 if you are interested in becoming a member of the class.
~AJ
Last edited by bstfugtfomrfn; 05-14-2005 at 02:42 PM.
05-14-2005, 05:08 PM
#13
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Originally Posted by rosorio
2004 My tires wore on the inside by ~10,000 miles and the dealer is recommending I change them for my own safety but at my cost.
Besides and aggressivley driven car in a hot climate will wear much quicker, I'd say 10,000 miles is about proper longevity in your circumstance.
Fred..
05-14-2005, 06:11 PM
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Originally Posted by zachcrosen
If you are having these problems with the 03s, why not just use your positive equity and trade it in on a new 04 or 05? That way, its out of your hands and your over the issues.
trading or selling the car is a quick fix, i agree, but who in the right mind would want to take such a loss in money. show me a way that this method would not lose me any money and i'm sure many of the owners might not even take that route. i hate the probelms with the car but i would still rather keep this car because it is a overall nice car that has some quirks that nissan should address. any reputable manufacturer in any industry must stand by their product.
05-14-2005, 06:25 PM
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I for one am more interested in compensation for the parts I have purchased to help fix the problem, my time and frustration, and the tires I have had to replace a few times over. If Nissan would provide a fix, I would also be happy as I may not have taken care of it just yet. I could care less about the value of the car as I do not ever plan on selling it, rather adding it to a collection that will continue to grow 
05-14-2005, 08:01 PM
#18
a few random thoughts:
thanks for your input; i'm especially glad you own a z; you have a vested interest in seeing this come out well for us.
whatever happened to the c.a.l. that was filed in tx, iirc, probably last august? i added z's problem to their list but heard nothing thereafter.
was it ford whose accountants determined it would be cheaper to pay for individual deaths caused by their defective parts than to order a recall?
nissan had their chance. sue the fzukers.
thanks for your input; i'm especially glad you own a z; you have a vested interest in seeing this come out well for us.
whatever happened to the c.a.l. that was filed in tx, iirc, probably last august? i added z's problem to their list but heard nothing thereafter.
was it ford whose accountants determined it would be cheaper to pay for individual deaths caused by their defective parts than to order a recall?
nissan had their chance. sue the fzukers.
05-14-2005, 10:45 PM
#19
I think this is great. Pardon me for been naive, but it is "the right thing to do". Regardless of how much money some lawyers make or whatever, Nissan has had a chance to do something about it for a LOOOOOONG time and they have refused. I don't want compensation, I would want the problem fixed. IF there is a fix for late 04s and 05s, then give it to us. If something is "fixed" now, it means it was "broken" before, no? SO why not fix it for us?? WHat, at the end of 04 suddenly they learned how to align cars?? Please.
I even sugested a million threads ago that, if the Nismo suspension fixes the problem, then offer it to me at 1/2 price! I would have paid 1/2 for the Nismo susp if I knew it would solve the feathering as well!
And the constant fight with dealers to get anything, even the stupid TSB done? Why do we have to go through this aggravation???
Even now I think they could derail this if they wanted to. Too bad for the car's reputation, and Nissans.
I even sugested a million threads ago that, if the Nismo suspension fixes the problem, then offer it to me at 1/2 price! I would have paid 1/2 for the Nismo susp if I knew it would solve the feathering as well!
And the constant fight with dealers to get anything, even the stupid TSB done? Why do we have to go through this aggravation???
Even now I think they could derail this if they wanted to. Too bad for the car's reputation, and Nissans.
05-15-2005, 07:36 AM
#20
Registered User
A quick question. as a former owner that sold his car as a result of having the problem, and lemon lawing the car, am i able to be included in this lawsuit? the problem was documented as occuring 4 times and was only recently disposed of.