Batista v. NISSAN NORTH AMERICA INC

Filing 191

Order and Judgment Granting Final Approval of Class Action Settlementand Attorneys' Fees and Expenses 178 Motion for Settlement. Signed by Judge Robert N. Scola, Jr on 6/28/2017. (lan)

United States District Court
for the
Southern District of Florida
Kenai Batista, and others,
individually and on behalf of those
similarly situated, Plaintiffs
v.
Nissan North America, Inc.,
Defendant

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Civil Action No. 14-24728-Civ-Scola
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Order and Judgment Granting Final Approval of Class Action Settlement
and Attorneys' Fees and Expenses
Having considered the Plaintiffs’ motion for final approval of the class
action settlement between the Plaintiffs Kenai Batista, Andy Chance, Angela
Matlin, Tung Nguyen and Gerardo Torres (“Plaintiffs”) and Defendant Nissan
North America, Inc. (“NNA”); having considered the unopposed motion for final
approval of class action settlement and memorandum of law (ECF No. 178);
having considered that, by order dated March 1, 2017, this Court granted
preliminary approval of the proposed class action settlement in this case and
certified a Settlement Class; and having held a Fairness Hearing on June 21,
2017 at 8:30 AM, and having considered all of the submissions, objections, and
arguments with respect to the unopposed motion for final approval of class
action settlement and memorandum of law (ECF No. 178):
The Court finds as follows:
1.
The Court confirms its previous preliminary findings in the
preliminary approval order, and finds that the settlement of the lawsuit
satisfies the applicable prerequisites for class action treatment under Fed. R.
Civ. P. 23(a) and 23(b)(3). The Settlement Class, as defined in Paragraph 31 of
the Amended Settlement Agreement (“Settlement” or “Settlement Agreement”)
and also defined below, is so numerous that joinder of all members is not
practicable, questions of law and fact are common to the Settlement Class, the
claims of the Plaintiffs are typical of the claims of the Settlement class, the
Plaintiffs will fairly and adequately protect the interests of the Settlement
Class, and questions of law and fact common to the members of the Settlement
Class predominate, for settlement purposes, over any questions affecting only
individual members;

2.
Notice to the Settlement Class as required by Rule 23(e) of the
Federal Rules of Civil Procedure has been provided in accordance with the
Court’s second amended preliminary approval order of class action settlement,
and such Notice by first-class mail was given in an adequate and sufficient
manner, constitutes the best notice practicable under the circumstances, and
satisfies all requirements of Rule 23(e) and due process.
3.
In accordance with the requirements of the Class Action Fairness
Act of 2005, 28 U.S.C. § 1715, the Settlement Administrator caused to be
mailed a copy of the proposed class action settlement and all other documents
required by law to the Attorney General of the United States and the Attorneys
General in each of the jurisdictions where class members reside. None of the
Attorneys General filed objections to the Settlement.
4.
The Court has considered all relevant factors for determining the
fairness of the settlement and has concluded that all such factors weigh in
favor of granting final approval. The Settlement was a result of arm’s-length
negotiation by experienced counsel with an understanding of the strengths and
weaknesses of their respective cases. Among the factors that they considered
are those set forth in the unopposed motion for final approval of class action
settlement and memorandum of law. The Parties have agreed to the Settlement
without any admission of wrongdoing and to avoid further expenses,
uncertainty, inconvenience, and interference with their ongoing business. As
part of the lawsuits, the Plaintiffs’ counsel has conducted a detailed
investigation of the facts and analyzed the relevant legal issues. Although the
Plaintiffs and the Plaintiffs’ counsel believe that the claims asserted in the
complaint have merit, they also have examined the benefits to be obtained
under the Settlement compared to the costs, risks, and delays associated with
the continued litigation of these claims;
5.
The Court finds that the Settlement is fair, reasonable, and
adequate in light of the complexity, expense, and duration of litigation and the
risks involved in establishing liability, damages, and in maintaining the class
action through trial and appeal;
6.
The benefits to the Settlement Class constitute fair value given in
exchange for the release of the claims of the Settlement Class. The Court finds
that the consideration to be provided under the Settlement is reasonable
considering the facts and circumstances of this case, the types of claims and
defenses asserted in the lawsuit, and the risks associated with the continued
litigation of these claims;

7.
The Parties and Settlement Class Members have irrevocably
submitted to the exclusive jurisdiction of this Court for any suit, action,
proceeding or dispute arising out of Settlement; and
8.
It is in the best interest of the Parties and the Settlement Class
Members and consistent with principals of judicial economy that any dispute
between any Settlement Class Member (including any dispute as to whether
any person is a Settlement Class Member) and any Released Party which in any
way relates to the applicability or scope of the Settlement, or this Final
Judgment and Order of Dismissal should be presented exclusively to this Court
for resolution by this Court.
It is therefore ordered, adjudged and decreed that:
9.
The Court certifies a Settlement Class, for settlement purposes
only, consisting of the following: All current and former owners and lessees of
2013-2014 model year Nissan Pathfinder and 2013-2014 model year Infiniti
JX35/QX60 vehicles equipped with the FK-*k2 CVT in the United States and
its territories, including Puerto Rico. Excluded from the Settlement Class are:
(1) NNA, any entity or division in which NNA has a controlling interest, its/their
legal representatives, officers, directors, assigns and successors; (2) any judge
to whom this case is assigned and the judge’s clerks and any member of the
judge’s immediate family; (3) fleet and government purchasers and lessees; and
(4) those persons or entities that validly and timely elected exclusion from the
Settlement Class. Any objector that timely filed an objection to the Settlement
Agreement may choose to opt out of the Settlement on or before July 12,
2017, by following the same opt out procedure delineated in the Notice to the
Settlement Class.
10. The Settlement submitted by the Parties is finally approved
pursuant to Fed. R. Civ. P. 23(e) as fair, reasonable, adequate, and in the best
interests of the Settlement Class. The Parties are directed to perform all
obligations under the Settlement in accordance with its terms. The Parties and
each person within the definition of the Settlement Class are hereby bound by
the terms and conditions of the Settlement, except for those who have duly
excluded themselves.
11. The Lawsuit is hereby dismissed with prejudice and without costs.
This Judgment has been entered without any admission by any Party as to the
merits of any allegation by any Party in the Lawsuit and shall not constitute a
finding of either fact or law as to the merits of any claim or defense asserted in
the Lawsuit;
12. The Released Claims as defined in the Settlement are hereby finally
compromised, settled, released, discharged, and dismissed with prejudice

against the Released Parties by virtue of the proceedings herein and this Final
Judgment and Order of Dismissal.
13. All Class Members were given a full and fair opportunity to
participate in the Final Approval Hearing, and all members of the Settlement
Class wishing to be heard have been heard. Settlement Class Members also
have had a full and fair opportunity to exclude themselves from the proposed
settlement and the class. Accordingly, the terms of the Settlement Agreement
and of the Court's Order and Judgment shall be forever binding on all
Settlement Class Members who did not timely opt out of the Settlement. These
Settlement Class Members have released and forever discharged the NNA and
all Related Parties for any and all Released Claims.
14. Members of the Settlement Class and their successors and assigns
are hereby permanently barred and enjoined from asserting, commencing,
prosecuting or continuing to prosecute, either directly or indirectly, any
Released Claim against any of the Released Parties in any forum, with the
exception of any Settlement Class Members who have duly excluded
themselves.
15. The named Plaintiffs are suitable class representatives and are
hereby appointed representatives for the Settlement Class. The Court approves
an award of $5,000 to each of Plaintiffs Kenai Batista, Andy Chance, Angela
Matlin, Tung Nguyen and Gerardo Torres as a reasonable payment for his or
her efforts, expenses and risks as Plaintiffs in bringing the lawsuit, which shall
be paid by NNA as provided in the Settlement.
16. Based upon the evidence submitted, the Court finds that the
attorneys of Cory Watson, P.C., Weil Quaranta, P.A., Newsome Melton, LLP,
Berger & Montague, P.C., and Capstone Law APC have the requite knowledge,
experience, and skills to advance the interests of the Settlement Class. The
Court hereby appoints all five law firms as counsel for the Settlement Class.
The Court approves an award of $3,750,000 to the Plaintiffs’ counsel as
reasonable payment for Attorneys’ Fees and Expenses, which shall be paid by
NNA as provided in the Settlement.
17. Without affecting the finality of this judgment, the Court’s retained
jurisdiction of this Settlement also includes the administration and
consummation of the Settlement. In addition, without affecting the finality of
this judgment, the Court retains exclusive jurisdiction of, and the Parties and
all Settlement Class Members are hereby deemed to have submitted irrevocably
to the exclusive jurisdiction of this Court for, any suit, action, proceeding or
dispute arising out of or relating to this Order and the Settlement Agreement,
or the applicability of the Settlement Agreement. Without limiting the generality

of the foregoing, any dispute concerning the Settlement Agreement, including,
but not limited to, any suit, action, arbitration or other proceeding by a
Settlement Class Member in which the provisions of the Settlement Agreement
are asserted as a defense in whole or in part to any claim or cause of action or
otherwise raised as an objection, shall constitute a suit, action or proceeding
arising out of or relating to this Order. Solely for purposes of such suit, action
or proceeding, to the fullest extent possible under applicable law, the Parties
hereto and all persons within the definition of the Settlement Class are hereby
deemed to have irrevocably waived and agreed not to assert, by way of motion,
as a defense or otherwise, any claim or objection that they are not subject to
the jurisdiction of this Court, or that this Court is, in any way, an improper
venue or an inconvenient forum.
18. All Objections filed are hereby overruled and denied.
19. The Court finds that no just reason exists for delay in entering this
Final Judgment and Order of Dismissal. Accordingly, the Clerk is hereby
directed to enter final judgment.
20. The Court directs the Clerk to close this case. All pending motions,
if any, are denied as moot.
Done and ordered in chambers, at Miami, Florida, on June 28, 2017.

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Robert N. Scola, Jr.
United States District Judge